Free Amended Complaint - 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-01067-REB-CBS

WILLIAM R. CADORNA Plaintiff, v.

THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant. ________________________________________________________________________ SECOND AMENDED COMPLAINT ­ JURY TRIAL DEMANDED ________________________________________________________________________ In this action, Plaintiff William R. Cadorna ("ln f o " Pa tf rCadorna" alleges that i i" ) D f dn Ctad on o D ne( i " v le the Civil Rights Act of 1871, 42 U.S.C. e nat i n C ut f evr" t ) i a d e y y Cy ot §1983, the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq., Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, by depriving Plaintiff Cadorna of his property and liberty interests in his employment and career as a Denver firefighter without due process of law, and by subjecting Plaintiff Cadorna to discriminatory termination and denial of reinstatement or other full relief despite the Denver Civil Service Commission'f d g he was unjustly terminated. Plaintiff requests trial by jury, and seeks si i that nn all remedies available to him under the law, including, but not limited to: reinstatement; actual,

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compensatory, and liquidated damages; injunctive relief; aonysesi e sad ot F r t re'f , t etn cs . o t e nr s his complaint against Defendant City, Plaintiff alleges: PARTIES, JURISDICTION AND VENUE 1. Plaintiff William R. Cadorna is and was at all relevant times a resident of Jefferson County, Colorado. Plaintiff William R. Cadorna served as a Firefighter for the Denver Fire Department from July 1, 1976 until his involuntary termination on January 2, 2003. 2. Plaintiff William Cadorna is and was at all relevant times: (a) a "citizen of the United States or other person within the jurisdiction thereof" within the meaning of 42 U.S.C. §1983; (b) an "employee" of the City and County of Denver within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq.,c a "m l e" r po c d e o" i it ( n e p ye o "rt t pr n wt n h ) o ee s h e meaning of Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. 3. Defendant City and County of Denver is a municipal corporation, local government, "person" and "employer" subject to this court's jurisdiction under 42 U.S.C. §1983, the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq., and Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. This court has jurisdiction over Plaintiff'claims against the City under 28 U.S.C. §§1331 and 1367(a), and is the proper s venue for Plaintiff'action against the City under 28 U.S.C. §1391(b)(2). s

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4. On October 24, 2003, Plaintiff filed a timely charge of, among other things, age and disability discrimination, and unlawful retaliation, with the United States Equal Employment Opportunity Commission concerning his termination on January 2, 2003. 5. On September 27, 2004, Plaintiff again filed a timely charge of, among other things, age and disability discrimination, and unlawful retaliation, with the United States Equal E p y et pot i C m i i cne i t D neCv Sri C m i i ' m l m nO pr n y o m s o ocr n h evr i l e c o m s o s o ut sn ng e i ve sn H a n O f e se sl reinstate him after finding he was unlawfully terminated. er g fcr r uato i i ' f 6. All jurisdictional prerequisites to the filing of this action have been satisfied.

Plaintiff has complied with all conditions precedent to the filing of all claims asserted in this action, including without limitation the exhaustion of any and all administrative remedies available to him. GENERAL ALLEGATIONS 7. During his employment by the City, Plaintiff was not terminable at will, but was protected from discipline or termination by civil service appeal rights, a collective bargaining agreement, and due process guarantees of the United States Constitution. 8. Plaintiff possessed, and possesses, a property and liberty interest in his employment and career as a Denver Firefighter that was, and is, protected by the procedural and substantive due process guarantees of United States Constitution. 9. In the summer of 2002, Plaintiff worked at Denver Fire Department Station 27 in the Montbello neighborhood of Denver, Colorado. t r k of a ( of a"cmmanded L. a H f n " f n)o Fn m H m one of the units assigned to Station 27, and had supervisory authority over Plaintiff. Assistant

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C i Je a ( a "cm add h Dsi i w i Sao 2 il a dad a h fo H r " r ) o m ne t ir tn h h ti 7 so t ,n hd e tH t e tc c tn ce supervisory authority over Hoffman and Plaintiff. 10. Hoffman bore intense malice toward Plaintiff. Hoffman subjected Plaintiff to outrageous abuse and harassment. Hoffman ridiculed Plaintiff's Asian meals as "slope slop" or "gook food", threw away an expensive saucepan he knew belonged to Plaintiff, and ordered Plaintiff to perform work he did not require from other firefighters. Hoffman called Plaintiff a "cock-sucking, sniveling little bitch", and often openly suggested that Plaintiff performed oral sex on other male Firefighters. 11. Plaintiff reported Hoffman's misconduct and complained of discrimination, but Denver Fire Department management condoned Hoffman's misconduct and took no effective action with respect to Plaintiff's complaint of discrimination. 12. Denver Firefighter Craig Hopp has testified under oath that, in the fall of 2002, he heard Hoffman state: "The one thing I plan to do before I retire is get Billy Cadorna fired." 13. In the late summer of 2002, Plaintiff transferred from Station 27 to the Denver Fire Department's DIA operations. 14. In the fall of 2002, Plaintiff was compelled to transfer out of DIA. Though there were other openings elsewhere in D ne Fr D pr et oe t n, Denver Fire Department evr i ea m n s pr i s e t ' ao management assigned Plaintiff back to Station 27. Though other assignments within Station 27 were available, Denver Fire Department management assigned Plaintiff t " o e2"t fe o T w r 7, ei h r truck commanded by Hoffman. 15. In a November 25, 2002 memorandum addressed to Internal Affairs/Human Resources Bureau Chief Steven Garrod, with a subject heading of "FF Bill Cadorna", Hart

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stated: "I assigned him to work on the Truck under the supervision of Lt. Hoffman because the direction I received from my Division Chief was to put him back to work with me so that the Department wasn't 'starting over' with Bill again. Lt. Hoffman is the most current of all of my officers on the problems we have with Bill Cadorna." 16. On Saturday, December 7, 2002, Hoffman accused Plaintiff of shoplifting a copy of the "Colorado Colore" cookbook ("the cookbook", hereinafter) from the Safeway grocery store (No. 0141) at 4884 Chambers Road, Denver, Colorado ("the Safeway store") on the morning of December 7, 2002. 17. On December 7, 2002, Plaintiff was on duty. He and his colleagues on Tower 27 went to the Safeway store to shop for groceries that morning, but received an emergency call requiring them to leave the store immediately. In answering the call, Plaintiff left the store with a copy of the cookbook. 18. Though he had ample opportunity to do so, Hoffman did not ask Plaintiff why he had left the store with the cookbook. Instead, Hoffman told Hart on December 7, 2002 that Plaintiff had shoplifted the cookbook. 19. When questioned by Hart on December 7, 2002, Plaintiff explained that a Safeway clerk named "Kevin" had given Plaintiff permission to take the cookbook to replace a copy he had previously purchased and lost in the same store. The clerk to whom Plaintiff referred was Kevin McKee ( K e) " Mc e" . 20. On December 8, 2002, Hart went to the Safeway store and interviewed McKee. McKee admitted that Plaintiff took a copy of the cookbook on December 7, 2002 wtMc e' i h Ke s knowledge and permission.

