Kannady v. City of Kiowa

• Decision Date: 06 January 2010
• Docket Number: No. 07-7002.,07-7002.
• Citation: 590 F.3d 1161
• Parties: Chris KANNADY, personal representative of the estate of Britton Lynn Kannady, Plaintiff-Appellant, v. CITY OF KIOWA, an Oklahoma municipal corporation; Jimmie W. Brown, in his official and individual capacities; Danny L. Drake, in his official and individual capacities; Sherry G. Stone, in her official and individual capacities; James V. Ryan, in his official and individual capacities; Freddie Adams, in his official and individual capacities; City of Krebs, an Oklahoma municipal corporation, Defendants-Appellees, and City of McAlester, an Oklahoma municipal corporation, Defendant. State of Oklahoma, ex rel. W.A. Drew Edmondson, Attorney General, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

590 F.3d 1161

Chris KANNADY, personal representative of the estate of Britton Lynn Kannady, Plaintiff-Appellant, v. CITY OF KIOWA, an Oklahoma municipal corporation; Jimmie W. Brown, in his official and individual capacities; Danny L. Drake, in his official and individual capacities; Sherry G. Stone, in her official and individual capacities; James V. Ryan, in his official and individual capacities; Freddie

Adams, in his official and individual capacities; City of Krebs, an Oklahoma municipal corporation, Defendants-Appellees, and

City of McAlester, an Oklahoma municipal corporation, Defendant.

State of Oklahoma, ex rel. W.A. Drew Edmondson, Attorney General, Intervenor.

No. 07-7002.

United States Court of Appeals, Tenth Circuit.

January 6, 2010.

Edward L. White (M. Blake Yaffe, D. Eliot Yaffe, and S. Alex Yaffe with him on the briefs), of Foshee & Yaffe, Oklahoma City, OK, for Plaintiff-Appellant.

Andrew M. Low of Davis Graham & Stubbs LLP, Denver, CO, (Victoria V. Johnson and Shannon Wells Stevenson of Davis Graham & Stubbs LLP, Denver, CO, and Charles D. Neal Jr. and Eric D. Janzen of Steidley & Neil, P.L.L.C., McAlester, OK, with him on the brief), for Defendant-Appellee City of Krebs.

Warren Gotcher of Gotcher & Belote, McAlester, OK, filed a brief for Defendants-Appellees City of Kiowa, Jimmie W. Brown, Danny L. Drake, Sherry G. Stone, James V. Ryan, and Freddie Adams.

Andrew M. Low, Victoria V. Johnson, and Shannon Wells Stevenson of Davis Graham & Stubbs LLP, Denver, CO, and Kindanne Jones, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, for Intervenor State of Oklahoma.

Before O'BRIEN, McKAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Britton Lynn Kannady¹ sought employment as a police officer in the Cities of Krebs and McAlester after he left his job as an officer for the City of Kiowa. Both Krebs and McAlester refused to hire Mr. Kannady because of the statutory age limits governing the Oklahoma Police Pension and Retirement System (OPPRS). Mr. Kannady sued Krebs and McAlester, alleging violations of the Age Discrimination in Employment Act (ADEA). The district court entered summary judgment against Mr. Kannady on his ADEA claim. Mr. Kannady appeals from the district court's adverse judgment on his claim against Krebs,² arguing that the district court erred in applying the summary judgment standards and in concluding that the OPPRS was not a subterfuge to evade the purposes of the ADEA. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND

The OPPRS is the state pension and retirement system for Oklahoma police officers. See Okla. Stat. tit. 11, § 50-102.1; Steelman v. Okla. Police Pension & Ret. Sys., 128 P.3d 1090, 1094 (Okla.Civ.App. 2005). The Oklahoma legislature established the system in 1977. See Oklahoma Municipal Code, ch. 256, art. L, 1977 Okla. Sess. Laws 695, 901 (codified as amended at Okla. Stat. tit. 11, § 50-101, et seq.). Municipalities that choose to participate in the OPPRS are subject to certain member participation and age requirements. See, e.g., Okla. Stat. tit. 11, § 50-101(9) (defining a "participating municipality" as a municipality that is making contributions to the OPPRS on behalf of its officers). Notably, from its enactment, the OPPRS has had a maximum-age ceiling for full-time police officers seeking to join the system and that age ceiling has not exceeded forty-five.³ In other words, by its terms, the OPPRS has continuously barred full-time law enforcement officers who are over forty-five years of age from entering the system. Specifically, during the time frame of the parties' conduct, the statute provided that all full-time police officers "shall participate in [the OPPRS] upon initial employment with a police department of a participating municipality ... [A] a police officer shall be not less than twenty-one (21) nor more than forty-five (45) years of age when accepted for membership in [the OPPRS]." Id. § 50-112(A). However, the law provided several exceptions to these age requirements. For example, "a municipality that employs two (2) or fewer full-time police officers may employ a police officer who is more than forty-five (45) years of age and who has never participated in the [OPPRS], but such police officer shall not be eligible to participate in the [OPPRS]."⁴ Id. § 50-112(E).

