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

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

Document 72

Filed 03/01/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant. DEFENDANT CITY AND COUNTY OF DENVER'S MOTION FOR SUMMARY JUDGMENT Defendant, by undersigned counsel, pursuant to Fed. R. Civ. P. 56 moves the Court for Summary Judgment in its favor and against the Plaintiff on all claims and as grounds therefore, states as follows: Pursuant to the undisputed material facts and applicable legal authorities set forth in Defendant's Brief in Support of Motion for Summary Judgment, submitted contemporaneously with, Plaintiff's claim should be dismissed for the reasons that follow: Generally: 1. As discussed more fully in the supporting Brief, incorporated by this

reference, the Plaintiff bears the burden of proof on all claims.

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

Document 72

Filed 03/01/2006

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2.

All claims can be dismissed because the Plaintiff cannot prove that his

Federal constitutional and statutory rights were violated. 3. 4. The undisputed facts and law entitle the Defendant to summary judgment. Plaintiff has no or insufficient evidence for the essential elements of his

claims, and therefore, cannot meet his burden of proof. Specific Claims: 5. The First Claim for Relief against the Defendant for violation of the ADEA

should be dismissed because the Plaintiff cannot show a prima facie case of age discrimination in either his termination or the Defendant's failure to reinstate him, and even if he could prove a prima facie case, he cannot show that Defendant's reasons for the actions were a pretext for discrimination. Further, Plaintiff's voluntary retirement from his employment eliminated any right to reinstatement. 6. The Second Claim for Relief based under the American with Disabilities

Act should be dismissed for the same reasons as his age discrimination case. 7. The Third Claim for Relief under 42 U.S.C. § 1983, a due process

violation, should be dismissed because if there were any violations of Plaintiff's due process, they are capable of remedy by applicable state procedures, and Plaintiff did in fact have adequate procedures both before and after his termination order. WHEREFORE, Defendant respectfully requests that this Court grant summary judgment in its favor and against Plaintiff, that Plaintiff's complaint be dismissed with prejudice and that Plaintiff be ordered to pay Defendant's attorney fees and costs and for such other and further relief as the Court deems just and proper.

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

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Respectfully submitted this 1st day of March, 2006. JACK M. WESOKY Assistant City Attorney

By:

s/ Jack M. Wesoky Jack M. Wesoky Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720/913-3100 Facsimile: 720-913-3190 E-mail: [email protected] Attorney for Defendant

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

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Filed 03/01/2006

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 1, 2006, I electronically filed the foregoing DEFENDANT CITY AND COUNTY OF DENVER'S MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204

s/ Marilyn Barela Marilyn Barela, Legal Secretary Office of the Denver City Attorney

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