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

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

Defendant, City and County of Denver, by undersigned counsel, pursuant to Fed. R. Civ. 56, 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 and the proceedings and events which followed. Plaintiff brings this action alleging three claims for relief ­ that his termination and the Civil Service Commission's failure to reinstate him to his firefighter position violated the Age Discrimination in Employment Act, that his termination and Civil Service Commission's failure to reinstate him to his firefighter position violated the Americans With Disabilities Act and that the his termination and the proceedings that followed deprived him of a liberty and property interest without due process of law. As discussed

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more fully below there is no evidence from which a rational fact finder could find a federal constitutional or statutory violation. II. 1. STATEMENT OF UNDISPUTED MATERIAL FACTS

Plaintiff William R. Cadorna served as a firefighter in the Denver Fire

Department commencing on July 1, 1976. 2. As a member of the Fire Department and the Classified Service of the City

and County of Denver Plaintiff enjoyed the protections of the Denver City Charter and the Denver Civil Service Commission Rules regarding the imposition of discipline, including termination. Exhibit 1, Denver Charter §§ 9.4.14 and 9.4.15; Exhibit 2, Civil Service Commission Rule XII. 3. On the basis of an investigation into Plaintiff's conduct by Chief Joseph

Hart, Plaintiff's second level supervisor, Plaintiff became subject to potential discipline for his conduct as a Denver Fire Fighter. Exhibit 3, Contemplation of Disciplinary Action. 4. That potential discipline involved an allegation that Plaintiff took a

cookbook from a Safeway store on December 7, 2002, without paying for it. Exhibit 3. 5. On the basis of Chief Hart's investigation, the Denver Fire Department

initiated discipline proceedings against the Plaintiff by serving him with a Contemplation of Disciplinary Action letter. Exhibit 3 6. Pursuant to that Contemplation of Disciplinary Action letter and the

procedures of the City and County of Denver, Plaintiff appeared at a pre-disciplinary meeting/hearing before the Chief of the Denver Fire Department, Roderick Juniel.

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Exhibit 4, Plaintiff's Deposition, p.134, l. 25 ­ p. 135, l. 21; Exhibit 5, Hearing Officer's decision, p. 12. 7. At that meeting/hearing Plaintiff was given the opportunity to present his

side of the story regarding the incident set forth in the Contemplation of Disciplinary Action and give reasons why he should not be disciplined. Exhibit 3. 8. After that pre-disciplinary meeting, Fire Chief Juniel recommended to the

Manager of Safety that Plaintiff be disciplined by termination for the conduct outlined in the Contemplation of Disciplinary Action letter and which was discussed at the predisciplinary meeting/hearing. Exhibit 3, 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). 9. Pursuant to the Denver City Charter, after the Fire Chief makes a

recommendation for discipline, the Manager of Safety makes a decision on that discipline. Exhibit 1. 10. In this case, then Manager of Safety Tracy Howard ordered that Plaintiff

be disciplined by termination from the Denver Fire Department. Exhibit 6. Order of Disciplinary Action. 11. In January, 2003, Plaintiff timely appealed his termination to the Denver

Civil Service Commission pursuant to the applicable procedures in the Denver City Charter and Denver Civil Service Commission Rules. Second Amended Complaint ("Complaint") para.36; Exhibit 7, Civil Service Commission letter advising of appeal.

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12.

Pursuant to Denver City Charter and Denver Civil Service Commission

Rules, an independent hearing officer of the Civil Service Commission, John A, Criswell, was appointed to hear Plaintiff's appeal. Exhibit 1; Exhibit 7 13. Plaintiff asked for and received several continuances of the hearing before

the hearing officer of his appeal of his disciplinary termination. Exhibit 8, Plaintiff's deposition, p. 133, l. 9 ­ p. 134, l. 12 14. Pursuant to the Denver City Charter and the rules of the Civil Service

