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

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART and FRANK J. HOFFMAN, Defendants.

PLAIN IFSMO I NF RP R I LS MMA YJ D ME T TF ' TO O A TA U R U G N

Pa tf la R C dra"ln f o " . aon"hr y oe pr ato ln fWii . aon ( a tf rMrC dra) e b m vs us n t ii lm P i i" e u Fed.R.Civ.P. 56(a) for partial summary judgment against Defendant City and County of Denver ( e ndn ,D ne o " i " in his favor under the Age Discrimination in Employment " f at " evr rCt ) D e " " y Act ("ADEA"), 29 U.S.C. §621, et seq., Titles I and II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §12111, et seq., 42 U.S.C. §12132, et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§701-96, on the basis that Defendant has failed and refused to reinstate or otherwise grant full relief to him because of his age and disability, has unlawfully applied the doctrine of judicial estoppel to foreclose his reinstatement or other full relief because he took a disability retirement after his termination, and has unlawfully enied Pa tfu r i fr iul fle i t n n i ao o C l aos clt asuc ln ffl ee o h n w ut m n i i v li f o r '"o a r or i i l lf s a r ao o tn od le l e rl . u" e

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I. SUMMARY OF UNDISPUTED MATERIAL FACTS The City terminated Plaintiff on January 2, 2003 after a fellow firefighter accused him of shoplifting a cookbook from a Safeway store. After his termination, Plaintiff applied for age and service retirem n fr h h e u m tay uli .Se ln fs r 1,03 et n et o w i h at acl qaf d(e Pa tf Ma h 320 Pti , c o i l ie i i' c io fr g ad e i R te et x. t t Ct s c br 420 Mo o t Sr ead o A e n Sr c er n E hA o h i 'O t e1,03 t n o tk,n v e im , e y o i i entire copy of which is attached hereto as Exhibit 2) After his termination, Plaintiff also applied to convert his age and service retirement to a disability retirement due to hearing loss suffered while working as a firefighter for twenty-svn er (e E h4cnii o Pa tf ee ya . Se x.,os t g f ln fs s sn i i' application for disability retirement and correspondence or medical documentation related to that application.) At no time did Plaintiff state anywhere in his disability retirement application that he is unable to work as a firefighter because of his hearing disability. Ibid. Because a Safeway clerk admitted that he gave Plaintiff permission to take the cookbook he was accused of shoplifting, the Denver Civil Service Commission ( o m s o"Hearing " m ii ) C sn Officer ( a n O f e ) " r g fcr found that Plaintiff had not committed theft, and overturned He i i " Plaintiff's dismissal. (See Hearing Officer Decision, attached hereto as Exhibit 1.) However, the Hearing Officer denied Plaintiff reinstatement or other full relief because Plaintiff r i d f r it m nt nadi id ln fs ak a t t priod between his er a eh e i i ,n l t Pa tf bc pyoh e te t s r ao m e i i' e dismissal on January 2, 2003 and his age and service retirement on March 13, 2003. (Hearing Officer Decision, Exh 1., pp.21-23). A t Ct seusin its October 14, 2003 Motion to th i 'r et e y q Strike (copy attached as Exh. 2), the Hearing Officer cnt e scos fh C l ao o osud et n o t o r "l r i e od d h e fe gt s es n tu to prohibit Plaintiff's reinstatement or other full relief for i "i f h rpni s t e r ri e o at Plaintifsni u b ul fl i hre f i s t l n w u d ca because Plaintiff is over fifty (50) years of age and ' dp a y a s g was granted a disability retirement based on hearing loss after his unlawful termination. The