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21. McKee also told Hart on December 8, 2002 that Cadorna had, "on numerous occasions" prior to December 7, 2002, explained to McKee that "he had purchased a cookbook but had to make an exchange". Hart's subsequent written report, dated December 8, 2002, to Division Chief Kelley Caldwell states that McKee gave a statement "verifying Bill's [Plaintiff's] claim that on December 4 Bill had been told by Kevin to get another book". 22. D si t iko l g o Mc e'am s o t t ln ft k free copy of the ep eh r nwe e f K e d i i h Pa tfo a t e d s s n a ii o cobo wt Mc e'ko l g ad e i i , okok i h K e nwe e n pr s o Denver Fire Department Management s d m sn directed Hart to initiate Plaintiff's prosecution for shoplifting the cookbook. 23. Denver Fire Department Management initiated, and the City Attorney vigorously pursued, Pa tf poeu o to seg e t Ct s e ne ln fs rsct n t nt nh i 'df s against the civil challenges i i' i r h e y e Plaintiff would inevitably pursue after his planned termination. 24. On or about December 8, 2002, Hart contacted the Denver Police Department and reported that Plaintiff had shoplifted the cookbook from Safeway. 25. Hart did not inform the Denver Police Department that McKee admitted that Plaintiff took a copy of the cookbook on December 7, 2002 wt Mc e'ko l g ad e i i . i h K e nwe e n pr s o s d m sn 26. On December 8, 2002, Hart falsely told Safeway Asst. Store Manager Michael S. Brown ( rw "that Plaintiff had stolen the cookbook from Safeway, that three Firefighters " o n) B confirmed that Plaintiff stole the cookbook, and that Plaintiff had stolen from Safeway before. 27. The Denver Police Department prepared a criminal complaint for shoplifting against Plaintiff in reliance upon information supplied to it by Hart. In his communications with the Denver Police Depa m n H rwt e K v Mc e'i n ta a i es On December r et a i hl ei K e d ty s wt s t , t h d n s ei n . 10, 2002, Brown signed a criminal complaint, completed or delivered to him by Denver Police

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Officer Charles W. Jones, accusing Plaintiff of shoplifting the cookbook on December 7, 2002. Bo n i hlK v Mc e'i n ta a i esrm O f eJns rw wt e ei K e d ty s wt sf h d n s ei n o fcroe. i 28. In sworn testimony, Officer Jones has stated that he would not have charged Plaintiff with shoplifting had he known that Kevin McKee admitted that Plaintiff took a copy of the cookbook on December 7, 2002 wt Mc e'ko l g ad e i i . i h K e nwe e n pr s o s d m sn 29. Though surveillance cameras in the Safeway store may have recorded events tending to exculpate Plaintiff, the City did not, contrary to its usual procedures in investigating shoplifting accusations, request or secure copies of videotapes made on the dates on which events at issue in the charges against Plaintiff occurred. 30. When Denver Firefighters are accused of crimes or other serious misconduct that could result in severe discipline or termination, Denver Fire Department management normally request investigation by Human Resources Bureau/ t nlf i i et a r( R I e aa a sn sgt s" B nr fr v i o H Ivsgt s) Whnhyn ri wt s sH BIvsgt s aeh aitt ad net a r . e t i e e i es , R net a rhv t b i o n i o" e tv w n e i o e ly , normally do, tape record and request transcription of witness statements. 31. In investigating the charge of shoplifting against Plaintiff, the City did not assign the matter to an HRB Investigator, did not have an HRB investigator interview witnesses, did not tape record and transcribe witness statements, and otherwise deliberately deviated from normal City practices, procedures and policies concerning such investigations in order to ensure that no ei ne orbr i Pa tf ep nt n f icnut ol b poue,n t d v ec cr oan ln fs xl ao o h odcw u e rdcdad o eprive d o t g i i' a i s d Plaintiff of contemporaneous statements or evidence that would assist him in refuting or challenging the criminal and civil charges made against him.

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32. The City did, however, require two HRB Investigators, Fred DeFeo and Rob Brady, to devote many hours of time during the weeks and months peei Pa tf t m nt n o r d g ln fse i i t c n i i' r ao attempting to secure evidence concerning other allegations of misconduct by Plaintiff. 33. The City, through the decision of a final policy-making official or body, adopted, ratified, or condoned the custom, policy, practice or decision of intentionally failing to follow City investigative and disciplinary practices, policies and procedures in order to deprive Plaintiff of the ability to successfully defend against or appeal the criminal and civil charges against him. 34. In the December 13, 2002 "Contemplation of Disciplinary Action" in which he recommended Plaintiff's termination, Hart did not state that Kevin McKee admitted that Plaintiff took a copy of the cookbook on December 7, 2002 wt Mc e'ko l g ad e i i . i h K e nwe e n pr s o s d m sn 35. I r i c uo H rs n ea e pn a 'December 13, 2002 "Contemplation of Disciplinary Action", ln t Fire Chief Roderick Juniel and Acting Manager of Public Safety Tracy Howard approved Plaintiff's termination on January 2, 2003. 36. In January, 2003, Plaintiff timely appealed his termination to the Denver Civil Service Commission ( o m s o" " m ii ) C sn . 37. Prior to his termination on January 2, 2003, Plaintiff never submitted a petition of any kind for retirement of any kind to the Board of Trs e o t D neFr i t sPni ut s fh evr i f h r es n e e eg e ' o Fund. 38. Plaintiff automatically qualified for age and service retirement at the time of his termination on January 2, 2003, because he met the age and service requirements for such a pension.

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39. Plaintiff first submitted a written petition for age and service retirement to the Board o Tut s fh D ne Fr i t sPni F n after his termination. Plaintiff first f rs e o t evr i f h r es n ud e e eg e ' o submitted his written petition for age and service retirement on February 14, 2003. 40. Upon being informed by personnel of the Denver Fire Department that his petition for age and service retirement was not complete, Plaintiff submitted a revised, complete petition for age and service retirement on March 13, 2003. 41. On March 13, 2003, the Board of Trustees of the D neFr i t sPni F n evr i f h r es n ud eg e ' o ordered that Plaintiff be granted an age and service retirement, effective the date of his completed petition: March 13, 2003. 42. On April 14, 2003, e evr i f h r Pni B a sn t D ne Cv t D ne Fr i t s es n or eth evr i l h eg e ' o d e i Service Commission a letter informing it of its approval on March 13, 2003 o Pa tf pti f ln fs et n i i' io for age and service retirement, effective March 13, 2003, along with a copy of Pa tf pti ln fs et n i i' io for age and service retirement. The April 14, 2003 letter and copy of Pa tf pti fr ln fs et n o age i i' io ad e i r i m n hv cn nos be i t C m i i 'ps s o,n aaalfr n sr c er et ae ot uul en n h o m s o s os s nad vib o v e te i y e sn ei l e review by Commission members and staff, since April, 2003. 43. A t Pa tf t m nt nthe Denver Fire Department employee(s) responsible for f r ln fse i i , e i i' r ao administering Denver firefighter pension applications advised Plaintiff of his right to petition the D neFr i t sPni F n tcne h ae n sri r i m n ta i b i evr i f h r es n udo ovr i g ad e c er eto d ait eg e ' o ts v e te s ly pension. The same employee(s) explained to Plaintiff that, if based upon hearing loss, Pa tf ln fs i i' disability retirement would receive favorable tax treatment under a settlement previously reached between retired Denver Firefighters and the Internal Revenue Service.