Commission, Plaintiff had a de novo hearing before the independent hearing officer on the appeal of the disciplinary termination which was heard on October 21, 22 and 23, and November 4 and 5 of 2003. Complaint, para. 60 15. At that hearing Plaintiff was represented by counsel, cross-examined

witnesses presented by the City and presented witnesses and evidence. Exhibit 5. 16. Towards the end of December 2002 Plaintiff requested the paperwork for

retirement from Linda Becker of the Denver Fire Department and he received the retirement packet on December 23 or 24. Exhibit 9, Plaintiff's Deposition, p. 116, l.7 ­ p. 117, l. 7. 17. While Plaintiff's appeal was pending and before it was heard by the

hearing officer, Plaintiff applied for and was granted an age and service retirement from the Denver Fire Department based on his age and years of service with the Department. Complaint, paras. 40 and 41. 18. Plaintiff's age and service retirement became effective on or about

March 13, 2003 when the Board of Trustees of the Denver Firefighters Pension Fund

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voted to grant Plaintiff the age and service retirement that he requested. Complaint, para. 41 19. Before Plaintiff applied to the Pension Board for age and service

retirement, he attempted to complete the appropriate documents for age and service retirement at an earlier date. Exhibit 10, Karen McNeil Deposition, p. 91, l.17 ­ p. 97, l.9: Exhibit 11, Deposition exhibits I1 ­I6, J1-J3 and C. 20. That earlier date was at least February 14, 2003. McNeil deposition, p.37

l.16 ­ p. 38, l.6 21. After Plaintiff applied for an age and service retirement, he applied to the

Pension Board for a disability retirement. Exhibit 12 , Deposition Exhibit G-16 22. Plaintiff requested of Karen McNeil of the fire department 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. Exhibit 13, McNeil Deposition, p. 101, l. 17 ­ p.103, l. 5; 23. Plaintiff's application to the Pension Board for disability retirement was

made on or about April 24, 2003 and the Board approved Plaintiff's petition for disability retirement on or about April 25, 2003. Exhibit 12 and Exhibit 14, Deposition exhibit G17 24. The basis for Plaintiff's disability retirement was a hearing loss. Exhibit

15, Deposition exhibits G 2 ­ G 14. 25. In order for Plaintiff to apply for disability retirement based on a hearing

loss, he was required to undergo a physical examination. Deposition Exhibit G 7 - 8

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26.

In connection with that examination the Karen McNeil provided the doctor

with the necessary documents for his examination of Plaintiff including forms required by the Pension Board and the Board's resolution setting forth the parameters of the hearing loss necessary for firefighter to qualify for a disability retirement based on hearing loss. Exhibit 16, McNeil Deposition, p. 120, l. 19 ­ p. 123, l. 11. 27. Plaintiff underwent that physical examination and Dr. Stephen Hessl

certified that Plaintiff had a hearing loss which qualified him for a disability retirement from the Denver Fire Department. Deposition Exhibit G 7 ­ 8. 28. That certification together with Plaintiff's application for disability

retirement was sent to the Pension Board by Karen McNeil in order that the Board could evaluate and vote on his application for disability retirement. Exhibit 17, McNeil deposition, p. 123, l. 6 ­ p. 125, l. 2. 29. Plaintiff sought his age and service retirement because he needed money

to support his family and money to meet his obligations including mortgage payments. Exhibit 18, Plaintiff's deposition, p. 163 l. 8 ­ p.166 l. 11; Exhibit 19, Plaintiff's Brief to Civil Service Commission on Appeal p 2 . 30. Plaintiff sought retirement based on a disability because he was advised

that if he qualified for such he would receive a more favorable tax treatment with regard to benefits received from disability retirement than from an age and service retirement. Complaint para. 33; Exhibit 20,McNeil Deposition p. 43, l. 20 ­ p. 44, l.8; p. 45, l.25 ­ p. 51, l.15

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31.

