Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

P AN IFSAMENDED RESPONSE TO L ITF ' DEFENDANT' SMOTION FOR SUMMARY JUDGMENT

Pa t Wia R C d ra( lni o " . a on "h rb responds to the lni l m . a on " a t " rMrC d ra) ee y if l f i P if f March 8, 2006 Motion for Summary Judgment filed by Defendant City and County of D n e ( ee d n"" e v ro " i"pursuant to Fed.R.Civ.P. 56(a). Plaintiff e v r" fn a t D n e" rCt ) D , y incorporates in this Response, as though fully set forth herein, his own March 1, 2006 Motion for Partial Summary Judgment under the ADEA, ADA, and Rehabilitation Act, and all exhibits thereto.1 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this standard, "[a]ll inferences arising from the record before us must be drawn
1

Consistent with the principles of convenience and avoidance of confusion underlying D.C.Colo.LCivR.56.1(C)(2), Plaintiff will refer to exhibits submitted with his March 1, 2006 Motion for Partial Summary judgment by the same numbers used therein, and number additional exhibits submitted with this Response in sequence with his previously submitted exhibits.

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and indulged in favor of the [non-movant]." Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). "Credibility determinations [and] the weighing of the evidence . . . are jury functions, not those of a judge." Ibid. at 1216. I. INTRODUCTION--NIHILISM AND THE END OF LAW "n A a k e E eh wf; n s ec n e e , n b r C i a ds i I A d d m n w v i i a d h o c i d a d ae a , n a , s e v n d have gotten a man from the Lord. And she again bare his brother Abel. And Abel was a keeper of sheep, but Cain was a tiller of the ground. . . . And Cain talked with Abel his brother: and it came to pass, when they were in the field, that Cain rose up against Abel his brother and slew him. And the Lord said unto Cain, where is thy brother Abel? And he said, I know not: Am I boh r my rte' s k e e? e p r" -- Genesis 4:1-9. I h si i t ge s y " ilm a dteE do L w , n i c tai sa ,Nhi n h n f a "First Things 31 (March, s nl n l i s 1993): 19-25, U.C. Berkeley Law Professor Phillip E. Johnson reflected upon what he called " emo en t a s "e u i f m " t h d ri i se rs l g r rational" d ri s e co o "in " s mp t n o mo en m'rj t n fd i s ei ve or "aua l . Lamenting " ambivalence with which our contemporary legal culture n trl a "w the regards the proposition that there exists some objective standard of right and wrong against which human legal standards can be measured,J h s nw oe " o n o rt: Anyone who says that there is such a standard seems to be denying that we are morally autonomous beings who have every right to set our own standards. On the other hand, anyone who denies that there is a higher law seems to embrace nihilism, and therefore to leave the powerless unprotected from the whims of whoever controls the lawmaking apparatus. (emphasis added). Johnson went on to relate Yale Law Professor Arthur Leff' s e p rt no te" x l ai fh bewilderment of an agnostic culture that yearns for enduring values" o o in a 1979 lecture, "Unspeakable Ethics, Unnatural Law": Arthur Leff . . . saw modern intellectual history as a long, losing war against the nihilism implicit in modernism's rejection of the unevaluated evaluator who is the only conceivable source for ultimate premises. . . . Here is how he concluded his 1979 lecture:

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All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us "good," . . . . As things stand now, everything is up for grabs. Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up and died resisting Hitler, Stalin, Amin, and Pol Pot--and General Custer too--have earned salvation. Those who acquiesced deserve to be damned. There is in the world such a thing as evil. [All together now:] Sez who? God help us. II. " AL O DN " " R T E " IE I H E WIHLE A DD C I R IR A IG A B O H R FR FG T R T IS N E ET CONSTITUTES INADEQUATE PRE-TERMINATION DUE PROCESS and STRONG EVIDENCE OF DISCRIMINATORY ANIMUS OR PRETEXT. DEPRIVING HIM OF HIS PROPERTY AND LIBERTY THOUGH HE DID NOTHING WRONG CONSTITUTES INADEQUATE POST-TERMINATION DUE PROCESS, and STRONG EVIDENCE OF DISCRIMINATION. God help us, indeed. S s e e i mo en t ilm aeteCts o t p d n d ri n i e s hi r h i'legion of s y Jacobinic bureaucrats and attorneys that they would have this Court endorse a concept of due process or discrimination that embraces lies, deceit, perjury, obstruction of justice, and the arbitrary deprivation of liberty and property in a charade that grants the appearance, but not the reality, of Constitutional or statutory protection. A. Pre-Termination Deprivation and Discrimination in Termination: On

December 7, 2002, Plai is boh rFrf he a ds p ri rL. rn H f n n f "rte" i i tr n u ev o, tFa k of t' f eg s ma ( of n)falsely accused Plaintiff of shoplifting a cookbook from a Safeway store. " f H ma " , On December 8, 2002, Safeway clerk K v Mc e ( K e) e i K e " e "admitted to Asst. Fire n Mc Chief (a d"rte" i n boh rFrefighter) J eH r( at that he gave Plaintiff permission to o at" r) H " take the cookbook to replace one Plaintiff had previously purchased and lost. (Exh. 5, Handwritten statement by McKee). Hart nevertheless commenced a " v sg t n n i e t ai " n i o

