NM ABQ APD Cops Sue Over Age

Case 1:13-cv-01179-KBM-RHS Document 1 Filed 12/12/13 Page 1 of 17
UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO
Tod Babcock; John Corvino; Bruce DeHerrera; No.: Larry Edmonson; Cornel Heitzman; Janette Kimberlin; Henry Landavazo; Andrew Lehocky; Robert Lujan; Herman Martinez; Valentine Olivas; Leonard Rodriguez; Daniel Torgrimson; James Vautier; Victor Wiebe Plaintiffs, vs. Albuquerque Police Deparment; City of Albuquerque; and Albuquerque Police Officers Association Defendants.
COMPLAINT JURY DEMAND
Plaintiffs bring this action for monetary damages based on their employers violations the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. and the New Mexico Human Rights Act, NMSA 1978, 28-1-7. As grounds therefore, Plaintiffs state:
NATURE OF THE CASE 1. Plaintiffs were discriminated against on the basis of their age and wrongfully
retaliated against in violation of the ADEA. 2. All conditions precedent to jurisdiction under the ADEA have been met.
Plaintiffs timely filed a charge of employment discrimination with the United States Equal
Complaint and Demand for Jury Trial
Page 1
Employment Opportunity Commission (EEOC).1 Plaintiffs have brought this lawsuit within ninety days of the date Plaintiffs received the EEOCs notice of right to bring suit which was issued on or about September 16, 2013. JURISDICTION AND VENUE 3. 1331. 4. The named Defendants, by virtue of their own acts and omissions or by virtue of This Court has jurisdiction pursuant to 29 U.S.C. 626(c), 633 and 28 U.S.C.
the acts and omissions committed by one or more of their agents, employees or representatives, as described herein, have conducted business or caused events to occur within the District of New Mexico described herein so as to give rise to both subject matter and personal jurisdiction of this Court. 5. Venue is proper under 28 U.S.C. 1391(b) because all of the events or omissions
giving rise to the claims occurred in this District. 6. As discussed in paragraph 2 above, Plaintiffs timely filed their initial charges of
discrimination with the United States Equal Employment Opportunity Commission (EEOC), alleging, inter alia, age discrimination and retaliation. 7. Sue. On or about September 16, 2013, the EEOC issued Plaintiffs a Notice of Right to
The individual charge numbers are: Heitzman-543-2011-00362; Landavazo-543-2011-00363; DeHerrera-543-201100364; Lujan-543-2011-00468; Babcock-543-2011-00468; Kimberlin-543-2011-00470; Torgrimson-543-2011-00474; Wiebe-543-2011-00485; Edmonson-543-2011-0493; Olivas-543-2011-00498; Rodriguez-543-2011-00499; Vautier-5432011-00599; Lehocky-543-2011-00610; Corvino-543-2011-00686; Martinez-543-2011-01100. Complaint and Demand for Jury Trial Page 2
8.
On or about September 25, 2013 the State of New Mexico Office of Workforce
Solutions issued Plaintiffs an Order of Non-Determination. 9. Plaintiffs have fully complied with all prerequisites to jurisdiction in this Court
under the ADEA. PARTIES 10. 11. Plaintiffs are all individuals who reside in the District of New Mexico. At all relevant times, Plaintiffs are/were employees within the meaning of the
ADEA, 29 U.S.C. 630(f). 12. Plaintiffs are all police officers who are either currently working for Defendants
or have worked for the Defendants. 13. At all relevant times, Plaintiffs were over 40 years of age and thus are protected
under the ADEA, 29 U.S.C. 631. 14. Defendant City of Albuquerque (City) is a municipal corporation, located in
Bernalillo County, New Mexico. The City is an employer within the meaning of 29 U.S.C. 630(b). 15. Defendant Albuquerque Police Department (APD) is a municipal agency of
Defendant City. APD is an employer within the meaning of 29 U.S.C. 630(b). 16. Defendant Albuquerque Police Officers Association (Association) is a non-
profit corporation incorporated in the State of New Mexico. The Association is an employer within the meaning of 29 U.S.C. 630(b).
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FACTUAL ALLEGATIONS 16. In approximately 2003, due to a significant need for an increase in the public
sector workforce, the State of New Mexico passed legislation which implemented a Return to Work (RTW) program. 17. The State of New Mexico had a dire need for more police officers to fight a
rampant increase in crime. 18. The RTW program allowed retired public employees, such as retired law
enforcement officers, to return to work without having to suspend their pension withdrawals. 19. The Public Employee Retirement Association (PERA) is the primary retirement
