Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. DEFENDANT' S RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant, City and County of Denver, by undersigned counsel, responds to Plaintiff's Motion for Partial Summary Judgment as follows: I. INTRODUCTION

Plaintiff has moved for partial summary judgment on two of his three claims for relief - that the Defendant discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act ("ADEA") and that the City discriminated against him on the basis of a disability in violation of the Americans With Disabilities Act ("ADA"). Specifically, Plaintiff seeks summary judgment on his claim that the City violated the ADEA and the ADA when, after his disciplinary dismissal was overturned by the Civil Service Commission ("CSC") on Plaintiff's appeal of that dismissal, the Hearing Officer and the CSC did not reinstate him beyond the date of his retirement. He also

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seeks summary judgment on his claim that the City has unlawfully applied the doctrine estoppel to foreclose his reinstatement after he took disability retirement. The Defendant has moved for Summary Judgment in its favor on all of Plaintiff's claims, including his disability and age discrimination claims. PLAINTIFF'S DISABILITY DISCRIMINATION AND AGE DISCRIMINATION CLAIMS FAIL BECAUSE PLAINTIFF'S VOLUNTARY RETIREMENT ENDED HIS SERVICE IN THE DENVER FIRE DEPARTMENT AND ANY RIGHTS HE HAD TO FULL REINSTATEMENT OR DAMAGES WERE LOST Plaintiff bears the burden of proof to show that his retirement was involuntary. Leheny v. City of Pittsburgh, 183 F. 3d 220, 227 (3rd Cir. 1989). To show that retirement was involuntary, plaintiff must show that it was the product of coercion or duress imposed by his employer. Hargray v. City of Hallandale, 57 F. 3d 1560, 1568, 1570 (11th Cir. 1995); Stone v. University of Maryland, 855 F. 2d 167, 173-174 (4th Cir. 1988). Undisputed facts regarding Plaintiff's retirement. The undisputed facts concerning Plaintiff's retirement are contained in the Defendant's Brief in Support of Motion for Summary Judgment, pp. 13-14, with appropriate cites to the record and those undisputed facts are incorporated herein. These undisputed facts compel a conclusion that Plaintiff's retirement was voluntary and that he has not overcome the presumption of involuntariness by proof that his retirement was coerced. There is no evidence of coercion or duress by the defendant Plaintiff claims simply because his disciplinary dismissal or termination imposed by the Manager of Safety was overturned by a Hearing Officer of the Denver Civil

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Service Commission, it is by definition wrongful or unlawful and therefore Plaintiff's retirement thereafter was involuntary. This is neither the law nor should it be.1 Plaintiff's argument is based on a tortured construction of the Tenth Circuit's holding in Emerson v. Widnall, Secretary of the Air Force, 1996 U. S. App. LEXIS 33513 (10th Cir. 1996, Case No. 95-6421). Plaintiff claims that because the Court quoted language from Arneson v. Heckler, 879 F. 2d 393 (8th Cir. 1989), it adopted that case's ultimate holding that if plaintiff's termination was in violation of the Rehabilitation Act, he has the right to seek a remedy of back pay and reinstatement. Not only is Plaintiff's logic tortured, because there is simply no indication that the Tenth Circuit adopted Arneson's ultimate holding, but that ultimate holding does not support Plaintiff's position in this case. If a termination violates an anti-discrimination statute, that termination may be unlawful and allow a plaintiff to seek back pay and reinstatement. However, even in such a case, if a plaintiff resigned or retired after the termination, s/he must show that the retirement was coerced and not a voluntary action, as the Court noted in Emerson in discussing the propriety of certain jury instructions. Here, simply because Plaintiff's termination was overturned during the CSC process, does not mean that the Plaintiff's retirement was involuntary. He must still prove that it was coerced by the employer and not merely made because he had to choose between two unpleasant alternatives, awaiting the outcome of his CSC challenge to his termination or retiring from the classified service and seeking other employment to enhance his retirement benefits. See Emerson at p. 4 quoting Arneson at 396.

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The issue of "voluntariness" is briefed and argued in the Defendant's Brief in Support of Motion for Summary Judgment at pages 12-20, which is incorporated herein rather than repeated.

