Appeal from the United States District Court for the Eastern District of Oklahoma (No. CV-05-476-S).
The opinion of the court was delivered by: Holmes, Circuit Judge.
Before O'BRIEN, McKAY, and HOLMES, Circuit Judges.
Britton Lynn Kannady*fn1 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,*fn2 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.
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.*fn3 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]."*fn4 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.*fn5 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 (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 ...