association and pension plan provider for law enforcement officers in the State of New Mexico. 20. The Albuquerque Police Officers Association (APOA) is the collective
bargaining unit that represents Albuquerque police officers in negotiations with the City of Albuquerque Albuquerque Police Department (APD). 21. In approximately 2005, the APOA and the APD entered into a collective
bargaining agreement (CBA) concerning the terms and conditions of employment for APD police officers. 22. Retiree re-hired police officers were classified by the APD and APOA as PERA
Rehire Officers. 23. The 2005 CBA contained a provision which prohibited any PERA rehire officer
from participating in any promotional process within the APD. 24. The provision prohibiting any PERA rehire officer from participating in any
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promotional process was also contained within the CBA effective July 1, 2008 through June 31, 2011. 25. Exhibit 1 to this Complaint contains the relevant provisions of the CBA between
the APD and APOA. 26. The PERA rehires are all above the age of 40. The CBA makes a distinction
based on pension status, but the only way an individual can reach pension status is by working for the APD for at least 20 years; therefore making it extremely unlikely that any PERA rehire would ever be under the age of 40. 27. Whenever there are job openings, PERA rehire officers are told that they are not
allowed to apply for the jobs. 28. Job circulars provided by the APD regarding job openings are addressed TO:
ALL NON-PROBATIONARY, NON-PERA REHIRE OFFICERS. 29. PERA rehire officers are derogatively known amongst non-PERA rehire officers
as double dippers due to the fact that PERA rehire officers are allowed to draw on their pensions while also earning a salary through the APD. 30. 31. Plaintiffs are all PERA rehire officers with the APD. As PERA rehire officers, Plaintiffs are prohibited from being assigned or allowed
to bid for any specialized unit within the APD. 32. As PERA rehire officers, Plaintiffs are prohibited from accumulating
employment seniority or receiving any promotions of any kind. 33. As PERA rehire officers, Plaintiffs are required to participate in a bid process for
vacant field services positions. This bid process for PERA rehire officers is a separate bid
Complaint and Demand for Jury Trial Page 5
process from the bid process required of non-PERA rehires officers. 34. As PERA rehire officers, Plaintiffs would be laid off before any other bargaining
unit employee in the case of a lay off by the APD. 35. 36. Plaintiffs are given less priority in work shift assignments. Plaintiffs are provided with the most used and least functional gear and
equipment, including assigned APD vehicles. 37. Plaintiffs are not allowed to cash out their sick leave when they decide to leave
the APD. All non-PERA rehire officers are allowed to cash out their sick leave when they decide to leave the APD. 38. All Plaintiffs are over the age of 40 years old. On information and belief, all
PERA rehire officers are over the age of 40. 39. Plaintiffs are subjected to hostility from non-PERA rehire officers, supervisors,
and management. 40. Exhibit 2 is a letter from APOA which describes the discrimination faced by
PERA rehire officers and an admission from the APOA that PERA rehires should be treated in an identical fashion as non-rehires. 41. As of July 2010, PERA rehire officers receiving both a pension and a salary have
had their cost-of-living adjustments (COLA) suspended. To continue receiving COLA, Plaintiffs only choice is to terminate their employment with the APD. 42. Although the CBA between the APD and APOA expired in 2011, as of 2013,
Plaintiffs and Defendants are still operating under the CBA entered into in July 2008. Plaintiffs have actively protested against operating under this CBA with no changes being made.
43. 44.
Plaintiffs filed charges of discrimination against Defendants with the EEOC. The EEOC, after a multi-year investigation, found that Defendants did
