Kannady v. City of Kiowa

FILED
United States Court of Appeals
Tenth Circuit

January 6, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CHRIS KANNADY, personal
representative of the estate of Britton
Lynn Kannady,

Plaintiff - Appellant,

v. No. 07-7002

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.
 Appeal from the United States District Court
for the Eastern District of Oklahoma
(No. CV-05-476-S)

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

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

Warren Gotcher of Gotcher & Belote, McAlester, Oklahoma, 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, Colorado, and Kindanne Jones, Assistant
Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Intervenor
State of Oklahoma.

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

HOLMES, Circuit Judge.

Britton Lynn Kannady 1 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.

1
Following Mr. Kannady’s death in January 2007, this court granted a
motion to substitute the personal representative of Mr. Kannady’s estate, Chris
Kannady, as appellant pursuant to Fed. R. App. P. 43(a)(1).

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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,

2
Kiowa’s participation in this appeal is limited to the filing of a brief
in which it asserts that it has no stake in this appeal because Mr. Kannady only
appeals the district court’s decision with regard to Krebs.

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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.

3
At the time of its enactment, the legislation creating the OPPRS
provided for a maximum hiring age of thirty-five. See Oklahoma Municipal Code
§ 50-112, 1977 Okla. Sess. Laws at 906. That legislation was amended in 1989 to
raise the maximum hiring age to forty-five. See Act of May 12, 1989, ch. 234,
sec. 1, § 50-112(A), 1989 Okla. Sess. Laws 657, 657. In Kopec v. City of
Elmhurst, 193 F.3d 894 (7th Cir. 1999), the Seventh Circuit held that the ADEA
exception for law enforcement hiring decisions, which is discussed in detail
below, “focuses on the state of local law on March 3, 1983, not at the time the
challenged hiring decision was made.” Id. at 900. If we were to apply this
holding of Kopec here, that would mean that the operative age for assessing
whether Mr. Kannady exceeded the OPPRS maximum-age ceiling for hiring
would be thirty-five, and not forty-five. However, we need not definitively opine
concerning the correctness of the Kopec holding, because it is undisputed that Mr.
Kannady was older than the more-relaxed age ceiling in effect when he was
denied employment (i.e., he was older than forty-five). Consequently, even if Mr.
Kannady could, as a matter of law, permissibly benefit from the more-relaxed age
ceiling of the OPPRS, he could not meet it. Therefore, the more fundamental
question that we must address is whether the OPPRS is applicable here. More
specifically, we are called upon to determine—irrespective of whether thirty-five
or forty-five is the operative maximum age ceiling—whether Krebs was acting
pursuant to the OPPRS when it refused to hire Mr. Kannady because of his age,
such that it can claim the protection of the ADEA’s law enforcement exception.
For the reasons noted below, we answer that question in the affirmative.

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§ 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,

4
Indeed, the district court noted that Krebs’s decision to hire a third
officer provided the impetus for its decision to begin affirmatively participating in
the OPPRS in October 2004. Aplt. App. at 704 (“It is certainly true that the City
of Krebs did not begin participating in the OPPRS until it was required to do so,
i.e., when it hired a third full-time police officer in October, 2004.”).
5
Although the parties dispute the exact date at which Krebs became a
participating member in the OPPRS, they do agree that Krebs was a participating
member at least as of October 2004. We do not need to determine the exact date
Krebs began actively participating in the OPPRS to resolve this appeal. We are
content to accept the parties’ agreed-upon approximate date of at least October
2004 as the operative one.

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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—

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 (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 (1983), which held that

the ADEA’s provisions could be constitutionally applied to states and local

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governments with regard to their employment decisions involving law

enforcement officers. Id. at 243 (“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.

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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 the ADEA. See id. § 623(j)(2).

In Krebs’s cross-motion for summary judgment, Krebs claimed that it could

not be liable for violating the ADEA because both requirements of the law

enforcement exception had been satisfied: (a) the law establishing the OPPRS

was enacted before March 3, 1983, and (b) the OPPRS was a bona fide retirement

plan. Krebs made no claim about when it refused to hire Mr. Kannady.