On January 30, 2004, the hearing officer of the Civil Service Commission

issued his decision and opinion finding that the City had failed to sustain its burden that Plaintiff committed the conduct for which he was disciplined and reversed the termination. Exhibit 5 32. The hearing officer ordered Plaintiff's reinstatement to the Fire Department

to the date of March 15, 2003, the date of his age and service retirement. The hearing officer ordered as he did because Plaintiff had retired from the Fire Department and thus could not be reinstated, but instead was given back pay to the date of retirement. Exhibit 5. 33. Pursuant to Civil Service Commission Rule XII § 6, Plaintiff appealed the

hearing officers decision to the full Civil Service Commission. Exhibit 21, Plaintiff's Notice of Appeal. 34. Plaintiff's appeal to the Civil Service Commission sought reversal of the

hearing officer's decision regarding the extent of the remedy granted and sought Plaintiff's full reinstatement to the Denver Fire Department. Exhibit 21, p. 5 35 When Plaintiff appealed the hearing officer's decision to the Civil Service

Commission, as Appellant, he was required to submit those portions of the record, including the transcript, which he deemed appropriate for review of the hearing officer's decision. Exhibit 22 , Civil Service Commission Orders regarding the appeal.. 36. The record submitted by the Plaintiff to the Civil Service Commission on

appeal did not include the full transcript of the proceedings. Exhibit 23, Civil Service Commission Order to Show Cause.

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38.

The portions of the transcript that Plaintiff designated as the record and

supplied to the Civil Service Commission on his appeal was a testimony of witness Karen McNeil and a portion of the testimony of William E. Cadorna, the examination by Plaintiff's counsel. Exhibit 23. 39. Thereafter, the City in that proceeding designated other portions of the

transcript of proceedings which included a portion of the cross-examination of Plaintiff by the City's counsel. Exhibit 24, Civil Service Commission Order Re Motion to Supplement Record. 40. After Plaintiff and the City submitted written and oral argument to the Civil

Service Commission, the Commission issued its decision on May 20, 2005. Exhibit 25, Commission Decision. 41. In its decision the Commission refused the relief Plaintiff requested ruling

that because the hearing officer found as a fact that Plaintiff had applied for retirement before his termination, the Commission was bound by that fact. Exhibit 25. 42. In its decision the Commission noted that after Plaintiff began receiving his

age and service retirement benefits such was changed to a disability retirement and he began receiving a disability retirement benefit in April, 2003. Exhibit 25. 43. Pursuant to C.R.C.P. 106(a)(4), Plaintiff sought certiorari review of the

Civil Service Commission's decision in the Denver District Court and that matter is now pending on Plaintiff's Third Amended Complaint. Exhibit 26, Plaintiff's Third Amended Complaint in Denver District Court Case No. (because of the length of that Complaint only the first page and last pages are attached.)

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44.

Under the City Charter and Civil Service Commission Rule XII § 5 E.6., a

Hearing Officer's findings of fact is binding upon the Commission. Exhibits 1 and 2 45. Under the City Charter and Civil Service Commission Rule XII § 6., an

appeal from a Hearing Officer's decision may be made to the Civil Service Commission or directly to the District Court in accordance with the Colorado Rules of Civil Procedure. Exhibits 1 and 2. 46. Under City Charter provisions and Civil Service Commission Rule XII § 6

C and E, the grounds for appeal to the Commission are limited to new evidence, erroneous rules interpretation, policy considerations or inconsistent treatment. Exhibits 1 and 2. 47. Under the rules and regulations of the Denver Civil Service Commission in

effect on March 3, 1983, applicants to the Denver Fire Department must not have passed their thirtieth birthday on the day the written portion of examination for firefighter was announced. Exhibit 27, Affidavit of Brian Kellogg. 48. On September 27, 2004, Plaintiff filed a charge of age and disability

discrimination with the EEOC (No. 320-200402742) charging that the Civil Service Commission's refusal to reinstate him was based on a illegal age and disability discrimination. Complaint Para. 5; Exhibit 28 Charge of Discrimination. 49. On information and belief, the EEOC is still investigating that chare and no

right to sue letter has been issued. Exhibits 29 and 30 November 16, 2005 letter from EEOC requesting information and City's response dated December 5, 2005.

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III.

