Free Answer to Amended Complaint - 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. ANSWER TO SECOND AMENDED COMPLAINT Defendant, by undersigned counsel, responds to Plaintiff's Second Amended Complaint as follows: PARTIES JURISDICTION AND VENUE 1. Defendant denies that Plaintiff was involuntarily terminated as his

termination was reversed by the Civil Service Commission. Defendant admits the remaining allegations in paragraph 1. 2. Defendant denies that Plaintiff is a protected person within the meaning of

the Americans with Disabilities (ADA) and the Rehabilitation Act (RA). Defendant admits the remaining allegations in paragraph 2. 3. 4. 5. 6. Defendant admits the allegations in paragraph 3. Defendant admits the allegations in paragraph 4. Defendant admits the allegations in paragraph 5. Defendant denies the allegations in paragraph 6.

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GENERAL ALLEGATIONS 7. 8. Defendant admits the allegations in paragraph 7. Defendant denies that Plaintiff is protected by the substantive due process

guarantees of the United States Constitution. Defendant admits the remaining allegations in paragraph 8. 9. 10. 11. 12. Defendant admits the allegations in paragraph 9. Defendant denies the allegations in paragraph 10. Defendant denies the allegations in paragraph 11. Defendant is without sufficient information to admit or deny the allegations

in paragraph 12 and therefore denies them. 13. 14. 15. 16. 17. 18. 19. 20. Defendant admits the allegations in paragraph 13. Defendant denies the allegations in paragraph 14. Defendant admits the allegations in paragraph 15. Defendant denies the allegations in paragraph 16. Defendant admits the allegations in paragraph 17 Defendant denies the allegations in paragraph 18. Defendant admits the allegations in paragraph 19. Defendant denies that McKee admitted that Plaintiff took a copy of the

cookbook with his permission. Defendant admits the remaining allegations in paragraph 20. 21. Defendant admits that the allegations in paragraph 21 accurately quote in

part, but out of context, statements made by Kevin McKee and a report of Chief Hart. 22. Defendant denies the allegations in paragraph 22. 2

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23. 24. 25. 26. 27.

Defendant denies the allegations in paragraph 23. Defendant denies the allegations in paragraph 24. Defendant admits the allegations in paragraph 25. Defendant denies the allegations in paragraph 26. Defendant admits that 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. Defendant denies the remaining allegations in paragraph 27. 28. Defendant is without sufficient information to admit or deny the allegations

in paragraph 28 and therefore denies them. 29. 30. Defendant denies the allegations in paragraph 29. Defendant admits the allegations in Paragraph 30 that HRB investigators

have the ability to tape record and request transcription of witness statements. Defendant denies the remaining allegations in paragraph 30. 31. Defendant admits that it did not assign the matter to an HRB investigator,

did not have an HRB investigator interview witnesses and did tape record and transcribe witness statements. Defendant denies the remaining allegations in paragraph 31. 32. 33. 34. 35. 36. Defendant denies the allegations in paragraph 32. Defendant denies the allegations in paragraph 33. Defendant admits the allegations in paragraph 34. Defendant denies the allegations in paragraph 35. Defendant admits the allegations in paragraph 36. 3

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37. 38. 39. 40. 41.

Defendant admits the allegations in paragraph 37. Defendant admits the allegations in paragraph 38. Defendant denies the allegations in paragraph 39. Defendant admits the allegations in paragraph 40. Defendant admits that the Board of Trustees of the Denver Firefighters

Pension Fund granted Plaintiff an age and service retirement effective March 13, 2003. On information belief, Defendant states the date of the Board vote was March 15, 2003. 42. Defendant denies that the documents referenced in paragraph 42 have

been available for review by Commission members and staff, since April, 2003. Defendant admits the remaining allegations in paragraph 42. 43. Defendant denies that it explained to Plaintiff that "if based upon a hearing

loss, Plaintiff's disability retirement would receive more favorable tax treatment...." Defendant admits the remaining allegations in paragraph 43. 44. Defendant denies that Plaintiff first submitted a written petition for disability

retirement to the Firefighters' pension Fund on February 14, 2003. Defendant admits the remaining allegations in paragraph 44. 45. Defendant denies that Plaintiff suffered a "significant hearing loss".

