Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendant, City and County of Denver ("Defendant" or "the City"), through undersigned counsel submits this brief in support of its motion for summary judgment I. INTRODUCTION

This action has its genesis in Plaintiff's appeal from his disciplinary termination from the Denver Fire Department (DFD) and the proceedings and events which followed. Plaintiff makes three claims for relief ­ (1) that his termination and the Civil Service Commission's ("CSC") failure to reinstate him to his firefighter position violated the Age Discrimination in Employment Act and (2) the Americans With Disabilities Act, and (3) that the termination and the proceedings that followed deprived him of a liberty and property interest without due process of law. II. SUMMARY OF UNDISPUTED MATERIAL FACTS

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 2 of 30

After receiving a Contemplation of Disciplinary Action letter (Exhibit A-1, Contemplation of Disciplinary Action), and having a predisciplinary meeting/hearing with the Fire Chief (Exhibit A-2, Plaintiff's Depo., p.134, l. 25 ­ p. 135, l. 21; Exhibit A-3, Hearing Officer's decision, p. 12), Plaintiff, a Denver Firefighter was terminated from the Fire Department by the Manager of Safety upon recommendation of the Fire Chief. (Exhibit A-1 and Exhibit A-4, Order of Disciplinary Action.) (Because Plaintiff's termination was reversed in a CSC hearing, the term "termination" will refer to the Plaintiff dismissal from the DFD before it was overturned) See discussion infra. Plaintiff appealed his termination to the CSC. (Complaint ("Compl.") ¶ 36; Exhibit A-5, CSC letter advising of appeal). During the appeal process and before his hearing in front of the CSC hearing officer, Plaintiff applied for and was granted an "age and service" retirement from the Fire Department on March 13, 2003, pursuant to his petition to the Board of the Denver Fire Fighters Pension Fund. (Compl., ¶ ¶ 40 and 41). Plaintiff then applied for a disability retirement to the Board on the basis of a hearing loss, which was granted on approximately April 24, 2003, (Exhibit A-6, Depo. exhibit G ­ 16; Exhibit A-7, Depo. exhibit G ­ 17 and Exhibit A-8, Depo. exhibit G 2 -14.) After a de novo hearing, the hearing officer overturned Plaintiff's termination, but did not grant Plaintiff full reinstatement because he had retired from the fire service several months after his termination and some eight months before the CSC hearing. (Exhibit A-3). Plaintiff appealed the hearing officer's decision to the full Commission seeking reversal of the hearing officer's decision regarding the remedy granted and seeking Plaintiff's full reinstatement. (Exhibit A-9, Plaintiff's Notice of Appeal to CSC).

2

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 3 of 30

The CSC affirmed the hearing officer. (Exhibit A-10, CSC Decision) Plaintiff then sought certiorari review pursuant to C.R.C.P. 106(a)(4) which is now pending. (Exhibit A-11, Plaintiff's Denver District Court Complaint (due to length of complaint only first and last pages attached as exhibit).) III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ..P. 56(c). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) A movant who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Byers v. City of Albuquerque, 150 F.3d1271, 1274 (10th Cir.1998). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10`h Cir.), cert. denied, 528 U.S. 933(1999). IV. ARGUMENT

3

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 4 of 30

A.

Plaintiff's Third Claim for Relief - Due Process of Law. Plaintiff's Third Claim for Relief is based on 42 U.S.C. § 1983 alleging a violation

of his right to due process of law. On this claim Plaintiff has the burden of proof. He must prove that he has a protected liberty or property interest and for the liberty interest that he did not have a name clearing hearing. Workman v. Jordan. 72 F. 3d 475, 48081 (10th Cir. 1994). Because he did have such a hearing he cannot prove this essential element of his liberty interest claim. As to the property interest claim, Plaintiff must prove that he did not have procedures to which he was entitled. Watson v. University of Utah Medical Center, 75 F.3d 569, 577 (10th Cir. 1996). Because Plaintiff has an adequate remedy through the state court appeal process and because Plaintiff had the full panoply of pre-termination and post-termination rights required by the due process clause, he cannot prove his "property interest" claim. Undisputed Facts re Due Process Claim - Plaintiff served as a firefighter in the Denver Fire Department ("DFD") and had the protections of the Denver City Charter ("Charter") and the Denver Civil Service Commission ("CSC") Rules regarding the imposition of discipline. (Exhibit A-12, Charter §§ 9.4.14 and 9.4.15; Exhibit A-13, CSC Rule XII). On the basis of an investigation by Chief Joe Hart, Plaintiff's second level supervisor, the DFD initiated discipline proceedings against the Plaintiff by serving him with a contemplation of discipline letter. (Exhibit A-1). Pursuant to that letter and Denver's procedures, Plaintiff appeared at a pre-disciplinary meeting/hearing before DFD Chief Juniel. (Exhibits A-2 and A-3). At that meeting/hearing Plaintiff was given the opportunity to present his side of the story regarding the incident described in the