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Denver Civil Service Commission ( o m s o" ai l o c-making body of the City, " m i i ) f aply C sn , n i affirmed the H a n O f e s eio in its entirety. (See copy of Commission Decision and er g fcr dc i i i ' sn Final Order, attached as Exh. 3). II. THE CIVIL SERVICE COMMISSION DECISIONS DENIED PLAINTIFF REINSTATEMENT OR OTHER FULL RELIEF BECAUSE OF HIS AGE AND DISABILITY It is axiomatic that an unlawfully terminated employee must be returned to the position he would have been in but for his unlawful termination, and that reinstatement is a necessary component of making an employee whole for his unlawful termination. Worldwide Construction Services v. Chapman, 683 P.2d 1198 (Colo. 1984); Lassner v. Civil Service Commission, 493 P.2d 1087 (Colo. 1972); Dies v. City of Denver, 483 P.2d 378 (Colo. 1971); Hanebuth v. Patton, 170 P.2d 526 (Colo. 1946); Smith v. City of Denver, 569 P.2d 329 (Colo.App. 1977); Arnold v. City of Aurora, 498 P.2d 970 (Colo.App. 1972). The Hearing Officer forthrightly acknowledged his obligation to reinstate Plaintiff, stating: "Normally, because I have found the charge against CADORNA not sustained, I would enter an order requiring his reinstatement." (Hearing Officer Decision, Exh. 1, p.21). Nevertheless, he found, contrary to the evidence and the law, that Plaintiff "chose to retire", Ibid, or "voluntarily elected to retire", Ibid., and adopted the City's patently unlawful and absurdly sophistic construction of the "old hire" firefighters' pension statute to deny Plaintiff reinstatement. The Hearing Officer further found that, because C.R.S. § 31-30.5-604 (relating to "old hire" firefighter age and service retirements) "makes no reference as to how, or when, if at all, such a member can come out of retirement . . . having once accepted retirement under this statute, a member cannot 'un-retire' and be reinstated upon the active force over the objection of the municipality from which he or she retired," and that, "in passing upon a disciplinary action imposed before a member's retirement, [the Hearing Officer] cannot force the MANAGER to re-

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instate a member who has retired under this statute." He arbitrarily construed the complete absence of any prohibition on reinstatement in §604 as an absolute bar to reinstatement. Having found in C.R.S. § 31-30.5-604 a prohibition on reinstatement of retired firefighters where none exists, the Hearing Officer went on to distort C.R.S. §31-30.5-705 (relating to "old hire" firefighter disability retirements) from a shield that protects older firefighters from arbitrary interference with their disability retirement rights into a broadax with which their due process rights may be hacked from under them. Finding that C.R.S. §31-30.5705(5) "seems to positively prohibit the reexamination of a retired member who, like CADORNA, is over the age of 50" and that he has "no authority to order a member who has been determined to be physically unfit to perform the duties of a fireman to be placed back on active duty", the Hearing Officer stated, "I cannot reinstate CADORNA."1 (Decision, p.22). III. THE HEARING OFFICER'S CONSTRUCTION OF THE "OLD HIRE" FIREFIGHTER PENSION STATUTE TO PROHIBIT REINSTATEMENT OF A RETIRED FIREFIGHTER WHO IS 50 OR HAS 25 YEARS OR MORE OF SERVICE WAS ERRONEOUS The City Attorney argued, and the Hearing Officer erroneously found, that C.R.S. §§3130.5-705 "provides that any old-hire member . . . who has been retired from disability cannot be reexamined for reinstatement to the fire department if that person is 50 years old either before or after his retirement, or if [he] has completed 25 years of active duty in the department before the date of such retirement." Defendant misstated, and the Hearing Officer badly misconstrued, C.R.S. §31-30.5-705. It simply does not, explicitly or implicitly, prohibit reinstatement of any firefighter who is 50,
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Oddly, even while finding Plaintiff cannot, under C.R.S. §31-30.5-705, be reinstated because he is over 50 and retired, the Hearing Officer added, "[w]hether CADORNA has the right to seek to return to active duty under this statute, if he can demonstrate that he has sufficiently recovered from his disability, is an issue that may be presented at a later time to another tribunal." He offered no guidance as to how an unjustly discharged firefighter, denied reinstatement by the Civil Service Commission because he is over 50 and retired, may nevertheless compel the Manager of Public Safety to consider his reinstatement.

