Free Proposed Pretrial Order - 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. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference occurred before Magistrate Judge Craig B. Shaffer on Monday, April 17, 2006 at 2:45 P.M. in Courtroom A402 of the Alfred Arraj U.S. Court House. Plaintiff and Defendant were represented by: P AN IFSA T R E : L ITF ' T O N Y Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161 (303) 552-9394 (office) (303) 797-7687 (cell) D F N A TSA T R E : EE D N ' TO N Y Jack M. Wesoky Asst. City Attorney 201 W. Colfax, Dept. 1108 Denver, CO. 80202 (720) 913-3117

2. JURISDICTION T ic ut a j i ii o e Pa t 'c i a a s Defendant under 28 h o rh su s co v r lnis lms g i t s rd tn if a f n 1

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U.S.C. §§1331 and 1367(a), and is the proper venue under 28 U.S.C. §1391(b)(2). 3. CLAIMS AND DEFENSES A. Pani' Cams litf li fs Narrative Summary: As his reward for twenty-seven years of faithful and courageous service as a Firefighter, the City terminated Plaintiff on January 2, 2003 after a fellow firefighter accused him of shoplifting a cookbook from a Safeway store. The City did so even though it knew, or had reason to know, of evidence exonerating Plaintiff. After his termination, Plaintiff applied for age and service retirement, for which he automatically qualified, n a oa pe t teD n e Frf hesP n i B adt a d l p ld o h e v r i i tr' e s n o r o s i eg o convert his age and service retirement to a disability retirement due to hearing loss suffered on the job. Plaintiff has never asserted he is physically unable to work as a firefighter. Because a Safeway clerk admitted giving Plaintiff permission to take the cookbook he was accused of shoplifting, the Denver Civil Service Commission ( o si "H ai O fe ( e r gO fe"o etre Pa t 'd mi a " mmi o ) e r g f r" ai fc r v r n d lnis i s l C sn n i c H n i ) u if s s. f However, the Hearing Officer denied Plaintiff reinstatement, or other full relief in lieu of reinstatement. The Hearing Officer l tdPa t 'b c p y otep r db te nh i e lnis a k a t h ei ew e i mi if f o s dismissal on January 2, 2003 and his age and service retirement on March 13, 2003. The Hearing Officer unlawfully c n t e s co s fh C l a o"l h e fe o s u d e t n o te o rd o i "i fighters r i o d r r pension statute t po it lnis e s tme t r te fl ee fr lnis o rh i a t 'ri t e n o oh ru rlfo Pa t ' bP if f na l i if f indisputably unlawful discharge because Plaintiff is over fifty (50) years of age and was granted a disability retirement. The Denve Cv S ri C mmi i ( o si " r il ev e o s o " mmi o ) i c sn C sn,

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a final policy-ma i b d o teCt afme teH ai O fe'd c i i i k g o y fh i, fr d h e r g fc r e io n t n y i n i s sn s entirety, in disingenuous rln eu o ac alern o s f d g (c ay a ea c p n l r r e u "n i "a t l, n i e y o i n ul inadvertent or negligent misstatement by the Hearing Officer) that, contrary to all the undisputed evidence, Plaintiff voluntarily a pe frei me tpi t d mi a . p ld o rte n "r ro i s l i r o s s" Separate Enumeration of Claims:Pa t 'February 28, 2006 Second lnis if f Amended Complaint (in which he eliminated individual Defendant and his race claims) asserts the following claims: 1) ADEA: Willful Violation of the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq., by terminating Plaintiff and refusing to reinstate him, or otherwise grant him full relief in lieu of reinstatement, for pretextual reasons, and in express reliance upon his age: a) Plaintiff bears the burden of proving by direct or circumstantial evidence that his age or protected conduct was a motivating factor in his termination or in the Cts eusal to reinstate him or otherwise grant him full relief in lieu of i'rf y reinstatement; b) Plaintiff must, through direct or circumstantial evidence, prove by a preponderance of the evidence that age was a motivating factor in his tr n t n o i teCts eusal to reinstate or otherwise grant him full relief emi i , rn h i'rf ao y for his undeniably unlawful termination; c) Plaintiff relies upon circumstantial evidence to prove that age was a motivating factor in his termination, consisting of evidence that the legitimate business reason offered by the City for his termination (that he committed shoplifting) was known to be false or of dubious validity, yet was seized upon as a pretext for his 3

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termination; d) Plaintiff relies upon circumstantial evidence to prove that his age and protected conduct were motivating factors i teCts eu a t ri tt o oh r i n h i'rfs l e s e r tews y o na e grant him full relief for his undeniably unlawful termination, consisting of evidence that the legitimate business reason(s) offered by the City for refusing to reinstate him or otherwise grant him full relief for his undeniably unlawful termination (that h ae e lrte v l tr ,h t eae e lrte "r rod mi a , n e lg d ei d o nai ta h lg d ei d pi t i s l a d l y r u l y l y r o s s" that his reinstatement or the grant of other full relief after retirement is barred by state statute) are pretextual; e) Plaintiff also relies upon direct e i n eta h a ew s fc rnteCts v e c h t i g a a a t i h i' d s o y refusal to reinstate or otherwise grant him full relief for his undeniably unlawful tr n t n c n ii o teCv S ri C mmi i 'express reliance in its emi i , o s t g fh il ev e o s o s ao sn i c sn decisions upon his being over the age of fifty (50) in explaining its refusal to reinstate or otherwise grant him full relief in lieu of reinstatement; 2) ADA: Violation of Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, by terminating Plaintiff and refusing to reinstate grant him, or otherwise grant him full relief in lieu of reinstatement, for pretextual reasons, and in express reliance upon his disability: a) Plaintiff bears the burden of proving by direct or circumstantial evidence that his disability or protected conduct was a motivating factor in his termination or in the Cts eu a to reinstate him or otherwise grant him full relief in lieu of i'rfs l y reinstatement; 4