4

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 5 of 30

letter and give reasons why he should not be disciplined. (Exhibit A-1). After that predisciplinary meeting, Chief Juniel recommended to the Manager of Safety that Plaintiff be disciplined by termination. (Exhibit A-1, p. 4. (The bold type portion of Page 4 of Exhibit 3, and the signature and date were inserted by the Chief after the predisciplinary meeting)). Following the Chief's recommendation the Manager ordered that Plaintiff be disciplined by termination. (Exhibit A-4). In January 2003, Plaintiff appealed his termination to the CSC and independent hearing officer, John Criswell, was appointed to hear the appeal. (Compl. ¶ 36, Exhibit A-5). After requesting and receiving several continuances, (Exhibit A-14, Plaintiff's Depo., p. 133, l. 9 ­ p. 134, l. 12), Plaintiff had a de novo hearing on October 21, 22 and 23, and November 4 and 5 of 2003, at which he was represented by counsel, crossexamined witnesses presented by the City and presented witnesses and evidence. (Compl. ¶ 60, Exhibit A-3). On January 30, 2004, the hearing officer issued his decision finding that the City did not prove that Plaintiff committed the conduct for which he was disciplined, reversed the termination and ordered Plaintiff "reinstated" to the DFD to the date of March 15, 2003, the date of his age and service retirement (given back pay), but because Plaintiff had retired he could not be reinstated. (Exhibit A-3). Pursuant to CSC Rule XII § 6, Plaintiff appealed the hearing officer's decision to the full CSC, seeking reversal of the hearing officer's decision of the remedy granted and Plaintiff's full reinstatement. (Exhibit A-9, p. 5). Following written and oral

5

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 6 of 30

argument the CSC in its decision of May 20, 2005, refused the relief Plaintiff requested. (Exhibit A-10.) Pursuant to C.R.C.P. 106(a)(4), Plaintiff sought certiorari review of the CSC' s decision in the Denver District Court and that matter is now pending on Plaintiff's Third Amended Complaint. (Exhibit A-11.) A Hearing Officer's findings of fact is binding upon the Commission, an appeal from a Hearing Officer's decision may be made to the CSC or directly to the District Court in accordance with the Colorado Rules of Civil Procedure and the grounds for appeal to the CSC are limited to new evidence, erroneous rules interpretation, policy considerations or inconsistent treatment. Exhibits A-12 and A-13.) 1. Liberty Interest ­ Facts that Plaintiff Cannot Establish Because here Plaintiff has a liberty interest in his good name and reputation "the due process protections of the Fourteenth Amendment are innervated and [Plaintiff] must show he was not afforded an adequate name clearing hearing." Workman v. Jordan, at 480-81; See also Farthing v. City of Shawnee, 39 F.3d 1131, 1134 n. 2 (10th Cir. 1994), where court assumed plaintiff did not pursue liberty interest claim because he was afforded name clearing hearing. Plaintiff had a post termination name clearing hearing in which he successfully challenged his termination, the hearing officer finding that the Manager of Safety did not sustain his burden of demonstrating that Plaintiff engaged in the conduct of which he was accused, that is shoplifting a cookbook. Thus Plaintiff cannot establish that he did not have the requisite element of due process ­ a name clearing hearing. 2. Property Interest ­ Facts that Plaintiff cannot establish

6

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 7 of 30

a. Plaintiff has Adequate Remedies to Redress Any Due Process Violation. Plaintiff's claims that he was denied procedural due process because of the CSC's erroneous and improper ruling based on poor or nonexistent reasoning. Notwithstanding Plaintiff's criticism of the CSC's decision in his Complaint, his procedural due process claim is simply that his rights were violated because of an erroneous bad faith decision by the CSC. While the CSC decision is not what Plaintiff contends, because Plaintiff has an adequate state process sufficient to remedy any procedural deprivation alleged, he does not have a constitutional violation actionable under 42 U.S.C. § 1983 for denial of procedural due process. Only when the state refuses to provide a process sufficient to remedy any procedural deprivation does a constitutional violation arise actionable under §1983. Cotton v. Jackson, 216 F. 3d 1328, 1330-31 (11th Cir. 2000) citing McKinney v. Pate, 20 F. 3d 1550, 1557 (11th Cir. 1994), cert. denied sub nom McKinney v. Osceola Bd. of County Comm'rs., 513 U.S. 1110 (1998) "This rule recognizes that the state must have the opportunity to remedy the procedural failings of it subdivisions and agencies in the appropriate fora ­ agencies, review boards and state courts, before being subjected to a claim alleging a procedural due process violation." Id. at 1331 (emphasis supplied). If the state court, when asked, generally would provide an adequate remedy for the procedural deprivations the federal court plaintiff claims to have suffered there is no federal due process violation. Horton v. Board of County Commissioners of Flagler County, 202 F. 3d 1297, 1300 (11th Cir. 2000). See also, Collyer v. Darling, 98 F. 3d 211, 224-227 (6th Cir.) cert. denied 520 U.S.1267 (1997)(recognizing that where a state

7

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 8 of 30

statute provided the opportunity for an employee to have a full administrative hearing and judicial review of disciplinary action employee had adequate means of redressing procedural due process claim.) The Denver District Court routinely reviews decisions of the CSC and/or its hearing officers in disciplinary matters through the vehicle of certiorari review pursuant to C.R.C.P. 106(a)(4). e.g. McCann v. Lettig, 928 P.2d 816 (Colo.1996). Review under that rule is available when the judicial body or officer has exceeded its jurisdiction or abused its discretion, which is clearly sufficient power to review and remedy a due process violation. See Cotton v. Jackson at 1331. With the availability of certiorari review under C.R.C.P. 106 to correct the deficiencies that Plaintiff contends exist with the CSC, Plaintiff's procedural due process claim must fail. See McKinney v Pate, at 1563-64 holding that Florida Courts on certiorari review could provide adequate remedies in employment termination cases for alleged due process violations. b. Plaintiff has no Evidence to Support his Claim that the Civil Service Commission Proceeding was a Sham