In response to Krebs’s cross-motion for summary judgment, Mr. Kannady

reiterated his claims. He again asserted that Krebs denied him employment

before it became a participating municipality in the OPPRS and that the OPPRS

was a subterfuge to evade the purposes of the ADEA. Finally, in Krebs’s reply

brief, Krebs argued that it did not need to demonstrate the point in time when it

refused to employ Mr. Kannady in order to secure the protection of the law

enforcement exception. Because the law establishing the OPPRS was in existence

6
This factual assertion is at least partly at odds with the averments of
Mr. Kannady’s complaint, in which he claimed that the conversations occurred
between December 2004 and March 2005. See Aplt. App. at 68 (“From December
2004 through March 2005, Defendant Krebs through its agent Dennis Cook,
Police Chief of Krebs, represented to Plaintiff on numerous occasions that
Plaintiff was too old for any position as a police officer, whether part time or full
time.”).

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before March 3, 1983, and the law applies to all full-time officers hired in

Oklahoma by participants in the OPPRS, Krebs argued that “it is irrelevant as to

when a particular municipality begins to apply the restrictions in the already

existing state statute,” when that statute’s subject matter directly relates to the

hiring of law enforcement officers by municipalities. Aplt. App. at 397 (emphasis

added).

The district court granted Krebs’s cross-motion for summary judgment,

concluding that Krebs was protected under the law enforcement exception. First,

the court held that Krebs clearly based its refusal to hire Mr. Kannady on the law

governing the OPPRS. The court reasoned that Krebs was subject to the OPPRS

since its pre-1983 enactment, even though it was not an active participant in the

OPPRS until October 2004; therefore, Krebs could properly claim to have been

acting pursuant to the OPPRS and its hiring-age restriction when it refused to hire

Mr. Kannady. See, e.g., id. at 704 (“[T]he law requiring participation in the

OPPRS clearly applied to the City of Krebs (and to every other municipality in

the State of Oklahoma) even though it was not actually participating.”).

Second, the district court determined that—contrary to Mr. Kannady’s

assertions—the statements made by Mr. Kannady and Chief Cook during their

recorded conversations clearly demonstrated that the conversations occurred after

October 2004. “Absent any controverting evidence, e.g., an affidavit from [Mr.

Kannady] as to when the conversations occurred, it is therefore undisputed that

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[Mr. Kannady] was not refused employment based on his age prior to the City of

Krebs’ participation in the OPPRS.” Id. at 706. This conclusion presented an

additional reason why Krebs’s actions fell within the protective ambit of

§ 623(j)(1): even if active participation in the OPPRS was required on these facts

to claim the protection of § 623(j)(1), according to the district court, the evidence

established that Krebs was an active participant of the OPPRS at the time it

refused to hire Mr. Kannady. 7 Finally, the court held that the requirements of

§ 623(j)(2) were met because the OPPRS was not a subterfuge to evade the

purposes of the ADEA.

After granting summary judgment on Mr. Kannady’s ADEA claims, the

district court declined to exercise supplemental jurisdiction over Mr. Kannady’s

state-law claims against Kiowa. Mr. Kannady timely appealed the judgment as to

Krebs.

II. DISCUSSION

A. Standard of Review

7
There is no dispute among the parties that a conclusion that Krebs
refused to hire Mr. Kannady after October 2004 would put Krebs within the
protective scope of 29 U.S.C. § 623(j)(1) (i.e., any age discrimination by Krebs in
refusing to hire Mr. Kannady would not violate that ADEA section). See Aplt.
Reply Br. at 7 (“[I]f Krebs’ refusal to hire Mr. Kannady, on the basis of his age,
occurred after October 1, 2004, then Krebs is protected by the law enforcement
exception to the ADEA, provided the OPPRS complies with the remaining
provisions of the ADEA . . . .”).

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 “We review de novo a grant of summary judgment, applying the same

standard used by the district court.” Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir.