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b) Plaintiff must, through direct or circumstantial evidence, prove by a preponderance of the evidence that his disability or protected conduct was a motivating factor in his terminai , rnteCts eu a t ri tt o t n o i h i'rfs l e s e r o y o na otherwise grant him full relief for his undeniably unlawful termination; c) Plaintiff relies upon circumstantial evidence to prove that his disability and protected conduct w r moi t gfc r i teCts ee tai a t sn h i'refusal to reinstate or v n o y otherwise grant him full relief for his undeniably unlawful termination, consisting of evidence that the legitimate business reason(s) offered by the City for refusing to reinstate him or otherwise grant him full relief for his undeniably unlawful tr n t n( a h ae e lrte v l tr ,h t eae e lrte "r ro emi i t t e lg d ei d o nai ta h lg d ei d pi t ao h l y r u l y l y r o d mi a , n ta h ri ttme t rh ga t f te fl ee atr i s l a d h t i e s e n o te rn o oh ru rlf f s s" s na l i e retirement is allegedly barred by state statute) are pretextual; d) Plaintiff also relies upon direct evidence that his disability was a factor in the Cts i'refusal to reinstate or otherwise grant him full relief for his undeniably y u l fl r n t n c n ii o teCv S ri C mmi i 'e pe s n wu t mi i , o s t g fh il ev e o s o s x rs a e ao sn i c sn reliance in its decisions upon his disability retirement in explaining its refusal to reinstate or otherwise grant him full relief in lieu of reinstatement; 3) §1983 Municipal Liability: For violation by the City of §1983 through deprivation by a final policy-making official or body of his property interest in his employment and liberty interest in his career and reputation without procedural or substantive due process: a) Plaintiff bears the burden of proving by a preponderance of the evidence that a final policy-making official or body of the City deprived him of his property 5

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interest in his employment, liberty interest in his career and reputation, or other constitutional rights or protections without procedural or substantive due process; b) Pre-Termination Constitutional Violations: Plaintiff will prove by a preponderance of the evidence that he was arbitrarily and irrationally denied adequate pretermination procedural due process, substantive due process through executive action that was abusive and shocking to the conscience, and other constitutional rights or protections because: i) 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, including but not limited to using an Assistant Chief instead of trained Human Resources Bureau/Internal Affairs investigators to conduct the investigation and deliberately failing to tape record and transcribe all material witness statements; Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); ii) the person(s) conducting the investigation under the direction of senior policymaking 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 publication of false allegations of criminal conduct, Plai is li s rs c t na d n f mac u po e ui n t' f io o termination without the opportunity for an adequate pre-termination hearing or adequate relief after a post-termination hearing; Pierce v. Gilchrist, 359 F.3d 6

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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); iii) Plaintiff was not informed of, or given an opportunity to review, evidence corroborating his story and tending to exonerate him, and therefore did not have a meaningful pre-termination hearing bearing the true hallmarks of minimal procedural or substantive due process; iv) the City considered and used unsubstantiated rumors of misconduct of which Plaintiff was never notified as unstated grounds for terminating Plaintiff; v) the persons investigating and recommending termination concealed e c l tr i omai f m teofis p rv gPa t 'tr n t n, or xu aoyn r t n r h fc la po i lnis emi i p f o o ia n if f ao teofis p rv gPa t 'tr n t nte e e d leae i oe h f a a po i lnis emi i h ms l s eb rtl g rd i l c n if f ao v i y n exculpatory information; vi) The foregoing acts 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, at teCts i o a County of Sacramento v. Lewis, 523 U.S. 833 (1998). h i'd p s l y s ; c) Post-termination Constitutional violations: Plaintiff will prove by a preponderance of the evidence that he was arbitrarily and irrationally denied adequate posttermination procedural due process, substantive due process through executive action that was abusive and shocking to the conscience, and other constitutional rights or protections because those with policy-making authority, including the 7

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Denver City Attorney, Civil Service Commission Hearing Officer, Civil Service Commission Executive Director, and the Civil Service Commission deliberately deprived him of his property interest in his employment, his liberty interest in his career and reputation, and other constitutional rights or protections in at least the following ways: i) Maliciously prosecuting Plaintiff for a trivial crime he did not commit, for which the City would not normally prosecute a citizen under the same circumstances, and se ui tec o eai o ati p r i Pa t ' c r g h o p rt n f h d at n lnis n o r y if f malicious prosecution through misrepresentations and fraudulent concealment, in order 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; Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); ii) Condoning, and thereby ratifying and adopting as policy, the commission of felony perjury and obstruction of justice by a witness or witnesses for the prosecution in the criminal proceedings against Plaintiff, thereby infringing Pa t 'r h t fita b j y n d epo e s f w lnis i to a r l yu a d u rc s o l ; if g f ri r a iii) 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 8

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p bc t no fl ae ai s f r n lo d c Pa t 'mac u u lai fa e lg t n o ci a c n u t lnis li s i o s l o mi , if f io prosecution, termination, premature retirement, and denial of reinstatement or other full relief; 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); iv) G o sn o ee c a dmac u ,e k s d rg r fr lni' rs i mp tn e n c li s rcl s i e ad o Pa t s io e s if f constitutional rights; v) Refusing, in explicit or implied reliance upon unlawful construction, or deliberate and willful disregard of, state and federal statutes and constitutional requirements or prohibitions, including the ADA, to clear the o po r m a ds a a s c tdwt Pa t 'unlawful termination for a p rbi n h me so i e i lnis u a h if f ci h d n t o t rors r Pa t 'e l me t n a o h r me e i o c mmi t e t e lnis mp y n a d l f i d o o if f o l s associated property rights and liberty interest in his employment, reputation and career despite his indisputably unlawful termination; Ferraro v. Board of Trustees, ___ F.3d ___, 2001 10CIR 1341, Case No. 00-3261 (10th Cir. 2001); Mitchell v. Moore, ___ F.3d ___, Case No. 98-6446 (10th Cir. 2000); Lovingier v. City of Black Hawk, ___ F.3d ___, 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); vi) Explicitly, deliberately, willfully, clearly erroneously and unlawfully disregarding all of the undisputed evidence available to them or in the record, 9

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in deliberate and willful disregard of state and federal statutes and constitutional requirements or prohibitions, including the ADA, in order to avoid reinstating Plaintiff or otherwise grant him full relief for his unlawful termination; Ibid. vii) Refusing to restore Plaint 'e l me t n a o h a s c tdpo et is mp y n a d l f i so i e rp r f f o l s a y rights and liberty interests in his employment, reputation and career in reliance upon willfully fraudulent invention of an alleged disputed issue of fact (o c ri ted t o Pa t 'a pc t nfor retirement) of which Plaintiff c n en g h ae f lnis p lai n if f i o had no notice during any post-termination proceedings and which was never ad p tdi u o maei fc pi t teC mmi i 'f a d c i i ue s e f tr l t r ro h o s o s i l e io s s aa o sn n sn afmi teH ai O fe'D c i ; fr n h e r g fc r e io Ibid. i g n i s sn viii)Knowingly and fraudulently relying upon an undisputedly false, obviously inadvertent or go s n gg n s tme t rf d g o " c b teH ai rsl e le t t e n o "n i " ff t y h e r g y i a i n a" n Officer, that was undeniably unsupported by any evidence of any kind, to deny Plaintiff full restoration of his property interest in his employment or his liberty interest in his career and reputation; Ibid. ix) Failing to clear, and further perpetuating, the opprobrium and shame a s c tdwt Pa t 'tr n t nfr ci h d n t o t so i e i lnis emi i o a r a h if f ao me e i o c mmi d by refusing to restore Pa t 'employment and all of his associated property lnis if f 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 and, therefore, in the eyes of his family, friends, former