Although unclear from his pleading, Plaintiff seems to claim that the CSC was somehow biased against him and its procedures were therefore a sham. Plaintiff's burden of proof - One claiming bias on the part of an administrative tribunal has a heavy burden ­ overcoming the presumption of honesty and integrity in those serving as adjudicators. Hicks v. City of Watonga, 942 F. 3d 737, 746 (10th Cir. 1991) (quoting Withrow v. Larsen, 421 U. S. 35, 47 (1975). "Due process is violated only when the risk of unfairness is intolerably high under the circumstances of a particular case. Because honesty and integrity are presumed on the part of a tribunal, 8

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 9 of 30

there must be some substantial countervailing reason to conclude that a decision maker is actually biased with respect to the issues being adjudicated." Mangels v. Peña, 789 F. 2d 836, 838 (10th Cir. 1986). Plaintiff has no evidence of bias - Under the above principles, Plaintiff has fallen far short proving any claim based on the bias of the CSC and thus, a sham proceeding. Plaintiff has no evidence of any bias of any Commissioner who heard his case - he has no affidavits from them, no deposition testimony. He has only the decision itself and his statements and belief that the Commission's decision was a sham and the process an elaborate design to offer the appearance of due process without truly offering due process. (If Plaintiff is alleging the proceeding was a sham because the Commission committed gross error in its decision, then Plaintiff has an adequate avenue for relief in the state proceeding. (See Section 2 a supra.) c. Plaintiff had all of the Pre-termination and Post-termination Procedures Plaintiff had a property interest in his position as firefighter with Denver which was at best deprived temporarily when he was terminated. (Of course, because his termination was reversed by the Commission Hearing Officer he was not deprived of his property). Thus, the only question is whether he was afforded an appropriate level of process before he was deprived of that position. It is undisputed that Plaintiff had a pretermination meeting with Fire Chief Juniel and then had a full-blown adversary hearing before an independent Hearing Officer of the CSC. An essential principle of due process is that before property can be deprived, it must be preceded by notice and opportunity for hearing appropriate to the nature of the

9

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 10 of 30

case. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985). In the context of public employment some kind of hearing prior to the discharge is required. See Mullane v. Cent. Hanover Bank and Trust Co., 339 U.S. 306, 313 (1950). This requires simply oral or written notice of the charges against him, an explanation of the employer's evidence and an opportunity for the employee to present his side of the story, Loudermill at 546. The purpose of the pre-termination meeting/hearing is to serve as "a determination of whether there are reasonable grounds to believe that the charges against the employer are true and support the proposed action," Id at 545 ­ 546. Thus, the pre-termination hearing, though necessary, need not be elaborate. Id at 545. The contemplation of discipline letter advised Plaintiff of the charges against him and the evidence supporting those charges and that he had the opportunity to present his side of the story to the Fire Chief at a pre-termination meeting. Plaintiff appeared at the meeting and presented his side of the story After Plaintiff was terminated he appealed that termination to the CSC, an independent Hearing Officer was appointed and a full blown adversary hearing was conducted on October 21 ­ 23 and November 4 ­ 5 after multiple continuances granted at Plaintiff's request. At that hearing Plaintiff had an impartial tribunal, the independent Hearing Officer, he was represented by an attorney, had the right to cross-examine adverse witnesses and present witnesses in his own behalf ­ the procedures necessary to meet the "due process" requirements. Workman v. Jordan, at 480-81. Because Plaintiff had the full blown adversary post-termination hearing, both that procedure and the pre-termination pre-disciplinary procedures which rest on the

10

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 11 of 30

availability of a full blown post-termination hearing were adequate. Loudermill at.546. That Plaintiff's termination was overturned by the Hearing Officer is clear evidence that he had full panoply of rights guaranteed by the Due Process Clause. Plaintiff is disappointed and upset at the course of the administrative proceedings before the CSC but even if the results of those proceedings were incorrect as a matter of fact or law, does not mean that the procedures were inadequate and constitutionally infirm. Due process requires only that Plaintiff have a meaningful opportunity to present his claims, it does not guarantee success on those claims. American National Bank & Trust Co. v. City of Chicago, 826 F. 2d 1547, 1550 (7th Cir.) cert. denied 484 U.S. 977 (1987). Plaintiff had all the process to which he was entitled. That he is unhappy with the outcome does not create a due process violation. d. The Doctrine of Collateral Estoppel Bars Plaintiff from Claiming a Due Process Violation in the Pre-termination Proceedings.