1996). “Summary judgment should be granted ‘if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.’” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)

(quoting Fed. R. Civ. P. 56(c)), cert. denied, 130 S. Ct. 259 (2009). “When

applying this standard, we examine the factual record in the light most favorable

to the party opposing summary judgment.” Belhomme v. Widnall, 127 F.3d 1214,

1216 (10th Cir. 1997). The moving party has “both the initial burden of

production on a motion for summary judgment and the burden of establishing that

summary judgment is appropriate as a matter of law.” Trainor v. Apollo Metal

Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2003). “[T]he movant need not

negate the non-movant’s claim, but need only point to an absence of evidence to

support the non-movant’s claim.” Sigmon v. CommunityCare HMO, Inc., 234

F.3d 1121, 1125 (10th Cir. 2000). “If the movant carries this initial burden, the

nonmovant may not rest on its pleadings, but must bring forward specific facts

showing a genuine issue for trial as to those dispositive matters for which it

carries the burden of proof.” Jenkins, 81 F.3d at 990. “An issue of material fact

is genuine if a reasonable jury could return a verdict for the non-movant.” Id. “If

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there is no genuine issue of material fact in dispute, then we next determine if the

district court correctly applied the substantive law.” Id.

B. The District Court’s Application of Summary Judgment Standards

On appeal, Mr. Kannady argues that the district court erred in holding that

Krebs acted pursuant to the OPPRS and, consequently, with reference to an “age

of hiring . . . in effect under applicable State or local law on March 3, 1983.” 29

U.S.C. § 623(j)(1)(A). First, Mr. Kannady argues that the district court erred in

holding that, regardless of the precise date when Krebs refused to hire Mr.

Kannady, Krebs acted under “applicable” law because it based Krebs’s decision

on the OPPRS. According to Mr. Kannady, if Krebs had refused to hire Mr.

Kannady before October 2004, it could not have been acting under “applicable”

law, since the precepts of the OPPRS only apply to “participating municipalities,”

and Krebs was not a participating municipality before October 2004. Next, Mr.

Kannady attacks the district court’s conclusion that Krebs’s refusal to hire Mr.

Kannady actually occurred after October 2004 and there was no genuine factual

dispute about this material matter. In support of this argument he first claims that

Krebs failed to carry its initial burden of demonstrating the absence of a genuine

issue of material fact because it “offered no undisputed proof or facts concerning

when the discriminatory conduct took place.” Aplt. Opening Br. at 15. And

second, Mr. Kannady argues that the district court erred in determining that it was

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undisputed that the recorded conversations between Mr. Kannady and Chief Cook

occurred after October 2004.

Our resolution of Mr. Kannady’s contentions regarding the district court’s

application of summary judgment standards ultimately turns upon the district

court’s conclusion that all material facts indicated that Krebs refused to hire Mr.

Kannady only after October 2004 (i.e., only after it affirmatively began

participating in the OPPRS). If this conclusion is affirmed, there is no dispute

that § 623(j)(1) is satisfied, because Krebs would clearly have acted pursuant to a

plan in effect under covered state law. As Mr. Kannady highlights, Krebs did not

argue in its motion for summary judgment that Krebs was entitled to summary

judgment because it was undisputed that Krebs refused to hire Mr. Kannady only

after October 2004. On the contrary, Krebs argued that the date it refused to hire

Mr. Kannady was “irrelevant.” Aplt. App. at 397. Because Krebs made no

attempt to demonstrate that the alleged discrimination did not occur until after

October 2004, Mr. Kannady believes that Krebs failed to carry its initial burden

of demonstrating that there was no evidence in the record to support judgment for

Mr. Kannady. See Trainor, 318 F.3d at 979 (“Even when . . . the moving party

does not have the ultimate burden of persuasion at trial, it has both the initial

burden of production on a motion for summary judgment and the burden of

establishing that summary judgment is appropriate as a matter of law.”). Thus,

Mr. Kannady believes the district court improperly granted Krebs’s motion for

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summary judgment. See id. (“If a moving party fails to carry its initial burden of

production, . . . the nonmoving party may defeat the motion for summary

judgment without producing anything.” (quoting Nissan Fire & Marine Ins. Co. v.

Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000))).

However, we conclude that even assuming arguendo that Krebs—as the

moving party—failed to carry its initial burden under the analytic framework for

summary judgment, the district court did not err in determining that Krebs could

avail itself of § 623(j)(1)’s protection, based upon the record evidence concerning

the date when Krebs denied employment to Mr. Kannady. Under our working

assumption—i.e., that Krebs failed to carry its initial burden—we view the

district court’s determination as effectively being a sua sponte resolution of the

matter at issue. And, in limited circumstances, including those present here, the

law permits district courts at the summary judgment phase to perform precisely

that sua sponte function. Accordingly, so long as our de novo review confirms

that the district court was correct in its sua sponte resolution of the issue—that is,

when it held that there was no genuine factual dispute that Krebs denied Mr.