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colleagues and the community, still terminated and ostracized from the Denver Fire Department despite his unlawful termination, and thereby also violating his constitutionally protected right to intimate association; Patel v. Searles, 305 F.3d 130 (2d Cir. 2002); x) 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, th Cts i o a a te i'd p s l y s . B. D fn a t D fn e ee d n' ee s s s In his Second Amended Complaint, Plaintiff makes three claims for relief - First that the Defendant City discriminated against him on the basis of his age in violation of the Age Discrimination and Employme t c ( D A) 9USC §6 , seq.; n A t" E "2 ... 1 et A Secondly that the City discriminated against Plaintiff on the basis of the disability in violation of the Americans with Disability Act, 42 U.S.C.§ 12112, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794, and thirdly that the City deprived Plaintiff of a property interest and liberty interest without due process of law in violation of 42 U.S.C. .§ 1983. 1. Age Discrimination Claim

Defendant denies it discriminated against Plaintiff on the basis of his age in either its action in terminating him for misconduct or in the denial of reinstatement of Plaintiff to his position as firefighter after the date of March 15, 2003 after his disciplinary termination was reversed by a Civil Service Commission Hearing Officer.

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With regard to his termination for misconduct, the Plaintiff must show that the Cts co w s e a s o h a e Pa t c n o s o ta a ep y da y a tr i'a t n a b c u e f i g . lni a n t h w h t g l e n fc y i s if f a o in the determination to discipline Plaintiff. Plaintiff can present no evidence of similarly su tdi id a w ow r t ae d frnlo ta D fn a t moi t ni i i ae n v u l h ee r td iee t rh t ee d n' tai n t t di s e f y s v o s disciplinary termination of Plaintiff was pretextual, i.e., a cover up for age discrimination. Further with regard to the disciplinary termination, because that termination was o etre tru hteCts d n t tea p a po e s ho g teD n e Cv v r n d ho g h i'a mis ai p e l rc s tru h h e v r il u y ir v i Service Commission, Plaintiff was not in fact terminated. With regard to the age discrimination and claim involving the failure to fully reinstate Plaintiff to his position as firefighter after his termination was reversed, because Plaintiff voluntarily retired from the Denver Fire Department first through an Age and Service Retirement and then a Disability Retirement, he is foreclosed from being reinstated. He substituted his right to a job or reinstatement for a right to collection of retirement pension benefits. He voluntarily severed his employment relationship with the fire Department Wi rs e toPa t 'c i ta teew s i c e t e p c t lnis lm h th r a d e t vidence of age h if a f r discrimination because of a state statute, the statute does not discriminate on the basis of age. The operation of the statute is based on the retired status of the former fei tr o o h /e a e Pa t 's ts s v l tr retired firefighter i f he n t n ih r g . lnis t u a a o nai r g s if a f u l y foreclosed his reinstatement to the Fire Department after his retirement. As , f r lnis ei me t io lv h l freun gt tefe l at Pa t 'rte n h n e ie o rtri o h i o e if f r s y c n r department was through reapplication. Under the safe harbor provision of the ADEA, 22 U.S.C. § 623 (j)(1), because Denver had an age restriction for firefighter applicants 12

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(no older than 30 ) in effect on March 3, 1983, Plaintiff has no claim for refusal to reinstate which is the same as refusal to rehire. 2. Disability Discrimination

With respect to the disability discrimination claim that Plaintiff was disciplinarily terminated because of his disability must fail because at the time of the disciplinary od r f i sa n n o ted c i ma es n wo Pa t 'ae e d a ility, a re o d mi l o e fh e io s s, s n k r k e f lnis lg d i b if l f s hearing loss. Additionally, there will be no evidence that Plaintiff was disciplinary terminated because of his hearing loss or that the reason given for termination was a pee to d ci n t nb s do ad a iy I fc Pa t 'd rtx fr i r ai a e n i bi. n a t lnis i s mi o s l t , i f sability was unknown f at the time of the disciplinary order of termination. Wi rs e toPa t 'c i ta D fn a t i r n tda a s h o te t e p c t lnis lm h t ee d n d ci ae g i t i n h h if a f s mi n m basis of disability when he was not reinstated fully to the position of firefighter, as noted above with respect to the age discrimination claim, Plaintiff voluntarily retired first through age and service retirement and then through disability retirement which foreclosed his ability to be fully reinstated. He substituted his right to collect a pension benefit for his right to be a firefighter. Additionally, Plaintiff will be unable to prove that his hearing loss is a disability as defined by the Americans with Disabilities Act or that he is disabled in the major life activity of working because of his hearing impairment. The only evidence the Plaintiff has is of a hearing loss discovered after his voluntary retirement from the Denver Fire Department. Plaintiff will be unable to demonstrate that he is disabled in the major life activity of working, assuming that working is a major life activity.

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As with his age discrimination claim, Plaintiff cannot show that any state statute prevented him from being reinstated because of his disability, but rather because he elected to take disability retirement, a voluntary act. 3. Due Process Claim

Pa t 'c i b t as b tni d epo e s iai a dpo e ua d e lnis lms oh u s te u rc s v l o n rc d rl u if a f a v o tn process violation. Defendant denies that Plaintiff was deprived of either substantive or procedural due process rights and states that Plaintiff had all of the procedures to which he was entitled. As to the procedural due process claim, as a City employee Plaintiff was entitled to pre-termination and post-termination due process. With respect to the pretermination due process, he was entitled to notice of the charges against him, a description of the evidence and to a pre-termination meeting or hearing. He had all of those rights and, in fact, gave his explanation as to why he should not be disciplined for his conduct of which he was accused. Thus, Plaintiff had all of the pre-termination process to which he is entitled. Additionally, with respect to the pre-termination process, that issue has been litigated in an administrative forum, before the Denver Civil Service Commission Hearing Officer, who, after an adversary hearing ruled that Plaintiff had sufficient pretermination process which decision has not been appealed. Thus under the doctrine of collateral estoppel (issue preclusion) Plaintiff is barred from raising that issue here or in the alternative that the issue has been decided adversely to him. With respect to the post-termination process, Plaintiff exercised all rights