Because Plaintiff unsuccessfully challenged the adequacy of his pretermination procedure at his CSC hearing he is barred from making that claim here by the operation of collateral estoppel (issue preclusion). Astoria Fed. Sav. and Loan Ass'n v. Solimino, 501 U.S. 104, (common law doctrine of the collateral estoppel applied to the determinations of administrative bodies that have attained finality). Defendant has the burden of proof on this defense and must show that the Colorado courts would give preclusive effect to the Hearing Officer's determination that Plaintiff had the appropriate pre-termination process and the four elements of collateral estoppel (1) whether the issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding, (2) whether the party against whom estoppel was sought was a 11

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 12 of 30

party to the prior proceeding, (3) whether there was a final judgment on the merits of the prior proceeding and whether the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding, Bebo Construction Co. v. Mattox and O'Brien P.C., 990 P.2d 78, 84 - 85 (Colo. 1999). Plaintiff is estopped from raising that issue here. See Univ. of Tenn. V. Elliot, 478 U.S. 788, 799 (1986). Colorado gives collateral estoppel affect to final administrative agency actions. Bebo at. 85. Here, all four elements necessary for estoppel exist. First, the pretermination due process issue was actually litigated and necessarily adjudicated before the Hearing Officer. Exhibit 3 pp 16-18. Secondly, Plaintiff was clearly a party to the administrative hearing as it was he who brought the challenge to his termination. Thirdly, there was a final judgment on the merits. Although Plaintiff appealed the Hearing Officer's decision to the full Commission he did not appeal that portion of the decision relating to the pre-termination process. Plaintiff has only appealed the CSC decision on issues of law relating to the remedy afforded, i.e. that he was not completely reinstated. Thus, the decision on the adequacy of the pre-termination process is final. And, Plaintiff had a full and fair opportunity to litigate the adequacy of the pretermination process as is made clear by the Hearing Officer's decision. Therefore, Plaintiff is estopped from asserting here that his pre-termination proceedings did not comport with the due process requirements. B. Plaintiff's Retirement Ended his Service in the Denver Fire Department (City) and he Lost any Right to Reinstatement or for Damages. Plaintiff's burden of proof - Plaintiff has the burden to prove that his retirement was involuntary. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3rd Cir. 1999) 12

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 13 of 30

(employee resignations and retirements presumed to be voluntary). To prove the retirement was involuntary Plaintiff must show that it was the product of coercion or duress of 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 re Retirement - At the end of December 2002 Plaintiff requested and received the paperwork for retirement from the DFD. (Exhibit A-15, Plaintiff's Depo, p. 116, l.7 ­ p. 117, l. 7.) While Plaintiff's appeal was pending, before it was heard by the hearing officer, he applied for and was granted an age and service retirement from the DFD based on his age and years of service with the Department. Plaintiff's retirement became effective on March 13, 2003 when the Board of the Denver Firefighters Pension Fund ("Board") voted to grant Plaintiff the age and service retirement he requested. Compl.¶ 41. Before Plaintiff applied to the Board for age and service retirement, he attempted to complete the appropriate documents for age and service retirement at an earlier date. (Exhibit A-16, Karen McNeil Depo. p. 91, l.17 ­ p. 97, l.9; Exhibit A-17, Depo. exhibits I1­I6, J1-J3 and C; Exhibit A-18, McNeil Depo. p. 35, l. 1 ­ p. 39, l. 7.)1 After Plaintiff applied for an age and service retirement, he applied to the Board for a disability retirement. (Exhibit A-6.) He asked Karen McNeil ("McNeil") of the DFD that he be considered for a disability retirement and she helped him with the application and procedures for such including arranging for the necessary physical examination.

1

Although there is evidence indicating that Plaintiff intended to file for retirement earlier, and in fact did but did so incorrectly, it appears that in the light most favorable to the Plaintiff, his age and service retirement was made on March 13, 2003, and granted effective as of that date.

13

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 14 of 30

Exhibit A-19, McNeil Depo., p. 101, l. 17 ­ p.103, l. 5; Exhibit A-8, pages G 7 ­ 8). Plaintiff's made his application for disability retirement based on a hearing loss on April 24, 2003, and the Board approved it on April 25, 2003. (Exhibit A-6, A-7 and A-8.) McNeil provided the doctor with the necessary documents for this examination including forms required by the Board and the Board's resolution setting forth the parameters of the hearing loss necessary for a firefighter to qualify for a disability retirement. (Exhibit A-20, McNeil Depo., p. 120, l. 19 ­ p. 123, l. 11.) Dr. Stephen Hessl certified that Plaintiff had a hearing loss which qualified him for a disability retirement from the DFD. (Exhibit A-8, pages G7-8.) McNeil sent the certification and Plaintiff's application for disability retirement to the Board so it could evaluate and vote on the application for disability retirement. (Exhibit A-21, McNeil Depo., p. 123, l. 6 ­ p. 125, l. 2.) Plaintiff sought age and service retirement because he needed money to support his family and to meet his financial obligations. (Exhibit A-22, Plaintiff's Depo. p. 163 l. 8 ­ p.166 l. 11; Exhibit A-23, Plaintiff's Brief to CSC p 2.) Plaintiff sought disability retirement because he was advised that disability retirement benefits received a more favorable tax treatment. (Compl. ¶ 33; Exhibit A-24, McNeil Depo. p. 43, l. 20 ­ p. 44, l.8; p. 45, l.25 ­ p. 51, l.15.) Argument re Facts that Plaintiff Cannot Establish - If Plaintiff's retirement is voluntary, he cannot claim any damages from his "illegal termination" because his retirement cut-off any classified service rights. See May v. City and County of Denver, 174 Colo. 217, 483 P.2d 378, 380 (Colo. 1971)("classified service rights could be lost by a police officer by actions on his part which are inconsistent with continued membership