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has completed 25 or more years of active service, and takes a disability retirement. C.R.S. §3130.5-705 provides a "safe harbor" that protects older retirees from being subjected to involuntary reexamination upon demand by the governing pension board. C.R.S.§31-30.5-705(5) reads, in pertinent part, as follows: "The board shall establish such general rules as it deems proper for the purpose of reexamination of all old hire members who have been retired for disability to determine from time to time the fitness of such members to return to active duty in the department. No such member who has reached the age of fifty years, either before or after the member's retirement, shall be reexamined. No such member who has completed twenty-five years of active duty in the department before the date of such retirement shall be reexamined. . . . In the event it is found by the board that any old hire member on the retired list has recovered from the disability that caused the member's retirement, such member, if the member is under fifty years of age and has served less than twenty-five years of active duty, shall be removed from the retired list and ordered to report to the chief officer of the fire department within thirty days for assignment to active duty." This provision does not prohibit reinstatement of a firefighter who takes an age and service or disability retirement after being unjustly terminated. It simply constitutes a restraint on a pension board that might wish to force a disabled firefighter to submit to reexamination against his will. If anything, it should be read to prohibit conditioning reinstatement of an older firefighter only upon completion of successful re-examination. The Commission and City have perverted language intended to protect "old hire" firefighters from oppressive interference with their retirement rights into a means by which they may be deprived of their reinstatement rights.2 If C.R.S. §31-30.5-705 were given the construction urged by the City and adopted by the Commission, it would require unlawful discrimination between "old hires" over 50, or with 25 or more years of experience, and younger "new hires". C.R.S. §31-30.5-705 and the remainder
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C.R.S. §31-31-85r an t "e h e fe g 0,e t g o nw i "i f hters, is not applicable to Plaintiff. However, it remains important li r ri to the proper construction of C.R.S. §31-30.5-705. C.R.S. §31-31-805 contains no age or "years-of-service" limitation on management's right to require disability retirees to submit to re-examination. Those firefighters, i.e., "new hires", whose disability retirement is governed by C.R.S. §31-31-805 apparently may be required to submit to re-examination, regardless of age or service. This reinforces that the prohibition of re-examination in C.R.S. §3130.5-705, was intended to protect, not disadvantage, "old hires".

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of the firefighters' pension statutes must be construed to achieve a harmonious and lawful result, in light of existing law. Widder v. Durango School District, 85 P.3d 518, 531 (Colo. 2004)(J. Rice, dissenting); Davison v. Industrial Claims Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004); Leonard v. McMorris, 63 P.3d 323, 326 (Colo. 2003); Cook v. City of Denver, 68 P.3d 586, 588 (Colo.App. 2003). Moreover, a court must not construe a statute to achieve an unjust, oppressive or absurd result, and must be guided by the legislature's beneficent purposes in enacting regulatory or welfare legislation. Leonard v. McMorris, ibid.; Hofer v. Polly Little Realtors, 543 P.2d 114, 117 (Colo.App. 1975). h C m i i 'cnt co o CRS §1 T e o m s o s osut n f ...3sn r i 30.5-705 is arbitrary, discriminatory, unjust, oppressive and absurd. IV. SUMMARY JUDGMENT STANDARDS Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this standard, "[a]ll inferences arising from the record before us must be drawn and indulged in favor of the [non-movant]." Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). "Credibility determinations [and] the weighing of the evidence . . . are jury functions, not those of a judge." Ibid. at 1216. Nevertheless, "the nonmovant must establish, at a minimum, an inference of the existence of each element essential to [his] case." Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994). V. PLAINTIFF RELIES UPON DIRECT EVIDENCE, IN THE FORM OF AN OFFICAL DECISION OR POLICY, TO BEAR HIS BURDEN OF PROOF Plaintiff bears the burden of proving by a preponderance of the evidence that Defendant violated the ADEA or ADA. To prevail on his ADEA claim, he must show that age was a determining factor in the employment decision. Greene v. Safeway Stores, Inc., 98 F.3d 554, 557

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(10th Cir. 1996). A claim of age or disability discrimination can be proven by either direct or circumstantial evidence. Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). "A party may attempt to meet his burden directly, by presenting direct or circumstantial evidence that age was a determining factor" in the challenged decision, or the party may meet his burden indirectly by relying on the familiar burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-0 (93. 4 17) "Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir. 1988); Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002) (McDonnellDouglas applies to circumstantial ADEA claims); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003) (McDonnell-Douglas applies to circumstantial ADA claims). "A plaintiff proves discrimination through direct evidence by establishing proof of an existing policy which itself constitutes discrimination." Stone v. Autoliv, supra, 210 F.3d at 1136. "Proof by direct evidence requires evidence that the actual motive behind the [challenged employment action] was discriminatory animus." Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126 (8th Cir. 2000). A plaintiff proves discrimination through direct evidence by establishing proof of "an existing policy which itself constitutes discrimination." Ramsey v. City & County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990) [citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1984)]. In this motion for partial summary judgment, Plaintiff relies upon direct, not circumstantial, evidence. VI. PLAINTIFF WAS AND REMAINS IN THE AGE GROUP PROTECTED BY THE ADEA Under the ADEA, it is unlawful for an employer "to fail or refuse to hire," to "discharge," "or to otherwise discriminate against any" employee with respect to the employee's "compensation, terms, conditions, or privileges of employment," because of the employee's protected status. 29 U.S.C. § 623(a). Iiud pt t t ln fs a o b t w s c br ts ni u d h Pa tf dt f ih a O t e s e a i i' e r o 31, 1952, that he was over forty (40) years of age when the City unlawfully terminated him on 7