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available to him including having a full blown adversary hearing before a neutral hearing officer of the Denver Civil Service Commission and then appealed that decision to the Civil Service Commission as a whole. Still unsatisfied, the Plaintiff has now appealed teC mmi i 'd c i o c roaie i t teD n e Ds i C utT iia h o s o s e io n et rrrv w o h e v r ir t o r h s sn sn i e tc . s complete and sufficient post-termination process to remedy any of the errors or substantive or procedural which Plaintiff alleges or claims. That Plaintiff is unsatisfied with the result of the post-termination process does not make that post-termination process viol i o Pa t 'r h t po e ua o s b tni d epo e s f w a v f lnis i to rc d rl r u s te u rc s o l . te if g f a v a Wi rs e toPa t 'c i ta h w s e r e o alet i ee twto t t e p c t lnis lm h t e a d pi d f i r n rs i u h if a f v b y t , h d epo e s f w Pa t w s ni dt " n mec ai h ai " Pa t h dta u rc s o l , lni a e te o a a a if f t l l r g e r g. lni a h t e n n if f name clearing hearing before the hearing officer of the Denver Civil Service Commission and thus was not deprived of a liberty interest without due process of law. A t Pa t 'c i fr iai o s b tni d epo e s f w b c u e s o lnis lm o v l o f u s te u rc s o l , e a s if a f o tn a v a Plaintiff had all appropriate procedures, his substantive due process claim must fail. Additionally, Plaintiff cannot show that any of the conduct of any government actor is so outrageous as to shock the conscience of the Federal District Judge as required to show and prove a substantive due process violation. Plaintiff apparently bases his substantive due process claim on the fact that he is unsatisfied with and critical of the Cv S ri C mmi i 'po e d g .H w v rPa t 'tr n t n o w i h il ev e o s o s rc e i s o e e, lnis emi i , f h h eis i c sn n if f ao c so critical, was overturned in the Civil Service Commission hearing and thus, he was n ttr n td"B c u ePa t '"a w s l rd tru hteCv S ri o " mi e . e a s lnis n me a c ae "ho g h il ev e e a if f e i c Commission proceeding, Plaintiff has no substantive due process violation claim. Wi rs e toPa t 'c i ta h s b tni d epo e s a v l e b t e p c t lnis lm h t i u s te u rc s w s ia d y h if a f s a v ot 15

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what he alleges as an erroneous improper determination ruling or opinion by the Civil S ri C mmi i , u hin t o si c s o k ga is a b s " d i err ev e o s o s c s o c n c n e h ci st , t e t j ia r . c sn e n i ,u c l o " Additionally, Plaintiff had or has the ability to appeal that determination. That the Commission ruled that Plaintiff could not be reinstated to the position of firefighter because of his retirement, does not amount to a substantive due process violation. As a matter of law such is not conscience shocking. A t Pa t 'd ma e , lni h s ae t mi aeh d ma e b fi go s o lnis a g s Pa t a fid o t t i a g s y ai r if f if f l i g s l n refusing to seek employment. Damages are the result of his own actions and conduct. Also, Plaintiff has either failed to exhaust all administrative remedies required or failed to complete all conditions precedent to the bringing of this action, particularly receipt of a right to sue letter as required before this action can be brought. 4. STIPULATIONS 1. Plaintiff is and was at all relevant times a resident of Jefferson County,

Colorado. Plaintiff served as a Firefighter for, and member of the classified service of, the Denver Fire Department commencing July 1, 1976. 2. Plaintiff's date of birth is October 31, 1952. 3. D fn a t i a dC u t o D n e ( i"iamu ip lop rt na d ee d n Ct n o ny f e v r" t )s y Cy n i c roai n ca o local government established and existing pursuant to Article XX, §6, of the Constitution of the State of Colorado. 4. The Civil Service Commission of the City and County of Denver ( o si "ia dw s t l e v n t s na e c o teCt a dC u t o " mmi o )s n a a a rl a ti a g n y fh i n o ny f C sn l e me y Denver established and existing under provisions of the Charter of the City and County

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of Denver and, pursuant thereto, has final decision-making and policy-making authority concerning the discipline of members of the classified service, including Denver Firefighters. 5. Plaintiff William Cadorna is or was : (a) a "citizen of the United States or other person within the jurisdiction thereof" within the meaning of 42 U.S.C. §1983; (b) an "employee" of the City and County of Denver within the meaning of the Age Dsr n t ni E l me t c 2 USC § 2 , t e .() n"mp y e wti te i i ai n mp y n A t 9 ... 6 1 e s q,c a e l e " i n h c mi o o , o h meaning of Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. 6. Defendant City and County of Denver is a municipal corporation, local government, "person" and "employer" subject to this court's jurisdiction under 42 U.S.C. §1983, the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq., and Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans with Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. T ic ut a j i ii o e Pa t 'c i a a s teCt u d r 8 h o rh su s co v r lnis lms g i th i n e 2 s rd tn if a f n y USC § 1 3 a d1 6 ()a ditepo e v n efr lni'a t na a s te ... § 3 1 n 3 7a, n s h rp r e u o Pa t s co g i th if f i n City under 28 U.S.C. §1391(b)(2). 7. The City is an "employer" and "public entity" within the meaning of Titles I and II of the Americans With Disabilities Act, 42 U.S.C. §§12112 and 12132, and a "rga o a ti rc in fd rln n i a s tn e wti teme n go te po rm r cvy e e i e ea f a c l sia c " i n h it vg i a s h ai fh n Rehabilitation Act, 29 U.S.C §504.

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8. On October 24, 2003, Plaintiff filed a timely charge of, among other things, age and disability discrimination, and unlawful retaliation, with the United States Equal Employment Opportunity Commission concerning his termination on January 2, 2003. 9. On September 27, 2004, Plaintiff again filed a timely charge of, among other things, age and disability discrimination, and unlawful retaliation, with the United States Equal Employment Opportunity Commission concerning the Denver Civil Service Commi i H ai O fe'January 30, 2004 Decision and Order. s o erg f r sn n i s c 10. During his employment by the City, Plaintiff was not terminable at will, but was protected from discipline or termination by civil service appeal rights, a collective bargaining agreement, and due process guarantees of the United States Constitution. 11. Plaintiff possessed a property and liberty interest in his employment as a Denver Firefighter that was protected by the procedural due process guarantees of the United States Constitution. 12. In 2002, Plaintiff worked at Denver Fire Department Station 27 in Montbello. L. rn H f n( of n) o tFa k of ma " f H ma "c mma d do eo teu i a s n dt Sai 2 a d n e n fh n s si e o tt n 7 n t g o h ds p ri r a toi o e Pa t .A s tn C i J eH r( at c mma d d a u ev oy uh ry v r lni sia t h f o at" r) o s t if f s e H " ne the District in which Station 27 is located, and had supervisory authority over Hoffman and Plaintiff. 13. On Saturday, December 7, 2002, Plaintiff was on duty. He and his colleagues on Tower 27 went to the Safeway grocery store (No. 0141) at 4884 Chambers Road, Denver, Colorado ("the Safeway store") to shop for groceries that morning, but received an emergency call requiring them to leave the store immediately.