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engineered to guarantee the shoplifting charge would supply a pretext for Plainis t' f f termination. Hart: (1) p ru d dS fw y stSoeMa a e Mi Bo n( rw " es a e ae a A s tr . n g r k rw " o n) e B to charge Plaintiff with shoplifting by falsely claiming to have written statements from three Firefighters confirming that Plaintiff shoplifted the cookbook, and defamatorily s t gta Pa t ia"n w ti " n h ds o le f m S fw y eoe(x . t i h t lni s k o n h fa d a h pf d r an if f e i t o ae a b fr E h 6, Brown Confession; Exh. 7, Brown Depo., pp. 12-17, 57-58, 84, 97; Exhibits 8, 9, and 10, 12/7/02 written statements of Frank Hoffman, Russ Dobson and Gil Lettig, respectively, none of which states Plaintiff shoplifted); Exh. 11, Final Pretrial Order ( T " " O) P Stipulations; (2) met with Denver Police Officer C.W. Jones to provide him with information used to formulate the criminal complaint against Plaintiff, including the names of witnesses unknown to Brown (Lt. Frank Hoffman and Firefighter Gil Lettig)(Exh. 7, Brown Depo. 69-78), but mysteriously excluding the name of the most material witness, Kevin McKee (Exh. 12, Criminal Summons, page 2); (3) did not, in accordance with departmental custom and policy, hand off investigation of the s o li ae ai t D DH ma R s uc s ue u( R "i e t aos w o h pf g lg t n o F u n e o re B ra " B)n sg tr, h in l o t H v i normally interview material witnesses on tape and have their interviews transcribed verbatim (Exh.13, Fred DeFeo Depo. 12-24, 60-69, 89-90; Exh. 14, Steven Garrod Depo. 30-32, 38-41; See, e.g., Exh. 15, June 24, 1998 Transcript of interview by DFD HRB Investigator Natalie Cohen of Bob Daily); (5) drafted a highly tendentious December 8, 2002 report of his " investigation" (Exh. 16) in which he downplayed or c n e l Mc e 'admission that he gave Plaintiff permission to take the cookbook; o ca d K e e s () rse , l gwt h c mma d r,o Pa t 'i 6 pe s d a n i i o o h s n es fr lnismmediate termination even if f

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though nothing prevented them from conducting a more thorough investigation and awaiting the results of the criminal proceedings against Plaintiff before disposing of the charges against him (Garrod Depo. 53-66); (7) drafted, in consultation with the City Atre 'O fea dH B teDecember 13, 2002 " o tmp t no Dsii r t ny f o s i n R ,h c C ne l i f i pn y ao c la A t n (Exh. A-11) on the basis of which D DC i R dJ n l"u i" co " i F h f o ui ( n l e e J e) recommended, and Denver Manager of Public Safety Ta y o ad( o ad) rc H w r " w r" H approv d Pa t 'tr n t non January 2, 2003. L eH rs e e e 8 2 0 e , lnis emi i if f ao i at D c mb r , 0 2 k ' report, the December 13 " o tmp t no Dsii r A t n deliberately concealed C ne l i f i pn y co " ao c la i McKee'corroboration of Plnis s a t 'story. Th " o tmp t n deceptively used a if f e C ne l i " ao supposed conflict in dates2 to deny that McKee could have done so:I y u w i n " o r rt n t e statement you stated that the Safeway clerk had given you permission to take the book on December 4, 2002. A record search at Safeway proved that the clerk in question was not pre e t th s r ta d y (x . -11, p.1, 2nd p rga hu d rS mmay s n a te t e h t a . E h A o " aa rp n e "u r oE et) f v ns . "3 A fascinating factual question for the jury to resolve will be whether the pretermination process was further ti e b D Ds n we g pi t Pa t ' a td y F 'k o l e r ro lnis n d o if f termination that, as Brown admitted in his June, 2003 confession (Ehx. 6; Exh. 11, PTO Stipulation 43), Brown destroyed evidence (committed felony obstruction of justice) that tn e t c r b rt Pa t 'e p n t nta h h dl t n te c p o te e d d o or oae lnis x l ai h t e a o a oh r o y fh o if f a o s cookbook in the Safeway store prior to December 7, 2002. One may well ask, and the
Ac nlth th dteCtsne t n b e p r, o l q i ra o a lh v b e a ci dt n ti o f ta, a h i'i ni s e n ue c u u e e s n by a e e n sr e o oh g i c y t o d t b n more sinister than Plnismp r c me r u d r t s. a t 'i ef t moy n e s e s if f e r 3 Neither the City nor Safeway has ever produced records proving McKee was not in the store on D c mb r , 0 2 H n e i h a s r d" c r s ac " a i fc c n u td i s n t a epo e e e e 4 2 0 . e c , te set r od e rh w sn a t o d c , mu t o h v rv d f e e e t the unfavorable inference drawn by the City.
2