Defendant admits the remaining allegations in paragraph 45. 46. 47. Defendant admits the allegations in paragraph 46. Defendant denies that the document referred to in paragraph 47 has been

"available for review by Commission members and staff, since June, 2003". Defendant admits the remaining allegations in paragraph 47.

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48.

Defendant denies that "all but a few succeed in converting their age and

service retirement to disability retirement." Defendant admits the remaining allegations in paragraph 48. 49. Defendant denies that Kevin McKee admitted that Plaintiff took a free copy

of the cookbook on December 7, 2002 with his permission. Defendant admits the remaining allegations in paragraph 49. 50. 51. Defendant denies the allegations in paragraph 50. Defendant admits the retrial never occurred. Defendant denies the

remaining allegations in paragraph 51. 52. Defendant admits that an assistant city attorney faxed Plaintiff's criminal

attorney a copy of the statement by Safeway's Assistant Store Manager Brown. Defendant denies the remaining allegations in paragraph 52. 53. Defendant denies that Brown admitted that after December 8, 2002, an

identical cookbook was returned to the Safeway store and then turned in to Brown by an employee. Defendant admits the remaining allegations in paragraph 53. 54. Defendant denies that McKee gave Plaintiff permission to take a copy of a

cookbook. Defendant admits the remaining allegations in paragraph 54. 55. 56. 57. 58. Defendant admits the allegations in paragraph 55. Defendant denies the allegations in paragraph 56. Defendant denies the allegations in paragraph 57. Defendant admits that none of its agencies requested Brown's arrest or

prosecution. Defendant denies the remaining allegations in paragraph 58.

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59.

Defendant admits that it maintained its position before the Civil Service

Commission that Plaintiff's termination had been lawful and must be sustained. Defendant denies the remaining allegations in paragraph 59. 60. 61. 62. 63. Defendant admits the allegations in paragraph 60. Defendant admits the allegations in paragraph 61. Defendant admits the allegations in paragraph 62. Defendant is without sufficient information to admit or deny the allegations

in paragraph 63 and therefore denies them. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. Defendant admits the allegations in paragraph 64. Defendant admits the allegations in paragraph 65. Defendant denies the allegations in paragraph 66. Defendant admits the allegations in paragraph 67. Defendant admits the allegations in paragraph 68. Defendant admits the allegations in paragraph 69. Defendant admits the allegations in paragraph 70. Defendant admits the allegations in paragraph 71. Defendant admits the allegations in paragraph 72. Defendant admits the allegations in paragraph 73. Defendant admits the allegations in paragraph 74. Defendant admits the allegations in paragraph 75. Defendant admits the allegations in paragraph 76. Defendant admits the allegations in paragraph 77.

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78.

The allegations in paragraph 78 are a legal conclusion not a factual

allegation and therefore require no answer. However, to the extent said allegations are construed to be factual allegations, they are denied. 79. 80. 81. Defendant denies the allegations in paragraph 79. Defendant denies the allegations in paragraph 80. Defendant admits that on January 30, 2004, the Hearing Officer issued his

decision. Because the remaining allegations contain a description or paraphrase of the Hearing Officer's decision, Defendant denies said allegations and states that the decision of the Hearing Officer speaks for itself. 82. The allegations in paragraph 82 are incomplete and therefore require no

answer. However, Defendant admits that the Hearing Officer's findings and conclusions that the City failed to sustain its burden at the hearing before the Hearing Officer is a final and binding determination which the City has not challenged. To the extent Plaintiff alleges that the City is precluded or estopped from disputing any such conclusion in this action, such is an allegation of a conclusion of law and requires no answer. To the extent it is deemed a factual allegation, it is denied. 83. Defendant admits the allegations in paragraph 83 with the exception of the

allegation that there was evidence in the record before the Commission. The evidence was before the Hearing Officer, not the Commission as a whole and therefore that allegation is denied. 84. Defendant admits the allegations in paragraph 84, with the exception of

the allegation that the evidence described was in the record before the Commission. To