STATEMENT OF PENDING AND DISMISSED CLAIMS

Plaintiff initially brought six claims for relief against the City and four individual defendants. Recently in his Second Amended Complaint, Plaintiff has reduced his claims to three and has eliminated any claims against any individuals. He has eliminated claims against Messrs. Sestrich, Caldwell, Hart and Hoffman under 42 U.S.C. §§ 1981 and 1983 alleging race, color and national origin discrimination and retaliation and for deprivation of due process of law. Plaintiff has also eliminated claims against the City for race, color, and national origin discrimination and retaliation under Title VII. He has modified his claims against the City for age and disability discrimination and for a due process violation under 42 U.S.C. § 1983. IV. 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). 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); Farthing, 39 F.3d at 1134. 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

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properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other 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. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999). 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); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000). V. A. ARGUMENT

Plaintiff's Third Claim for Relief - Deprivation of Property and Liberty Without Due Process of Law. Plaintiff's Third Claim for Relief alleging a violation of his right to due process of

law is puzzling. First, as to any claim of deprivation of liberty without due process of law, it is undisputed that Plaintiff had a name clearing hearing which the due process requirement is when a liberty interest is affected. Secondly, as to procedural due process, the Plaintiff had the full panoply of pre-termination rights and post-termination rights required by the due process clause. 1. Liberty Interest Plaintiff has a liberty interest in his good name and reputation as it affects any protected property interest in his employment. Of course, Plaintiff must show how the City infringed upon this liberty interest. For a claim of "liberty interest' to be actionable

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as a due process violation, statements of the employer must impugn the good name, reputation, honor or integrity of the employee, the statements must be false, the statements must occur in the course of terminating the employee or foreclose other employment opportunities and the statements must be published. Workman v. Jordan, 72 F. 3d 475, 480-81 (10th Cir. 1994). Once a liberty interest is implicated, which is assumed for purposes of this Motion, "the due process protections of the Fourteenth Amendment are innervated and [Plaintiff] must show he was not afforded an adequate name clearing hearing." Id. 480 See also Farthing v. City of Shawnee, at 1134 n. 2, where court assumed plaintiff did not pursue liberty interest due process claim because he was afforded the name clearing hearing. Here, it is undisputed that Plaintiff had a post termination name clearing hearing. Plaintiff challenged his termination through the appeal process to the Denver Civil Service Commission. And, he was successful in that challenge. The hearing officer overturned Plaintiff's termination finding that the Manager of Safety did not sustain his burden of proof of demonstrating that Plaintiff engaged in the conduct of which he was accused, that is shoplifting a cookbook. Plaintiff's claim that his liberty interest was taken away or deprived without due process of law is without merit. 2. Property Interest a. Violation. Plaintiff Has Adequate Remedies to Redress Any Due Process

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Plaintiff's claims that he was denied procedural of due process because of the Civil Service Commission's alleged erroneous and improper ruling based on poor or nonexistent reasoning. From reading Plaintiff's Second Amended Complaint, he seems to be claiming that the Civil Service Commission's decision affirming the hearing officer was improper based on the facts and improper as a matter of law. While going into great detail as to why the Civil Service Commission was wrong or according to Plaintiff, engaging in a subterfuge and intentionally and maliciously denying Plaintiff a full remedy, his procedural due process claim seems to be nothing more than a contention that his procedural due process rights were violated because of an erroneous bad faith decision by the Civil Service Commission. While the Commission's decision is hardly 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. It is 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).

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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 regardless of whether Plaintiff has taken advantage of the state remedy or attempted to do so. 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 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 Denver Civil Service Commission 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 Civil Service Commission, Plaintiff's procedural due process claim must fail. See McKinney v Pate, at 1563-64 holding that Florida Courts on certiorari review could provide review and adequate remedies in employment termination cases for alleged due process violations.

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b.