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jury may well wonder, how Brown knew the number in the cookbook w s "a g a a bde n mb r u l s D n e Frf he tl h Id e ,h is persuasive circumstantial u e" n s a e v r i i tro i n e d tis , e eg d m. evidence from which a jury could conclude that Brown more likely than not informed the City that the cookbook had turned up. It w u b c n ie t i Bo n h b u l o l e o s tn wt rw ' a i a d s h s t deference to authority. In his June, 2003, written confession, and December, 2005 deposition, Brown confirmed that he contacted Safeway Security for permission to charge Plaintiff with shoplifting b c u ed i s w sn o s tn wt S fw y e a s o g o a i n ie t i ae a ' n c s h s Shoplifting Policy. (Shoplifting Policy, Exh. 17; Exh. 7, Brown Depo. 9-12, 67). Brown did not immedi e rmo etep g c na i Pa t 'i nii i omai a l e v h a e o tin lnisd t n n r t nfrom ty ng if e f g f f y o the cookbook, but retained the cookbook on his desk before deciding what to do with it. The jury could infer that he was waiting for guidance from the City or Safeway Security, or both. Nothing is more damning, in this respect, ta teCts h n h i'tacit or express approval y of Brown'ci n l so d c When Brown told Hart that he faced discharge s r a mi n u t mi c . because his obstruction of justice and perjury had been exposed (Exh. 7, Brown Depo. 60), Hart called Safeway to protests that Brown was a"o dg y w oh db e a"i g o u" h a e n b g h l t teCt a dd n d s rve to be fired. (Exh. 7, Brown Depo. 57-62). When e "o h i n i ' e e p y dt asked in the Commission hearing why he d n t e k rw 'po e ui fr ej y i o s e Bo n rs c t n o p r r d s o u or obstruction of justice, Asst. City Attorney John Redmond lamely testified that he d e n even know the elements of the crimes of obstruction of justice (Exh. 18, o s' t Redmond Transcript, p. 20, ll.8-22) or perjury (Ibid., p. 24, ll. 16-25), and did nothing to

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pursue prosecution of Brown for either. (Ibid., pp. 22-25).4 In short, the City, acting through its authorized management and policy-making officials, ratified and condoned Bo n p r r a do s u t n M.S.P. Industries, Inc. v. Diversified Mortgage rw ' ej y n b t co . s u r i Services, Inc., 777 P.2d 237 (Colo.App. 1989). Ratification after the action is the same as authorization before the action. Poudre Valley Furniture Co. v. Craw, 251 P. 543 (Colo. 1926). It is vitally important to realize that Plaintiff was deprived of information known to the City at the time of his termination that would have exonerated him. He was not g e ac p o Mc e 'D c mb r , 0 2s tme twhich corroborated that McKee i n o y f K e e e e 8 2 0 t e n, v s a had approved Plaintiff taking another copy of the cookbook without paying for it. (Exh. 19, Cadorna Transcript p. 66, l. 11 to 70, l.23). He was not informed that a copy of the cookbook containing his identifying information had been turned into Mike Brown and discarded. Ibid. Had either of these facts, which were either indisputably or arguably (as a matter of circumstantial evidence) known to the City, been disclosed to Plaintiff prior to his termination, he might have averted his termination. It is also vitally important to recognize that the City terminated Plaintiff on the basis of rumors of misconduct for which it had no evidence, and which it never gave Plaintiff an opportunity to address before terminating him. Exhibit 20 is a four-page " a on Tmen " rp rdb D DH ma R s uc s o c n u ai b s n r C d ra i le pe ae y F u n e o re fr o s l t n y e i i to o man g me t v l di Pa t 'd c le i l i C i R dJ n l n Ma a e o a e n i o e n lnis i ii , c d g h f o u i a d n g r f n v i f s pn n u n f e e

4

The Office of the Denver City Attorney seems likewise indifferent to the implications of its having "rs n[d o p rc aee ] pe e t gci n l . c ag s o lt o ti a a v na e i pe e t ] r ati t[d i rs ni r a . . h re s ly o ba n d a tg "n e ip n n mi e n Pa t 'a e d pending Civil Service Commission Appeal of his termination. Colo.R.P.C. 4.5(a). lnis l a y if r f