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44. Plaintiff first submitted a written petition for disability retirement to the Denver Fr i t sPni F n after his termination. Plaintiff first submitted his written petition for i f h r es n ud eg e ' o disability retirement on February 14, 2003. 45. Plaintiff based his written petition to the Denver Fi f h r Pni F n for r i t s es n ud eg e ' o disability retirement on significant hearing loss he developed over many years prior to his termination by the Denver Fire Department. Despite this significant hearing loss, Plaintiff performed the essential functions of a Denver Firefighter for many years prior to his termination. 46. O o aot pi2,03t D ne Fr i t sPni B a apoe n rbuA r 520, e evr i f h r es n or prvd l h eg e ' o d Pa tf pti fr i b i r i m n bsd pn iha n l s ln fs et n o d ait er et ae uo h er go . i i' io s ly te , s i s 47. On or about June 3, 2003, the Denver Firefigh r Pni B a sn t D ne t s es n or eth evr e' o d e Cv Sri C m i i aeei om n io i apoao Pa tf pti fr i b i i l e c o m s o lt n r i t ft prvl f ln fs et n o d ait i ve s n tr f g s i i' io s ly retirement, along with cp s f ln fs et n o d aitr i m n ad s c t oi o Pa tf pti fr i b i er etn as ie e i i' io s ly te o ad documents. That June 3, 2003 letter and copy of Pa tf pti fr ln fs et n o disability retirement have i i' io cn nos be i t C m i i 'ps s o,n aaalfrei b C m i i ot uul en nh o m s o s os s nad vib o r e y o m s o i y e sn ei l e vw sn members and staff, since June, 2003. 48. The Denver Fire Department employee(s) responsible for administering Denver firefighter pension applications in February and March, 2003 have testified under oath that the Denver Fire Department routinely advises Firefighters submitting age and service retirements of the tax advantages of applying to convert their age and service retirement to a disability retirement, that approximately 90 per cent of Denver Firefighters who retire due to age and service apply to convert their age and service retirement to a disability retirement based upon

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disabilities they had while still working, and that all but a few succeed in converting their age and service retirement to disability retirement. 49. On May 7, 2003, the Denver City Attorney tried plaintiff on the allegation of shoplifting the City and Safeway made against Plaintiff. In the trial, Kevin McKee admitted that Plaintiff took a free copy of the cookbook on December 7, 2002 wt Mc e'ko l g ad i h K e nwe e n s d permission. The May 7, 2003 criminal trial ended in a mistrial as the result of a "hung" jury. It was scheduled for retrial on June 27, 2003. 50. Between the May 7, 2003 trial and the June 27, 2003 retrial, the Denver City Attorney attempted to persuade Plaintiff to plead guilty to the shoplifting charge at the same time it was attempting to persuade Plaintiff, who was unrepresented in his Commission appeal at the time, to withdraw his Commission appeal. 51. The retrial never occurred. The Denver City Attorney ultimately dismissed the charges because of potentially exculpatory evidence that it could no longer withhold from Plaintiff. 52. On the scheduled date of retrial, June 27, 2003, Denver Assistant City Attorney John Redmond ( em n" who prosecuted Plaintiff, faxed Plaintiff's criminal attorney a copy of a " d od) R , statement by Safeway Asst. Store Manager Brown. Safeway's Security Department had i om d em n o Bo ns te etprx a lto ek ere n r e R d od f rw 's t napoi tyw w es a i . f am m e lr 53. In his statement, Brown admitted that, after December 8, 2002 but pi t Pa tf r ro ln fs o i i' dismissal on January 2, 2003, an identical cookbook with Plaintiff's name, " badge number"and , telephone number written inside was found in or returned to the Safeway store, and then turned into Brown by an employee.

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54. The finding or return of the cookbook containing Pa tf i n fi i om t n ln fsd ty gn r ao i i' e i n f i in or to the Safeway store tended to corroborate Plaintiff's original explanation that he had previously lost his copy of the cookbook in the store, and had been given permission by McKee to take another copy to replace it. 55. Brown admitted in his statement, and has since admitted in sworn testimony, that he destroyed this potentially exculpatory evidence by carefully cutting the page containing Plaintiff's name, " badge number" telephone number out of the cookbook, discarding the and page, and placing the book back on the shelf for resale. 56. Brown further admitted in his statement, and has since admitted in sworn testimony, that, when asked in the criminal trial on May 7, 2003 whether Pa tf cobo had ever been ln fs okok i i' found, he falsely denied that it had. 57. Brown has admitted in sworn testimony that he destroyed this potentially exculpatory evidence because, though he himself had never met Plaintiff and had no personal knowledge of any facts suggesting Plaintiff had shoplifted the cookbook, Hart had convinced him that Plaintiff was guilty of the crime. 58. D si Bo ns of s n he had t ti f sli Pa tf c m nlr l ep e rw 'cne i that t so e ie a e n ln fs r i ta sf d l y i i' i a i, and destroyed potentially exculpatory evidence, neither the Denver Fire Department nor the Denver City Attorney requested Bo ns rw 'arrest or prosecution. 59. D si Bo ns of s nhte a dsoe dcm n r ei neht ep e rw 'cne i t h hd et yd ou et y v ec t tended t so a r a d a tcr br e ln fs xl ao o w y ee t s rwt t cobo o D cm e7 o or oa Pa tf ep nt n f h h l th t e i h okok n ee br , o t i i' a i f eo h e 2002, and despite Mc e'am s o it Ma 720 tat t e a g Plaintiff K e d i i nh s sn e y ,03 r lh h hd iven i a

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permission to take the cookbook without paying for it, the City persisted in its position before the C m i i t t ln fse i t n a be l fln m sb ss i d o m s o h Pa tf t m n i hd en a u ad ut e utn . s n a i i' r ao w ae 60. T e er g f ln fs o m s o apa( h ha n"occurred before the h ha n o Pa tf C m i i pel" e er g) i i i' sn t i C m i i H a n O f eJh Ci e ( er g fcr o O t e 2,2ad 3ad o m s o er g fcron rw l " a n O f e ) n c br 12,n 2,n sn i i s lH i i " o November 4 and 5, 2003. 61. On October 14, 2003, the City filed a Motion to Strike, asserting for the very first time a contention it had not included in its pre-hearing statements or any other previous s t eto sb i i soh C m i i : ht ln fser etf r it m nt n te n rum s o tt o m s o t Pa tf r i m n a eh e i i am s sn e s n a i i' te t s r ao foreclosed his reinstatement. 62. T e i 'O t e1,03 t n o tk,n t eh i ad t r h Ct s c br 420 Mo o t Sr eadh xi t n o eevidence y o i i e bs h submitted in support of that motion, were part of the record in the hearing before the Hearing O f e ad hr oen ln fs pelo h C m i i . fcr n t e ri Pa tf apat t o m s o i , ef i i' e sn 63. B to t Ct s t n o tk ad h ei ne um td yh City in support ufrh i 'Mo o t Sr e n t v ec sb ie b t e y i i e d t e of it, the Hearing Officer would not have been presented with the question of whether Pa tf ln fs i i' retirement after his termination foreclosed his reinstatement or other full relief. 64. N w e de t Ct s t n o tk s to cn n t t ln fshould be o hr osh i 'Mo o t Sr e te rot d h Pa tf e e y i i a e a ii dn d e s t et eas h ap e frg ad e i r i m n"r ro i i a . ei r nte n bcue e pld o ae n sr c er etpi td m s l e i am i v e te o s s" 65. Pr r h g o t Ct s t no tk s t , pr " f cv dto a ga "" fh i 'Mo o tSr e te i a :( f t e a f a p e y i i asn t E ei e retirement of March 13, 2003, See Exhibits A, Petition for Retirement, and B, Notification that B a o Tut s fh Fr i t 'Pni F n gat Pa tf ife gt 'pni or f rs e o t i f h r es n ud r e ln fh i f h r es n d e e eg e s o n d ii s r i e s o wte et e a Ma h 320. i f cv dt r 1,03 " h f i e c )