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January 2, 2003, and that he was over forty (40) years of age when the City refused to reinstate him or otherwise grant him full relief on January 30, 2004 and May 20, 2005. VII. PLAINTIFF IS A QUALIFIED INDIVIDUAL WITH A DISABILITY ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB, WITH OR WITHOUT REASONABLE ACCOMMODATION The ADA defines disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) having a record of such impairment, or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). To establish a prima facie case of disability discrimination, Plaintiff must demonstrate that (1) he has a disability within the meaning of the ADA; (2) he is qualified for the position he holds or desires; and (3) him employer discriminated against him because of his disability. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1128 (10th Cir. 2003). Actual disability: Under subsection (A) of § 12102(2), a plaintiff must show that an impairment substantially limits at least one major life activity. This definition contains three elements. First, the plaintiff must have a recognized impairment; second, the plaintiff must identify one or more appropriate major life activities; and third, the plaintiff must show that the impairment substantially limits one or more of those activities. Doebele, 342 F.3d at 1129 (internal citation omitted). Plaintiff's disability claims are based on a hearing disability certified by a licensed physician, a disability sufficiently serious to warrant t D neFr i t ' h evr i f h r e eg e s Pension Board'dc i t grant him a disability retirement after his unlawful termination. s eio o sn Whether an impairment is " substantially limiting" ordinarily a factual question for a is jury. It may, however, be evaluated by the judge upon a motion for summary judgment. Doebele, 342 F.3d at 1129; Bristol v. Bd. of County Comm'rs, 281 F.3d 1148, 1161 n.5 (10th Cir. 2002) (that the third element "is factual and reserved for the jury does not preclude a court

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from deciding it in the appropriate circumstance, e.g., upon a motion for summary judgment"), vacated in part on different grounds, 312 F.3d 1213 (10th Cir. 2002) (en banc). A physical or mental impairment is substantially limiting if the affected individual is: (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which the individual can perform a particular life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. Doebele, 342 F.3d at 1130. " In making this determination we consider three factors: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact or the expected permanent or long term impact of or resulting from the impairment." Ibid. "'[S]ubstantially' in the phrase 'substantially limits' suggests 'considerable' or 'to a large degree.'" Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002) [quoting Webster's Third New Int'l Dictionary 2280 (1976)]. "'[S]ubstantial' . . . clearly precludes impairments that interfere in only a minor way with the performance of [major life activities]." Ibid. at 197. Moreover, "substantially" must "be interpreted strictly." Ibid. "[T]o be substantially limited . . . an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term." Ibid. at 198. "Merely having an impairment does not make one disabled for purposes of the ADA." Toyota, 534 U.S. at 195. Plaintiff is substantially impaired in the major life activity of hearing, and is therefore disabled under § 12102(2)(A). The City is judicially estopped from denying that Plaintiff has such a disability, because the City relied upon its determination that he suffers such a disability

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tgat ln fs i b i r i m n ad a cniet r i uo Pa tf d aita o r Pa tf d ait er et n hs os t l ee pn ln fs i b i s n i i' s ly te , s n y ld i i' s ly grounds for denying him reinstatement or other full relief. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999). Record of Disability: Plaintiff meets the definition of disability under section 1122() A t t e fh H a n O f e s eio o Jna 3,04adh 20() . th i o t er g fcr dc i n aur 020,n t B em e i i ' sn y e C m i i 'dc i o Ma 2,05h i i u b hd r od f n m a m nt t o m s o s eio n y 020,en s t l a ae r o a i pi eth sn sn dp a y c r a substantially limited the major life activities of hearing and working. "To have a record of such an impairment, a plaintiff must have a history of, or been misclassified as having, an impairment that substantially limited a major life activity." Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999). "[T]he record-of-impairment standard is satisfied only if [he] actually suffered [an impairment] that substantially limited one or more of her major life activities." Ibid., quoting Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1229 (11th Cir. 1999). The City is judicially estopped from denying that Plaintiff has a record of such a disability, because the City r i uo i dt m nt nhte uf s uh d aittgat ln fs i b i ee pnt e r i i t h sf rsc a i b i o r Pa tf d ait ld s e ao a e s ly n i i' s ly retirement, and has consistently relied upon Plaintiff'd aita gonso dni h s i b i s rud fr ey g i s ly n m reinstatement or other full relief. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999). Regarded as Disabled: Plaintiff also contends that the City regards him as having an impairment that substantially limits the major life activities of hearing and working. The EEOC regulations provide, "[w]ith respect to the major life activity of working (i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable

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training, skills, and abilities." Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1088 (10th Cir. 1999) [quoting 29 C.F.R. § 1630.2(j)(3)]. The evidence clearly shows that the City regards Plaintiff as substantially limited in the major life activities of hearing and working. "'[T]o be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job.'" McKenzie v. Dovala, 242 F.3d 967, 971-72 (10th Cir. 2001)(employee raised genuine issue of material fact whether regarded as disabled by offering evidence the defendant perceived her as unemployable in any law enforcement job). The City refused to consider reinstating Plaintiff to any job in the City for which he may be qualified, and refused to grant Plaintiff full relief (in addition to or in lieu of reinstatement) in explicit reliance upon his disability retirement. There can therefore be no doubt that the City regarded, and regards, Plaintiff as disabled. The City is judicially estopped from denying that it regards Plaintiff as disabled, because the City relied upon its determination that he suffers such a disabilityo r t ln fs i b i tga Pa tf d ait n i i' s ly r i m n ad a cniet r i ij iapoed g uo Pa tf d aita er et n hs os t l ee n u c l rcei s pn ln fs i b i s te , s n y ld di n i i' s ly grounds for denying him reinstatement or other full relief. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999). VIII. THE HEARING OFFICER'S REFUSAL TO REINSTATE PLAINTIFF IN RELIANCE ON C.R.S. §§31-30.5-604 AND 705 VIOLATES THE ADEA, THE REHABILITATION ACT, AND THE ADA T e o m s o'r uat r nte r t r i gat relief to Plaintiff in reliance h C m i i se slo e s to o e s r full sn f i a hw e n upon C.R.S. §§31030.5-604 and 705 quite blatantly violated the ADEA, Titles I and II of the ADA, and the Rehabilitation Act. The Commission denied Plaintiff reinstatement or other full relief because he is over 50 and took a disability retirement. The Commission thereby established the unlawful policy of denying reinstatement after unlawful termination to Plaintiff

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or other disabled firefighters over 50 with 25 years of active duty, while permitting reinstatement of younger, non-disabled employees. 29 U.S.C. §623 sets forth in exhaustive detail those employment practices that are prohibited, or permitted, under the ADEA. In general, it is unlawful for a private or municipal employer to "limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. §623(a)(2). The ADEA contains explicit, narrowly drawn exceptions that permit age discrimination under very limited circumstances. For instance, the ADEA permits consideration of age when it is demonstrably a "bona fide occupational qualification", 29 U.S. §623(f)(1), or when age is a factor in a bona fide seniority system, unless the seniority system requires or permits the involuntary retirement of an individual because of his or her age. 29 U.S.C. §623(f)(2). The ADEA also permits the establishment of a uniform mandatory retirement age for firefighters and law enforcement officers. 29 U.S.C. §623(j). The mandatory retirement age for Denver Firefighters is sixty-five. Denver Muni. Code §18-572(a). Other than in conformity with a mandatory retirement age established and applied in conformity with the strict terms of §623(j), a municipality may not discriminate against a firefighter by refusing to employ or reinstate him because of his age. Minch v. City of Chicago, ___ F.3d ____, 2004 U.S. App. LEXIS 6927 (7th Cir. 2004); Drnek v. City of Chicago, 192 F.Supp.2d 835 (N.D.Ill. 2002); See, also, Johnson v. City of Baltimore, 472 U.S. 353 (1985) and Public Employee Retirement System of Ohio v. Betts, 492 U.S. 158 (1989)(partially overruled by Older Workers Benefit Protection Act of 1990). The Hearing Officer's construction of C.R.S. §31-30.5-705 to prohibit Plaintiff's reinstatement because he was (at the time of the Hearing