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Public Safety Tracy Howard. (Exh. 14, Garrod Depo. 116-122; Exh. 13, DeFeo Depo. 119-130, 141-42). Under September 22, 2002, the timeline refers to an alleged "o sc ie c e e ta Pa t 'h me a ds y:S eJ f ro C u t S eis d me t v l e v n" t lnis o , n a s "e ef s n o ny h rf i on if f e f ' Office Case Report #02-2 4 0"U d r c b r 7 2 0 , s tts " a on 4 3 . n e O t e 1 , 0 2 i s e :C d ra o t a tr n tdf m L w 'p r o l i o Croa oi i tdC d raw s emi td emi e r a o o e e J e Cr . i s b b l n c e a on a tr n e s da a for theft and ha a re t p y 2 7i rstt n. . L w 'w u n t rv ew i n d ge d o a $ 7 n e t i . . o e o l o po i rt i o u s d d t e po f f i ai . N i e o te eae ai s a tes tdb s o a y i ii r ro o su t n" e h r fh s lg t n w s h t e a i f n d c lay t o t l o a s s pn action against Plaintiff, yet it is clear that they were considered by DFD management. Moe v ra te" a on Tmen "E h 20) and Exhibit 21, "o tc l " ro e, s h C d ra i le (x . i a c na t g o consisting of notes by HRB Investigators Lt. Rob Brady and Fred DeFeo (Exh. 13, DeFeo Depo. 131-135, 156-160) reveal, Brady and DeFeo devoted a great deal of time between November 4, 2002 and December 2, 2002, even before Plaintiff was accused of shoplifting, to investigating Plaintiff, yet DFD used these HRB investigators to investigate everything BUT the allegation of shoplifting. These HRB Investigators were continuously available during this period to interview Kevin McKee, Plaintiff or other material witnesses on tape and have any such interviews transcribed (Exh. 13, DeFeo Depo. 12-24, 60-69), yet DFD management did not request that they do so. This was a serious departure from established policies or procedures for the handling of investigations. (Exh. 14, Garrod Depo. 30-32, 38-41; Exh. 13, DeFeo Depo. 12-24, 6069). It enabled DFD to shape the evidence, n s v rlc mpo s dPa t 'r hs a d e ee o rmi y e lnis i t if g . f These simply were not circumstances of the sort upon which the Supreme C ut rather lax jurisprudence concerning pre-termination due process is founded: in o rs '

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which presumptively5 overworked, harried public servants may be expected to make good faith errors of judgment for which they must be forgiven, so long as adequate posttermination procedures are available to their victims. To the contrary, the City arbitrarily denied Plaintiff adequate pre-termination procedural due process and substantive due process through executive action that was shocking to the conscience. The facts suggest, and the jury may well infer, that the City deliberately conducted the investigation of the allegations against Plaintiff without complying with its own requirements, standards, practices and customs for the investigation of such allegations and preservation of evidence, a dtee y iae Pa t 'po e ua a d n h rb v l d lnis rc d rl n ot if f substantive due process rights. Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002). The facts suggest, and the jury may well infer, that person(s) conducting the investigation under the direction of senior policy-making officials and attorneys deliberately: concealed or downplayed evidence that exonerated Plaintiff; defamed Plaintiff in order to secure his prosecution by a third party; and conspired to secure, and did secure, through misrepresentations, fraudulent concealment, and stigmatizing p bc t no fl ae ai s f r n lo d c Pa t 'mac u po e ui a d u lai fa e lg t n o ci a c n u t lnis li s rs c t n n i o s l o mi , if f io o termination without the opportunity for an adequate pre-termination hearing or adequate relief after a post-termination hearing, n tee y iae Pa t 'po e ua a d a d h rb v l d lnis rc d rl n ot if f substantive due process rights. Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003); Moran v. Board of Police

5

A presumption particularly unwarranted in this case, given the time Hart and his colleagues devoted to searching far and wide for any nugget of innuendo with which they might strengthen the scaffold upon which they intended to lynch Plaintiff.

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Commissioners, 296 F.3d 638 (8th Cir. 2002); Bishop v. Wood, 426 U.S. 341 (1976); Zinermon v. Burch, 494 U.S. 113 (1990); Cf., Parrat v. Taylor, 451 U.S. 527 (1981). The facts suggest, and the jury may well infer, that the foregoing acts or omissions were not random or unauthorized, but were pursued in concert, as part of a systematic, calculated, premeditated plan to deprive Plaintiff of his constitutional rights through any means, lawful or unlawful. County of Sacramento v. Lewis, 523 U.S. 833 (1998). For similar reasons, the evidence tends to demonstrate that the City discriminatorily deviated from its established procedures and standards, and was motivated by discriminatory animus to seize upon a pretext for terminating Plaintiff, because of his age or disability. Plaintiff must show that his age or disability was a determining factor in the challenged employment decision. Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996); Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002) (McDonnell-Douglas applies to circumstantial ADEA claims); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003) (McDonnell-Douglas applies to circumstantial ADA claims). B. Post-Termination Deprivation, Discrimination, and Retaliation: The

Commission Hearing Officer ( ai O fe"found that Plaintiff had not committed " rg f r He n i ) c theft, and overturned Plaintiff's dismissal, but refused to reinstate Plaintiff, and limited Pla t 'b c p y otep r db te nh d mi a o J n ay , 0 3a dh a e i is a k a t h ei ew e i i s l n a u r 2 2 0 n i g nf f o s s s s and service retirement on March 13, 2003. The Commission, a final policy-making body of the City, affirmed the H ai O fe'd c i e r g f r e io its entirety. (See copy of n i s c s nin Commission Decision and Final Order, Exh. A-10, or Exh. 3).