Plaintiff has no Evidence to Support his Claim that the Civil Service Commission Proceeding was a Sham

Although unclear from his pleading, Plaintiff, in addition to the procedural due process denial addressed above seems to also claim that the hearing before the Commission was a sham. However, Plaintiff has no evidence of this, other than his claim that the result of the Commission's decision was unsatisfactory. First, as noted above, Plaintiff has appealed the Civil Service Commission's decision to the Denver District Court less as an adequate remedy for his due process claim. Secondly, although unstated, Plaintiff seems to be alleging that the Civil Service Commission was somehow biased against him could be a sham hearing. First, Plaintiff has no evidence of any bias of any Commissioner who heard his case. He has no affidavits from them, no deposition testimony or anything other than the decision itself of which he is roundly critical. A person claiming bias on the part of an administrative tribunal has a heavy burden. There is a presumption of honesty and integrity in those serving as adjudicators which any plaintiff must overcome. 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, 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).

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Under these principles, Plaintiff has fallen far short of alleging or stating any claim for relief based on the bias of the Civil Service Commission and thus, a sham proceeding. If Plaintiff is alleging the proceeding was a sham because the Commission committed error in its decision, then Plaintiff has an adequate avenue for relieve in the state proceeding and has not alleged a claim for procedural due process violation. See supra. Plaintiff simply has no evidence that the Commission's decision was made before he appeared either before the hearing officer or before his appeal to the Commission of the hearing officer's ruling. Plaintiff has no evidence to support his assertion and has no evidence of any vindictive behavior of the Commission or even the hearing officer. He only has his statements and belief that the Commission's decision was a sham and the process was an elaborate design to offer the appearance of due process without truly offering due process. c. Plaintiff had the Full Panoply of Pre-termination and Post-termination Procedures

To prove that he was denied procedural due process, he must prove two things; (1) that he possessed a protected property interest such that due process protections were applicable and if so then, (2) that he was not afforded an appropriate level of process. Watson v. University of Utah Medical Center, 75 F.3d 569, 577 (10th Cir. 1996). Here, it is undisputed that Plaintiff had a property interest in his position as firefighter with the City and County of Denver and that property interest was deprived 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 16

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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 pre-termination meeting with the Fire Chief Rod Juniel and then had a full-blown adversary hearing before an independent Hearing Officer of the Civil Service Commission in which he challenged his termination. This gave Plaintiff all the procedure to which he was entitled. An essential principle of due process is that before a property can be deprived, it must be preceded by notice and opportunity for hearing appropriate to the nature of the 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 or 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. Here, it is undisputed that Plaintiff received a contemplation of discipline letter in which he was advised of the charges against him and the evidence supporting those charges and that he was given an opportunity to present his side of the story to the Fire Chief at a pre-termination meeting which he attended.

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The contemplation of discipline letter contained the notice of the charges and an explanation of the employer's evidence stating that Plaintiff, while on duty and in uniform and using the uniform of the Department to facilitate a theft, willfully stole a cookbook. This described the conduct sufficiently and together with the other factual description in the contemplation of discipline letter, provided Plaintiff with the sufficient notice of the charges and the evidence supporting the charges. It is further undisputed that Plaintiff appeared at the pre-termination hearing, did not state that he was not well advised of the charges against him or the evidence against him. He did present reasons why he should not be disciplined and he gave "his side of the story." Thus, all pre-termination process was met. After Plaintiff was terminated on January 2, 2003, he appealed that termination through the applicable City procedures to the Denver Civil Service Commission. Pursuant to the procedures of the Commission 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. Here, because Plaintiff had the full blown adversary post-termination hearing, both that procedure and the pre-termination pre-disciplinary procedures which rest on the availability of a full blown post-termination hearing were adequate. In fact, Plaintiff's

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termination was overturned by the Hearing Officer which may be clear evidence that he had full panoply of rights guaranteed by the Due Process Clause. 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 Civil Service Commission 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). If the Colorado courts would give preclusive effect to the Hearing Officer's determination that Plaintiff had the appropriate pre-termination process Plaintiff is estopped from raising that issue here. See Univ. of Tenn. V. Elliot, 478 U.S. 788, 799 (1986). Colorado does give collateral estoppel affect to final administrative agency actions. Bebo Construction Co. v. Mattox and O'Brien P.C., 990 P.2d 78, 85 (Colo. 1999). In order to determine if collateral estoppel applies, the Court must determine; (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 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. Here, all four of those elements exist. First, the pre-termination due process issue was actually litigated and necessarily adjudicated before the Hearing Officer. See Hearing Officer's decision, Exhibit 5 pp 16-18. Secondly, Plaintiff was clearly a party to the 19