14

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 15 of 30

in the service and indicate an intent to resign."); In the Matter of the Appeal of Joe D. Moore, 172 Okla. 2, 492 P.2d 1091, 1094 (1972) (firefighter who elected to voluntarily retire from department when validity of his discharge had not been finally determined waived any rights to reinstatement and Civil Service Commission not required to reinstate him when the discharge order was reversed). To rebut the presumption, of a voluntary retirement Plaintiff must present evidence to establish that the retirement was involuntary, Leheny at 227; Agarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir. 1992); Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (1975), which can be shown in one of two ways: (1) where the employer forced the resignation or retirement by coercion or duress, or (2) where the City obtained the retirement by deceiving or misrepresenting a material fact to the Plaintiff. Hargray at 1568; Stone at 177. (Plaintiff does not allege "misrepresentation") That Plaintiff retired after his disciplinary termination does not show that this retirement was involuntary. If Plaintiff's choice to retire was freely made, he has no right after that to further employment by the City. Taylor v. United States, 219 Ct. Cl. 86, 591 F.2d 688, 690 (1979); C.R.S. 31-30.5-604 (no provisions for "un-retiring") With no provisions for Plaintiff to undo his retirement, Plaintiff would be compelled to re-apply for his position as a firefighter, something which he admittedly did not due. Brown v. United States, 2 Ct. Cl. 586, 587 (1983), aff'd without opinion, 732 F.2d 167 (Fed. Cir. 1984)(If retirement is voluntary, employee has surrendered all claims to former job). Under the duress or coercion theory, a retirement will be found involuntary and coerced when the totality of the circumstances indicate that the employee did not have

15

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 16 of 30

the opportunity to make a free choice. Parker v. Board of Regents, 981 F.2d 1159, 1162 (10th Cir. 1992); Stone at 174. The factors considered in the duress/coercion analysis are, (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose and (4) whether the employee was permitted to select the effective date of resignation (retirement), Parker id citing Stone at 174. Examining these factors shows that Plaintiff's retirement was voluntary. First, Plaintiff clearly had an alternative to retirement. He had challenged his termination by appealing to the CSC. He did not have to retire. He had a choice, he could "stand pat and fight." Christie at 587. Apparently Plaintiff opted to fight but did not stand pat, he retired. He had a choice to retire or not - the City did not say retire or be fired. Plaintiff just chose to retire at the time he was exercising his right to challenge his termination. The second Parker factor, whether the Plaintiff understood the nature of the choice he was given, is not present here. The City did not give Plaintiff the typical choice - resign or be fired. Rather the City was mute and Plaintiff acted on his own without any alternatives offered by the City.2 Plaintiff had a reasonable time to choose

retirement. There is absolutely no evidence that he was given a time period to retire. He could have retired in January, February, May, June or any time he so chose. He

As a 25 plus year veteran of the DFD who had exercised his right to appeal his termination made it quite probable that he knew what his rights were under DFD policies, the Charter and CSC Regulations. Therefore, he can be held to have at least a constructive knowledge of the alternatives provided by the policies. See Venero v. City of Tampa, 830 F. Supp. 1457, 1459-60 (M.D. Fla. 1993).

2

16

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 17 of 30

simply elected to retire when he did.3 Plaintiff was permitted to select the effective date of his retirement. There is no evidence that anybody demanded a date for him to retire. Plaintiff's only claim of duress or coercion is that he was compelled to take his age and service retirement after he was terminated because he had no other means of supporting his family. This is not evidence of involuntarily accepting the terms of the City or involuntarily retiring. Plaintiff had other alternatives. That Plaintiff was under financial stress is not sufficient. Any time an employee is terminated he undergoes some financial stress. An economically stressful situation does not equate to coercion imposed by his employer. He may have experienced some economic pressure but he was not coerced into retirement by any conduct of the City. While challenging his termination through the CSC proceedings Plaintiff could have sought income from another source. Simply because he was faced with the unpleasant alternative of earning income through other means or simply waiting out his challenge to his termination, does make his filing for retirement involuntary. See Taylor v. United States at 692, (because an employee is faced with an unpleasant situation, without more, his resulting action is not rendered involuntary) Christie at 587 (where plaintiff has a choice i.e. he could stand pat and fight, does not render a resignation involuntary simply because he was faced with unpleasant alternatives); Jurgensen v. Fairfax County, 745 F.2d 868, 890 (1984) (demotion not the result of duress based in part on fact that plaintiff could have pursued an administrative remedy under Civil

In fact, the evidence shows that Plaintiff likely intended to retire before he effectively submitted his paperwork and there was no evidence anyone compelled him to file that petition to retire.

3

17

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 18 of 30

Service Procedures); Dusanek v. Hannen, 677 F.2d 538, 543 (7th Cir. 1982), cert denied, sub nom. Dusanek v. O'Donnell, 459 U.S. 1017 (1982)(resignation resulting from choice between resignation and defending one's self in dismissal proceedings is not discharge by coercion if employee given time and opportunity for deliberation before making choice); Sammt v. United States, 780 F.2d 31, 32 (Fed. Cir. 1985)(option to retire not rendered involuntary by imminent less desirable alternative): Duffy v. United States, Id at 1091 (mere existence of a difficult choice does not make retirement involuntary). Here that Plaintiff was faced with an inherently unpleasant situation, retire and get retirement benefits or not retire and earn income in another manner pending his CSC appeal does not make that choice to retire involuntary. As the court stated in Christie, Id, he could have stood pat and fought the termination. Here Plaintiff fought but he did not stand pat. He must accept the consequences of a retirement not coerced by, or the product of duress imposed by, his employer. Duress or coercion is not measured by the Plaintiff's subjective evaluation of the situation. Christie 587. To be involuntary, Plaintiff's retirement must be caused by external coercion and duress not from any internal misconception or internal pressure. Id; Taylor v. United States at 692; McGucken v. United States, 407 F.2d 1349, 1351 (Ct. Cl. 1969). Plaintiff's retired on account of his apparent economic condition, not from threats made by the City. Plaintiff had the freedom of choice as to whether to apply for retirement or not. He simply opted for retirement when confronted with the alternative of finding other income or electing to receive retirement benefits. This economic conundrum is not tantamount to coercion or duress. Under the objective