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O f e s eio) fcr dc i fifty-one years old, fourteen years short of the mandatory retirement age, is a i ' sn blatantly indefensible, per se violation of the ADEA.3 Similarly, by denying Plaintiff reinstatement on the basis of his disability retirement, without making an individualized assessment of whether his disability forecloses him from performing, with or without a reasonable accommodation, the duties of any job in the Denver Fire Department to which he might be reinstated, or to which he desires to be reinstated, the City's refusal to reinstate Plaintiff, and the Hearing Officer's denial of reinstatement, violate §12112 (employment) [and, arguably, §12132 (discrimination by public entities)] of the ADA. Davoll v. City of Denver, 194 F.3d 1116, 1131 (10th Cir. 1999), citing Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161 (10th Cir. 1999). IX. THE HEARING OFFICER AND COMMISSION ERRONEOUSLY PRESUMED THAT P A N IFSR TR ME TWA V L N A Y L I TF ' E IE N S OU TR Retirements or disability claims compelled by wrongful termination are not voluntary, and cannot bar reinstatement or recovery of lost wages or benefits. Emerson v. Secretary of the Air Force, ___ F.3d ___, 1996 U.S.App. LEXIS 33513 (10th Cir. 1996)(unpublished); Walker v. Mountain States Telephone, 686 F.Supp. 269 (D.Colo. 1988)(retirement in face of demotion is not voluntary); Whatley v. Skaggs, 508 F.Supp. 302 (D.Colo. 1981)(disability would not have occurred but for unlawful termination, hence not a bar to back pay), aff'd 707 F.2d 1129 (10th Cir. 1983); Mason v. Association for Independent Growth, 817 F.Supp. 550 (E.D.Pa. 1993)(citing Whatley v. Skaggs with approval); Stacy v. Batavia Local School District, 779 N.E.2d 216 (Ohio S.Ct. 2002)(unlawfully terminated bus driver did not waive right to

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General Dynamics Land Systems, Inc. v. Cline, 124 S.Ct. 1236 (2004), is highly instructive. In Cline, the Supreme Court held that "reverse discrimination" against employees under 50 in the provision of health benefits under a collective bargaining agreement is not a violation of the ADEA, as the ADEA does not prohibit favoring an older employee over a younger one. Conversely, the ADEA clearly prohibits disfavoring older employees over younger ones, except in accordance with the narrow exceptions set forth in §623, none of which applies here.

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reinstatement by retiring after termination); In re: Terebetski, 770 A.2d 756 (N.J.App. 2001)(disability retirement by police officers did not constitute voluntary retirement); Nix v. Dept. of Administration, 417 S.E.2d 823 (N.C.App. 1992)(disability retirement taken after notice of termination is "hardly a voluntary career change", 417 S.E.2d at 827). In Emerson, the Tenth Circuit considered the propriety of a jury instruction on the question of whether a federal employee who retired after her agency denied her an accommodation of her disability had voluntarily retired, or had been unlawfully discharged in violation of the Rehabilitation Act and ADA. The court held that the jury had been properly charged with finding whether the retirement was voluntary or coerced, and stated that a variety o c cm t cs a v ier dmo co e" c d g ues ror o, m pes and fi u s ne cn ia f eo fhi ,i l i dr o ce i t e r ure, r a tt e c nun s cni s m s ai i om t n up e b t gvrm n uo w i t e p yeee.19 ied gn r ao spld yh oe et pn h h h m l e r i " 96 l n f i i e n c e o ls U.S.App. LEXIS at 33513. In so holding, the court quoted language, from Arneson v. Heckler, 879 F.2d 393 (8th Cir. 1989), in turn quoting Taylor v. United States, 219 Ct.Cl. 86, 591 F.2d 688 (U.S.Ct.Cl. 1979), to the effect that merely being faced with a choice between retirement benefits o pr i oe l ac i s os oi ad ft lm k t co eo eri o n r. r us n n' e llm de ntn n o ie aeh hi t r i n l t y ug sg a sf e c te v u a However, A nsns reo'ultimate holding (implicitly endorsed by the Tenth Circuit in Emerson) was that the pla tf d aitr i m n i t f e fn n w u t etf i i' i b i er etn h a o a ul flh ao n fs s ly te e c a r t m nt n ol ntae en o n r,n t r oe intoel eh p i i'c i e i i cu ohv be vl t yad h e rd o fr o t ln fs lm r ao d ua ef d c s e a tf a for back pay and reinstatement: I r i i " ei t f r i d m l e t r nte n e e n t r h o aer e p yeo e s t vw g h g te o i a ment and back py .` eou o oros e t n uteh vl t i s o p i i' a ..t fcs f u cni r i m sb t o n r es f ln fs h d ao e u an a tf retirement . . . . If that choice was freely made, he had no right after that event to fr ee p y et yh Fdr G vrm n ' Taylor v. United States, 219 ut rm l m nb t ee l oe et" h o e a n . Ct. Cl. 86, 591 F.2d 688,690 (1979)[quoting Roskos v. United States, 213 Ct.Cl. 34, 549 F.2d 1386,1388 (1977)]. While it is true that Arneson was faced with making a difficult decision of either losing his retirement benefits or losing his aitt pr e ic i fre s t et t f thtn m l e ..a t b i o us h lm o r nte n " e a t a e p ye .hso ly u sa i am , h c a o