discriminate against Plaintiffs. 45. In its finding of Probable Cause, the Commission made the following findings: Plaintiffs are denied equal terms and conditions of employment, which were negotiated and implemented by Defendants. Similarly situated employees, who are not part of Plaintiffs group are not inhibited by the same work restrictions (as it relates to the terms and conditions of their employment) as re-hire workers. Defendants are unable to articulate a legitimate business reason for the difference in treatment. Therefore, Defendants employment practices as they relate to rehire employees or "double-dippers" has a disproportionate adverse effect on Plaintiffs protected class and on the terms and conditions of Plaintiffs employment. Charging Parties sought the assistance of the union to represent the Charging Parties' interests in a dispute involving the terms and conditions of Charging Parties employment, the union did not represent the Charging Parties in a diligent fashion, and the interests of other similarly situated union members, who are not of Charging Parties' group, have been or are being represented in an adequate and preferential fashion. There is reasonable cause to believe that Defendants failed to provide adequate union representation for Charging Parties based on Charging Parties' age and status as retired employees.
There is reasonable cause to believe that Defendants subjected Charging Parties to disparate terms and conditions of employment based on Plaintiffs age and status as retired employees. 46. As of 2013, the last two APD officers to die in the line of duty have been PERA
rehire officers. COUNT ONE ADEA-Disparate Treatment Discrimination (Violation of 29 U.S.C. 621 et seq.) 47. forth herein. 48. 29 U.S.C. 623 states, in part: (a) Employer Practices. It shall be unlawful for an employer -(1) to 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 individuals age . . . (d) Opposition to unlawful practices; participation in investigations, proceedings, or litigation. It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 49. Plaintiffs were and are a Protected Group of individuals under the ADEA Plaintiffs incorporate and adopt paragraphs 1 through 46 above as if fully set
within the meaning of 29 U.S.C. 631(a).
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50.
Defendants' regularly and purposefully treated members of the Protected Group
less favorably and the unlawful discrimination was Defendants' regular procedure and policy. 51. Plaintiffs were all rehired for their exemplary work prior to retiring and have
continued to provide more than satisfactory service as police officers. 52. Despite the adequacy of their work, and despite the fact that Plaintiffs are more
experienced than others in the department, they are not allowed to advance, seek compensation increases, or other benefits given to non-rehire officers. 53. The sole reason for the implementation of the CBA was to appease non-rehire
officers who are under the age of 40 directly to the detriment of PERA rehires who are above the age of 40. 54. Defendants violated the ADEA by discriminating against Plaintiffs with respect
to the terms and conditions of their employment by subjecting them to freezes in their employment positions solely based on their age. 55. 56. the CBA. 57. Any such reason is pretextual, as Defendants, by entering into the CBA, only Plaintiffs all are treated less favorably than younger employees. Defendants do not have a legitimate, non-discriminatory reason for entering into
intended to appease non-rehires, to the detriment of and to discriminate against PERA rehires. 58. PERA rehires were subject to detrimental treatment not because of performance,
but solely because of their age and status. 59. 60. But for their age, Plaintiffs would have been treated more favorably. As a result of this violation of the ADEA by Defendant, Plaintiffs are an
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aggrieved person within the meaning of 626 of the Act and have suffered damage for which they are entitled to legal and to equitable relief as provided in the Act, 29 U.S.C. 626(b) and (c) and under the FLSA, 29 U.S.C. 216. 61. As a result of the foregoing, Plaintiffs are entitled to legal and equitable relief
including compensatory damages sufficient to make Plaintiffs whole for all losses suffered as a result of Defendants unlawful discrimination, liquidated damages and to restore to them all seniority, pension and other benefits they would have had but for the unlawful discrimination is necessary and appropriate relief and will effectuate the purposes of the ADEA. 62. Upon information and belief, Defendants violation of the ADEA was willful so
as to subject Defendant to liability for liquidated damages under 29 U.S.C. 626(b) and 29 U.S.C. 216 in an amount equal to Plaintiffs monetary damages. 63. By virtue of one, more or all of the foregoing violations of the ADEA as alleged
above, Plaintiffs are entitled to preliminary and permanent equitable and injunctive relief, including, but not limited to, all seniority, benefits, and back pay. 64. By virtue of one, or all of the foregoing violations of the ADEA as alleged