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In answering the call, Plaintiff left the store with a copy of the "Colorado Colore" cookbook ("the cookbook"). 14. Hoffman did not ask Plaintiff why he had left the store with the cookbook. 15. On Saturday, December 7, 2002, Hoffman reported to Hart that he had seen Plaintiff leave the Safeway store with a copy of with a cookbook. 16. On December 8, 2002, Hart went to the Safeway store, interviewed Safeway Clerk Kevin McKee ( K e)and spoke with Safeway Store Manager Mike Brown Mc e " , ( rw " " o n) B . 17. On December 10, 2002, Brown signed a criminal complaint, completed or delivered to him by Denver Police Officer Charles W. Jones, accusing Plaintiff of shoplifting the cookbook on December 7, 2002. 18. I s e k gwt Bo npi t Bo n s n go teci n lo ln n p a i i rw r ro rw ' i i fh r a c mp i n h o s gn mi at against Plaintiff, Hart did not show Brown the written statements of the three Denver Firefighters. 19. Hart obtained written statements from the three Firefighters manning Tower 27 with Plaintiff: Frank Hoffman, Gil Lettig, and Russ Dobson. None of the written statements obtained by Hart from Hoffman, Lettig, or Dobson states that Plaintiff shoplifted the cookbook. Hoffman and Dobson stated that they saw Plaintiff leave the S fw y tr c r i tec o b o .D b o s i i h s tme th t e"oi d ae a Soe ar n h o k o k o s n a n i t e n ta h n te yg d s a c Bl ari ab o i h ams ic r n l y g o kn i r . s " 20. The December 10, 2002 criminal complaint against Plaintiff does not identify Kevin McKee as a witness.

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21. The Safeway store contains numerous surveillance cameras that were in operation on December 7, 2002. 22. Safeway retains any surveillance videos made in the Safeway store for thirty days before re-using them, and makes them available to law enforcement upon request. 23. As of December 8, 2002, Safeway had in its possession all of the videotapes made by any surveillance camera in the Safeway store at any time during the preceding 30 days. 24. As of January 2, 2003, Safeway had in its possession all of the videotapes made by any surveillance camera in the Safeway store at any time during the preceding 30 days. 25. Safeway Store Manager Mike Brown had access to the surveillance video system for the Safeway Store. 26. Asst. Chief Joseph Hart conducted the investigation of the allegation that Plaintiff took a cookbook from Safeway. 27. Joe Hart was not assigned to the Fire Department Human Resources Bureau in 2002 or 2003. 28. On December 13, 2002, the Denver Fire Department served Plaintiff with a written Contemplation of Disciplinary Action. 29. Fire Chief Roderick Juniel recommended to Manager of Public Safety Tracy Howard that Plaintiff be dismissed from the Denver Fire Department.

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30. On January 2, 2003, Manager of Public Safety Tracy Howard entered a Departmental Order of Disciplinary Dismissal dismissing Plaintiff from the Denver Fire Department. 31. In January, 2003, Plaintiff timely appealed teMa a e o S fts a u r h n g r f aey J n ay ' 2, 2003 Departmental Order of Disciplinary Dismissal to the Denver Civil Service Commission. 32. Prior to January 2, 2003, Plaintiff did not submit a petition for retirement to teB ado Tu te o teD n e Frf hesP n i F n . h o r f rs s fh e v r i i tr' e s n u d e eg o 33. A tet o teMa a e o S fts a u r 2 2 0 D p r na O d r th i fh me n g r f aey J n ay , 0 3 e at tl re ' me of Disciplinary Dismissal, Plaintiff qualified for age and service retirement because he met the age and years of service requirements for such a retirement. 34. After teMa a e o S fts a u r 2 2 0 D p r na O d r f h n g r f aey J n ay , 0 3 e at tl re o ' me Disciplinary Dismissal, Plaintiff submitted his first written petition for age and service retirement. 35. On March 13, 2003, the Board of Trustees of the D n e Frf hes e v r i i tr' eg Pension Fund approved Plaintiff'application for age and service retirement, effective s March 13, 2003. 36. O A r 1 , 0 3 teD n e Frf hesPension Fund Board sent the n pi 4 2 0 ,h e v r i i tr' l eg Denver Civil Service Commission a letter informing it of its approval on March 13, 2003 o Pa t 'p to fr g a ds ri rte n, f cv Mac 1 , 0 3 That f lnis ei n o a e n ev e ei me tef te rh 3 2 0 ., if f t i c r ei April 14, 2003 letter has been i teC mmi i 'possession, Pa t 'Cv nh o s o s sn i lnis il n if f i Service Commission personnel file, since its receipt by the Commission in April, 2003.

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37. The Denver Fire Department employee(s) responsible for administering Denver firefighter pension applications in February and March, 2003 advised Firefighters submitting age and service retirements of the potential tax advantages of a disability retirement. 38. After January 2, 2003, personnel of the Denver Fire Department responsible for administering Denver firefighter pension applications advised Plaintiff of his retirement options, including the possibility that he might qualify for a disability retirement that could result in more favorable tax treatment of his pension than an age and service retirement. 39. After teMa a e o S fts a u r 2, 2003 Departmental Order of h n g r f aey J n ay ' Disciplinary Action, lni s b t daw i np to t teD n e Frf hes Pa t u mi if f t e rt ei n o h e v r i i tr' t e t i eg Pension Fund Board to convert his age and service retirement to a disability pension based upon hearing loss. 40. On or about April 25, 2003,h D n e Frf hesP n i Fund Board te e v r i i tr' e s n eg o a po e Pa t 'p to fr i bi rte n and changed his retirement status to p rv d lnis ei n o d a iy ei me t if f t i s l t r disability retirement. 41. O o a o t u e3 2 0 ,h D n e Frf hesP n i Fund sent the n r b u J n , 0 3 te e v r i i tr' e s n eg o Denver Civil Service C mmi i al trnomi i f s p rv l f lni'p to o s o e e i r n t i a po a o Pa t s ei n sn t f g ot if f t i for disability retirement. That June 3, 2003 letter has been i teC mmi i ' nh o s o s sn possession, i Pa t 'Cv S ri C mmi i p ro n ll s c i rc i b te n lnis il ev e o s o es n e f , i e t e e t y h if f i c sn i n s e p Commission in June, 2003. 42. On May 7, 2003, the Denver City Attorney' fc O fetried Plaintiff in Denver i County Court on the allegation of shoplifting . The May 7, 2003 criminal trial ended in a 22