18

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 19 of 30

analysis that must be used, rather than Plaintiff's subjective evaluation of the situation, see Stone, 855 F.2d at 174, the evidence in the record supports the legal conclusion that Cadorna's retirement was voluntary. He subjectively viewed his situation as intolerable - he needed the money. That is not coercion or duress imposed by the City. Plaintiff is not the first firefighter who retired in the face of or after termination, then won the appeal of the termination decision, but could not be reinstated because of their intervening retirement. In Williams v. City of Los Angeles, 229 Cal. App. 3d 1627, 281 Cal. Rptr. 21 (1991), a 20 year department veteran appealed his termination, applied for service pension, received some pension payments, on appeal his termination was modified to a suspension and he petitioned to be reinstated. The court denied reinstatement holding that when he elected to take his retirement pension he effectively converted his property right of continued employment with the fire department into a property right to a pension, id at 1629. Here, Plaintiff's action of seeking retirement benefits and then seeking or perhaps hoping that reinstatement was possible was nothing more than a unilateral mistake. It was neither induced by the City nor was it the City knowingly taking advantage of Plaintiff. See Williams at 1636. Similarly, In the Appeal of Joe D. Moore, Id, a terminated fire fighter applied for a service pension while appealing his termination. After his termination was reversed by court order he sought reinstatement claiming that although he had applied for retirement benefits, he had no intent to terminate his status as a firefighter. The court held that Moore had voluntarily retired prior to the order reversing his termination. The court stated "Petitioner Moore elected to voluntarily retire from the Enid Fire Department at a

19

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 20 of 30

time when the validity of his discharge from the department had not yet finally been determined. When Moore retired he terminated service in the department and waived any right to reinstatement." Id at 1094. C. Plaintiff Has No Evidence of Age Discrimination.

Plaintiff's burden of proof - Plaintiff raises two claims of age discrimination in his First Claim for relief. The first that he was terminated because of his age and the second that after his termination was reversed and despite the fact that he retired from the Fire Department while his appeal challenging his termination was pending he was not reinstated to his position in the Fire Department. Plaintiff has the burden of proof on this claim. He must prove that he was terminated and that it was because of his age. Plaintiff cannot prove the necessary elements because he was not terminated (termination reversed by hearing officer) or if utilizing the indirect method of proof through the McDonnell Douglas burden shifting framework, Plaintiff cannot show that he was replaced by a younger person or that the City's reason for termination was pretextual. On Plaintiff's second age claim, that the CSC's refusal to reinstate him violated the ADEA, he must prove that the action was because of his age. Plaintiff cannot do so because the denial of reinstatement was a product of Plaintiff's voluntary retirement not his age. Plaintiff was not terminated because of his age. First, because his termination was reversed Plaintiff suffered no "adverse employment action," termination, necessary for a claim of age discrimination. See Edwards v. Miller, 2002 U.S. Dist.. LEXIS 11234 (N.D. Ill. Case No. 97 C 7565) (terminated employee that was hired back with back pay

20

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 21 of 30

and benefits after arbitrator reversed termination suffered no adverse employment action); Carter v. Castillo, 2000 U.S. Dist. LEXIS (N.D. Tex. Civil Action No. 3:99-CV0047-X) (employee who has been discharged suffers no adverse employment action if he ultimately regains his job, pay and benefits).4 Secondly, there is no evidence that Plaintiff's termination was because of his age. Because Plaintiff has no direct evidence that he was terminated because he was over 40, he must rely on the McDonnell Douglas burden-shifting framework. For a termination case Plaintiff's prima facie burden is to show that he was within the age group protected by the ADEA when he was terminated, that he was performing his job satisfactorily, that he was discharged and that he was replaced by a younger person. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). Here, Plaintiff cannot show elements two, three and four. He was discharged because he was not performing his job satisfactorily, he was not discharged because the Civil Service Commission reversed the termination and there is no evidence whatsoever that Plaintiff was replaced by a younger person.5 However, even if Plaintiff clears the prima facie case hurdle, there is no evidence whatsoever to demonstrate any pretext for age discrimination in the City's termination decision. See e.g. Stover v. Martinez, 382 F.3d 1064, 1070-71 (10th Cir. 2004) (Plaintiff must show that defendants' reason for employment action was a pretext for illegal

Although Plaintiff did not get his job back because he retired and thereby lost any claim to his position in the Fire Department, see infra, he was reinstated i.e.got back pay and benefits due between the time of his termination and the effective date of his retirement. 5 Because no challenge to the Civil Service Commission ruling that Plaintiff's termination should be reversed has been filed, that should suffice to show that Plaintiff indeed was not discharged or terminated as required for a prima facie case under the ADEA.