above, Plaintiffs have been damaged and suffered economic harm in the form of, but not limited to, lost wages and benefits, out-of-pocket expenses and monetary loss as well as noneconomic damages all of which they are entitled to recover from Defendants plus pre-judgment interest, attorneys fees and costs. 65. The actions of Defendants were done in reckless indifference to Plaintiffs
federally protected rights and Plaintiff is therefore entitled to recover punitive damages and exemplary damages.
COUNT TWO ADEA-Disparate Impact Discrimination (Violation of 29 U.S.C. 621 et seq.) 66. forth herein. Plaintiffs incorporate and adopt paragraphs 1 through 65 above as if fully set
67.
Plaintiffs were and are a protected group of individuals under the ADEA within
the meaning of 29 U.S.C. 631(a). 68. Defendants violated the ADEA by discriminating against Plaintiffs with respect
to the terms and conditions of their employment by subjecting them to freezes in their employment positions solely based on their age. 69. The CBA that was entered into by Defendants caused a significant detriment to
Plaintiffs, all of which are in a protected class. 70. The specific provisions of the CBA that are in question are attached to this
Complaint as Exhibit 1. 71. The practice and policy of not allowing PERA rehires to advance, and freezing
benefits, while not placing any limitations on non-PERA rehires, has caused a significant disparate impact on Plaintiffs and all PERA rehires. 72. The impact of the CBA falls much more harshly on Plaintiffs and PERA rehires
than individuals under the age of 40. 73. Defendants did not enter into the new CBA for an objectively reasonable reason
that is not attributable to age. 74. The CBA was not reasonably designed to further or achieve a legitimate business
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purpose. 75. The CBA was not administered in a way that reasonably achieved a legitimate
business purpose in light of the fact that Defendants were well aware of the RTW program and the legislative intent behind it. 76. 77. accurately. 78. Defendants did not assess the adverse impact on Plaintiffs and PERA rehires The CBA provisions are not related to Defendants stated business purpose. The CBA provisions were not defined accurately and were not applied fairly and
regarding these CBA practices prior to its implementation. 79. Defendants did not attempt to reduce the harm these practices would have on
Plaintiffs and PERA rehires. 80. The only individuals harmed by this practice are Plaintiffs and PERA rehires, all
of whom are over the age of forty (40). 81. As a result of this violation of the ADEA by Defendant, Plaintiffs are an
aggrieved person within the meaning of 626 of the Act and have suffered damage for which they are entitled to legal and to equitable relief as provided in the Act, 29 U.S.C. 626(b) and (c) and under the FLSA, 29 U.S.C. 216. 82. As a result of the foregoing, Plaintiffs are entitled to legal and equitable relief
including compensatory damages sufficient to make Plaintiffs whole for all losses suffered as a result of Defendants unlawful discrimination, liquidated damages and to restore to them all seniority, pension and other benefits they would have had but for the unlawful discrimination is necessary and appropriate relief and will effectuate the purposes of the ADEA.
83.
Upon information and belief, Defendants violation of the ADEA was willful so
as to subject Defendant to liability for liquidated damages under 29 U.S.C. 626(b) and 29 U.S.C. 216 in an amount equal to Plaintiffs monetary damages. 84. By virtue of one, more or all of the foregoing violations of the ADEA as alleged
above, Plaintiffs are entitled to preliminary and permanent equitable and injunctive relief, including, but not limited to, all seniority, benefits, and back pay. 85. By virtue of one, or all of the foregoing violations of the ADEA as alleged
above, Plaintiffs have been damaged and suffered economic harm in the form of, but not limited to, lost wages and benefits, out-of-pocket expenses and monetary loss as well as noneconomic damages all of which they are entitled to recover from Defendants plus pre-judgment interest, attorneys fees and costs. 86. The actions of Defendants were done in reckless indifference to Plaintiffs
federally protected rights and Plaintiff is therefore entitled to recover punitive damages and exemplary damages. COUNT THREE Violation of the New Mexico Human Rights Act 87. forth herein. 88. The New Mexico Human Rights Act prohibits employment discrimination on the Plaintiffs incorporate and adopt paragraphs 1 through 86 above as if fully set
basis of age. NMSA 1978, 28-1-7(A). 89. Plaintiffs are all members of a protected class under the NMHRA as they are all