Kannady employment after October 2004—then we discern no error in the district

court’s ultimate conclusion (absent a subterfuge under § 623(j)(2)) that summary

judgment was properly entered in favor of Krebs.

A district court may grant summary judgment on a ground not formally

raised in a summary judgment motion, “‘so long as the losing party was on notice

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that she had to come forward with all of her evidence.’” Howell Petroleum Corp.

v. Leben Oil Corp., 976 F.2d 614, 620 (10th Cir. 1992) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986)); see Holmes v. Utah, Dep’t of Workforce

Servs., 483 F.3d 1057, 1067 (10th Cir. 2007). “If a losing party was not

prejudiced by the lack of notice, we will not reverse simply because the grant of

summary judgment came sua sponte.” 8 Ward v. Utah, 398 F.3d 1239, 1245–46

(10th Cir. 2005). “A party is procedurally prejudiced if it is surprised by the

district court’s action and that surprise results in the party’s failure to present

evidence in support of its position.” Bridgeway Corp. v. Citibank, 201 F.3d 134,

139 (2d Cir. 2000).

8
In fact, the district court could have potentially entered summary
judgment for Krebs even if Krebs had filed no cross-motion at all. See Doña Ana
Mut. Domestic Water Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 912
(10th Cir. 2008) (“The weight of authority is that summary judgment may be
rendered in favor of the opposing party even though he has made no formal
cross-motion under rule 56.” (internal quotation marks omitted)). As one
commentator notes, “the practice of allowing summary judgment to be entered for
the nonmoving party in the absence of a formal cross-motion is appropriate. It is
in keeping with the objective of Rule 56 to expedite the disposition of cases and,
somewhat more remotely, with the mandate of Rule 54(c) requiring the court to
grant the relief to which a party is entitled ‘even if the party has not demanded
such relief in the pleadings.’” 1 0A Charles Alan Wright et al., Federal Practice
and Procedure § 2720 (3d ed. 1998) (footnotes omitted); see also Employers Ins.
of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105 (6th Cir. 1995) (noting
that if the district court grants summary judgment “in favor of an opposing party
when one party has made a motion for summary judgment,” “the failure of the
court to provide notice may not be as detrimental since the moving party is at
least aware that the issue has been raised”).

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 In this case, Mr. Kannady cannot demonstrate prejudice because he clearly

knew that the date of the alleged discrimination would be an issue, and he had a

full opportunity to present evidence to support his position. After all, it was Mr.

Kannady—not Krebs—who raised this issue in his motion for summary judgment.

When a district court’s sua sponte determination is based on issues identical to

those raised by a moving party, the risk of prejudice is significantly lowered

because “the judge already is engaged in determining whether a genuine issue of

material fact exists and the parties have been given an opportunity to present

evidence designed either to support or refute the request for the entry of

judgment.” 10A Charles Alan Wright et al., Federal Practice and Procedure

§ 2720 (3d ed. 1998); see Bridgeway Corp., 201 F.3d at 140 (“The threat of

procedural prejudice is greatly diminished if the court’s sua sponte determination

is based on issues identical to those raised by the moving party.” (brackets and

internal quotation marks omitted)); see also Jones v. Salt Lake County, 503 F.3d

1147, 1152 (10th Cir. 2007) (holding that plaintiffs were not prejudiced where

they previously had filed a motion for partial summary judgment on the issues on

which the court granted summary judgment sua sponte); Hynes v. Squillace, 143

F.3d 653, 656–57 (2d Cir. 1998) (noting that since the plaintiff had moved for

summary judgment on a retaliation claim before the magistrate judge, granting the

defendants summary judgment sua sponte on the retaliation claim was not

prejudicial because the plaintiff had “had every incentive to submit all evidence

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supporting his retaliation claim”); Coach Leatherware Co. v. AnnTaylor, Inc., 933

F.2d 162, 167 (2d Cir. 1991) (holding that the district court’s sua sponte decision

to grant summary judgment against the moving party was not prejudicial in part

because the court’s “sua sponte determination [was] based on issues identical to

those raised by the moving party”).