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66. Pr r h h o t Ct s t no tk a o a ga "" fh i 'Mo o tSr e l assumes as fact that Plaintiff a p e y i i s applied for retirement post-termination. It states, in pertinent pr " vn fh ha n of e a :E e it er g fcr t e i i reverses the discipline of termination, and orders benefits to Plaintiff up to the point of his retirement .. .. " 67. T e o r pb c " a " th bt m o Pa tf pti fr g ad e i h nt y ul' O t at o o f ln fs et n o ae n sr c a is h e t i i' io ve r i m n(xi t tt Ct s t no tk)ost e t ol documentary evidence er etE h iA oh i 'Mo o tSr ecntu dh n te b e y i i it e y in the record before the Hearing Officer and Commission concerning the date on which Plaintiff first executed and submitted his age and service retirement application. No testimony by any witness contradicted it. 68. T e o r pb c " a " th bt m o Pa tf pti fr g ad e i h nt y ul' O t at o o f ln fs et n o ae n sr c a is h e t i i' io ve r i m n(xi t tt Ct s t no tk)hw d ht ln feeu d and er etE h iA oh i 'Mo o tSr eso e t Pa tfxct te b e y i i a ii e submitted his petition for age and service retirement on March 13, 2003, or AFTER his termination on January 2, 2003. 69. Pa tf Ma h 320 pti frg ad e i r i m n w sn v ec ad ln fs r 1,03 et n o ae n sr c er et a i ei ne n i i' c io v e te d was part of the record in the proceedings cone i Pa tf apao h t m nt n e r cr n ln fs pel f i e i i bf e n g i i' s r ao o the Hearing Officer and the Commission. 70. During the hearing, neither party stated, argued, presented or introduced any evidence of any kind t t ln fap e fr g ad e i r i m n"r ro i i a . h Pa tfpld o ae n sr c er etpi td m s l a ii i v e te o s s" 71. All of the evidence before the Hearing Officer and Commission proved that Plaintiff applied for retirement AFTER his termination on January 2, 2003. 72. T e a i sb ie t ioei w ie " l i Sa m n "o h H a n h pre um tdh r pn g rt Co n te et tt er g ts t e n tn sg t s e i Officer on D cm e 2,03ad hir l o r u a" l i Sa m n " n aur 1, ee br 220,n t re y re tlCo n te et o Jna 4 e p bt sg t s y

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20.T ee rt a u ett t H a n O f esa hr f r ee r d o s ps 04(hs w ie r m n oh er g fcrhl e a eb r e e t a "ot tn g s e i i l et fr ha n bi s. er g r f ) i e" 73. In their post-hearing briefs to the Hearing Officer, Plaintiff and the City offered et s e ru eti adeaat ry n h qet n f ht r ln fs plao fr x ni a m n t n n l lu oi o t uso o w e ePa tf ap ct n o e v g ao g h t e i h i i' i i retirement after his termination foreclosed his reinstatement or other relief if his termination were overturned. 74. No pre-hearing statements, exhibits, testimony, post-hearing briefs or other evidence considered or admitted into evidence by the Hearing Officer contained any factual basis for a " ni "ht ln fap e frg ad e i r i m n "r ro i i a . f d g t Pa tf pld o ae n sr c er etpi t d m s l i n a ii i v e te o s s" 75. Not once did the City or Plaintiff state, suggest, contend, or argue in any proceedings before or written submissions to the Hearing Officer or Commission that Plaintiff applied for r i m n"r ro i i a . er etpi td m s l te o s s" 76. All written or oral arguments submitted to the Hearing Officer or Commission by the Ctad ln fw r epes o i p elpe i d pn ln fs plao fr i n Pa tf e xr l rm ld r s uo Pa tf ap ct n o y ii e sy i y m e i i' i i retirement after dismissal. 77. On page 15 of its post-ha n " l i A gm n , e i s t : Pa tf er g Co n ru et t Ct te "ln f i sg " h y ad ii submitted a petition for ag ad e i r i m n wtt D ne Fr Fgt 'Pni F n e n sr c er et i h evr i i e s es n ud v e te h e e hr o t t a uai os apoe e et e r 1,03 (itet c,.5. n ae 6 h w s nn ul prvd f cv Ma h 320. Fr sn nep1) O pg 1 a m y f i c " s e of its post-ha n " l i A gm n , e i a udht vn f e ei d o e s te er g Co n ru et t Ct r e t , e ih dc e t r nt i sg "h y g ae d i a Pa tft H a n O f esolold s " ruh idto r i m n Ma h 320 ln f h er g fcrhu n o o t og h a fer et r 1,03 i i, e i i d y h s e te , c ( e n d aitr i m n . a ad i b i er et" g s ly te )

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78. The statements and evidence offered or introduced by the City in its Motion to Strike, during the hearing before the Hearing Officer, and in its post-hearing briefs concerning Pa tf r i m ndtcntu d d i i s y pr opnn o s t etaa s ln fser eta ost e am s o b a a y poet rte n gi t i i' te e it sn t , am s n interest by a party opponent, requiring, in the complete absence of evidence to the contrary, a finding by the Hearing Officer and Commission that Plaintiff applied for age and service retirement after his termination. 79. Had Plaintiff a ed sb ie a rt pti frg ad e i r i m n "r r l ay um td w ie et n o ae n sr c er etpi r t tn io v e te o t[i d m s lo Jna 220,id m s l January 2, 2003 would not have o h ] i i a n aur ,03h i i aon s s s" y s s s occurred. 80. Had Plaintiff a ed sb ie a rt pti frg ad e i r i m n "r r l ay um td w ie et n o ae n sr c er etpi r t tn io v e te o t[i d m s lo Jna 220, e f cv dto h ae n sri r i m nw u o h ] i i a n aur ,03t e et e a f i g ad e c er et ol s s s" y h f i e s v e te d have been "r ro h ] i i a . pi t [i d m s l o s s s" 81. On January 30, 2004, the Hearing Officer issued his decision. He found that the City had failed to sustain its burden of proving that Plaintiff's termination was justified. However, the Hearing Officer refused to order Plaintiff's reinstatement or back pay beyond March 15, 2003, because Plaintiff had applied for age and service retirement after his termination, and had also applied for re-characterization of his retirement as a disability retirement. 82. T e er g fcr f d g n cnl h H a n O f e si i ad oc i i ' nn usion that the City failed to sustain its burden o poi t t ln fse i t n n aur 220 w s f aad i i dt m nt n f rv gh Pa tf t m n i o Jna ,03 a ai ln b d g e r i i n a i i' r ao y n n n e ao of fact and law that the City has not challenged, and which the City is precluded or estopped from disputing in this action.