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mistrial because the jury could not agree upon a unanimous verdict. It was scheduled for retrial. 43. In June, 2003, Safeway Store Manager Mike Brown provided a written statement that, in December, 2002, an employee brought him a copy of the cookbook Pa t h db e a c s do s o li .T ec o b o c na e Pa t 'name, lni a e n cu e f h pf g h o k o k o ti d lnis if f in t n if f "a g n mb r a doh rd nii i omai .Bo na ostated that he removed b d e u e" n te i t n n r t n rw l , e f g f y o s tep g c na i Pa t 'n mea doh rd nii i omai f m te h a e o tin lnis a ng if f n te i t n n r t n r h e f g f y o o c o b o , n rtre tec o b o t tes r's e e fre a . o k o k a d eun d h o k o k o h t e h l s o rs l o s v e 44. In July, 2003, the Denver City Attorney dismissed the charges against Plaintiff. 45. In the proceedings before the Hearing Officer, the City contended that Pa t 'rte n atr id c lay i sa frc s dh ri ttme t r a k lnis ei me t f h i ii r d mi l e l e i e s e n o b c if f r e s s pn s s o o s na pay beyond the effective date of his age and service retirement. 46. During the hearing, neither party argued or presented any evidence that Pa t a pe fr g a ds ri rte n "r rod mi a . lni p ld o a e n ev e ei me tpi t i s l if f i c r o s s" 47. On January 30, 2004, the Hearing Officer issued his decision. He reversed teMa a e o S fts i ii r tr n t no Pa t .T eH ai O fe found h n g r f aey d c lay emi i f lni h e r g f r ' s pn ao if f n i c that the City had failed to sustain its burden of proving that Plaintiff was guilty of the mi o d c u o w i teMa a e o S ft b s dPa t 'd c linary dismissal. s n ut p n h h h c c n g r f aey a e lnis i i if sp f 48. The Hearing Officer did not reinstate Plaintiff or grant him back pay for any period after March 15, 2003.

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49. A tet o teH ai O fe'D c i o J n ay 0 2 0 ,h r w s th i fh e r g fc r e io n a u r 3 , 0 4 tee a me n i s sn no evidence in the record before the Hearing Officer that Plaintiff applied for age and service or disability retirement prior to January 2, 2003. 50. Pa t t la p a dteH ai O fe'D c i t teC mmi i . lni i y p e l h e r g f r e io o h o s o i f me f e n i s c sn sn 51. The Commission issued its decision afmi teH ai O fe'D c i fr n h e r g fc r e io i g n i s sn on May 20, 2005.

5. PENDING MOTIONS On March 1, 2006, both parties filed Motions for Summary Judgment. The Court s u k ee d n'Moi fr u t c D fn a t r s t n o S mmay u g n d et i l gh b t emi d o r J d me t u o t e t, u p r t s n t e Defendant to re-file a shorter Motion for Summary Judgment on March 8, 2006. Response Briefs are due April 21, and Reply Briefs are due May 2, 2006. 6. WITNESSES A. Pani' N n litf o -Expert Witnesses fs

Plaintiff will call the following non-expert witnesses: 1. Plaintiff William R. Cadorna, 5503 S. Moore St., Littleton, CO. 80127, (303) 9794769, to testify concerning any and all matters at issue in this proceeding; 2. Sandra L. Cadorna, 5503 S. Moore St., Littleton, CO. 80127, (303) 979-4769, to testify concerning all relevant matters of which she may have knowledge, including without limitation: the economic losses and mental anguish suffered by Plaintiff and his family as the result of his termination and prosecution;

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3.

Kevin P. McKee, 16199 E. 48th Ave., Denver, CO. 80239, no number listed; to testify concerning all relevant matters of which he may have knowledge, including without limitation: his knowledge of the finding of a "Colorado Colore" cookbook containing Plaintiff's identifying information in Safeway Store 0141; the investigation of Michael Brown's misconduct by Safeway's Security Dept.; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning allegations against Plaintiff or proceedings stemming therefrom;

4.

Asst. Chief Steven J. Garrod, Denver Fire Department Human Resources Bureau, 745 W. Colfax Ave., Denver, CO. 80204, (720) 913-3413, Asst. Chief, Human Resources/Internal Affairs, June 2001-May, 2003, to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: City or Fire Department investigative policies and procedures; the investigation of allegations against Plaintiff; the prosecution of Plaintiff; the dismissal of charges against Plaintiff; his view that Pa t 'tr n t nw s o u d r k ni c mpa c wt Ct p li a d lnis emi i a n t n et e n o ln e i i oc s n if f ao a i h y ie procedures, and was premature; communications with or between Defendant or representatives or employees of Defendant or Safeway concerning allegations against Plaintiff or civil or criminal proceedings stemming therefrom; communications among Fire Department managers concerning Plaintiff; the administration of age and service or disability retirements by Plaintiff and other old hire Denver Firefighters; 25

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5.

Jeff Adkins, Safeway, Inc. Security Dept., 6900 S. Yosemite St., Englewood, CO. 80012, 303-843-7600, to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; S fw y meh d o s rel c , ae a ' to s f uv i n e s l a documentation, investigation or prosecution of misconduct by employees or customers, including theft;

6.

David Schuetz, 11085 N. Cottontail Lane, Parker, Colorado, 80138; (303) 9040301; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his communications with witnesses having information concerning allegations of theft by Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such allegations or po e d g s mmi teerm; ae a 'meh d o s rel c , rc e i s t n e n h rf g o S fw y s to s f uv i n e l a documentation, investigation or prosecution of misconduct by employees or customers, including theft;

7.

Jim Stein, Safeway, Inc. Security Dept., 6900 S. Yosemite St., Englewood, CO. 80012, 303-843-7600; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his communications with witnesses knowing 26

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information bearing on allegations of theft by Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such ae ai s r rc e i s tmmi teerm; ae a 'meh d o lg t n o po e d g s l o n e n h rf g o S fw y s to s f surveillance, documentation, investigation or prosecution of misconduct by employees or customers, including theft 8. Denver Police Officer C.W. Jones, Serial No. 92073, Denver Police Dept., 1331 Cherokee, Denver, CO. 80202, (720) 913-2000; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: his investigation of the allegation of theft by Plaintiff from Safeway Store 0141; his communications with representatives or employees of Defendant or Safeway concerning the allegations against Plaintiff; Denver Police Department standards, policies, practices and procedures for the investigation or prosecution of shoplifting; the actions he took in response to the allegations against Plaintiff, and the actions he would have taken had he been fully informed of all the evidence; 9. Firefighter Craig Hopp, DIA Fire Station 1, 8525 Newcastle St., Denver, CO. 80249, (303) 342-4265; to testify concerning all relevant matters of which he may have knowledge, including without limitation: his observation of hostile conduct and statements by Lt. Frank Hoffman and other officers or firefighters toward Plaintiff; his observation of Plaintiff's shopping and cooking habits; 10. Ida Roberts, Benefits Manager, Denver Fire Department, 745 W. Colfax Ave., Denver, CO. 80204, (720) 913-3413, to testify as an adverse witness 27