over the age of forty (40).
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90.
Plaintiffs do not receive the benefits that individuals who are not members of a
protected class receive as defined by the NMHRA. 91. Defendants actions violated Plaintiffs statutory right under the NMHRA to be
free from employment discrimination on the basis of their age. COUNT FOUR Declaratory Judgment 92. forth herein. 93. The Court also has jurisdiction to hear Plaintiffs request for declaratory relief Plaintiffs incorporate and adopt paragraphs 1 through 91 above as if fully set
pursuant to the Declaratory Judgment Act 28 U.S.C. 2201-2202. 94. 95. 96. 97. 98. Plaintiff may obtain declaratory relief. Defendants employed Plaintiffs. Defendants are enterprises covered by the ADEA. Plaintiffs are individually covered by the ADEA. Plaintiffs were discriminated against by Defendants because of their age, in
violation of 29 U.S.C. 621 et seq. 99. Plaintiffs are entitled to an equal amount of liquidated damages as Defendants
violation of the ADEA was willful. 100. Defendants did not rely on a good faith defense in its failure to abide by the
provisions of the ADEA. 101. It is in the public interest to have these declarations of rights recorded as
Plaintiffs declaratory judgment action serves the purposes of clarifying and settling the legal
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relations at issue, preventing future harm, and promoting the remedial purposes of the ADEA. 102. The declaratory judgment action further terminates and affords relief from
uncertainty, insecurity, and controversy giving rise to the proceeding. WHEREFORE, Plaintiffs prays for a judgment against the Defendants: A. Declaring, pursuant to 29 U.S.C. 2201 and 2202 that Defendant violated the ADEA by discriminating against Plaintiff because of her age; B. Ordering Defendant to make Plaintiffs whole for all losses they have suffered as a result of the unlawful discrimination and in order to effectuate the purposes of the ADEA; C. Awarding liquidated damages in an amount equal to Plaintiffs monetary damages in favor of Plaintiffs against Defendant pursuant to 29 U.S.C. 626 (b). D. Awarding pre-judgment interest to Plaintiff on all lost wages and other monetary damages. E. Awarding Plaintiffs attorneys fees and the costs of the action against Defendant pursuant to 29 U.S.C. 216(b) and 626(b). F. Granting Plaintiffs such other and further relief as the court deems just and proper. DAMAGES 103. As a direct and proximate result of the breach of Plaintiffs rights in each of the
above mentioned claims for relief, Plaintiffs sustained and continues to sustain economic and non-economic injuries including, but not limited to, loss of income, benefits, mental anguish and emotional distress. Plaintiffs are entitled to compensation for the harm and damages resulting from the Defendants unlawful acts.
WHEREFORE, Plaintiffs respectfully requests that judgment be entered in their favor against Defendants: A. B. A declaration that Defendants have violated the ADEA; Preliminary and permanent injunctive relief against Defendants ordering Plaintiffs immediate reinstatement with all seniority, benefits, and back-pay; or in the alternative, providing Plaintiffs with compensation and benefits she otherwise would have enjoyed through employment; C. An award against Defendants for compensation for lost and future wages and benefits, including pre and post judgment interest; D. E. F. G. H. An award against Defendants for all economic and non-economic damages; Special damages to be proven at trial; Punitive and exemplary damages to be proven at trial; Pre-judgment and post-judgment interest; An award of attorneys fees and costs pursuant to 29 U.S.C. 216(b) and 626(b); I. Awarding liquidated damages in an amount equal to Plaintiffs monetary damages in favor of Plaintiffs against Defendant pursuant to 29 U.S.C. 626 (b); J. Such other and further relief as the Court deems just and proper.
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DEMAND FOR JURY TRIAL Plaintiff hereby requests that upon trial of this action, all issues be submitted to and determined by a jury except those issues expressly reserved by law for determination by the Court.
Dated: December 12, 2013
Respectfully submitted, /s/ Daniel R. Lindsey Daniel R. Lindsey Lindsey Law Firm 920 Mitchell Street Clovis, NM 88101 (575) 763-8900 danlindsey@suddenlink.net
I, Daniel Lindsey, hereby certify that Trey Dayes, a non-member attorney of the State of New Mexico is a member in good standing of the bar of Arizona.
P HILLIPS D AYES L AW G ROUP PC