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administrative hearing as it was he who brought the challenge to his termination. Thirdly, there was a final judgment on the merits. Although Plaintiff here appealed the Hearing Officer's decision to the full Commission but did not appeal that portion of the decision relating to the pre-termination process. And Plaintiff has only appealed the decision of the Civil Service Commission, on appeal from the Hearing Officer, 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 here had a full and fair opportunity to litigate the adequacy of the pre-termination process as is made clear by the Hearing Officer's decision. Therefore, Plaintiff is collaterally estopped from asserting here that his pre-termination proceedings did not comport with the due process of law requirements. Plaintiff is disappointed and upset at the course of the administrative proceedings before the Civil Service Commission. Even if the results of those proceedings were incorrect as a matter of fact or law, however 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. But due process 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 for his termination. That he is unhappy with the outcome does not create a due process violation.

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e. The Court should abstain from considering this case. Under the abstention doctrine enunciated in Younger v. Harris, 401 U.S. 37 (1971) and as it has developed, requires abstention when federal proceedings would (1) interfere with an ongoing state judicial or administrative proceeding; (2) that implicate or involves important state matters or interests and (3) the state forum provides an adequate opportunity to raise the federal claims. Amanatullah v. Colorado Bd. Of Med. Exam'rs., 187 F.3d 1160, 1163 (10th Cir. 1999). Plaintiff has an ongoing state proceeding, his appeal to the Denver District Court of the Civil Service Commission decision. That appeal implicates important state (city) interests in the disciplinary appeal and the remedies afforded. The state forum is adequate because it can reverse and remand if the record reveals due process infirmities. And if remanded the Age and/or disability issues raised herein could be addressed there. B. Plaintiff's Retirement Ended his Service in the Denver Fire Department (City) and He Lost any Right to Reinstatement or for Damages as a Result of his Alleged Wrongful Termination. Following his disciplinary termination by the Manager of Safety on January 2, 2003, Plaintiff took an age and service retirement from the Denver Fire Department on March 13, 20031. If this retirement is voluntary, that is not coerced by the City or the product of the City deceiving or misrepresenting a material fact to the Plaintiff upon which he relied, 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), he cannot

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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 15, 2003, and granted effective as of that date.

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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 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 at a time when the validity of his discharge from the department had not been finally determined had waived any rights to reinstatement and Civil Service Commission not required to reinstate him to his former position when the discharge order was reversed). Plaintiff's retirement is presumed to be voluntary. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3rd Cir. 1999) ("employee resignations and retirements were presumed to be voluntary.") Christie v. United States, 207 Ct. Cl. 333, 518 F.2d 584, 587 (1975) (employee resignations are presumed to be voluntary), See also Covington v. Department of Health and Human Services, 750 F.2d 937, 941 (Fed. Cir. 1984); Hargray v. City of Hallandale at 1568. To rebut this presumption, 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 at 587. Involuntariness can be shown in one of two ways: (1) where the employer, in this case the City, 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 v. City of Hallandale at 1568, Stone v. University of Maryland at 177.

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That Plaintiff retired after his disciplinary termination proves does not show that this retirement was involuntary. "Retirement is an innocuous event coming once to many employees and more than once to some." Henn v. National Geographic Society, 819 F.2d 824, 828 (7th Cir. 1987). 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 reapply 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 position). 1. Duress Coercion Theory 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 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 to be 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

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id citing Stone at 1742. Examining these four factors shows that Plaintiff's retirement was indeed voluntary. First, Plaintiff clearly had an alternative to retirement. He had challenged his termination through the appropriate channel by appealing to the Denver Civil Service Commission. 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 retire, the City did not say retire or be fired or, if you don't retire, you will be fired. Plaintiff simply chose to retire at the same time he was exercising his legal alternative to challenge what he believed an improper termination. While the test is phrased whether the Plaintiff understood the nature of the choice he was given, that factor is not present here. The City simply 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. Thus Plaintiff did not have to choose between offers from his employer. That Plaintiff understood the effects of his retirement or the alternative he chose was clear or at least he can be held to have constructive knowledge of that choice. He was a 25 plus year veteran of the Denver Fire Department who had exercised his right to appeal his termination making it quite probable that he knew what his rights were under the policies of the Fire Department as well as under the City Charter and Civil Service Commission Regulations regarding appeals. Therefore, he can be held to have at least a constructive knowledge of the
2