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concerning all relevant matters of which she may have knowledge, including without limitation: the administration and operation of the Denver Firefighters Pension Fund; Communications among Denver Fire Department personnel or oth r i e l e s i l i teCt Atre 'ofe c n en gPa t ' e Ct mp y e , c d g h i t n y fc , o c ri lnis y o nun y o s i n if f application for retirement after his termination; Pa t 'p n i a db n f lnis e s n n e ei if f o t s applications or their processing; Ca u t no Pa t 'l t an g o b n f l l i f lniso e ri s r e ei c ao if s f n t s; the administration of age and service or disability retirements by Plaintiff and other old hire Denver Firefighters; 11. Karen McNeil, 1625 S. Birch St., Apt. 403, Denver, CO. 80222; (303) 759-9322; former benefits coordinator, Denver Fire Dept., to testify concerning all relevant matters of which she may have knowledge, including without limitation: the a mis ai a do eai o teD n e Frf hes e s nF n ; lni' d n t t n n p rt n fh e v r i i tr P n i u d Pa t s ir o o eg o if f pensions and benefits applications or their processing; Communications among Denver Fire Department personnel or other City employees, including the City Atre 'ofe c n en gPa t 'a pc t nfrei me t f r i t n y f , o c ri lnis p lai o rte n at h o s i c n if f i o r e s termination; Ca u t no Pa t 'l t an g o b n f the administration l l i f lniso e ri s r e ei c ao if s f n t s; of age and service or disability retirements by Plaintiff and other old hire Denver Firefighters; 12. Af d"rd D F o 9730 W. Dakota Ave., Lakewood, CO. 80226; (303) 988le Fe " e e , r 8525; former City Fire Dept. Human Resources/Internal Affairs/Arson Investigator, to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: City or Fire Department investigative practices, policies and procedures; the investigation of 28

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allegations against Plaintiff; his communications with other people, including but not limited to Denver Fire Department personnel, concerning Plaintiff or allegations against Plaintiff; communications between City employees and employees of Safeway or other persons concerning allegations against Plaintiff, or civil or criminal proceedings involving Plaintiff; 13. Lt. Rob Brady, Denver Fire Department Human Resources Bureau, 745 W. Colfax Ave., Denver, CO. 80204, (720) 913-3413; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: his observation, investigation or protest of hostile conduct by Lt. Frank Hoffman toward Plaintiff; punishment of Lt. Frank Hoffman for hostile conduct toward Plaintiff; City or Fire Department investigative practices, policies and procedures; the investigation of allegations against Plaintiff; the prosecution of Plaintiff; the dismissal of charges against Plaintiff; communications with or between representatives or employees of Defendant and employees of Safeway or others concerning criminal allegations against Plaintiff, or civil or criminal proceedings stemming therefrom; the administration of age and service or disability retirements by Plaintiff and other old hire Denver Firefighters; 14. John A. Criswell, Hearing Officer, Denver Civil Service Commission, 303 E. 17th Ave., Suite 810, Denver, CO. 80203; (303) 864-1664; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: the evidence and argumens rs ne i Pa t ' t pe e td n lnis if f Civil Service Commission case; the factual basis, legal basis, formulation, and 29

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l g a eo teH ai O fe'D c i i Pa t 'Cv S ri C mmi i a u g fh e r g f r e io n lnis il ev e o s o n n i s c sn if f i c sn case; actions taken by the Hearing Officer or the Commission to verify or correct teH ai O fe'mi ttme t fa t h D c i ;h H ai O fe' h e r g f r s ae n o fc i i e io te e r g f r n i s s c n s sn n i s c decisions or Commission decisions in other disciplinary cases involving other Denver Dept. of Public Safety employees, including but not limited to James Turney; 15. Earl Peterson, Executive Director, Denver Civil Service Commission, 1570 Grove St., Denver, CO. 80204-1930; (720) 913-3370; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation tee i n ea dag me t pe e tdi Pa t 'Cv :h v e c n ru ns rs ne n lnis il d if f i Service Commission cases; the factual basis, legal basis, formulation, and l g a eo teH ai O fe'D c i i Pa t 'Cv S ri C mmi i a u g fh e r g f r e io n lnis il ev e o s o n n i s c sn if f i c sn cases; actions taken by the Hearing Officer or the Commission to verify or c r c teH ai O fe'mi ttme t fa t h D c i ;h fc a or th e r g f r s ae n o fc i i e io te a t l e n i s s c n s sn u basis, legal basis, formulation and language of the Commission Decision in Pa t 'c s s D c me tt nc n en gPa t 'a peal of his termination lnis a e ; o u nai o c ri lnis p if f o n if f o rte n a pc t n i teC mmi i 'f s c mmu i t n b te no rei me t p lai sn h o s o s i ; o r i o sn l e n ai s ew e r c o among Commission staff, Commission members, the Hearing Officer, the City Attorney, other City employees or officials, Safeway officials or representatives, o a y n e e c n en ga y t re tdt Pa t 'Cv S ri r n o e l , o c ri n mat rl e o lnis il ev e s n e a if f i c C mmi i c s s r te lg t nc n en gPa t 'tr n t no Cv o s o a e o oh ri ai o c ri lnis emi i r il sn t o i n if f ao i Service Commission cases; teH ai O fe'd c i s r o si h e r g fc r e io o C mmi o n i s sn sn decisions in other disciplinary cases involving other Denver Dept. of Public 30

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Safety employees, including but not limited to James Turney; the administration of age and service or disability retirements by Plaintiff and other old hire Denver Firefighters; 16. Brian Kellogg, Senior Personnel Analyst, Denver Civil Service Commission, 1570 Grove St., Denver, CO. 80204-1930; (720) 913-3370; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: the evidence and argume t pe e tdi Pa t ' ns rs ne n lnis if f Civil Service Commission cases; the factual basis, legal basis, formulation, and l g a eo teH ai O fe'D c i i Pa t 'Cv S ri C mmi i a u g fh e r g f r e io n lnis il ev e o s o n n i s c sn if f i c sn cases; actions taken by the Hearing Officer or the Commission to verify or c r c teH ai O fe'mi ttme t fa t h D c i ;h fc a or th e r g f r s ae n o fc i i e io te a t l e n i s s c n s sn u basis, legal basis, formulation and language of the Commission Decision in Pa t 'c s s D c me tt nc n en gPa t 'a p a o h tr n t n lnis a e ; o u nai o c ri lnis p e l f i emi i if f o n if f s ao or reti me t p lai snteC mmi i 'f s c mmu i t n b te no r n a pc t n i h o s o s i ; o e i o sn l e n ai s ew e r c o among Commission staff, Commission members, the Hearing Officer, the City Attorney, other City employees or officials, Safeway officials or representatives, or anyone else, concerninga y t re tdt Pa t 'Cv S ri n mat rl e o lnis il ev e e a if f i c C mmi i c s s r te lg t nc n en gPa t 'tr n t no Cv o s o a e o oh ri ai o c ri lnis emi i r il sn t o i n if f ao i Service Commission cases; teH ai O fe'd c i s r o si h e r g fc r e io o C mmi o n i s sn sn decisions in other disciplinary cases involving other Denver Dept. of Public Safety employees, including but not limited to James Turney; the administration of age and service or disability retirements by Plaintiff and other old hire Denver Firefighters; 31

