Free Motion for Summary Judgment - District Court of Colorado - Colorado

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

Document 81

Filed 03/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant, by undersigned counsel, pursuant to Fed. R. Civ. P. 56, moves for Summary Judgment in its favor and against the Plaintiff on all claims and as grounds therefore, states as follows: Based on the undisputed material facts and applicable law set forth in Defendant's Brief in Support of Motion for Summary Judgment, submitted herewith, Plaintiff's claims should be dismissed for the reasons that follow: 1. 2. Plaintiff bears the burden of proof on all claims. Plaintiff cannot prove that his Federal constitutional or statutory rights

were violated and the undisputed facts and law warrant summary judgment. 3. Plaintiff has insufficient evidence for the essential elements of his claims,

and therefore, cannot meet his burden of proof.

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

Document 81

Filed 03/08/2006

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4.

The First Claim for Relief for violation of the ADEA should be dismissed

because the Plaintiff cannot show a prima facie case of discrimination in either his termination or the Defendant's failure to reinstate him, and even if he could prove a prima facie case, he cannot show that Defendant's reasons for the actions were a pretext for discrimination. Further, Plaintiff's voluntary retirement from his employment eliminated any right to reinstatement. 5. The Second Claim for Relief under the American with Disabilities Act

should be dismissed for the same reasons as his age discrimination case. 6. The Third Claim for Relief under 42 U.S.C. § 1983, a due process

violation, should be dismissed because if any due process violations are capable of remedy by applicable state procedures, and Plaintiff had all necessary procedures both before and after his termination order. WHEREFORE, Defendant requests summary judgment in its favor and against Plaintiff. Respectfully submitted this 8th day of March, 2006. JACK M. WESOKY Assistant City Attorney By: s/ Jack M. Wesoky Jack M. Wesoky Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720/913-3100 Facsimile: 720-913-3190

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

Document 81

Filed 03/08/2006

Page 3 of 3

E-mail: [email protected] Attorney for Defendant CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 8, 2006, I electronically filed the foregoing DEFENDANT'S 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

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