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Thus, the holding and language in Arneson supports Defendant here. The record is simply devoid of any coercive acts by the City and the mere fact that Plaintiff was dismissed from the classified service which decision was overturned, does not equate to coercion. Plaintiff also relies on Roskos v. United States, 213 Ct. Cl. 34, 549 F. 2d 1386 (1977) when he quotes from Arneson which in turn quotes from Roskos that "an action is not voluntary if it is produced by government conduct which is wrongful." Arneson at 96 quoting Roskos at 1389-90. Roskos does not support Plaintiff's position and is limited by its facts. There plaintiff was transferred to a distant city for disciplinary reasons. When that discipline was reversed, he was immediately reassigned to the same city In finding plaintiff's retirement after the immediate reassignment involuntary, the Court commented that "that reassignment coming right after and continuing the earlier transfer which was said to be premised on a very different set of circumstances, was not valid as a discretionary managerial determination but was either an improper effort to pressure plaintiff to retire or was at least an arbitrary and capricious adverse action." Id. at 1389. Those facts simply do not exist here. The Roskos Court also noted that to prove duress a plaintiff had to show that s/he involuntarily accepted the terms of another, that circumstances permitted no other alternative and those circumstances were the result of coercive acts of the opposite party. Id at 1389, n. 11. Here Plaintiff cannot show any of those elements. Finally, the Roskos Court stated that not every set of unpleasant alternatives constitutes duress or renders an otherwise voluntary act involuntary, citing Christie v. United States. 518 F.2d 584 (Ct. Cl. 1975). Roskos at 1389. This is precisely the City's point. That Plaintiff had 4

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to choose between fighting his dismissal and seeking other income during that battle or retire and get retirement benefits may be a distasteful set of alternatives, but it is not coercion no matter how unpleasant. Because of the unique facts in Roskos, subsequent decisions seem to limit its holding. See Tannehill v. United Sates, 18 Cl. Ct. 296, 1989 U. S. Cl. Ct. LEXIS 194, Case No. 298-87 (stating that the holding in Roskos was based on the circumstances presented there because although disciplinary transfer was reversed a similar transfer followed requiring his immediate move); Gavin v. United States, 47 Fed. Cl. 486, 2000 U.S. Claims LEXIS 174 (Case No. 98-550C) (distinguishing Roskos because the plaintiff's could not overcome the presumption of voluntariness in her resignation because she was confronted with a choice of unpleasant alternatives - she could wait until the Inspector General's report findings were published or until her rotation ended before applying for retirement); Kim v. United States, 47 Fed. Cl. 493, 2000 U.S. Claims LEXIS 176 (Case No. 99-199C) (distinguishing Roskos because plaintiff had a reasonable alternative - she could challenge the elimination actions (of her position) before a Board of Inquiry); Murphey v. United States, 2006 U.S. Claims LEXIS 44 (Case No. 05-567C) (Roskos held, based on the facts there, that plaintiff was confronted with instantaneous exile or isolation not justified by the relatively minor nature of the alleged infraction and therefore, the transfer was not valid as a discretionary managerial determination but an improper effort to pressure plaintiff to retire or was at the least an arbitrary or capricious decision); See also John H. Long, 219 Ct. Cl. 687, 689, 618 F. 2d 120 (U. S. Ct. Cl. 1979).

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Plaintiff concludes his argument on this issue by stating that "because Defendant wrongfully terminated Plaintiff, his retirement could not have been voluntary." As pointed out in Defendant's Brief in Support of Motion for Summary Judgment and above, simply because a disciplinary termination is overturned by an appellate body, does not make an intervening retirement involuntary. Plaintiff must still show that the retirement was the result of the employer's coercion. The undisputed facts show that such was not the case here. Plaintiff retired because he felt he needed money while his appeal was pending. This is not the facts of which involuntary terminations are made. Plaintiff's claim of disability discrimination fails because he cannot prove the elements of that claim Plaintiff bears the burden of proof on his disability discrimination claim. He must demonstrate that (1) he is disabled within the meaning of the ADA; (2) that he is qualified to perform the essential functions of his job with or without a reasonable accommodation; and (3) that the City discriminated against him because of his disability. Doebele v. Sprint/ United Mgmt.. Co., 342 F. 3d 1117, 1128 (10th Cir. 2003). Plaintiff also has the burden to demonstrate that his impairment substantially limits a major life activity. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U. S. 184, 195 (2002). Plaintiff can show that he is disabled within the meaning of the ADA in one of three ways - by showing that (1) he has a physical or mental impairment that substantially limits one or more of his major life activities or, (2) that he has a record of such impairment, or (3) that he is regarded as having such an impairment. See 42 U.S.C. §12102(2). Undisputed facts causing disability discrimination claim to fail.