/s/Trey Dayes Trey Dayes Phillips Dayes Law Group 3101 North Central Avenue, #1500 Phoenix, Arizona 85012 Email: treyd@phillipslaw.com Attorney for Plaintiffs
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JS 44 (Rev. 12/12)
Case 1:13-cv-01179-KBM-RHS Document 1-1 Filed 12/12/13 Page 1 of 2
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
Tod Babcock et al
(b) County of Residence of First Listed Plaintiff
Albuquerque Police Department; City of Albuquerque; Albuquerque Police Officers Association Bernalilo
County of Residence of First Listed Defendant
NOTE:
DEFENDANTS
Bernalilo
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Trey Dayes, Phillips Dayes Law Group, c/o Dan Lindsey, Lindsey Law Firm, 920 Mitchell Street, Clovis, NM 88101 602-288-1610, ext 276
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1 U.S. Government Plaintiff U.S. Government Defendant 3 Federal Question (U.S. Government Not a Party) Diversity (Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only) PTF Citizen of This State 1 Citizen of Another State Citizen or Subject of a Foreign Country 2 3 DEF 1 2 3 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation 5 6 5 6
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education PERSONAL INJURY 365 Personal Injury Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement FORFEITURE/PENALTY 625 Drug Related Seizure of Property 21 USC 881 690 Other BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) OTHER STATUTES 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609
IMMIGRATION 462 Naturalization Application 465 Other Immigration Actions
V. ORIGIN (Place an X in One Box Only)