Additionally, not only did Mr. Kannady raise this issue in his motion for

summary judgment, he asserted in unequivocal terms that Krebs refused to hire

him before October 2004, and he identified evidence in the record to support his

claim. Consequently, the district court could reasonably view the record as

including all of the evidence that Mr. Kannady deemed appropriate to support his

claim and thus move to decide for purposes of summary judgment the timing

question relating to Krebs’s refusal to hire Mr. Kannady. See Bridgeway Corp.,

201 F.3d at 140 (upholding a grant of summary judgment sua sponte because,

inter alia, the issue “did not arise out of the blue” and the plaintiff “repeatedly

claimed to the district court that it had introduced sufficient evidence concerning

that very issue”). In this case, the district court, after reviewing Mr. Kannady’s

claim that the discrimination occurred before October 2004, actually came to the

opposite conclusion: that the undisputed evidence demonstrated that the

discrimination occurred after October 2004. For the reasons noted, we discern no

error in the district court’s conduct in making this determination on the timing

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issue related to Krebs’s refusal to hire Mr. Kannady, even assuming arguendo that

Krebs did not carry its initial summary judgment burden.

We next review de novo whether the district court’s conclusion is correct

that the evidence unequivocally established that the refusal to hire Mr. Kannady

occurred after October 2004. Mr. Kannady argues that the district court

improperly weighed evidence and made inferences from the facts when it

concluded that the recorded conversations between himself and Chief Cook

occurred after Krebs began participating in the OPPRS in October 2004. We

disagree.

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

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earliest, these statements clearly demonstrate that the recorded conversations

occurred after October 2004.

Although Mr. Kannady asserted in his motion for summary judgment that

the recorded conversations occurred before October 2004, the district court was

under no obligation to accept a claim that was “blatantly contradicted by the

record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S.

372, 380 (2007); cf. Green v. Post, 574 F.3d 1294, 1296 & n.4 (10th Cir. 2009).

“At the summary judgment stage, facts must be viewed in the light most favorable

to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”

Scott, 550 U.S. at 380 (quoting Fed. R. Civ. P. 56(c)). Since the recorded

conversations clearly occurred after October 2004, 9 the district court did not err in

9
On appeal, Mr. Kannady attempts to cast doubt on the dates of the
recorded conversations by pointing to evidence that was attached by Krebs to a
motion in limine and by Kiowa to its motion for summary judgment on the state-
law claims. Additionally, he insinuates that there was evidence in the record that
could “support an inference” that Krebs refused to hire him before October 2004
on other occasions, not just in the recorded conversations. Aplt. Opening Br. at
12.

As previously discussed, Mr. Kannady argued in his motion for summary
judgment in unequivocal terms that he was denied employment before October
2004, and he identified evidence in the record to support his claim. Thus, Mr.
Kannady clearly had a full opportunity to put forth his best case in his motion for
summary judgment, and it was reasonable for the district court to assume that he
had done so. These arguments he now makes on appeal were not before the
district court, and we are not inclined to consider them here. See Coach
Leatherware Co., 933 F.2d at 167–68 (concluding that defendants were not
prejudiced by a grant of summary judgment against them when they had
previously “contended no material issues of fact prevented summary judgment in
their favor” and noting that the defendants “had significant incentive to put
(continued...)

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determining that Krebs was participating in the OPPRS when it denied Mr.

Kannady employment based on his age, and was, therefore, acting pursuant to age

limits “in effect under applicable State or local law on March 3, 1983.” 10 29

U.S.C. § 623(j)(1)(A).

9
(...continued)
forward any compelling evidence in support of their summary judgment motion
since the law prevented the district court from drawing favorable inferences on
their behalf”); cf. Harrison W. Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.
1981) (“[C]ross motions for summary judgments . . . authorize the court to
assume that there is no evidence which needs to be considered other than that
which has been filed by the parties.”) .