4

21

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 22 of 30

discrimination.) Plaintiff can show that the City's articulated reason for termination, that Plaintiff violated DFD rules when he took a cookbook from Safeway without paying for it was a pretext for age discrimination, by demonstrating such weakness, implausibility, inconsistencies, incoherencies or contradictions in that proffered legitimate reason for its action, that a reasonable fact finder could rationally find it unworthy of credence and hence infer that the City did not act for the asserted non-discriminatory reason. Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Here, although Plaintiff's termination was overturned in a CSC hearing that is insufficient to show pretext. The relevant inquiry is not weather the proffered reasons for termination were wise, fair or correct but weather the decision maker honestly believed those reasons and acted in good faith upon those beliefs. Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004). In conducting this analysis, the facts are examined as they appeared to the decision maker and the articulated motivating reason is not converted to pretext merely because with the benefit of hindsight turned out to be poor business judgment or even if the good faith belief in the reasons for the decision turned out to be erroneous. Id. Here, Plaintiff could show pretext by persuading the jury that the evidence of Plaintiff's misconduct was so implausible, incoherent or internally contradictory that Chief Juniel or Manager Howard must have made their decisions on another basis. Id. The issue here is whether the evidence of Plaintiff's misconduct presented to the Fire Chief and Manager of Safety was so weak that a rational fact finder could infer that the expressed reason for terminating Plaintiff must have been pretextual. Here, based on

22

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 23 of 30

the review of the facts by the Chief and the Manager it cannot be said that evidence was so weak that the decision makers must have had another reason for deciding to terminate Plaintiff. Additionally, Plaintiff had the opportunity to appear before Chief Juniel and present his side of the story as to the events that occurred. There is no evidence that the Chief disregarded that information or acted for any reason other than his belief that Plaintiff committed the shoplifting of which he was accused. Undisputed facts re age discrimination in failure to reinstate ­ The undisputed facts are the same as those for the issue of Plaintiff's retirement. Also, under the rules and regulations of the CSC in effect on March 3, 1983, applicants to the DFD must not have passed their thirtieth birthday on the day the written portion of examination for firefighter was announced. (Exhibit A-25, Affidavit of Brian Kellogg.) Plaintiff claims that the denial of his reinstatement to the DFD after retiring is a violation of the ADEA. Plaintiff's claim is misguided because, as noted above, once he voluntarily retired from the fire department he severed his ties with that organization and could not be reinstated. He gave up any rights he had to his position and substituted instead his rights to a retirement pension. See Williams v. City of Los Angeles, supra.; People ex rel Malone v. Mueller, 328 Ill. App. 593, 66 N.E.2d 516, 523 (When firefighter retired he severed his connection with the fire department and retained no right to the position of fireman and no basis remained upon which he could demand reappointment as a firefighter). Indeed Plaintiff's own allegations show that the ADEA has not been violated. He alleges that the City has discriminated against him on the basis of age because it

23

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 24 of 30

refused to reinstate him when it had no policy baring reinstatement of employees under 50 who retire due to age and service or disability. Plaintiff's allegations make the case that when an individual retires, it is not his age that disqualifies him from "reinstatement" but his status as a retiree. If his retirement was voluntary, as it was shown above, Plaintiff has no right to reinstatement, but only a right to apply for the position of firefighter anew. As a retired firefighter while the CSC may have modified hiring requirements for such an individual, the fact remains that Plaintiff's age did not prevent his reinstatement but his voluntary action of retiring from the fire department. If Plaintiff's retirement severed his ties with the Fire Department his only vehicle for "reinstatement" was through reapplying. And, even if Plaintiff reapplied, that the City would not hire him is not a violation of the ADEA. In fact, the ADEA allows the City to deny Plaintiff's employment assuming his cry for reinstatement is a reapplication. Under 623(j)(1) of the ADEA (22 U.S.C. § 621, 623 (j)(1)), it is not unlawful for local governments to refuse to hire someone as a firefighter on the basis of his age if that applicant has exceeded the maximum age of hire that the local government had in effect as of March 3, 1983. That section offers safe harbor for all governmental entities that had age limits in place in 1983, not just to those that have chosen to keep those restrictions in place in the ensuing years and because Denver had in place an age limit for firefighters as of March 3, 1983, 30 years (section 3A Rules and Regulations of the Civil Service Commission of the City and County of Denver, 1977 edition, Rule 3 revised April of 1980). Plaintiff has no claim under the ADEA for a refusal to hire.

24

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 25 of 30

Kopec v. City of Elmhurst, 193 F.3d 894, 900-901 (7th Cir. 1999); Feldman v. Nassau County, 434 F.3d 177, 181-82 (2d Cir. 2006). Under the Colorado state statute governing firefighters' retirements, C.R.S. 3130.5-604, a firefighter who petitions for age and service retirement and meets the qualifications for retirement, 25 years of service and age of 50 or greater shall be granted retirement. To become a firefighter again, assuming that such is not forbidden by the fact of retirement, Plaintiff was required to apply for reemployment pursuant to CSC Rule XI (4). (Exhibit A-26) Even assuming that Plaintiff did reapply and age was not a disqualifying factor, he could not be employed because he could not pass the applicable medical evaluation. His hearing deficit would prevent him from passing the rule requirements for reemployment. Most basically, the statute upon which the Hearing Officer and CSC relied does not discriminate on the basis of age. It is the status of retirement that prevents a retiree from being reinstated, not a person's age. D. Plaintiff Has No Evidence of Disability Discrimination

Plaintiff's burden of proof - As he alleged with respect to his age discrimination claim, Plaintiff has alleged two claims of disability discrimination - first that he was terminated because of his disability and the secondly that he was discriminatorily not reinstated because of his disability. Plaintiff has the burden of proof on these claims. On the termination claim, Plaintiff was not terminated (see supra), and no decision maker knew of his disability when Plaintiff was "terminated," a necessary element of a prima facie case. Woodman v. WWOR, 411 F.3d 69, 81-2 (2nd Cir. 2005).