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83. A t t e fh H a n O f e s eio o Jna 3,04t rw s o th i o t er g fcr D c i n aur 020, e a n em e i i ' sn y he evidence in the record before the Hearing Officer or the Commission that Plaintiff applied for ae n sri o d aitr i m n"r ro h ] i i a o Jna 220. g ad e c r i b i er etpi t [i d m s l n aur ,03 ve s ly te o s s s" y 84. A t t e fh H a n O f e s eio o Jna 3,04a t ei nen th i o t er g fcr D c i n aur 020,l h v ec i em e i i ' sn y le d the record before the Hearing Officer or the Commission reflected that Plaintiff never applied for r i m no ay i "r ro h ] i i a ,u i t d pld o ae n sri er et f n k d pi t [i d m s l btn e ap e fr g ad e c te n o s s s" sa i ve retirement AFTER his dismissal. 85. The Hearing Officer addressed the question of remedy at pages 21 and 22 of his decision (attached hereto as Exhibit 1). The Hearing Officer refused to reinstate Plaintiff or grant him back pay beyond March 15, 2003 in partial reliance upon two Colorado statutes, C.R.S. §31.30.5-604, which he construed to forbid reinstatement of a firefighter once he has elected an age and service retirement, and §31-30.5-705(5), which he construed to forbid reinstatement of a firefighter who has taken a disability retirement and is 50 or older, or has twenty-five years or more of service. 86. T e er g fcr i nttef d roc d t t ln fse s t et a h H a n O f ed o s t i o cnl eh Pa tf r nte n w s i i d a ,n u a i i' i a m foreclosed by his alleged ap ct n o r i m n "r ro i i a . plao frer etpi t d m s l i i te o s s" 87. Nowhere in his discussion of remedies did the Hearing Officer rely upon any alleged " ni "ht ln fap e frg ad e i r i m n "r ro i i a . f d g t Pa tf pld o ae n sr c er etpi t d m s l i n a ii i v e te o s s" 88. In the remedy section of his Decision, the Hearing Officer made an express finding of f t r xr si i o f tn cnl i o l , aPa tf t m nt n a , epe f d g fa ad oc s n fa t t ln fse i i preceded his co s nn c uo w h i i' r ao e co o r i m n " n, a o oc d t t n as g pn d c l a at nm oe l t n fer et A dIl cnl eh , ps n uo a i i i r co i psd ei te : s u ai i s pn y i before a e br r i m n Iantoc t MA A E tr m m e ser et cnofr h ' te , e e N G R oe -instate a member who has

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r i d ne t s tu .( eio, x., ssn ne f .1ed g n .2e pai er udrh s t e D c i E h1l tet c o p2,ni o p2,m hs te i a t" sn a e n s added). 89. This finding of fact, or finding of fact and conclusion of law, expressly relied upon by Hearing Officer in his Decision concerning remedies, conclusively proves that the Hearing O f e s ne t d gad h f d g o f tn cnl i s fa uo w i h r i i fcr udra i ,n t i i s fa ad oc s n o l pn h h e ee n i ' sn n enn c uo w c ld making his Decision to deny Plaintiff reinstatement or other full relief, were devoid of any " ni "ht ln fap e frg ad e i o d aitr i m n "r ro i i a . f d g t Pa tf pld o ae n sr c r i b i er etpi td m s l i n a ii i ve s ly te o s s" 90. The Hearing Officer further expressly acknowledged in his Decision that, even while he found he lacked the authority to reinstate Plaintiff, Plaintiff might nevertheless establish his fnstr un o ok ep e id aitr i m n " e eC D R Ahsh r h t i eso e r t w r dsi h i b i er et Wht r A O N a t i to t t t s s ly te : h eg 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 tbnl (x.,.2. r ua"E h1p2) i . 91. Plaintiff timely appealed the Hearing Ofcr dc i tt C m i i . f e s eio o h o m s o i ' sn e sn 92. Plaintiff was never on notice, on the basis of any statements made or evidence introduced by the City during the Commission proceedings, or on the basis of the Hearing O f e s eio, at t i o Pa tf ap ct n o ae n sri r i m n w sn fcr D c i t th i n f ln fs plao fr g ad e c er et a i i ' sn h e m g i i' i i v e te dispute, or that it would be an issuen ln fs pelo h C m i i o t H a n i Pa tf apat t o m s o fh er g i i' e sn e i O f e s eio cne i h r h t r nte et r t ree fcr dc i ocr n i i to e s t n o o er i . i ' sn ng sg i am h lf 93. Plaintiff has never knowingly acquiesced in or waived his right to challenge any aee " ni "ht ln fap e frer etpi t d m s l lgd f d g t Pa tfpld o r i m n"r ro i i a l i n a ii i te o s s"

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94. To the contrary, Pa tf N te f pelxr s appealed and disputed any ln fs o c o A paepe l i i' i sy ps b i de etrn n oaf d ght ln fe c d er etpi td m s l os l n vr no i et nli i t Pa tfl t r i m n "r ro i i a . ie a t t i n n a i i e e te o s s" 95. Pa tf N te f pelxr s ad i cy pel t H a n O f e s ln fs o c o A paepe l n d et apa d h er g fcr i i' i sy r l e e i i ' r i c uo Pa tf "l t n f n g ad e i r i m no Ma h 520" s ea e pn ln fs e co o a ae n sr c er etn r 1,03 a ln i i' e i v e te c grounds for denying Plaintiff Reinstatement. 96. Pa tf N te f pele r d u e xliyo ln fs e co of an age ln fs o c o A par e e qi ep clt Pa tf "l t n i i' i fr t it i i' e i and service retirement on March 151,03. p14 para.). In the next sentence, Plaintiff 20" (.,th apa d ug Ci e'r ua" odr ln fse s t et ro rea a a o pel Jde rw lse slt rePa tf r nte n o todrn w r f e s l f o i i' i a m , d back pay beyond March 15, 2003, because Plaintiff took an age and service retirement after his t m nt n ..(.,th para.). e i i .. p15 r ao " 97. Beg n g t ae , ln fs o c o A pas t :[n dio t o i i apg 3Pa tf N te f pelte " ] ad i o r nn i i' i ad i tn spl eti o t fr o g r sn fr pell ay te,ien dioagonds up m n t n fh oe i " e oso apaa ed s t ft ad i lru e ao e gn a r a d fe tn for appeal, the first three of which each began with the following phrase2 (p. 3, para. 1-3): "ug Ci e'dn lo ln fo r nte et ak a o f n pyn i o Jde rw ls ei tPa tf fe s t n bc py rr t a ilu f s l a ii i am , o e reinstatement after March 15, 2003 because Plaintiff took an age and service retirement following his dismissal ia aue f i r i ,l r e oeu,n ul fl .. s n bs o d c t nc a y r nosad n w u .. s eo e l r a " (Emphasis added). 98. T eet o t ad i ao spl et gons te i Pa tf N te f h t h fh dio lrup m n lrud s t n ln fs o c o n e tn e a ad i i' i Appeal included the following general objeco t a o Jde rw ls de ei i s f t n o l fug Ci e'avr f d g o i l s l s nn f t "ug Ci e aue h d c t n n dpi d ln fo de rcs b m k g a : Jde rw l bsd i i r i ad er e Pa tf f u poes y ai c s l s s eo v ii n

1 2

The date was occasionally misstated by both parties as March 15, 2003, when it was in fact March 13, 2003. Or slight variation thereupon.