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choose between two unpleasant alternatives does not make the resulting action involun r. Taylor, 591 F.2d at 692. ty a " However, the Court of Claims in Roskos hlt t e ln fs e h t p i i' d a h a tf retirement was involuntary because the court found that the transfer, which precipitated the retirement, was unlawful. " nat nin t o nay fts A c o s o vl tr iii i u prd cdb gvrmeto d cw i iw o gu.Roskos, 549 F.2d at o ue y oen n cn ut hc s rn fl h " 1389-90 (citations omitted). B cue reo't m nt n a hv be ul fl ., v li eas A nsnse i i m y ae en n w u i. n i ao r ao a ,e i o t n of the Rehabilitation Act, we cannot say that his retirement bars his claim for back pay and reinstatement. If his termination was unlawful, then he has the right to seek this remedy regardless of his retirement. (emphasis added). 879 F.2d at 396. To the same effect, see Carmichael v. United States, 298 F.3d 1367,1373 (Fed.Cir. 2002), holding that a sailor who refused for religious reasons to sign a re-enlistment contract containing his Social Security number did not voluntarily separate from the service because the U.S. Navy had unlawfully failed to accommodate his religious beliefs. The Hearing Officer found, and the Commission affirmed, that Defendant wrongfully and unlawfully terminated Plaintiff. This factual and legal finding is incontrovertibly dispositive in Pa tf f o. eas D f dnw ogu ye i t Pa tfh r i m n cu nt ln fsa r B cue e nat rnfl t m n e ln f i er etol o i i' v e l r a d i i, s te d have been voluntary. X. THE HEARING OFFICER'S DENIAL OF REINSTATEMENT CONSTITUTES UNSTATED, ERRONEOUS AND UNLAWFUL APPLICATION OF JUDICIAL ESTOPPEL The C m i i 'denial of reinstatement amounts to the erroneous application of o mso s sn judicial estoppel, in contravention of the Tenth Circuit's decisions in Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1332 (10th Cir. 1998) and Smith v. Midland Brake, Inc., 18 . 10 (0 Cr19) Mi ad r e" rv o o e gons fr eer g n 3 F d 34 1t i 98( d n Ba I , e' n t r rud a e rhai e 3 h . " l k ) d h t n banc in Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161 (10th Cir. 1999)( d n Bae " ld r Mi a k I )and the U.S. Supreme Court's subsequent decision in Cleveland v. Policy Management I, " Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999). These decisions foreclose denying

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Plaintiff reinstatement simply because he converted his age and service retirement to a disability retirement. In Rascon and Midland Brake I, the Tenth Circuit flatly rejected the contention of the defendant employers that the plaintiffs were judicially estopped from suing them for disability discrimination because, after their termination, they applied for and received Social Security disability benefits. In Cleveland, the Supreme Court resolved a split among the Circuits on the question of whether an ADA plaintiff who applies for and receives SSA disability benefits after termination may be judicially estopped from pursuing claims under the ADA. The Court rejected the Third Circuit's enthusiastically niggardly use of judicial estoppel to dismiss such claims, and instead endorsed those decisions, such as Rascon and Midland Brake I, refusing to apply judicial estoppel to such claims. The Supreme Court would not even require plaintiffs to overcome a rebuttable presumption that an application for disability retirement benefits forecloses an ADA claim. 119 S.Ct. 1602. As was true of the plaintiffs in Rascon, Midland Brake I, and Cleveland, Plaintiff's demand for reinstatement and application for disability retirement constitute superficially conflicting legal (as opposed to factual) statements or positions that are quite permissible. Indeed, under Davoll and Midland Brake II, supra, the only lawful condition upon Plaintiff's reinstatement would be an individualized assessment of his ability to perform the essential functions of any vacant job in the Denver Fire Department into which he desires to be reinstated. Davoll, 194 F.3d at 1131; Midland Brake II, 180 F.3d at 1161. However, because state law forecloses the reexamination of Plaintiff as a condition of reinstatement, Plaintiff must be reinstated without examination.

