United States Tenth Circuit

In an action under the Age Discrimination in Employment Act (ADEA) based on defendant's refusal to hire plaintiff as a police officer, summary judgment for defendant is affirmed where 1) plaintiff clearly knew that the date of the alleged discrimination would be an issue, and thus he was not unfairly surprised by the district court's sua sponte determination on that question; and 2) plaintiff failed to identify a non-hiring substantive provision of the ADEA that the Oklahoma Police Pension and Retirement System, which set the age limit under which plaintiff could not hired as a police officer, was allegedly a scheme to evade.

Appellate Information

• Decided 01/06/2010
• Published 01/06/2010

Judges

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

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• 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, 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.


• For Appellees:
  
• 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.