Nevertheless, even if Mr. Kannady had submitted this evidence at the
summary judgment stage, we are confident that the outcome would have been the
same. The recorded conversations are self-dating, and thus, any dispute about the
date of the tapes cannot be “genuine.” Furthermore, the numerous inferences Mr.
Kannady asks us to draw from the evidence are simply too attenuated for us to
conclude that there is a genuine issue of material fact about when he was denied
employment. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th
Cir. 1999) (“A mere scintilla of evidence supporting the nonmoving party’s
theory does not create a genuine issue of material fact. Instead, the nonmoving
party must present facts such that a reasonable jury could find in its favor.”
(citation omitted)).
10
Since we affirm the district court’s conclusion that Krebs refused to
hire Mr. Kannady only after October 2004, we need not address the district
court’s additional rationale for why Krebs satisfied the requirements of
§ 623(j)(1) (i.e., that Krebs was subject to the OPPRS since its pre-1983
enactment, even though it was not an active participant in the OPPRS until
October 2004 and, therefore, Krebs could properly claim to have been acting
pursuant to the OPPRS and its hiring-age restriction when it declined to hire Mr.
Kannady, even if that decision occurred before October 2004).

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 C. The OPPRS as a Subterfuge

Under the ADEA’s law enforcement exception, a state can refuse to hire an

individual as a firefighter or law enforcement officer if this refusal is “pursuant to

a bona fide hiring or retirement plan that is not a subterfuge to evade the

purposes” of the ADEA. 29 U.S.C. § 623(j)(2). Mr. Kannady does not contend

that the OPPRS is not a bona fide hiring or retirement plan. Instead, he argues

that the district court erred in determining that the OPPRS is not a subterfuge to

evade the purposes of the ADEA. Mr. Kannady contends that the OPPRS is a

subterfuge because the Oklahoma legislature enacted the OPPRS not out of public

safety concerns, but for the “invidious financial purpose” of enhancing the state’s

pension fund. Aplt. Opening Br. at 5. We conclude that Mr. Kannady cannot

demonstrate subterfuge because he has failed to identify a non-hiring substantive

provision of the ADEA that the OPPRS is a scheme to evade.

Like our sister circuits, we construe the word “subterfuge” in accordance

with its ordinary meaning to be “a scheme, plan, stratagem, or artifice of

evasion.” Minch v. City of Chicago, 363 F.3d 615, 624 (7th Cir. 2004); see also

Feldman, 434 F.3d at 183; Minch, 363 F.3d at 623–28. A plaintiff challenging

the law enforcement exception bears the burden of establishing that a hiring plan

is a subterfuge. Feldman, 434 F.3d at 184; Minch, 363 F.3d at 627–28. Because

the ADEA’s law enforcement exception expressly allows a state or local

government to create a hiring or retirement plan for law enforcement personnel

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that discriminates on the basis of age, a government employment plan that follows

the statute’s precepts can hardly be said to be a “scheme of evasion.” See

Feldman, 434 F.3d at 184 (“There is nothing deceptive about the state legislature

doing exactly what Congress provided it the authority to do—namely, benefitting

from an exception to the general prohibition in the ADEA against discrimination

on the basis of age.”); Minch, 363 F.3d at 629 (“[D]oing something that the

statute expressly permits does not evade its prohibitions.”). Thus, a plaintiff

cannot prove that a hiring or retirement plan for law enforcement personnel is a

“subterfuge to evade the purposes” of the ADEA simply by demonstrating that the

plan discriminates in hiring and retirement on the basis of age. See Feldman, 434

F.3d at 184 (noting that the law enforcement exception would be a “dead letter” if

subterfuge could be demonstrated simply by proving “discriminat[ion] on the

basis of age rather than ability”); Minch, 363 F.3d at 628–29; see also Correa-

Ruiz v. Fortuñ o , 573 F.3d 1, 13 (1st Cir. 2009) (“[W]e thus join the Second and

Seventh Circuits in rejecting an interpretation of ‘subterfuge’ that would

effectively nullify the exemption.”), cert. denied, 78 U.S.L.W. 3208 (U.S. Nov.

16, 2009) (No. 09-382).

Instead, a plaintiff proves subterfuge by showing “‘that the employer is

using the [law enforcement] exemption as a way to evade another substantive

provision of the act.’” Feldman, 434 F.3d at 184 (emphasis added) (quoting

Minch, 363 F.3d at 629); see Correa-Ruiz, 573 F.3d at 14. For example, if a state

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or local government imposed age limits on hiring police officers in order to

retaliate against employees for protesting practices made illegal by the ADEA, the

hiring plan would clearly be a subterfuge to evade other provisions of the ADEA.