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The undisputed facts regarding this issue are contained in Defendant's Brief in Support of Motion for Summary Judgment in the section entitled "Undisputed facts re Retirement" and those facts are incorporated herein. Additionally it is not disputed that Plaintiff worked as a firefighter through at least December 7, 2002. (Exhibit A-1, Contemplation of Discipline Letter noting December 7 as date when Plaintiff on duty and accused of misconduct; Exhibit A-27, Mc Neil Depo.p. 59, l. 10 - 24) Also, the hearing loss which Plaintiff experienced that qualified him for disability retirement was a cumulative condition that firefighters experience over time, that the hearing loss was something Plaintiff and other firefighters had when they retired, that even though Plaintiff suffered a hearing loss on January 2, 2003, the date of his disciplinary dismissal that did not prevent him from being doing his firefighter's job. (Exhibit A-28, McNeil Depo. p. 53, l. 4 ­ p. 58, l. 17, Exhibit A-29, Plaintiff's testimony from CSC Hearing p. 81, l. 7 ­ p. 82 l. 16) (1) Actual disability prong. Plaintiff must show that his impairment

substantially limits one or more major life activities. Doebele at 1129. Plaintiff's disability claim is based on a hearing disability. However, Plaintiff has presented absolutely no evidence that his hearing impairment is "substantially limiting" as defined under the ADA. While the question of "substantial limiting" is ordinarily a fact question reserved for the jury, it can be evaluated by the judge upon motion for summary judgment. Doebele at 1130 n. 5. There is no evidence in the record demonstrating that he is unable to perform a major life activity, hearing, that the average person in the general population can perform, or that he is significantly restricted as to the condition manner or duration under which he can hear as compared to the condition manner or 7

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duration under which the average person in the general population can hear. See Doebele at 1130. There is no evidence in the record whatsoever comparing Plaintiff's impairment to an average person in the general population. Additionally, the term substantially in the phrase substantially limits means "considerable or to a large degree." Toyota v. Williams, 534 U.S at 196. Because Plaintiff has not presented any evidence whatsoever of the degree to which his hearing is impaired, he has failed to demonstrate that the impairment is substantially limiting. See Lusk v. Ryder Integrated Logistics, 238 F. 3d 1237, 1240 (10th Cir. 2001) (when an impairment is not so severe that it is substantially limiting on its face, Plaintiff must present evidence comparing his restrictions to that of the average person). Here because Plaintiff has presented no evidence comparing his restrictions to that of the average person, his claim must fail. The only evidence Plaintiff has of a disability is a hearing test which demonstrates that, because of his hearing, he cannot be a firefighter. That standing alone is insufficient and summary judgment to Plaintiff should be denied. Plaintiff must show that the hearing impairment is substantial in terms of his own experience. Holt v. Grand Lake Mental Health Center, F.3d (10th Cir 2006, 2006 U.S. App. LEXIS 8889 *4 (10th Cir. 2006, Case No. 05-5031). Plaintiff' cannot show this because the undisputed evidence is that he worked as a firefighter until at least December 7, 2002, his last day of work some three months before his disability retirement and that working until a hearing disability retirement is common for firefighters. Thus his hearing loss was not substantial in terms of Plaintiff's own experience and the record contains no contrary evidence.

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(2)

Record of disability prong. Plaintiff cannot meet the definition of disability

as having a record of disability. To have a record of disability, the Plaintiff must show that he actually suffered an impairment that substantially limited one or more of his major life activities. Sorenson v. Univ. of Utah Hosp.,194 F. 3d 1084, 1087 (10th Cir. 1999). Here, Plaintiff cannot show a record of disability because he has no evidence that his record of impairment substantially limited his major life activity of hearing. The evidence only showed that his hearing loss disqualified him from being a firefighter. Not that his record of hearing loss substantially limited the life activity of hearing. (3) Regarded as disabled prong. Plaintiff has the burden to show that the

City mistakenly believed that he had a physical impairment that substantially limited a major life activity or that the City mistakenly believed that a non limiting impairment substantially limited a major life activity. Sutton v. United Airlines. Inc., 527 U. S. 471, 489 (1999). With nothing more than the fact that Plaintiff's hearing loss qualified for a disability retirement from the fire department under the specific rules for such a retirement, the evidence falls far short of demonstrating any mistaken belief regarding Plaintiff's hearing impairment. Plaintiff also claims the City regarded him as disabled in the major life activity of working. To be regarded as disabled in the major life activity of working, the City must have believed that Plaintiff was restricted in his ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, common skills and abilities. See Sorenson v. Univ. of Utah Hosp.at 1088. There is no evidence that Defendant considered the Plaintiff precluded from working in more than the particular job of firefighter. The Hearing Officer refused 9