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VI. THE HEARING OFFICER'S DENIAL OF REINSTATEMENT AMOUNTS TO UNLAWFUL APPLICATION OF THE COLLATERAL SOURCE RULE Colorado courts apply the "collateral source rule" to prevent wrongdoers from escaping the consequences of their actions by claiming the benefit of insurance contracts, government benefits, or other independent sources of compensation as an offset against damages for which they are liable. Colorado Permanente v. Evans, 926 P.2d 1218 (Colo. 1996); Barnett v. American Family Insurance Co., 843 P.2d 1302 (Colo. 1993)(Social Security disability payments are collateral source); Smith v. Vincent, 77 P.3d 927 (Colo.App. 2003); Montoya v. Grease Monkey, 883 P.2d 486 (Colo.App. 1994); Combined Communications Corp. v. Public Service, 865 P.2d 893 (Colo.App. 1993)(Opinion by J. Criswell, holding that workers' compensation and Social Security disability payments are collateral source); Technical Computer Services, Inc. v. Buckley, 844 P.2d 1249 (Colo.App. 1992)(unemployment compensation is a collateral source). Most importantly, in Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070 (Colo. 1992), the Colorado Supreme Court held that disability payments from the City of Denver's "old hire" firefighters pension fund are a "collateral source" within the express exception to the damages setoff requirement of C.R.S. §13-21-111.6, as they arise from a firefighter's employment contract with the City, and are paid for by the firefighter. 840 P.2d at 1080. The defendant was therefore not entitled to any offset of the firefighter's disability payments against the damages it was required to pay the firefighter, including his lost earnings.4 The Commission's order that Plaintiff not receive any lost earnings beyond March 13, 2003, the date of his disability retirement, or that any retirement funds received by Plaintiff since his termination be deducted from the City's back or front pay obligation, directly contradicts Van

4

By statute, C.R.S. §8-42-103(1)(d), old hire firefighter and police disability pension benefits may offset workers' compensation benefits. John Keelan v. City of Denver, 868 P.2d 1173 (Colo.App. 1994)(firefighter); Walker v. City of Denver, 870 P.2d 1269 (1994)(police officer). Otherwise, the holding in Van Waters v. Keelan requires that old hire firefighter pension benefits be treated as a collateral source.

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Waters v. Keelan. As a matter of law, Plaintiff's retirement benefits are a collateral source, and cannot be applied to offset damages resulting from Plaintiff's unjust termination. Therefore, even if the Commission'denial of reinstatement were lawful, the City must be required to make s Plaintiff whole by paying him all wages and benefits he would have received, through the retirement dates he would otherwise have elected, without any offset of retirement payments received in the interim.5 DATED this 1st day of March, 2006. Respectfully submitted,

/s/

Mark E. Brennan

Mark E. Brennan, P.C., #14012 P.O. Box 2556 Centennial, CO. 80161 Phone: (303) 552-9394 or 797-7687 Fax: (303) 734-9156 Email: [email protected] ATTORNEY FOR PLAINTIFF Certificate of Service The undersigned hereby certifies that on this 1st day of March, 2006, he sent a copy of this Pa tf Mo o fr ln fs t n o Partial Summary Judgment via electronic mail to: i i' i Jack M. Wesoky, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 /s/
5

Mark E. Brennan

In a sexual harassment action, the Supreme Court of Wisconsin held that a paramedic was not judicially estopped from claiming back or front pay because she had become disabled, and further held that the back and front pay awarded should not be offset by disability pension payments, as they were from a collateral source, a collectively bargained disability pension fund. Salveson v. Douglas County, 630 N.W. 2d 182 (Wis. 2001). The court refused to deprive the plaintiff of a meaningful remedy simply because of her disability, and insisted that she be made whole. Unlike the Hearing Officer in this case, the court in Salveson properly rejected the procrustean concept that a victim of unlawful conduct should be penalized for his or her misfortune in becoming disabled, or that his or her tormentor should benefit from it.

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