See Minch, 363 F.3d at 630 (identifying hypothetical instances of subterfuge). In

this case, Mr. Kannady must show that the OPPRS is a “‘means of discriminating

in another aspect of the employment relationship—that is, other than in the hiring

decision—in a way that the ADEA forbids.’” Feldman, 434 F.3d at 184 (brackets

omitted) (quoting Minch, 363 F.3d at 629).

In this regard, Mr. Kannady’s main argument—that the OPPRS was created

for an “invidious financial purpose,” and not because of public safety

concerns—is unavailing. Aplt. Opening Br. at 5. In particular, Mr. Kannady

argues that “the OP[P]RS is hiding behind the veil of the law enforcement

exemption to discriminate against law enforcement candidates over the age of

forty-five (45) . . . merely for financial reasons, since older officers do not pay as

much into the pension plan created through the OPPRS.” Id. Even if Mr.

Kannady could prove that the Oklahoma legislature adopted the OPPRS for

reasons unrelated to public safety, he could not establish subterfuge unless these

motivations “reveal a kind of discriminatory conduct that the ADEA by its very

terms forbids.” Minch, 363 F.3d at 629; see also id. (noting that state or local

governments “cannot be liable for their motives if their conduct has not evaded

the ADEA’s prohibitions” (internal quotation marks omitted)). That the

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Oklahoma legislature allegedly took financial considerations into account when

adopting the OPPRS’s hiring-age ceiling cannot by itself demonstrate that the

OPPRS is a subterfuge “that frustrates provisions of the ADEA not directly

subject to the law enforcement exception.” Feldman, 434 F.3d at 185; see also id.

at 184 (noting that “it is difficult to imagine any legislation on social or labor

concerns that is wholly divorced from budgetary or fiscal considerations”).

Ultimately, Mr. Kannady cannot demonstrate subterfuge because he has

failed to identify a non-hiring substantive provision of the ADEA that the OPPRS

is a scheme to evade. See id. (rejecting the plaintiff’s claims of subterfuge where

the plaintiff “never points to any specific provision of the ADEA that is violated

by [the New York statute]”). Although Mr. Kannady has at various times

throughout the appeal hinted at possible provisions or regulations that might

satisfy his burden, for the reasons noted below, we decline to consider the merits

of any of these arguments.

First, Mr. Kannady argues that the OPPRS violates EEOC regulations;

because he did not raise this argument before the district court, however, he has

waived it on appeal. See Stewart v. U.S. Dep’t of Interior, 554 F.3d 1236, 1245

n.1 (10th Cir. 2009). Mr. Kannady’s contrary contention that he submitted to the

district court “federal case law that cited the EEOC regulations,” Aplt. Reply Br.

at 16, is unavailing. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497

F.3d 1135, 1141 (10th Cir. 2007) (“[T]he vague and ambiguous presentation of a

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theory before the trial court [does not] preserve that theory as an appellate issue.”

(internal quotation marks omitted)). We only deviate from the waiver rule “in the

most unusual circumstances, which may include issues regarding jurisdiction and

sovereign immunity, instances where public interest is implicated, or where

manifest injustice would result.” Smith v. Rogers Galvanizing Co., 128 F.3d

1380, 1386 (10th Cir. 1997) (ellipses and internal quotation marks omitted).

Because we find no such unusual circumstances or manifest injustice here, we

deem this argument to be waived and do not consider it.

Second, at oral argument, Mr. Kannady suggested that the OPPRS was

being used as a subterfuge to evade a provision of the ADEA that pertains to

benefit plans and retirement. Although Mr. Kannady made a similar argument at

the district court regarding 29 U.S.C. § 623(f)(2), he did not make this argument

in his opening brief on appeal and, in fact, specifically indicated in his reply brief

that we “need not be burdened with this argument because it was essentially

abandoned” in the district court. Aplt. Reply Br. at 13. Therefore, Mr. Kannady

has waived this argument and we will not consider it on appeal. See Anderson v.

U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The failure to raise

an issue in an opening brief waives that issue.”).

Finally, Mr. Kannady argues in his reply brief that he identified a

substantive provision of the ADEA that the OPPRS was a scheme to evade by

citing 29 U.S.C. § 623(a)(1) in his opening brief, which provides that an employer

-26-
may not “fail or refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age.”