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1.

Due Process Violations: Construing the evidence in the light most

favorable to Plaintiff, the jury may conclude that senior policy-making officials and attorneys of the City deliberately concealed or downplayed evidence that exonerated Plaintiff, defamed Plaintiff in order to secure his prosecution by Safeway, and conspired to secure, and did secure through misrepresentations, fraudulent concealment, and stigmatizing publication of false allegati s f r n lo d c Pa t 'mac u o o ci a c n u t lnis li s n mi , if f io prosecution, termination, premature retirement, and denial of reinstatement or other full relief. The jury may conclude that Defendant did this to pressure Plaintiff to confess to a crime he did not commit, to pressure Plaintiff into refraining from exercising his constitutional right to appeal his termination through civil proceedings, and to reduce the likelihood of Plaintiff successfully challenging his termination in civil proceedings. The jury may further conclude that Defendant condoned, and thereby ratified and adopted as policy, the commission of felony perjury and obstruction of justice by a witness, and tee ynr g dPa t 'r h t fita b j y n d epo e s f w These h rb i i e lnis i to a r l yu a d u rc s o l . fn if g f ri r a actions or omissions show that the City arbitrarily and irrationally denied Plaintiff adequate post-termination procedural due process or substantive due process through executive action that was abusive and shocking to the conscience. They raise numerous genuine issues of fact material to determining whether Defendant violated §1983. Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003); Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); Bishop v. Wood, 426 U.S. 341 (1976); Zinermon v. Burch, 494 U.S. 113 (1990); cf., Parrat v. Taylor, 451 U.S. 527 (1981).

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The evidence in the record may also reasonably be construed to prove that the Hearing Officer and Commission, in explicit or implied reliance upon unlawful construction of, or with deliberate and willful disregard of, state and federal statutes and constitutional requirements: (1) failed to consider the undisputed evidence in the record c n en gted t o Pa t 'a pc t nfrei ment, in order to avoid reinstating o c ri h ae f lnis p lai o rte n if f i o r Plaintiff or otherwise grant him full relief for his unlawful termination (See Cts n w r i'A s e y admitting all or part of Paragraphs 37, 38, 40, 46, 47, 61, 62, 64, 65, 67, 68, 69, 70, 71, 73, 74, 75, 76, 77, 83, 84, 95, 96, 97, 98, 103, 104, 105, 106, 107, n 1 9o Pa t ' a d 0 f lnis if f Second Amended Complaint; Exh. 11, PTO Stipulations 32-49); (2) knowingly and f u u nlrldu o a u d p td fl "n i " ffc b teH ai O fe t r d l t ee p n n n i ue l a e f d g o " t y h e r g f ro a e y i s y s i n a" n i c deny Plaintiff full restoration of his property interest in his employment or his liberty interest in his career and reputation (Ibid.); (3) rfs dt rs r Pa t 'e l me t eu e o e t e lnis mp y n o if f o and all of his associated property rights and liberty interests in his employment, reputation and career in reliance upon willfully fraudulent invention of an alleged disputed issue of fact of which Plaintiff had no notice during any post-termination proceedings and which was never a disputed issue of material fact prior to the C mmi i 'f a d c i afmi teH ai O fe'D c i o s o s i l e io f n h e r g f r e io sn n sn i g r n i s c s n(Ibid.); (4) failed to c a, n fr e p reu td teo po r m a ds a a s c tdwt Pa t ' l ra d ut r ep tae ,h p rbi n h me so i e i lnis e h u a h if f tr n t nfr ci h d n t o t y eu i t rs r Pa t 'e l me t emi i o a r ao me e i o c mmi rfs g o e t e lnis mp y n d b n o if f o and all of his associated property rights and liberty interests in his employment, reputation and career, leaving him in the same position he would have been in had he not appealed his termination, in violation of §1983 as applied in Ferraro v. Board of

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Trustees, ___ F.3d ___, 2001 10CIR 1341, Case No. 00-3261 (10th Cir. 2001); Mitchell v. Moore, 218 F.3d 1190 (10th Cir. 2000); Lovingier v. City of Black Hawk, 198 F.3d 258, 1999 U.S.App. LEXIS 29752 (10th Cir. 1999); Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994); Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483 (10th Cir. 1991); (5) leaving Plaintiff, in the eyes of his family, friends, former colleagues and the community, still terminated and ostracized from the Denver Fire Department despite his unlawful termination, thereby violating his constitutionally protected right to intimate association. Patel v. Searles, 305 F.3d 130 (2d Cir. 2002). Because these actions or omissions were neither random nor unauthorized, but are attributable to a policy-making official or body, they state a claim under §1983. County of Sacramento v. Lewis, 523 U.S. 833 (1998). 2. Age Discrimination: The Commission denied Plaintiff reinstatement or

other full relief because he is over 50 and took a disability retirement. The City contends that the Commission refused to reinstate or otherwise fully compensate Plaintiff not because he is over 50 and disabled, but simply because he retired. This is fatuous. The Commission decisions leave no doubt that, had Plaintiff been under 50 and retired due to disability after more than 25 years of service, the Hearing Officer would not have felt entitled to refuse to reinstate or otherwise fully compensate Plaintiff because of C.R.S. §31-30.5-705. Under the Hearing Officer and Commission decisions, only firefighters who are over 50 and have 25 or more years of active duty are prohibited from seeking reinstatement from disability retirement.

