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Cypen & Cypen
OCTOBER 1, 2009

Stephen H. Cypen, Esq., Editor

FEDERAL APPELLATE COURT UPHOLDS FORT LAUDERDALE ERIP:  Lerman and twelve other police officers appealed from an adverse summary judgment in favor of the City of Fort Lauderdale and the Police Officers’ and Firefighters’ Retirement Board.  (As below, the Board took no position in the litigation, but agreed to comply with any relief that may be ordered by the Court (see C&C Newsletter for January 8, 2009, Item 1).)  The police officers claimed violation of the Age Discrimination in Employment Act of 1967 and the Florida Civil Rights Act of 1992.  Their claim concerned an early retirement incentive program that the City implemented following collective bargaining.  The particular retirement plan provision at issue is the Deferred Retirement Option Program, a voluntary early retirement program by which a police officer who elects to participate can earn retirement benefits while continuing to work and draw a regular salary.  However, in order to participate in these additional benefits, the officer must submit an irrevocable letter of resignation to take effect upon termination of the DROP period and execute an Acknowledgment, Waiver And Release Agreement, releasing all claims against the City pertaining to the program and its benefits.  All of the officers except one, who never entered DROP, signed the Waiver.  Understandably, the officers did not contend on appeal that the waiver was not knowing and voluntary as required by the Older Workers Benefit Protection Act (an amendment to ADEA).  Rather, they argued that an employee cannot waive his rights under ADEA, which contention was reinforced by passage of the Lilly Ledbetter Fair Pay Act.  The U.S. Court of Appeals for the Eleventh Circuit found no error in the district court's determination that an employee can waive his ADEA rights.  Moreover, the Court rejected the officers' argument that the Lilly Ledbetter Fair Pay Act  somehow precluded application of waivers validly executed.  (That Act was passed in response to a U.S.  Supreme Court decision that involved the statute of limitations in pay discrimination cases.)   As to the one officer who did not execute the waiver (because he never entered DROP), the appellate court affirmed the district court’s conclusion on the merits that the DROP plan was not discriminatory because the City’s decisions were not actually motivated by age, and, even so, DROP would be permitted under the safe harbor provision of ADEA.  Thus, the Eleventh Circuit affirmed the district court’s ruing in favor of the City and the Board.  Once again, we were privileged to have represented our regular client City of Fort Lauderdale Police Officers’ and Firefighters’ Retirement Board.  Lerman v.  City of Fort Lauderdale FL, Case No. 09-10420 (U.S. 11th Cir., September 28, 2009) (unpublished). 


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