It is undisputed that at all material times Mr. Kannady was older than forty-five. In June of 2004, Mr. Kannady left his position as a police officer with the City of Kiowa. Because Kiowa did not participate in the OPPRS, Mr. Kannady had never been a member of the OPPRS. Mr. Kannady soon thereafter sought employment with other law enforcement agencies including those in McAlester and Krebs. McAlester has been a participating municipality in the OPPRS since 1981, and Krebs had been an active, participating municipality since at least October 2004.⁵ Both cities refused to hire Mr. Kannady as a police officer, claiming that they could not hire him because he was over the age of forty-five and had never been a participating member in the OPPRS. During his job search, Mr. Kannady secretly recorded two conversations he had with Dennis Cook, the Police Chief of Krebs, in which Chief Cook told Mr. Kannady that Mr. Kannady was too old to be hired as a police officer.

After exhausting his administrative remedies with the Equal Employment Opportunity Commission (EEOC), Mr. Kannady filed suit in federal court, asserting violations of the ADEA against Krebs and McAlester and making various state-law claims against Krebs, McAlester, and Kiowa. Following discovery, Mr. Kannady filed a motion for partial summary judgment against Krebs and McAlester on the ADEA claims, and the cities filed cross-motions for summary judgment. The parties disputed the applicability of the law enforcement exception to the ADEA contained in 29 U.S.C. § 623(j). While the ADEA "broadly prohibits arbitrary discrimination in the workplace based on age," Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), Congress has carved out an exception for law enforcement personnel. In pertinent part, the exception provides:

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a State [or] a political subdivision of a State ... to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken—

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, ... and the individual has attained—

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; [and]

. . .

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

29 U.S.C. § 623(j).

In sum, as relevant here, § 623(j) provides that it shall not be unlawful for a local government to refuse to hire a person for a law enforcement position on the basis of age, if that person is over the maximum age of hire that the local government had in effect for that position as of March 3, 1983, and the refusal to hire was pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the ADEA's purposes. See Kopec, 193 F.3d at 897-99; see also 1 Howard C. Eglit, Age Discrimination § 5:4 (2d ed.2008) (noting that the "exception permits states and their political subdivisions, under certain circumstances, to engage in age discrimination with respect to hiring and firing of firefighters or law enforcement officers, so long as such refusal to hire ... is done pursuant to a bona fide hiring or retirement plan that is not subterfuge to evade the purposes of the Act").

The date referenced in § 623(j)(1)(A)— March 3, 1983—is the day after the Supreme Court issued EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), which held that the ADEA's provisions could be constitutionally applied to states and local governments with regard to their employment decisions involving law enforcement officers. Id. at 243, 103 S.Ct. 1054 ("The extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress's powers under the Commerce Clause."). "Essentially," the § 623(j) exception "permit[s] state and local governments which, as of March 3, 1983 ..., had in place age restrictions for firefighters and law enforcement officers, to continue to apply those restrictions." Kopec, 193 F.3d at 897; accord Feldman v. Nassau County, 434 F.3d 177, 181 (2d Cir.2006).

In his motion for summary judgment, Mr. Kannady argued that Krebs's refusal to hire him on the basis of age was not protected by the law enforcement exception. First, he claimed that Krebs denied him employment because of his age before October 2004, which is when Krebs began actively participating in the OPPRS; thus, "Krebs' discriminatory policy was independent of and pre-dated its membership in the OPPRS." Aplt.App. at 52. In other words, Mr. Kannady contended that Krebs could not assert that it was acting under the maximum-age prescriptions of the OPPRS when it denied him employment prior to October 2004, because it was not a member of the OPPRS at that time. Consequently, reasoned Mr. Kannady, Krebs could not find protection under § 623(j)(1) because it would not have been acting with reference to an "age of hiring" requirement that was "in effect under applicable State or local law on March 3, 1983." 29 U.S.C. § 623(j)(1)(A). As evidence of when he was denied employment, Mr. Kannady cited transcripts of the recorded conversations between himself and Chief Cook and described the conversations as occurring in July 2004.⁶ Second, argued Mr. Kannady, even if Krebs satisfied the requirements of § 623(j)(1), Krebs could not rely on the law enforcement exception because the OPPRS was a subterfuge to evade the purposes of...