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avr f d g o f tht e ntupr d y n cm e n ei nen h r od.p5 de ei i s fa t w r o spot b ay o pt tv ec it e r"(., s nn c a e e e d e c para. 10). 99. Si ir , ln fs m ne O ei Bi o apat t C m i i epes m l l Pa tf A edd pn g r f n peloh o m s o xr l a y i i' n e e sn sy described undisputed evidence that Plaintiff applied for retirement after his dismissal, and thereby also expressly and directly disputed any inadvertent or intentional finding by the Hearing O f et t ln fe c d er etpi t d m s l "g ad e i r i m no fcrh Pa tfl t r i m n "r ro i i a : ae n sr c er etn i a i i e e te o s s" v e te Ma h 320" p )"g ad e i fl wn h t m nt n (. ;r i m nw s o r 1,03 (. ;ae n sr c o o i i e i i "p )" te et a nt c 1 v e l g s r ao 2 er vl t y n d et r u e f m[ln fsul fle i t n (. ;h r i d f r i o n r ad i cy e ld r Pa tf ] n w ut m n i "p )"e er a eh ua r l st o i i' a r ao 4 te t s t m nt n (. ; ...3-30.5-755 "os opoi te s t et f fe gt w o e i i "p )CRS §1 r ao 6 0()de ntrh ir nte n o ai f h r h b i am ri e t e a ae n sri r i m na ebi uj t t m nt .(. . a s n g ad e c er etf r e g n sye i e "p ) k v e te t n ul r ad 8 100. Pa tf R p Bi t t Commission also contained many more recitations ln fs el r fo he i i' y e

o ud pt ei neht ln fs plao frer eto o e h t m nt nand f ni u d v ec t Pa tf ap ct n o r i m n fl w d i e i i , s e d a i i' i i te l s r ao t tn aee f d g oh cn a w s l r e oeu:r in a eh d ca e (. ; h ay lgd i i t t ot r a c a y r nos" ti f r i i hr "p ) a l nn e ry el r er g t s s g 1 "eas h r i d f r iw ogu t m nt n (. ; City seeks a dt m nt n hta bcue e er a e h rnfle i i "p )the te t s r ao 2 e r i i t "l e ao a l fr d er etfl wn w ogut m nt n rvl t y (. ;r i m n o d ait oc r i m n o o i rnfle i i a o n r"p )" te et r i b i e te s l g r ao e u a 2 er s s ly c i s o pld y rnfle i t n rnt o n r" p )" r d er etf r lm cm ee b w ogu t m n i a o vl t y (. ;f c r i m na e a l r ao e ua 3 o e te t w ogu t m nt n ad r i m n fr d y rnfle i t n s y definition rnfle i i " n " te etoc b w ogu t m n i ib r ao er e r ao i o n r" p ) n l t y (. . vua 5 101. At pp. 7-9 of his Reply Brief, Plaintiff distinguished certain federal cases relied

upon by the City in support of its contention that Plaintiff voluntarily retired after his termination, by noting t y d ntno eer etf rni u by n w u t m nt n h "i o i l r i m n a ei s t l ul fle i i . e d v v te t dp a a r ao "

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102.

Likewise, none o t Ct s r fo a u ett t C m i i o apa fh i 'bi s rr m n o h o m s o n pel e y e g s e sn

f mt H a n O f e s Decision expressly asserted, argued, or suggested that Plaintiff r h er g fcr o e i i ' ap e frg ad e i o d aitr i m n "r ro i i a ,ree uo ay pld o ae n sr c r i b i er etpi t d m s l o r i pn n i ve s ly te o s s" ld evidence to that effect to support t H a n O f e se slo e s tPa tf h er g fcr r uat r nte ln f e i i ' f i a i i. 103. All of t Ct sum s os rru ett t C m i i epes r i h i 'sb i i o a m n o h o m s o xr l ee e y sn g s e sn s y ld

upon undisputed evidence that Plaintiff applied for retirement AFTER his termination. 104. On June 2, 2004, The City moved for and was granted the right to supplement the

record on appeal the Commission to include the two-pg ecrtrm Pa tf c s ae xe f p o ln fs r s i i' o examination testimony attached hereto as Exhibit 3. That excerpt begins: ": Q (By Mr. Wesoky) Mr. Cadorna, you retired from the fire

department, age and service retirement in, was it March of 2003? A: T aicr c" hts or t e. 105. The City and Plaintiff appeared before the Commission for extended oral

argument on October 12, 2004. In their oral arguments to the Commission, neither party asserted or referred to evidence that Plaintiff applied for reti m n "r ro i i a . Both parties r etpi t d m s l e o s s" premised their arguments on the undisputed fact that Plaintiff applied for age and service retirement after his termination. 106. At no time during any of the proceedings before the Hearing Officer or

Commission did either party suggest, contend, or argue that Plaintiff submitted a written petition for age and service retirement or disability retirement to the Board of Trustees of the Denver Fr i t sPni F n pi th d m s ln aur 220. i f h r es n ud r ro i i i ao Jna ,03 eg e ' o o s s s y

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107.

At no time during any of the proceedings before the Hearing Officer or

Commission did either party introduce or secure the admission of any evidence of any kind tending to prove that Plaintiff submitted a written petition for age and service retirement or disabili r i m n tt B a o Tut s fh D ne Fr i t sPni F n pi t t er eto h or f rs e o t evr i f h r es n ud r ro y te e d e e eg e ' o o his dismissal on January 2, 2003. 108. 109. The Commission finally issued its decision on May 20, 2005. There was no competent evidence in the record before the Hearing Officer or

C m i i t spot f d ght ln fap e fr g ad e i r i m n "r ro o m s o o uprai i t Pa tfpld o ae n sr c er etpi t sn n n a ii i v e te o d ms l i ia . s s" 110. Nevertheless, in order to deprive Plaintiff of his federally protected rights, the

Commission seized upon an obvious misstatement of fact in th H a n O f e s eio t t e er g fcr dc i h i i ' sn a Pa tfpld o r i m n "r ro i i a , i hr t i dh ov u m s a m n ln fap e frer etpi td m s l m s a c r e t s bi s i te et ii i te o s s " c a ez i o st o f ts " ni o ei n a f t ad e uo t s l r e oeu " ni o fa a a f d g fv etr a " n r ied pn h c a y r nos f d g f c i n d iy c , l i el r i n ei n a f tta i t H a n O f e s eio wt uades gh m rs f v etr a "o fr h er g fcr dc i i otdr i t e to d iy c fm e i i ' sn h sn e i Pa tf appeal. ln fs i i' 111. In order to deprive Plaintiff of his federally protected rights, the Commission

pretended t th ol s t etr f d g t H a n O f em d o t t i o h t ny te no " ni "h er g fcr ae n h i n f a e am i n e i i em g Plai i'ap ct n o r i m nw s "r ro id m s l ePa tfap e fr n fs plao frer et a: Pi th i i a h [ln f pld o tf i i te o s s s, i i] i retirement based upon his age and years of service, and he retired on that basis as of March 15, 2003. In the interim, however, he had been advised that, if he qualified for a disability retirement, his retirement pay might receive a more favorable federal income tax treatment. He, therefore, applied for such a disability retirement, underwent a medical examination, was found