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The mandatory retirement age for Denver Firefighters is sixty-five. Denver Muni. Code §18-572(a). Other than in conformity with a mandatory retirement age established and applied in conformity with the strict terms of 29 U.S.C. §623(j), a municipality may not discriminate against a firefighter by refusing to employ or reinstate him because of his age. Minch v. City of Chicago, ___ F.3d ____, 2004 U.S. App. LEXIS 6927 (7th Cir. 2004); Drnek v. City of Chicago, 192 F.Supp.2d 835 (N.D.Ill. 2002); See, also, Johnson v. City of Baltimore, 472 U.S. 353 (1985) and Public Employee Retirement System of Ohio v. Betts, 492 U.S. 158 (1989)(partially overruled by Older Workers Benefit Protection Act of 1990). The C mmi i 'construction of C.R.S. §31o so s sn 30.5-705 to prohibit Plaintiff's reinstatement because he was fifty-one years old, fourteen years short of the mandatory retirement age, is a per se violation of the ADEA. 3. Disability Discrimination: Similarly, by denying Plaintiff reinstatement

on the basis of his disability retirement, without making an individualized assessment of whether his disability forecloses him from performing, with or without a reasonable accommodation, the duties of any job in the Denver Fire Department to which he might be reinstated, or to which he desires to be reinstated, the City's refusal to reinstate Plaintiff, and the Hearing Officer's denial of reinstatement, violate §12112 (employment) [and, arguably, §12132 (discrimination by public entities)] of the ADA. Davoll v. City of Denver, 194 F.3d 1116, 1131 (10th Cir. 1999), citing Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161 (10th Cir. 1999). Plaintiff's disability claims are based on a hearing disability certified by a licensed physician, Dr. Stephen Hessl (Exh. A-8), a disability sufficiently serious to warrant the

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D n e Frf he'P n i B ad d c i t e v r i i tr e s n o r' e io ogrant him a disability retirement after eg s o s sn his unlawful termination. (Exh. A-7). As Plaintiff explains in his Affidavit (Exh. 22), he has 70% hearing loss in one ear, and 30% hearing loss in the other. He cannot hear many sounds if they are behind him, strains to understand normal conversation, has difficulty understanding people unless he can watch their lips and faces, and must play the television or other electronic devices, including the telephone, at very high volume in order to understand what is being said. Pa t 'h ai l ss lnis e r g o isubstantially limiting because he is significantly if f n s restricted as to the condition, manner or duration under which he can perform the indisputably major life activity of hearing as compared to the condition, manner, or duration under which the average person in the general population can hear. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003). The severity of Pa t ' lnis if f hearing loss is great. The duration of his hearing loss is permanent. Therefore, Plaintiff meets the standards set forth in Doebele for establishing that he is substantially limited in the major life activity of hearing. Plaintiff also meets the definition of disability under section 12102(2)(B) and 12102(2)(C), because, ath t o teH ai O fe'd c i o J n te i fh e r g f r e io n a uary 30, me n i s c sn 2 0 , n teC mmi i 'd c i o Ma 2 , 0 5 h i i ua lh darc r o, 0 4 a d h o s o s e io n y 0 2 0 , e n s tb a sn sn dp y e od f and was regarded by the City as having, an impairment that substantially limited the major life activities of hearing and working. Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999). The City refused to consider reinstating Plaintiff to any job in the City for which he may be qualified, and refused to grant Plaintiff full relief (in