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to reinstate Plaintiff fully because he had retired and the only fact that Plaintiff's disability retirement shows is that he was not qualified to be a firefighter. It does not show that he was disabled in the major life activity in working in a broad range of jobs or class of jobs. Moreover, Plaintiff suggests that he retired on a disability retirement not that he was disqualified from his position as a firefighter. As discussed above, the voluntary act of retirement makes Plaintiff's arguments regarding disability discrimination moot. By voluntarily retiring, Plaintiff cannot now claim disability discrimination. The act of retirement is the operative fact, not that Plaintiff has a hearing impairment. Plaintiff's age discrimination claim fails because he cannot prove the elements of that claim Plaintiff bears the burden of proof on his age discrimination that the Defendant violated the ADEA when he was not fully reinstated to his position after his disciplinary dismissal was overturned. Plaintiff's burden is to show that age was a determining factor in the decision challenged. Lucas v. Dover Corp., 857 F. 2d 1397, 1400 (10th Cir. 1988). Here, because Plaintiff claims direct evidence of discrimination, he must show that Plaintiff's age motivated the adverse employment action and that an existing policy is discriminatory. See Stone v. Autoliv ASP, Inc., 210 F. 3d 1132, 1136 (10th Cir. 2000). Undisputed facts causing age discrimination claim to fail It is undisputed that Plaintiff is above the age of 40 and protected by the ADEA. It is also undisputed that Plaintiff retired after he received the order of disciplinary dismissal from the Manager of Safety. The undisputed facts regarding this claim are contained in Defendant's Brief in Support of Motion for Summary Judgment, Undisputed Facts re Retirement on pp. 13-14 ,and incorporated herein by this reference. 10

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The Plaintiff, however, cannot prove that Plaintiff's age was the determining factor. Rather, the determining factor in whether Plaintiff could be reinstated was whether or not he voluntarily retired. As Plaintiff's retirement was voluntary, there can be no age discrimination because a reinstatement was prevented by Plaintiff's own voluntary act. The statute in question, C.R.S. 31-30.5-604, makes a firefighter's retirement the bar to reinstatement, not the firefighter's age alone. Also, as pointed out in Defendant's Brief in Support of Motion for Summary Judgment at pp. 24-25, having retired and separated from the fire department, Plaintiff could only be "rehired," and because Plaintiff exceeded the maximum age for hire of a firefighter that existed on March 3, 1983, Defendant's refusal to rehire Plaintiff because of age, even if that occurred, is not a violation of the ADEA. Partial summary judgment on issue of judicial estoppel Plaintiff also seeks partial summary judgment on the legal issue of judicial estoppel. Plaintiff contends that the CSC Hearing Officer's decision denying Plaintiff reinstatement to the fire department after his disability retirement, was an erroneous application of judicial estoppel. Plaintiff relies on Cleveland v. Policy Management Systems, 526 U.S. 795 (1999), holding that an application for social security disability benefits does not as a matter of law estop a claim for disability discrimination against an employer. All the Hearing Officer decided was that because Plaintiff had received a disability retirement from the fire department he could not be reinstated to the department with the disqualifying disability. Plaintiff's hearing loss factually provided the basis for a disability retirement. Plaintiff would be taking factually inconsistent positions regarding the hearing loss. If it was sufficient to qualify him for a disability retirement it 11

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was sufficient to prevent rehire. It is nonsensical to argue that an impairment is sufficient to warrant disability retirement from the fire department but not sufficient to disqualify from being rehired. Plaintiff's reliance on judicial estoppel is misplaced. Partial summary judgment on issue of collateral source rule. Burden of proof on collateral source claim Plaintiff has the burden of proof on this claim. Undisputed facts causing collateral source claim to fail. The undisputed facts are contained in Defendant's Brief in Support of Motion for Summary Judgment on the issue of Plaintiff's retirement. The remaining undisputed facts are contained in the Hearing Officer's Ruling, at pages 22-23, (exhibit 1 to Plaintiff's Motion for Partial Summary Judgment) awarding Plaintiff his pay from the time of his overturned disciplinary dismissal to the effective date of his retirement. Plaintiff seeks summary judgment on the legal issue that the Hearing Officer's order refusing reinstatement beyond his retirement violated Colorado's collateral source rule because the decision allows those benefits to offset Plaintiff's damages resulting from his "unjust termination." Plaintiff's premise is incorrect. If Plaintiff's retirement is voluntary, the collateral source rule is irrelevant and Plaintiff's damages (back pay) are cut off at his retirement date.2 Conclusion For the foregoing reasons, Plaintiff's Motion for Partial Summary Judgment should be denied.

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Respectfully submitted this 21st day of April, 2006. JACK M. WESOKY Assistant City Attorney s/ Jack M. Wesoky Jack M. Wesoky Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202-5332 Telephone: 720-913-3100 Fax: 720-913-3190 E-Mail: [email protected] Attorney for Defendant City and County of Denver

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There is no question that Plaintiff received the pay to which he was entitled from January 2, 2003 through March 13, 2003, his retirement date.

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 21, 2006, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204

s/ Marilyn Barela Marilyn Barela, Legal Secretary Office of the Denver City Attorney

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