Other courts have phrased the test that to show duress coercion and that an employee involuntarily accepted the employer's separation terms, the employee must show circumstances permitted no other alternative and that the circumstances were the result of coercive acts of the employer. Christie v. United States at 587; Duffy v. United States, 835 F. Supp. 18087, 1090 (N.D.Ill. 1993).

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alternatives provided by the policies. See Venero v. City of Tampa, 830 F. Supp. 1457, 1459-60 (M.D. Fla. 1993). Plaintiff had a reasonable time choose to retire. Again, he was not given an alternative but freely chose to retire on his own. There is absolutely no evidence that he was given a time period to retire. He could have retired in January, February, March, April, May, June or any time he so chose. He simply elected to retire when he did3. Finally, Plaintiff was permitted to select the effective date of his retirement. There is no evidence that anybody selected or demanded a date for him to retire or that anybody advised him or gave him the option to retire as an alternative to any other action. 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. While challenging his termination through the Civil Service proceedings he could have sought income from another source. Simply because he was faced with the unpleasant alternative of earning income through other means while challenging his termination, does make his resulting conduct, 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

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

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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 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 Civil Service Commission 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 retired and must accept the consequences of that retirement, a retirement not coerced by his employer or the product of duress imposed by his employer. There is simply no evidence in the record of duress or coercion. That Plaintiff was under financial stress is not duress or coercion imposed by the employer. It is not illogical to assume that any time an employee is terminated he undergoes some financial stress and simply because that employee is in an economically stressful situation does not equate to coercion imposed by his employer. Plaintiff's choice, an

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election to get retirement benefits, does not transmogrify that retirement from a voluntary choice to one caused by his employer's coercion. Here, Plaintiff did not have "no alternative but to retire." The fact that he may have experienced some economic pressure he was not coerced into retirement by any conduct of the City. The 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 retirement was a voluntary act brought on, according to him, by his apparent economic condition, not from threats made by the City. In short, Plaintiff had the freedom of choice as to whether to apply for retirement or not and 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 and is insufficient to show such. Plaintiff made a choice to retire based upon his perception of his economic situation without any pressure or threats from the City. Under the objective analysis that must be used, rather than in 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 i.e. that he needed the money. That is not coercion by the City or duress imposed by the City.

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2.

Misrepresentation Theory Under the misrepresentation theory, a retirement or resignation can be found

involuntary if it is induced by the employee's reasonable alliance on the employer's misrepresentation of a material fact concerning the resignation or retirement. Stone v. University of Maryland at 174. A misrepresentation may be material if it concerns the consequences of the retirement or the alternative to retirement. And the reliance must be reasonable under the circumstances. Id. Here, there is no evidence in the record that there is any misrepresentation by anyone surrounding Plaintiff's application for age and service retirement. Plaintiff simply chose to retire under the applicable law and rules having achieved both the age to retire and the years of service. The only dealings Plaintiff had with any City employee in connection with his age and service retirement was help in filling out the appropriate documents and the appropriate date that he could use for his petition to retire, apparently having missed appointments to come into the Fire Department offices to complete the paperwork or inserting an improper date in his documents. There is no evidence that any City employee told him anything about the consequences of his retirement or alternatives to it let alone made any material misrepresentations about his retirement. Plaintiff's age and service Retirement was not the product of the City's misrepresentation. After Plaintiff retired from the Fire Department based on his age and years of service, he converted that to a disability retirement based on a loss of hearing that commenced early in his career (1976). The evidence on Plaintiff's conversion to a