25

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 26 of 30

In order to show a prima facie case of disability discrimination, Plaintiff must show that the discriminators were aware of his protected characteristic, i.e. his condition or disability. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996); Morisky v. Broward County. 80 F.3d 445, 448 (11th Cir. 1996). In evaluating a claim of employment discrimination, the focus is on the actual knowledge of the decision maker. Employment discrimination is an intentional wrong and an empty head means no discrimination. Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992). Facts that Plaintiff cannot prove. Plaintiff cannot prove disability discrimination because there is no evidence that any of the actors in Plaintiff's termination knew of his hearing impairment because it surfaced only after he was examined for disability retirement months after he was terminated. Plaintiff's burden of proof on disability discrimination ­ failure to reinstate Plaintiff next claims that he was discriminated against on the basis of the disability when he was not reinstated completely to the DFD. To establish a prima facie case of disability discrimination, Plaintiff must show 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 reasonable accommodation; and (3) that the employer discriminated against him because of his disability. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1128 (10th Cir. 2003). Plaintiff must also demonstrate that the impairment substantially limits a major life activity. Toyota Motor Mfg., KY., Inc. v. Williams, 534 U.S. 184, 195 (2002).

26

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 27 of 30

The term substantially limits means that the person is unable to perform a major life activity that the average person in the general population can perform; or is significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2 (J). The question of whether an impairment is substantially limiting may be evaluated by the court on a motion for summary judgment. Doebele at 1130 n.5. To demonstrate that an impairment is substantially limiting, Plaintiff must show that he is unable to perform the activity or is significantly restricted in the ability to perform the activity compared to the general population. Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001). If the impairment is not so severe that it is substantially limiting on its face, the Plaintiff must present evidence comparing his restrictions to that of the average person. Id. Undisputed facts re disability discrimination for failure to reinstate ­ The undisputed facts are the same as those for the issue of Plaintiff's retirement. Argument re Facts Plaintiff cannot prove - Under the ADA a disability is defined as a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such an impairment. Boykin v. ATC/Vancom of Colo., 247 F.3d 1061, 1064 (10th Cir. 2001). Here while Plaintiff's hearing loss is an impairment of a major life activity, Plaintiff has failed to demonstrate that it is "substantially limiting," and has presented no evidence comparing his restrictions or limitations to that of an average person. All Plaintiff has

27

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 28 of 30

presented is that his hearing loss qualifies him for disability retirement under the standards of Fire and Police Pension Board. Similarly, Plaintiff does not have the record of an ADA disability. The hearing loss detected during his disability retirement examination demonstrates an impairment, not a substantially limiting one. Plaintiff also claims that he has been regarded as disabled. However, under this prong, Plaintiff may qualify for ADA protection only if 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). Plaintiff contends that the City regarded him as having an ADA disability when his hearing loss was discovered on his petition for retirement. There is no evidence that the City mistakenly believed that the hearing loss substantially limited a major life activity or that his non-limiting impairment substantially limited a major life activity. The examination showed that Plaintiff had a hearing loss which may qualify him for disability retirement but does not in itself qualify the hearing loss as an ADA disability. See Cleveland v. Policy Mgmt. Systems Corp., 526 U.S. 795 (1999) (Doctrine of judicial estoppel does not automatically apply to disability discrimination case when Plaintiff had sought and obtained a disability retirement). See also Matlock v. City of Dallas, Texas, 1999 U.S. Dist. LEXIS 17953 (N.D. Tex., Civil Action No. 3:97-CV-2735-D) (where hearing impairment did not rise to the level of ADA disability)

28

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 29 of 30

Reinstatement of firefighters retired on disability is governed by state statute, C.R.S. 31-30.5-705. That statute provides that a firefighter retired on a disability who is over 50 or has 25 years of service shall not be reexamined for purposes of return to active duty. The City could not reinstate Plaintiff based on the state law. Like the Plaintiff's in Moore and Williams, supra, once Plaintiff voluntarily retired he lost the rights of continued membership in the classified service and was no longer eligible for reinstatement by the CSC. E. Conclusion For the foregoing reasons Defendant should be granted summary judgment on all of Plaintiff's claims. Respectfully submitted this 8th day of March, 2006. Jack M. Wesoky Assistant City Attorney

s/ Jack M. Wesoky Jack M. Wesoky Assistant City Attorney 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

29

Case 1:04-cv-01067-MSK-CBS

Document 82

Filed 03/08/2006

Page 30 of 30

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 8, 2006, I electronically filed the foregoing DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR 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

G:\Litigation\WESOKYJ\cadorna.sj.brief.DOC

30