1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another District
(specify)
6 Multidistrict Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION Brief description of cause:
29 USC 621 et seq
Violation of the Age Discrimination in Employment Act

DEMAND $ CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER
CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE
DATE
SIGNATURE OF ATTORNEY OF RECORD
12/12/2013
FOR OFFICE USE ONLY RECEIPT # AMOUNT
/s/ Dan Lindsey

APPLYING IFP JUDGE MAG. JUDGE
JS 44 Reverse (Rev. 12/12)

Authority For Civil Cover Sheet
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
(b)
(c)
II.
III.
IV.
V.
VI.
VII.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
District of New Mexico __________ District of __________

Tod Babcock et al
Plaintiff(s)
v.
Albuquerque Police Department; City of Albuquerque; and Albuquerque Police Officers Association
Defendant(s)
) ) ) ) ) ) ) ) ) ) ) )
Civil Action No.
SUMMONS IN A CIVIL ACTION To: (Defendants name and address)

Albuquerque Police Department
A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are:
Trey Dayes, Phillips Dayes Law Group c/o Dan Lindsey, Lindsey Law Firm 920 Mitchell Street Clovis, NM 88108
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) .
I personally served the summons on the individual at (place) on (date) I left the summons at the individuals residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individuals last known address; or , who is on (date) I returned the summons unexecuted because Other (specify): . My fees are $ for travel and $ for services, for a total of $ . ; or ; or ; or
I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
0.00
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:


for the

Tod Babcock et al
Plaintiff(s)
v.
Defendant(s)
) ) ) ) ) ) ) ) ) ) ) )
Civil Action No.

City of Albuquerque
CLERK OF COURT
Date:

0.00
Date:
Servers signature
Servers address


for the

Tod Babcock et al
Plaintiff(s)
v.
Defendant(s)
) ) ) ) ) ) ) ) ) ) ) )
Civil Action No.

Albuquerque Police Officers Association
CLERK OF COURT
Date:

0.00
Date:
Servers signature
Servers address

NM ABQ APD Cops Sue Over Age

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Case 1:13-cv-01179-KBM-RHS Document 1 Filed 12/12/13 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

COMPLAINT JURY DEMAND

Complaint and Demand for Jury Trial

Case 1:13-cv-01179-KBM-RHS Document 1 Filed 12/12/13 Page 2 of 17

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Complaint and Demand for Jury Trial

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Complaint and Demand for Jury Trial

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within the meaning of 29 U.S.C. 631(a).

Complaint and Demand for Jury Trial

Case 1:13-cv-01179-KBM-RHS Document 1 Filed 12/12/13 Page 9 of 17

Defendants' regularly and purposefully treated members of the Protected Group

Complaint and Demand for Jury Trial

Case 1:13-cv-01179-KBM-RHS Document 1 Filed 12/12/13 Page 10 of 17

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Complaint and Demand for Jury Trial

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Case 1:13-cv-01179-KBM-RHS Document 1 Filed 12/12/13 Page 13 of 17

over the age of forty (40).

Complaint and Demand for Jury Trial

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Complaint and Demand for Jury Trial

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Complaint and Demand for Jury Trial

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Dated: December 12, 2013

P HILLIPS D AYES L AW G ROUP PC

Complaint and Demand for Jury Trial

Case 1:13-cv-01179-KBM-RHS Document 1-1 Filed 12/12/13 Page 1 of 2

CIVIL COVER SHEET

(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an X in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

IV. NATURE OF SUIT (Place an X in One Box Only)

IMMIGRATION 462 Naturalization Application 465 Other Immigration Actions

V. ORIGIN (Place an X in One Box Only)

VI. CAUSE OF ACTION Brief description of cause:

29 USC 621 et seq

Violation of the Age Discrimination in Employment Act

SIGNATURE OF ATTORNEY OF RECORD

/s/ Dan Lindsey

JS 44 Reverse (Rev. 12/12)

Case 1:13-cv-01179-KBM-RHS Document 1-1 Filed 12/12/13 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Case 1:13-cv-01179-KBM-RHS Document 1-2 Filed 12/12/13 Page 1 of 6

UNITED STATES DISTRICT COURT

District of New Mexico __________ District of __________

Civil Action No.

SUMMONS IN A CIVIL ACTION To: (Defendants name and address)

Case 1:13-cv-01179-KBM-RHS Document 1-2 Filed 12/12/13 Page 2 of 6

I declare under penalty of perjury that this information is true.

Printed name and title

Additional information regarding attempted service, etc:

Case 1:13-cv-01179-KBM-RHS Document 1-2 Filed 12/12/13 Page 3 of 6

UNITED STATES DISTRICT COURT

District of New Mexico __________ District of __________

District of New Mexico District of

District of New Mexico District of

District of New Mexico District of