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addition to or in lieu of reinstatement) in explicit reliance upon his disability retirement. The City must be judicially estopped from denying that Plaintiff has an actual disability, a record of such a disability, or is regarded by the City as disabled, because the City relied upon its determination that he suffers s c ad a iy oga t lnis i bi u h i bi t rn Pa t 'd a iy s l t if s l f t rte n, n h s o s tnlrldu o Pa t 'd a iy s ru d fr e y g ei me ta d a c n ie t ee p n lnis i bi a go n s o d n i r s y i if s l f t n him reinstatement or other full relief. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999). III. THE HEARING OFFICER AND COMMISSION ERRONEOUSLY PRESUMED T A P AN IFSR TR ME TWA V L N A Y H T L ITF ' E IE N S OU TR In effect, Defendant would have this Court adopt the absurd principle that all retirements, even after unlawful termination, are voluntary so long as they are in any sense volitional, e,e u eac n c u a t y h rte .U d rh Cts eit n i .rq i . r o si s c b te ei e n e te i'd f i o r y ni o of voluntariness, a Nazi Field Marshal compelled to commit suicide lest his wife and children be executed acts voluntarily. Clearly, retirement or disability claims compelled by wrongful termination are not voluntary, and cannot bar reinstatement or recovery of lost wages or benefits. Emerson v. Secretary of the Air Force, ___ F.3d ___, 1996 U.S.App. LEXIS 33513 (10th Cir. 1996)(unpublished); Walker v. Mountain States Telephone, 686 F.Supp. 269 (D.Colo. 1988)(retirement in face of demotion is not voluntary); Whatley v. Skaggs, 508 F.Supp. 302 (D.Colo. 1981)(disability would not have occurred but for unlawful termination, hence not a bar to back pay), aff'd 707 F.2d 1129 (10th Cir. 1983); Mason v. Association for Independent Growth, 817 F.Supp. 550 (E.D.Pa. 1993)(citing Whatley v. Skaggs with approval); Stacy v. Batavia Local School District, 779 N.E.2d 216 (Ohio S.Ct. 2002)(unlawfully terminated bus driver did not

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waive right to reinstatement by retiring after termination); In re: Terebetski, 770 A.2d 756 (N.J.App. 2001)(disability retirement by police officers did not constitute voluntary retirement); Nix v. Dept. of Administration, 417 S.E.2d 823 (N.C.App. 1992)(disability retirement taken after notice of termination is "hardly a voluntary career change", 417 S.E.2d at 827). Voluntariness of a retirement after termination is a question for the jury. In Emerson, the Tenth Circuit considered the propriety of a jury instruction on the question of whether a federal employee who retired after her agency denied her an accommodation of her disability had voluntarily retired, or had been unlawfully discharged in violation of the Rehabilitation Act and ADA. The court held that the jury had been properly charged with finding whether the retirement was voluntary or coerced, and stated that a variety of circumstances can vitiate freedom of choice, " c d gd rs o c ec n t pe s r, n mie d gi omai s p ldb te i l i ue s r o ri ,i rsue a d s a i n r t n u pe y h nun o me l n f o i government upon w i tee l e rls 1 9 USA p L XSa 3 5 3 h h h mp y e ee . 9 6 ..p . E I t 3 1 . c o i " Defendant repeatedly cites Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584 (U.S.Ct.Cl. 1975) as support for its position, yet even Christie recognizes and endorses the principle that an unlawful termination or other adverse action obviates a finding of voluntary resignation or retirement. In Christie, a civilian employee of the U.S. Navy who faced termination for assaulting her supervisor opted to resign to avoid termination. Importantly, unlike Plaintiff, she did not deny the incident that had resulted in her threatened discharge. The court found that her admission of misconduct foreclos dh r p e l I d i s , o e e,h c ut ttd " f o re te e e a p a n o g o h w v rte o rs e :O c us ,h . n a

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threatened termination must be for good cause in order to precipitate a binding, v l tr rs n t n" 1 F2 a 5 8 I ah ae a de q e t i e tJ d e o nay e i ai .5 8 .d t 8 . n e td n l u n d s n, u g u g o o s Skelton argued that her admission should not have been held against her, given the a e c'a p rn mi o d c i c ec gh re i ai .Hs i e t e r q oai , g n y p ae t s n u t o ri e rs n t n id s n b as u tt n s c n n g o s o for its articulate expression of the absurdity of a public employer engaging in the worst kind of overreaching to coerce resignation or retirement, only to use that coerced resignation or retirement to escape liability: Faced with . . . threats, deceitful and false misrepresentations, pressure, contrived charges, coercion, duress, intimidation, and time pressure, the plaintiff had no choice except to sign the resignation form. She was forced to choose on the one hand between what she believed to be the utter disaster of losing her job in disgrace along with her 29 year earned retirement annuity, and on the other hand a bare living on discontinued service retirement. She had a choice, as the poet says, b te n"e t a de i"ac o eb te nte"ul i a dte ew e d ah n xe, h i ew e h g i t e n h l c l n o h n ma 'n o e" c o eb te n"cl a dC ay d ". . h a g n o s ,a h i ew e S ya n h rb i . . T e s c l s "e d m o c o e rq f e o f h i "e uired by the regulations was absent. Under these r c c c ms n e , lnis e i ai w s o v l tr. i u t c s p i f rs n t n a n t o nay r a a t' f g o u " 518 F.2d at 591. Judge Skelton went on to state his view that the case closely resembled Perlman v. United States, 203 Ct.Cl. 397, 490 F.2d 928 (U.S.Ct.Cl. 1974), in which the court had held that a retirement tendered in the face of a reduction-in-force notice was not voluntary. Indeed, none of the federal cases cited by Defendant supports its contention that retirement after wrongful or unlawful termination is voluntary. They did not involve retirement after indisputably unlawful termination. Stone v. University of Maryland, 855 F.2d 167 (4th Cir. 1988) concerned a surgeon who resigned when threatened with revocation of his privileges for malpractice. The court held that his resignation to

