Kannady v. City of Kiowa, No. 07-7002 (10th Cir. Jan. 6, 2010)

| Jan 7, 2010 | Daily Developments in EEO Law |

Plaintiffs’ lawyers: do you know those clients who tell you that they took secret tape-recordings where the defendants admitted their age (or race or sex) bias? Here’s a case where the plaintiff’s recordings came back to bite him!

Kannady v. City of Kiowa, No. 07-7002 (10th Cir. Jan. 6, 2010):  The employee in this case was former police officer, then over age 45 (since deceased), looking to be re-employed in his profession.  He ran up against an Oklahoma state-law roadblock, though, that stopped him in his tracks. 

Since 1977, the state has offered a retirement plan (the Oklahoma Police Pension and Retirement System, or OPPRS) to municipalities. Localities opting-in to OPPRS commit, among other things, not to hire officers over the age of 45.  Although such age limitations are generally barred by the ADEA, by a fluke of history (revisited at length in the panel opinion), Congress grandfatherd in age-based limits for public-safety officers that were in effect on or before March 3, 1983 (29 U.S.C. § 623(j)).  The 1977 OPPRS legislation falls into that exclusion.  While the city that refused to hire the plaintiff had not previously been a member of OPPRS, it joined the system in October 2004, and became subject to its limitations.

The district court that granted summary judgment, and the panel affirming it, concluded that the case came down primarily to this question:  whether the hiring decision at hand was made before, on or after October 2004?  A decision made after October 2004 was protected by 29 U.S.C. § 623(j).  (There is a “subterfuge” exception to section 623(j), but the panel holds that it does not apply here.)  A decision before that time, before the city was enrolled in OPPRS, was not protected.  The plaintiff insisted that the hiring denial dated to before October 2004, and was not insulated by section 623(j).

This is where the secret recording comes in.  “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.”  Plaintiff seemed to think that this was the silver bullet, a virtual admission of age discrimination.  But the panel, focusing on another part of the recording, sees it differently:

“We conclude that the district court did not err in concluding that the recorded conversations occurred after October 2004 and there was no genuine factual dispute about this, because the conversations are self-dating. During one conversation, Mr. Kannady and Chief Cook make statements that demonstrate that the conversation took place on December 30, 2004. Mr. Kannady asks: ‘What’s tomorrow night-is tonight New Year-tomorrow night’s New Year’s Eve.’
Aplt. App. at 116. Chief Cook responds: ‘Yeah.’ Id. During the other conversation, Mr. Kannady indicates that this conversation occurred in February 2005. In discussing his plans to take a firearms training course, Mr. Kannady says: ‘I’m going to go next month, I think, end of next month or first of April. I’m not sure when-when it is now, but I’m set up to go.’ Id. at 105. Because Mr. Kannady did not start looking for a job with Krebs until July 2004 at the earliest, these statements clearly demonstrate that the recorded conversations occurred after October 2004.”

The result was that the very same evidence that the plaintiff felt proved age animus also proved — decisively, according to the panel — that the city was immune from liability, essentially on timing grounds.  In hindsight, the late Mr. Kannady might have been better off with 18 and a 1/2 minutes of silence on his tape.

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