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Plaintiff will call the following non-expert witness to testify via videotaped deposition: 17. Michael S. Brown, 2250 West Dahlia Drive, Phoenix, Arizona, 85029; (602) 9931330; former Asst. Store Mgr., Safeway Store 0141, to testify via video deposition concerning all relevant matters of which he may have knowledge, including without limitation: his perjury at the criminal trial of Plaintiff; his obstruction of justice consisting of the destruction and concealment of exculpatory evidence in order to assist the prosecution of Plaintiff; his investigation of theft by Plaintiff, or his assistance in the termination or prosecution of Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway employees concerning allegations against Plaintiff or proceedings related thereto; ae a 'meh d o s rel c , S fw y s to s f uv i n e and l a documentation; Plaintiff may call the following non-expert witnesses: 18. Asst. Chief Kelley S. Caldwell, Denver Fire Department, 745 W. Colfax Ave., Denver, CO. 80204, (720) 913-3413, to testify concerning all relevant matters of which he may have knowledge, including without limitation: City or Fire Department investigative policies and procedures; the investigation of allegations against Plaintiff; the prosecution of Plaintiff; the dismissal of charges against Plaintiff; communications with or between Defendant or representatives or

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employees of Defendant or Safeway concerning allegations against Plaintiff or civil or criminal proceedings stemming therefrom; communications among Fire Department managers concerning Plaintiff; 19. Jose Aguilar Ortiz, 2641 California St., Huntington Park, CA. 90255; former Safeway Store employee, to testify by telephone concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; how he came into possession of a copy of the c o b o b ai Pa t 'n mea di nii i o k o k e r g lnis a n if f n d t n nformation in Store 141 in e f g y December, 2002 20. Michele L. Ibanez, 16199 E. 48th Ave., No. 311, Denver, CO. 80239, (303) 3079651; to testify concerning all relevant matters of which she may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; her knowledge of the finding of a "Colorado Colore" cookbook containing Plaintiff's identifying information in Safeway Store 0141; her attempts to reach Plaintiff in order to return the book to him; her transmittal of the book to another Safeway employee; the investigation of Michael Brown's misconduct by Safeway's Security Dept.; her knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning allegations against Plaintiff or proceedings s mmi teerm; ae a 'meh d o s rel c , o u nai , t e n h rf g o S fw y s to s f uv i n e d c me tt n l a o

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investigation or prosecution of misconduct by employees or customers, including theft; 21. Ronald L. Martinez, 221 S. Balsam, No. 201, Lakewood, CO. 80226, (303) 2050234; to testify concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his knowledge of the finding of a "Colorado Colore" cookbook containing Plaintiff's identifying information in Safeway Store 0141; his transmittal of the book to another Safeway employee; the investigation of Michael Brown's misconduct by Safeway's Security Dept.; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning allegations against Plaintiff or proceedings s mmi teerm; ae a 'meh d o s rel c , o u nai , t e n h rf g o S fw y s to s f uv i n e d c me tt n l a o investigation or prosecution of misconduct by employees or customers, including theft; 22. Thomas Brennan, Shrinkage Manager, Safeway, Inc., 6900 S. Yosemite St., Englewood, CO. 80012, 303-843-7600; to testify concerning all relevant matters of which he may have knowledge, including without limitation: the handling of returned, misplaced or damaged merchandise in Safeway Stores; 23. Larry Rodriguez, Safeway, Inc., 6900 S. Yosemite St., Englewood, CO. 80012, 303-843-7600; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the 34

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allegations against Plaintiff; his communications with witnesses having information concerning allegations of theft by Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such ae ai s r rc e i s tmmi teerm; ae a 'meh d o lg t n o po e d g s l o n e n h rf g o S fw y s to s f surveillance, documentation, investigation or prosecution of misconduct by employees or customers, including theft; 24. Doug Martinez, Safeway, Inc., 6900 S. Yosemite St., Englewood, CO. 80012, 303-843-7600; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his communications with witnesses having information concerning allegations of theft by Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such ae ai s r rc e i s tmmi teerm; ae a 'meh d o lg t n o po e d g s l o n e n h rf g o S fw y s to s f surveillance, documentation, investigation or prosecution of misconduct by employees or customers, including theft; 25. Clinton Eads, Safeway, Inc., 6900 S. Yosemite St., Englewood, CO. 80012, 303-843-7600; to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his communications with witnesses having 35

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information concerning allegations of theft by Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such ae ai s r rc e i s tmmi teerm; ae a 'meh d o lg t n o po e d g s l o n e n h rf g o S fw y s to s f surveillance, documentation, investigation or prosecution of misconduct by employees or customers, including theft; 26. Michael Boylan, Office of the General Counsel, Safeway, Inc. 5918 Stoneridge Mall Road Pleasanton, California 94588-3229, to testify as an adverse witness concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his communications with witnesses having information concerning allegations of theft by Plaintiff; his knowledge of information bearing on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such allegations or proceedings stemming therefrom; S fw y meh d o s rel c , o u nai , v sg t no po e ui ae a ' to s f uv i n e d c me tt n i e t ai r rs c t n s l a o n i o o of misconduct by employees or customers, including theft; 27. Chuck Kerns, Business Agent, UFCW Local 7, 7760 W. 38th Ave., Wheatridge, CO. 80033; (303) 425-0246; to testify concerning all relevant matters of which he may have knowledge, including without limitation: calls to the Safeway Ethics Hotline concerning matters related to Plaintiff, Michael Brown, or the allegations against Plaintiff; his communications with witnesses having information concerning allegations of theft by Plaintiff; his knowledge of information bearing 36

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on allegations of theft by Plaintiff; communications between representatives or employees of Defendant and Safeway concerning such allegations or prc e i s tmmi teerm; ae a 'meh d o s rel c , oe d g s n e n h rf g o S fw y s to s f uv i n e l a documentation, investigation or prosecution of misconduct by employees or customers, including theft; 28. Melissa Herrera, Steward, Safeway Store 141, UFCW Local 7, 7760 W. 38th Ave., Wheatridge, CO. 80033; (303) 425-0246; to testify concerning all relevant matters of which he may have k