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forestall such revocation could not constitute unlawful deprivation of his property interest in his employment in violation of 42 U.S.C. §1983. In so holding, the Fourth Circuit s td " ]dh b e ofild c ag df m h public employment, the answer t e ,[ a e e n f ay i h re r a h i l s c o i s w u b e i n.B t tn 's p r r n v r f il"rd h o l e v e t u So e u ei s e e of ay fe " i d d s o i l i c m--he resigned. . . . If, o teoh r a d So e " s n t n w s oi o nay h t a u tdt a n h te h n . tn ' r i ai " a s n l tr ta i mo ne o s eg o vu t constructive discharge, it must be considered a deprivation by state action triggering the poe t n o ted epo e s l s .8 5F2 a 1 3 T a i h dh b e rtco s fh u rc s c u e" 5 .d t 7 . h t , a e e n i a s discharged, he would have stated a claim.6 Since Plaintiff'rln eu o fd rla el t s p ot s o i nic al s ea c p n e ea c s a o u p ri p si s l r i w t t o e y misplaced, it must fall back on the two state cases it cites: Williams v. City of Los Angeles, 229 Sal.App.3d 1627 (Cal.App. 1991) and In re: Joe D. Moore, 492 P.2d 1091 (Okla.S.Ct.1972). Defendant conceals that the court in Williams denied the p i is ln f a t' f reinstatement because a Los Angeles City Charter section specifically prohibited reinstatement of a police officer who retired at a rank higher than sergeant. 229 Cal.App.3d at 1630. It did not rely upon a finding that his voluntary retirement would, in the absence of that Charter provision, have precluded his reinstatement. The sole case cited by Defendant that offers any support for its position is that of the Oklahoma Supreme Court in Joe D. Moore. It is a one and one-half page decision
6

Additional federal cases to which Defendant may resort are similarly unavailing. Taylor v. United States, 591 F.2d 688 (U.S. Ct.Cl. 1979) and Brown v. United States, 2 Ct.Cl. 586 (U.S.Ct.Cl. 1983) involved federal employees who retired after being notified of their impending termination. In neither case had a finding of unlawful termination been made. To the extent they are seen to conflict with other cases concerning the voluntariness of resignations or retirements by federal employees, they should be regarded as representing a distinct minority view. See, also, Duffy v. United States, 835 F.Supp. 1087 (N.D.Ill. 1993)(iF reR s ri'rs n t ni tefc o trae e c ut ra n t h w t b Ar oc e ev t e i ai n h a e fhe tn d o rmat l o s o n o e ss g o i th involuntary); Henn v. National Geographic Society, 819 F.2d 824 (7 Cir. 1987)(plaintiffs who accepted early retirement failed to establish a constructive discharge claim under the ADEA).

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decided solely under Oklahoma law, and contains no discussion of the large body of federal and state case law supporting Plaintiff'p si ta rte n pe ittdb s o i n h tei me t rc i e y t o r pa unlawful termination is not voluntary and therefore cannot foreclose reinstatement after af d go u l fl i h re L eteC l ri c ut d c i iWilliams, It relies i i f n wu d c ag . i h af n o rs e io n nn a s k i a o ' sn heavily upon the specific language of particular local statutes. IV. CLAIM OR ISSUE PRECLUSION DOES NOT APPLY TO CONSTITUTIONAL CLAIMS MADE IN AN ADMINISTRATIVE PROCEEDING, ESPECIALLY TO ANY ALLEGEDLY MADE IN THE COMMISSION PROCEEDINGS. In no way, shape or form did Plaintiff have a similar opportunity to litigate the issue of Constitutional pre-termination due process violations before the Commission Hearing Officer, an issue that was clearly outside the Hearing Officer j i ii o ' u s co r s rd tn competence to decide. Scroggins v. Kansas, 802 F.2d 1289 (10th Cir. 1986). Under Tennessee v. Elliott, 478 U.S. 788 (1986) administrative proceedings may not preclude litigation of federal constitutional issues; at most, they may preclude disputes over fact issues already decided in a forum in which the litigants had a full and fair opportunity to litigate a disputed issue of fact. DATED this 22nd day of April, 2006. Respectfully submitted,

/s/

Mark E. Brennan

Mark E. Brennan, P.C., #14012 P.O. Box 2556 Centennial, CO. 80161 Phone: (303) 552-9394 or 797-7687 Email: [email protected] ATTORNEY FOR PLAINTIFF

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Certificate of Service The undersigned hereby certifies that on this 22nd day of April, 2006, he sent a copy of this Pa t 'Amended R s o s t D fn a t i'Motion for Summary lnis if f e p n e o ee d n Cts y Judgment via electronic mail to: Jack M. Wesoky, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202

/s/

Mark E. Brennan

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