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to be disabled for retirement purposes, and began receiving a disability retirement benefit as of A r 2,03 (. ,rd para.). pi 920. p 53 l " 1 112. T t et th H a n O f e s eio m y e osudo nl e oh x nt er g fcr D c i a b cnt e ti u a e e e i i ' sn r cd

" ni o ei n a f tt t ln fap e fr g ad e i r i m n"r ro f d g fv etr a "h Pa tfpld o ae n sr c er etpi t i n d iy c a ii i v e te o d m s l ay uh lgd f d g w s n ria ad ar i s bs o d c t nand i i a ,n sc aee " ni " a a a t r n cpio aue f i r i , s s" l i n br y cu s eo clearly erroneous, as it resulted from mistake, neglect, or inadvertence, is contrary to all of the undisputed evidence in the record, and is contradic d yh H a n O f e s xr si i s t b t er g fcr epe f d g e e i i ' s nn or ultimate conclusions upon which he expressly relied to deny Plaintiff reinstatement. 113. A y lgd f d g b t H a n O f ead o m s o t t ln f n aee " ni " yh er g fcrn C m i i h Pa tf l i n e i i s n a ii

ap e frg ad e i r i m n "r ro i i a sur y n ieocal cnlt pld o ae n sr c er etpi td m s l qa l ad r cniby ofc i v e te o s s" e r l is with the following express finding of fact and conclusion of law the Hearing Officer made in ep i n h r uat gat ln fr nte etn flr i : A dIl cnl eht xln g i e slo r Pa tfe s t n ad u ee " n, a o oc d t , ai s f n ii i a m l lf s u a in passing upon a disciplinary action imposed before a e br r i m n Iantoc t m m e ser et cno fr h ' te , e e MANAGER to re-i te m m ew o a r i d net s tu . n a a e br h hser udrh s t e st te i a t" 114. To the extent the H a n O f e s eio m y e osudo nl e er g fcr D c i a b cnt e ti u a i i ' sn r cd

" ni o ei n a f tt t ln fap e fr g ad e i r i m n"r ro f d g fv etr a "h Pa tfpld o ae n sr c er etpi t i n d iy c a ii i v e te o d m s l t C m i i 'dc i a i i iv le Pa tf de rcs r h ,o i i a , e o m s o s eio fr n t i a d ln fs u poesi t fr s s" h sn s n fm g o t i i' gs Plaintiff was never on notice that there was any dispute that he applied for retirement after his termination, and there was no competent or substantial evidence whatever in the record to support a finding that Plaintiff ap e frer etpi t d m s l pld o r i m n "r ro i i a . i te o s s" 115. T t et th H a n O f e s eio m y e osudo nl e oh x nt er g fcr D c i a b cnt e ti u a e e e i i ' sn r cd

" ni o ei n a f tt t ln fap e fr g ad e i r i m n"r ro f d g fv etr a "h Pa tfpld o ae n sr c er etpi t i n d iy c a ii i v e te o

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d m s l t C m i i 'r i c uo itdn Pa tfe s t etr t ree i i a , e o m s o sea e pn to ey ln fr nte no o er i s s" h s n ln ii i a m h lf constituted willful, fraudulent and bad faith misreading of the factual and legal basis of the H a n O f e s eio, a a a ia ad ar i s bs o d c t nand clearly er g fcr D c i w s n r t r n cpio aue f i r i , i i ' sn br y cu s eo erroneous udrtea gvri Pa tf r h . People in the Interest of R.A., 937 P.2d nes tl oe n ln fsi t a w n g i i' g s 731 (96SA453)(Colo. 1997); Leichliter v. State Liquor Licensing Authority, 9 P.3d 1153 (99CA0119)(Colo.App. 2000). 116. The H a n O f e s eio can only reasonably be construed to deny er g fcr D c i i i ' sn

Plaintiff reinstatement or other full relief because he applied for age and service retirement and disability retirement after his dismissal. 117. B i et g re i uo a aee " ni " yh H a n O f et t yn n n o r y g pn n lgd f d g b t er g fcrh v i ln l i n e i i a

Pa tfpld o ae n sri r i m n "r ro i i a ta i t H a n ln fap e fr g ad e c er etpi t d m s l o fr h er g ii i v e te o s s " fm e i O f e s eio, e o m s o dn d ln fnte an opportunity to be heard with fcr dc i t C m i i ei Pa tf o c and i ' sn h s n e ii i respect to a crucial factual and legal issue that could affect his rights, and denied Plaintiff a fair hearing and due process of law. 118. Cv Sri C m i i R lX ()" e r t D tf m Dsb i i l e c o m s o u I ,R t n o u r i ve sn e 6 u y o i it a ly

R te et ep er n ,xressly contemplates the return of classified members to active service after they im " take a disability retirement. This constitutes plain evidence that the governing laws and od acs intoel e ln fse s t et eas h ap e fr i b retirement. ri ne d o fr o Pa tf r nte n bcue e pld o d aility n d c s i i' i a m i s The Commission and City erroneously ignored, disregarded or misconstrued this Rule and other Commission or City Rules, Ordinances or Charter sections, as well as state and federal statutes, ia i i t H a n O f e se slo e n fr n h er g fcr r uat r fm g e i i ' f instate Plaintiff or grant him full relief.

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119.

The two Colorado statutes, C.R.S. §31.30.5-604, and §31-30.5-705(5), upon

which the Hearing Officer, Commission and City relied to deny Plaintiff reinstatement protect retired Firefighters from compulsory re-examination against their will. They do not prohibit reinstatement of Plaintiff by the Hearing Officer or Commission as a remedy for his unlawful termination. 120. The refusal by the Hearing Officer, Commission, and City to reinstate Plaintiff or

otherwise grant him full relief in reliance upon C.R.S. 31-30.5-604 and 705 constituted the aot n yh Cto a o c,r te r eio t t i a s ln fs dp o b t i f plypa i o dc i h v le Pa tf federally protected i e y i cc sn a ot i i' rights. 121. The finding or Decision by the Hearing Officer, Commission, and City that

Plaintiff voluntarily retired constituted adoption by the City of a policy, practice or decision that v le Pa tf f e l po c d i t i a s ln fse r l rt t r h . ot i i' d ay e e g s 122. The finding or Decision by the Hearing Officer, Commission, and City that

Pa tf ap ct n for retirement foreclosed his reinstatement or other full relief constituted ln fs plaos i i' i i aot n yh Cto a o c,r te r eio t t i a s ln fsee l po c d dp o b t i f plypa i o dc i h v le Pa tf f r l rt t i e y i cc sn a ot i i' d ay e e rights. 123. T e o m s o'dc i a i i t H a n O f e s eio i i h C m i i s eio fr n h er g fcr dc i n t sn s n fm g e i i ' sn s

entirety and denying Plaintiff reinstatement, full back pay, and/or other full compensation constituted adoption by the City, through a final policy-making official or body of a custom, policy, practice or decision that blatantly violated, and manifested deliberate indifference to, Pa tf f e l po c d i t i l i h r h tb f e rm dpi t n f i ln fse r l rt t r h , c d g i i to e r f i i' d ay e e g s n u n s g e o er ao o h vi s

