William H. BENZEL, Plaintiff-Appellant, v. VALLEY NATIONAL BANK OF ARIZONA, Defendant-Appellee

William H. Benzel appeals from an order of the District Court granting summary judgment and dismissal of his age discrimination complaint against Valley National Bank of Arizona (VNB). Appellant urges that the District Court erred in granting summary judgment as to allegations of pre-termination discrimination and in holding that § 4(f)(2) of the Age Discrimination in Employment Act [ 29 U.S.C. § 623 (f)(2)] exempted his involuntary retirement from the protections of the Act.

We conclude from the record on appeal that the District Court was in error in dismissing the complaint as to the allegations of pre-termination discrimination. Summary judgment is appropriate only where it is demonstrated on the face of the pleadings, affidavits or discovery materials in the record that there are no genuine issues of fact, U. S. v. Dibble, 429 F.2d 598 (9 Cir. 1970). There is nothing in the record which controverts the factual allegations of the complaint as to pre-termination age discrimination. Summary judgment was, therefore, erroneous as to those allegations.

Appellant was employed at VNB from November 16, 1959, until his retirement at age 61 on April 29, 1977. Mr. Benzel was between…