                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                      SEPTEMBER 28, 2009
                            No. 09-10420               THOMAS K. KAHN
                      ________________________             CLERK


                   D. C. Docket No. 02-60967-CV-WJZ

STEVEN LERMAN,
JAMES TOWNSEND,
STEVE HOLT,
DAVID ECKLUND,
JAMES GAUGHAN,
TIMOTHY FALK,
FRANK DEL RIO,
FRED ROSS,
DAVID NICKERSON,
JIM WIGAND,
SAM WERNICK,
STEPHEN MEDLEY,
LAWRENCE LOSHEN,


                                                      Plaintiffs-Appellants,

STEPHEN LITTLEFIELD,
                                                                  Plaintiff,

                                versus


CITY OF FORT LAUDERDALE, FL,
a political subdivision of the State of Florida,
CITY OF FORT LAUDERDALE POLICE OFFICERS’
AND FIREFIGHTERS’ RETIREMENT BOARD,
                                                                    Defendants-Appellees,

FRATERNAL ORDER OF POLICE LODGE 31,

                                                                                  Defendant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                   (September 28, 2009)

Before BARKETT and HULL, Circuit Judges, and QUIST,* District Judge.

PER CURIAM:

       Steven Lerman and twelve other police officers (“Police Officers”) appeal

from an adverse summary judgment in favor of the City of Fort Lauderdale and the

Police Officers’ and Firefighters’ Retirement Board. The Police Officers sued the

City claiming a violation of the Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621 et seq . (2009) ( “ADEA”), and the Florida Civil Rights Act of

1992, Florida Statutes § 760.10 (2008). The Police Officers’ claim concerns an

early retirement incentive program that the City implemented following collective



       *
       Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.

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bargaining negotiations between it and the Officers’ Union. The retirement plan at

issue, the Deferred Retirement Option Program (“DROP”), is a voluntary early

retirement program by which a Police Officer who elects to participate can earn

early retirement benefits while continuing to work and draw a regular salary.

However, in order to participate in these additional benefits, the officer has to

submit an irrevocable letter of resignation to take effect at the termination of the

DROP period for that employee 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 James Gaughan, who never entered

DROP, executed this Waiver which provides:

      In consideration for allowing me to participate in and derive the benefits of
      the DROP, to which I acknowledge I would not otherwise be entitled and
      which I have freely and voluntarily elected, I hereby release and discharge
      the City of Fort Lauderdale, Florida . . . from all claims, liabilities, demands
      and causes of action, whether known or unknown, fixed or contingent,
      which I may have or claim to have against the City . . . as a result of my
      employment with the City; including but not limited to my election to
      participate in the DROP and to voluntarily resign and retire on the date
      specified in my letter of resignation. I hereby promise not to file a lawsuit . .
      . . This Waiver includes, but is not limited to, claims and liability under . . .
      employment discrimination laws such as the Age Discrimination in
      Employment Act of 1967 (29 U.S.C. 621, et seq.), . . . [and] the Florida Civil
      Rights Act of 1992 . . . .

The Officers do not contend on appeal that this waiver was not knowing and

voluntary as required under the Older Workers Benefit Protection Act



                                           3
(“OWBPA”), 29 U.S.C. § 626(f)(1)(A-H) (2009). Rather, they essentially argue

that an employee cannot waive his or her rights under the ADEA. They contend

that this view is reinforced by the passage of the Lilly Ledbetter Fair Pay Act

(“LLFPA”).

      Having reviewed the record, we find no error in the district court’s

determination that on this record, the waiver at issue was knowing and voluntary

and that an employee can waive his or her ADEA rights. See, e.g., Oubre v.

Entergy Operations, Inc., 522 U.S. 422, 426-7 (1998) (holding that an employee

may waive ADEA rights if the waiver complies with the OWBPA); Lloyd v.

Brunswick Corp., 180 F.3d 893, 895 (7th Cir. 1999) (“Employees are free to waive

their ADEA rights.”) (citation omitted).

      Moreover, we reject the Officers’ argument that the LLFPA somehow

precludes application of the waivers they validly executed. The LLFPA was

passed in response to the Supreme Court’s decision in Lilly Ledbetter v. Goodyear

Tire & Rubber, Co., 550 U.S. 618 (2007), which involved the statute of limitations

in pay discrimination cases. We find the LLFPA inapplicable in this case and

affirm the district court’s ruling that the Officers, other than Gaughan, validly

waived their rights under the ADEA.

      As to Gaughan, the district court found on the merits that the DROP plan



                                           4
was not discriminatory because the Police Officers had not shown that age

“actually motivated” the City’s decisions, see Ky. Ret. Sys. v. E.E.O.C., 128 S. Ct.

2361, 2366 (2008), and, even if it were, that the plan would be permitted under the

safe harbor provision of the ADEA, 29 U.S.C. § 623(f)(2)(B)(ii). Having

considered the arguments of the parties, we find no error in these determinations.

      AFFIRMED.




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