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disability retirement is simply that he initially filed for age and service retirement, which was granted, that Karen McNeil of the Denver Fire Department talked to him about his retirement and asked him if he intended to file for disability retirement explaining what a disability retirement would be and what it involved, the application process for such and that if disability retirement were awarded it would be advantageous to him for income tax purposes. Ms. McNeil advised him of his right to apply for a disability retirement. She did not recommend that he apply for one. In fact, Plaintiff's own testimony shows that Ms. McNeil did not recommend, suggest or compel him to file for a disability retirement. She merely said, "because of your injuries, we should see if you can get a medical disability." This statement is hardly a misrepresentation about the character or the nature of a disability retirement or the shielding and hiding of the effects of that retirement. Even if Plaintiff's conversion to a disability retirement was a product of some misrepresentation, such has no effect because Plaintiff's age and service retirement which occurred before the disability retirement was completely voluntary thereby cutting of any right the Plaintiff had to further employment at the City. Taylor v. United States, 219 Ct. Cl. 86, 591 F.2d 688, 690 (1979); See also C.R.S. § 31 ­ 30.5 - 604 (no provision for "un-retiring" once an old hire firefighter voluntarily retires). 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 the intervening retirement. In Williams v. City of Los Angeles, 229 Cal. App. 3d 1627, 281 Cal. Rptr. 21 (1991), a 20 year fire lieutenant appealed his termination and applied

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for service pension, during the appeal litigation he received some pension payments, on appeal his termination was modified to a suspension and Williams petitioned to be reinstated. The court denied reinstatement holding that when Williams 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 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. He petitioned to be reinstated after his termination was reversed by court order 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 and even though he could have been reinstated after that decision there was no requirement to reinstate him because he had applied for his pension. The court stated "Petitioner Moore elected to voluntarily retire from the Enid Fire Department at a 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.

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C.

Plaintiff Has No Evidence of Age Discrimination.

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 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 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). With his termination overturned Plaintiff has suffered no adverse employment action and thus has no claim for age discrimination based on his "termination."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

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.

4

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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 discrimination.) Plaintiff can show that the City's articulated reason for termination, that Plaintiff violated Fire department 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 nondiscriminatory reason. Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Here, although Plaintiff's termination was overturned in a Civil Service Commission hearing, the Hearing Officer finding that the Manager of Safety did not

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.

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sustain his burden of proof on the underlying conduct charge of shoplifting, 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 Chief Juniel and Manager of Safety Howard was so weak that a rational fact finder could infer that the expressed reason for terminating Plaintiff must have been pretextual. Here, based on 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.

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Plaintiff claims that the denial of his reinstatement to the fire department after retiring is a violation of the Age Discrimination in Employment Act. 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 as a matter of right or justice). 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 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 Civil Service Commission 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.

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If Plaintiff's retirement severed his ties with the Fire Department and 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. 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. Plaintiff was 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 Civil Service Commission Rule XI (4). Even assuming that Plaintiff did reapply and age was not a disqualifying factor, he could not

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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 Commission relied does not discriminate on the basis of age. It is silent as to 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

As he alleged with respect to his age discrimination claim, Plaintiff has alleged two claims of disability discrimination. The first that he was terminated because of his disability and the second that he was discriminatorily not reinstated because of his disability. 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. Woodman v. WWOR, 411 F.3d 69, 81-2 (2nd Cir. 2005); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6tth Cir. 1996); Morisky v. Broward County. 80 F.3d 445, 448 (11th Cir. 1996). 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, there is no constructive intent and constructive knowledge does not show actual intent. Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992). Thus, here there can be disability discrimination in Plaintiff's termination because none of the actors knew of his hearing impairment. His impairment only surfaced after Plaintiff retired and was examined for

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conversion of his age and service retirement to a disability retirement months after he was terminated. Plaintiff next claims that he was discriminated against on the basis of the disability when he was not reinstated completely to the Denver Fire Department. To establish a prima facie case of disability discrimination under the ADA, the 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). 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). Based on Plaintiff's hearing loss, he does have an impairment of a major life activity. However, merely having an impairment does not make one disabled for purposes of the ADA. 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). 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

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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, a Pla