While Mr. Kannady did cite § 623(a)(1) in his opening brief, he failed to provide

any analysis or reasoning whatsoever for the assertion he now makes. Indeed,

even in his reply brief, Mr. Kannady did little more than assert in conclusory

fashion that the OPPRS is a subterfuge to evade § 623(a)(1). Because Mr.

Kannady has failed to adequately present his § 623(a)(1) argument in his opening

brief, we decline to address it. See Bronson v. Swensen, 500 F.3d 1099, 1104

(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are

not raised, or are inadequately presented, in an appellant’s opening brief.”).

In order to carry his burden of proving subterfuge, Mr. Kannady needed to

prove that Krebs was using the OPPRS to evade a non-hiring substantive

provision of the ADEA. Since Mr. Kannady cannot identify this ADEA

provision, he has failed to demonstrate that the OPPRS is a subterfuge to evade

the purposes of the ADEA. 11

11
Mr. Kannady also challenges the district court’s holding that the
OPPRS could not be a subterfuge because the OPPRS was enacted prior to the
ADEA’s application to state and local governments. Because Mr. Kannady has
failed to identify a non-hiring substantive provision of the ADEA that the OPPRS
is a scheme to evade, we conclude that he cannot prove that the OPPRS is a
subterfuge. Therefore, we need not address the district court’s alternative
rationale for why the OPPRS is not a subterfuge.

Furthermore, Mr. Kannady challenges the district court’s determination that
(continued...)

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 11
(...continued)
he lacks standing to argue in support of his subterfuge argument that certain
provisions of the OPPRS operate in a manner that violates the ADEA, in part
because they provide greater protection for younger workers. In particular, Mr.
Kannady points to two exceptions of the OPPRS that permit participating
municipalities to employ an officer whose age exceeds the OPPRS maximum-age
ceiling if they (1) employ two or fewer officers, or (2) are filling the position of
police chief. See, e.g., Aplt. Opening Br. at 19. The district court reasoned that
Mr. Kannady “lacks standing” to advance contentions related to these two
exceptions because “neither of these exceptions to participation in the OPPRS
apply to him.” Aplt. App. at 704 n.4. However, contrary to the district court’s
reasoning, we do not view the standing doctrine as implicated here. We assess
the propriety of standing “as of the time the action is brought” Utah Ass’n of
Counties v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006) (internal quotation marks
omitted). From that temporal vantage point, standing analysis “is a highly case-
specific endeavor, turning on the precise allegations of the parties seeking relief.”
Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998) (internal quotation marks
omitted). Judged from the time this action commenced, there is not the slightest
hint in his complaint averments that Mr. Kannady sought any relief based upon
the alleged discriminatory effects of the two referenced provisions of the OPPRS.
Nor did Mr. Kannady purport to seek relief in the district court based upon an
alleged harm to himself, or indeed to third parties, arising from the alleged ADEA
violations effected by these provisions. Mr. Kannady’s subsequent reliance in
summary judgment litigation on the alleged discriminatory effects of these two
provisions did not properly present a question of standing. Cf. Nat’l Collegiate
Athletic Assoc. v. Califano, 622 F.2d 1382, 1385 (10th Cir. 1980) (“The question
of standing is whether the litigant is entitled to have the court decide the merits of
the dispute or of particular issues.” (internal quotation marks omitted)). Rather,
this simply appears to be a situation where Mr. Kannady has argued (albeit in a
somewhat confusing manner) that the fact that the OPPRS can be shown to violate
the ADEA through the operation of these two provisions bolsters his argument
that the maximum hiring-age restriction is a subterfuge to evade the purposes of
the ADEA. Even assuming arguendo, however, that the ADEA violations
purportedly effected by such seemingly unrelated provisions as the two identified
here, could have probative force on the question of whether the OPPRS’s hiring-
age restriction is a subterfuge, the principal hurdle Mr. Kannady has to clear still
relates to the identification of a non-hiring substantive provision of the ADEA
that the OPPRS hiring provision was a subterfuge to evade. And, for the reasons
noted above, Mr. Kannady has not begun to surmount that hurdle. Therefore, any
error by the district court in concluding that Mr. Kannady lacked standing does
(continued...)

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order granting

summary judgment in favor of Krebs.

11
(...continued)
not affect our analysis or the outcome here.

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