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the extent paragraph 84 alleges that there was evidence in the record before the Commission, that allegation is denied. 85. The allegations in paragraph 85 contain a paraphrase or description of a

decision of the Hearing Officer. To the extent the allegations are a paraphrase of the decision, they are denied. The decision speaks for itself. 86. The allegations in paragraph 86 contain a paraphrase or description of a

decision of the Hearing Officer. To the extent the allegations are a paraphrase of the decision, they are denied. The decision speaks for itself. 87. The allegations in paragraph 87 contain a paraphrase or description of a

decision of the Hearing Officer. To the extent the allegations are a paraphrase of the decision, they are denied. The decision speaks for itself. 88. The allegations in paragraph 88 contain a paraphrase or description of a

decision of the Hearing Officer. To the extent the allegations are a paraphrase of the decision, they are denied. The decision speaks for itself. 89. The allegations in paragraph 89 are not allegations of fact but conclusions

of law and therefore require no answer. To the extent they are considered to be factual allegations, they are denied. 90. The allegations in paragraph 90 are not allegations of fact but conclusions

of law and therefore require no answer. To the extent they are considered to be factual allegations, they are denied. 91. 92. 93. Defendant admits the allegations in paragraph 91. Defendant denies the allegations in paragraph 92. .Defendant denies the allegations in paragraph 93. 8

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94. 95. 96. 97. 98. 99.

Defendant denies the allegations in paragraph 94. Defendant admits the allegations in paragraph 95. Defendant admits the allegations in paragraph 96. Defendant admits the allegations in paragraph 97. Defendant admits the allegations in paragraph 98. The allegations in paragraph 99 contain partial quotations from a brief filed

with the Civil Service Commission. To the extent the allegations recite in part or paraphrase such statements in the brief, they are denied because the brief contains all statements made. 100. The allegations in paragraph 100 contain partial quotations from a brief

filed with the Civil Service Commission. To the extent the allegations recite in part or paraphrase such statements in the brief, they are denied because the brief contains all statements made. 101. The allegations in paragraph 101 contain partial quotations from a brief

filed with the Civil Service Commission. To the extent the allegations recite in part or paraphrase such statements in the brief, they are denied because the brief contains all statements made. 102. The allegations in paragraph 102 contain partial quotations from a brief

filed with the Civil Service Commission. To the extent the allegations recite in part or paraphrase such statements in the brief, they are denied because the brief contains all statements made. 103. 104. Defendant admits the allegations in paragraph 103. Defendant admits the allegations in paragraph 104. 9

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105. 106. 107. 108. 109.

Defendant admits the allegations in paragraph 105. Defendant admits the allegations in paragraph 106. Defendant admits the allegations in paragraph 107. Defendant admits the allegations in paragraph 108. Defendant admits there was no evidence in the record before the Hearing

Officer to support a finding that Plaintiff applied for age and service retirement "prior to dismissal." Defendant denies the remaining allegations in paragraph 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. Defendant denies the allegations in paragraph 110. Defendant denies the allegations in paragraph 111. Defendant denies the allegations in paragraph 112. Defendant denies the allegations in paragraph 113. Defendant denies the allegations in paragraph 114. Defendant denies the allegations in paragraph 115 Defendant denies the allegations in paragraph 116 Defendant denies the allegations in paragraph 117. Defendant denies the allegations in paragraph 118. Defendant denies the allegations in paragraph 119. Defendant denies the allegations in paragraph 120. Defendant denies the allegations in paragraph 121. Defendant denies the allegations in paragraph 122. Defendant denies the allegations in paragraph 123.

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FIRST CLAIM - AGE DISCRIMINATION 124. Defendant restates its answers to paragraphs 1 through 123 as its answer

to paragraph 124. 125. 126. 127. 128. 129. 130. Defendant denies the allegations in paragraph 125. Defendant denies the allegations in paragraph 126. Defendant denies the allegations in paragraph 127. Defendant admits the allegations in paragraph 128. Defendant admits the allegations in paragraph 129. To the extent Plaintiff's allegations of paragraph 130 allege that any of the

decision makers knew of Plaintiff's previous charges, the allegations in paragraph 130 are denied. Defendant admits that some agents of the City knew of Plaintiff's charges on January 2, 2003 131. Defendant admits the allegation in paragraph 131 that the Hearing Officer

knew of Plaintiff's filing of charges because Plaintiff introduced evidence of such at the Hearing. To the extent the allegations in paragraph 131 allege that any of the decision makers in the decision to dismiss Plaintiff on January 2, 2003, from the Fire Department or Safety Department knew of such charges, they are denied. To the extent the allegations in paragraph 131 allege that members of the Civil Service Commission knew of Plaintiff's filing of charges, the allegations are denied. 132. To the extent the allegations in paragraph 132 allege that Defendant knew

of this lawsuit during the time it opposed Plaintiff's appeal before the Commission, because the lawsuit had been served on the City, Defendant admits that the Commission's decision had not been made at the time of the filing of this lawsuit. To 11

