NM ABQ APD Cops Sue Over Age

Complaint and Demand for Jury Trial Page 1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

Tod Babcock; John Corvino; Bruce DeHerrera;

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.

No.:

COMPLAINT

JURY DEMAND

Plaintiffs bring this action for monetary damages based on their employer’s 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

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


Employment Opportunity Commission (“EEOC”).1 Plaintiffs have brought this lawsuit within

ninety days of the date Plaintiffs received the EEOC’s notice of right to bring suit which was

issued on or about September 16, 2013.

JURISDICTION AND VENUE

3. This Court has jurisdiction pursuant to 29 U.S.C. §§ 626(c), 633 and 28 U.S.C. §

1331.

4. The named Defendants, by virtue of their own acts and omissions or by virtue of

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. On or about September 16, 2013, the EEOC issued Plaintiffs a Notice of Right to

Sue.

1 The individual charge numbers are: Heitzman-543-2011-00362; Landavazo-543-2011-00363; DeHerrera-543-2011-

00364; 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-543-

2011-00599; Lehocky-543-2011-00610; Corvino-543-2011-00686; Martinez-543-2011-01100.



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. Plaintiffs are all individuals who reside in the District of New Mexico.

11. 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).



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



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. Plaintiffs are all PERA rehire officers with the APD.

31. 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



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. Plaintiffs are given less priority in work shift assignments.

36. 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. Plaintiffs filed charges of discrimination against Defendants with the EEOC.

44. 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 re-

hire 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. Plaintiffs incorporate and adopt paragraphs 1 through 46 above as if fully set

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 individual’s 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

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



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. Plaintiffs all are treated less favorably than younger employees.

56. Defendants do not have a legitimate, non-discriminatory reason for entering into

the CBA.

57. Any such reason is pretextual, as Defendants, by entering into the CBA, only

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. But for their age, Plaintiffs would have been treated more favorably.

60. 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.

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 Defendant’s 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, Defendant’s 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 non-

economic 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.)


forth herein.

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



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. The CBA provisions are not related to Defendants’ stated business purpose.

77. The CBA provisions were not defined accurately and were not applied fairly and

accurately.

78. Defendants did not assess the adverse impact on Plaintiffs and PERA rehires

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 Defendant’s 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, Defendant’s 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 non-

economic 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


forth herein.

88. The New Mexico Human Rights Act prohibits employment discrimination on the

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).



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


forth herein.

93. The Court also has jurisdiction to hear Plaintiff’s request for declaratory relief

pursuant to the Declaratory Judgment Act 28 U.S.C. §§ 2201-2202.

94. Plaintiff may obtain declaratory relief.

95. Defendants employed Plaintiffs.

96. Defendants are enterprises covered by the ADEA.

97. Plaintiffs are individually covered by the ADEA.

98. 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



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. A declaration that Defendants have violated the ADEA;

B. 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. An award against Defendants for all economic and non-economic damages;

E. Special damages to be proven at trial;

F. Punitive and exemplary damages to be proven at trial;

G. Pre-judgment and post-judgment interest;

H. 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.



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

[email protected]

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.

PHILLIPS DAYES LAW GROUP PC

/s/Trey Dayes

Trey Dayes

Phillips Dayes Law Group

3101 North Central Avenue, #1500

Phoenix, Arizona 85012

Email: [email protected]

Attorney for Plaintiffs


JS 44 (Rev. 12/12) CIVIL COVER SHEETThe 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 asprovided 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 thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(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(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 530 General’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

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

’ 1 OriginalProceeding

’ 2 Removed fromState Court

’ 3 Remanded fromAppellate Court

’ 4 Reinstated orReopened

’ 5 Transferred fromAnother District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Tod Babcock et al

Bernalilo

Trey Dayes, Phillips Dayes Law Group, c/o Dan Lindsey, Lindsey Law Firm, 920 Mitchell Street, Clovis, NM 88101 602-288-1610, ext 276

Albuquerque Police Department; City of Albuquerque; Albuquerque Police Officers Association

Bernalilo

29 USC 621 et seq

Violation of the Age Discrimination in Employment Act

12/12/2013 /s/ Dan Lindsey

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

JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired 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 ofCourt 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.

(b) 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.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

II. 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.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. 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.

V. 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.

VI. 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

VII. 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.

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 COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

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 youare 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 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

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

District of New Mexico

Tod Babcock et al

Albuquerque Police Department; City of Albuquerque; and Albuquerque Police Officers Association

Albuquerque Police Department

Trey Dayes, Phillips Dayes Law Groupc/o Dan Lindsey, Lindsey Law Firm920 Mitchell StreetClovis, NM 88108


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) ; or

’ I left the summons at the individual’s 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 individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

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

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00




__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)






CLERK OF COURT



Tod Babcock et al


City of Albuquerque




Civil Action No.

PROOF OF SERVICE





on (date) ; or






on (date) ; or



.





Server’s address


0.00




__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)






CLERK OF COURT



Tod Babcock et al


Albuquerque Police Officers Association




Civil Action No.

PROOF OF SERVICE





on (date) ; or






on (date) ; or



.





Server’s address


0.00











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NM ABQ APD Cops Sue Over Age

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