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the extent the allegations claim that the Defendant took any action based on that fact, the allegations are denied. Answering further, Defendant states that all briefing before the Commission had been done before Plaintiff filed this lawsuit. 133. 134. 135. Defendant denies the allegations in paragraph 133. Defendant denies the allegations in paragraph 134. Defendant is without sufficient information to admit or deny the allegations

in paragraph 135 and therefore denies them 136. 137. 138. Defendant denies the allegations in paragraph 136. Defendant denies the allegations in paragraph 137. Defendant denies the allegations in paragraph 138. SECOND CLAIM ­ DISABILITY DISCRIMINATION 139. Defendant restates its answers to paragraphs 1 through 138 as its answer

to paragraph 139. 140. 141. 142. Defendant denies the allegations in paragraph 140. Defendant denies the allegations in paragraph 141. Defendant is without sufficient information to admit or deny the allegations

in paragraph 142 and therefore denies them. 143. 144. 145. 146. 147. 148. Defendant denies the allegations in paragraph 143. Defendant denies the allegations in paragraph 144. Defendant denies the allegations in paragraph 145. Defendant denies the allegations in paragraph 146. Defendant admits the allegations in paragraph 147. Defendant denies the allegations in paragraph 148. 12

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149.

Defendant is without sufficient information to admit or deny the allegations

in paragraph 149 and therefore denies them. 150. 151. 152. Defendant denies the allegations in paragraph 150. Defendant denies the allegations in paragraph 151. Defendant denies the allegations in paragraph 152. THIRD CLAIM ­ 42 U.S.C. § 1983 153. Defendant restates its answers to paragraphs 1 through 152 as its answer

to paragraph 153 of the complaint. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. Defendant admits the allegations in paragraph 154. Defendant denies the allegations in paragraph 155. Defendant denies the allegations in paragraph 156. Defendant denies the allegations in paragraph 157. Defendant denies the allegations in paragraph 158. Defendant admits the allegations in paragraph 159. Defendant admits the allegations in paragraph 160. Defendant admits the allegations in paragraph 161. Defendant denies the allegations in paragraph 162. Defendant denies the allegations in paragraph 163. Defendant denies the allegations in paragraph 164. Defendant admits the Commission affirmed the Hearing Officer's decision

in its entirety. Defendant denies the remaining allegations in paragraph 165. 166. 167. Defendant denies the allegations in paragraph 166. Defendant denies the allegations in paragraph 167. 13

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168. 169. 170. 171. 172.

Defendant denies the allegations in paragraph 168. Defendant denies the allegations in paragraph 169. Defendant denies the allegations in paragraph 170. Defendant denies the allegations in paragraph 171. Defendant admits that Plaintiff has appealed the Commission's decision to

the Denver District Court under Colo. R. Civ. P. 106(a)(4). Defendant denies the remaining allegations in paragraph 172. 173. 174. Defendant denies the allegations in paragraph 173. Any allegations not specifically admitted are denied. AFFIRMATIVE DEFENSES 1. 2. this action. 3. 4. Plaintiff has failed to state a claim upon which relief may be granted. This Court is without subject matter jurisdiction over some or all of Plaintiff has failed to exhaust all administrative remedies required. Plaintiff has failed to complete all conditions precedent to the bringing of

Plaintiff's claims for failure to satisfy jurisdictional prerequisites under the applicable statutes. 5. Some or all of Plaintiff's claims are barred by the doctrine of res judicata

(claim preclusion) or collateral estoppel (issue preclusion). 6. 7. Plaintiff has failed to mitigate his damages, if any such damages he has. Any damages sustained by Plaintiff are the result of his own actions and

conduct, not the actions of Defendant.

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WHEREFORE, Defendant requests that judgment be entered in its favor and against Plaintiff, that Plaintiff's complaint be dismissed, that Plaintiff be assessed Defendant's attorney fees and costs and for such other relief as the Court deems just and proper. JURY DEMAND Defendant hereby demands a trial by jury or six persons pursuant to Fed. R. Civ. P. 38. Respectfully submitted this 21st day of March 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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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 21, 2006, I electronically filed the foregoing ANSWER TO SECOND AMENDED COMPLAINT 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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