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property and liberty without due process of law, and his right to be free from age or disability discrimination. FIRST CLAIM--AGE DISCRIMINATION IN VIOLATION OF 29 U.S.C. §621, et seq. 124. Plaintiff incorporates by reference, as though fully set forth herein, all allegations

contained in all preceding paragraphs of this complaint. 125. his age. 126. After the City unlawfully terminated Plaintiff on January 2, 2003, Plaintiff The City wantonly, willfully, and discriminatorily terminated Plaintiff because of

exercised his right to take an age and service retirement. 127. Plaintiff involuntarily exercised his right to take an age and service retirement

under coercion and duress caused by his unlawful termination and prosecution for a crime he did not commit. 128. T e evr i f h r Pni B a gat Pa tf ap ct n o ae h D ne Fr i t ' es n or r e ln fs plao frg eg e s o d n d i i' i i

and service retirement, effective March 13, 2003. 129. 130. Pa tf ae n srice retirement became effective March 13, 2003. ln fs g ad e i i' v The City knew of Pa tf fi o previous age discrimination, disability ln fsin f i i' l g

discrimination, and retaliation charges against the City when the City terminated Plaintiff on January 2, 2003. 131. The City, Hearing O f e ad o m s o ke o Pa tf fi o ae fcrn C m i i nw f ln fsin f g i sn i i' l g

discrimination, disability discrimination, and retaliation charges against the City when the Hearing Officer issued his decision refusing to reinstate or grant full relief to Plaintiff on January 30,04ad hn h C m i i a i e t H a n O f e s eio o Ma 2,05 20,n w e t o m s o fr d h er g fcr dc i n y 020. e s n fm e i i ' sn

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132.

The City knew o Pa tf fi o t sa siaa st Ctdr gh t e f ln fsin fh l u gi th i ui t i i i' l g i w t n e y n em

iopsd ln fs pel e rt C m i i o t H a n O f e se s to reinstate t poe Pa tf apabf eh o m s o fh er g fcr r ual i i' o e sn e i i ' f or grant him other full relief. 133. The Commission knew o Pa tf fi o t sa siaa st Ctdr g f ln fsin fh l u gi th i ui i i' l g i w t n e y n

t t etos e d ln fs pel fh H a n O f e se slo e s tor grant other h i icni r Pa tf apao t er g fcr r uatr nte em d e i i' e i i ' f i a full relief to Plaintiff. 134. The City wantonly, willfully, and discriminatorily refused to reinstate Plaintiff or

grant Plaintiff full compensation for his unlawful termination because of his age, and in retaliation for his assertion of his rights under the Age Discrimination in Employment Act. 135. The City has not pursued, and has not, through the decision of a final policy-

making official or body, adopted the custom, policy, practice or decision of refusing to reinstate Denver Firefighters who have taken a disability retirement and are under age 50 or have fewer than twenty-five years of service. 136. The refusal by the City, Hearing Officer, and Commission to reinstate Plaintiff

because he is over the age of fifty (50) or has more than twenty-five years of service is a per se violation of the Age Discrimination in Employment Act. 137. The City has wantonly and willfully pursued and, through the decision of a final

policy-making official or body, adopted the custom, policy, practice or decision of refusing to reinstate or grant full relief to Plaintiff, or other unlawfully terminated Denver Firefighters, if they are over age 50 and apply for age and service or disability retirement after being unlawfully terminated.

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138.

The City wantonly and willfully discriminated against Plaintiff because of his age

and assertion of his right to be free from age discrimination, so that the City is liable to Plaintiff for liquidated damages, in addition to all other relief available to him under the Age Discrimination in Employment Act. SECOND CLAIM-- DISABILITY DISCRIMINATION IN VIOLATION OF Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 139. Plaintiff incorporates, as if fully set forth herein, all allegations contained in all

preceding paragraphs of this complaint. 140. Plaintiff was at the time of his termination on January 2, 2003, and remains,

substantially impaired in the major life activity of hearing. 141. Plaintiff was at the time of his termination, and remains, disabled, or a person

with a record of disability, or perceived as disabled by the City. 142. At the time of, and since, his termination on January 2, 2003, Plaintiff was, and

has remained, able to perform the essential duties of a Denver Firefighter, with or without reasonable accommodation. 143. At the time of, and since, his termination on January 2, 2003, Plaintiff was, and

has remained, a qualified individual with a disability within the meaning of Title I, 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. 144. The City discriminatorily terminated Plaintiff because of his disability, and in

retaliation for his assertion of his right to be free from disability discrimination.

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145.

After the City unlawfully terminated Plaintiff on January 2, 2003, Plaintiff

exercised his right to apply for disability retirement on the basis of his hearing disability. 146. Plaintiff involuntarily exercised his right to take a disability retirement under

coercion and duress caused by his unlawful termination and prosecution for a crime he did not commit. 147. T e evr i f h r Pni B a gat Pa tf ap ct n for h D ne Fr i t ' es n or r e ln fs plao eg e s o d n d i i' i i

disability retirement on the basis of his hearing disability, effective April 25, 2003. 148. The City discriminatorily has refused to reinstate Plaintiff or grant Plaintiff full

compensation for his unlawful termination because of his disability, and in retaliation for his assertion of his right to be free from disability discrimination. 149. The City has not pursued, and has not, through the decision of a final policy-

making official or body, adopted the custom, policy, practice or decision of refusing to reinstate Denver Firefighters who have taken a disability retirement and are under age 50 or have fewer than twenty-five years of service, so long as they are able to demonstrate, in an individualized assessment, their ability to perform the essential duties of any position in the Denver Fire Department for which they may be qualified, with or without a reasonable accommodation. 150. The refusal by the Hearing Officer, Commission, and City to reinstate Plaintiff

because he has a disability that does not prevent him from performing the essential functions of the duties of a Denver Firefighter, with or without a reasonable accommodation, is a per se violation of Federal statutes prohibiting disability discrimination by the City. 151. The City has pursued and, through the decision of a final policy-making official

or body, adopted the unlawful custom, policy, practice or decision of refusing to reinstate, or

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grant full relief to, Plaintiff (or other unlawfully terminated Denver Firefighters similarly situated) because Plaintiff applied for and was granted disability retirement after being unlawfully terminated, without performing an individualized assessment of Plaintifs b i t f ait o ' ly perform the essential duties of any position in the Denver Fire Department for which Plaintiff may be qualified, with or without a reasonable accommodation. 152. A a "m l e ad pb c n t wt nh m ai o Title I, 42 U.S.C. s n e p yr n "ul ety i i t en g f o " i i" h e n

§12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act n a por o ety ee i f e li ni as t c" i i t , d "rga rn t r i n e r f ac ls s ne wt n h a m i c v g d a n a ia h e meaning of the Rehabilitation Act, the City has violated 42 U.S.C. §12112, Title II, 42. U.S.C. §12132, and Title V, 42 U.S.C. §12201, et seq., of the Americans With Disabilities Act, and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, by terminating Plaintiff and refusing to reinstate him, or otherwise grant him full relief for his unlawful termination, because he is disabled, has a record of disability, or is perceived or regarded as disabled, and in retaliation for his assertion of his right to be free from disability discrimination. THIRD CLAIM--42 U.S.C. §1983-- DEPRIVATION OF PROPERTY and LIBERTY WITHOUT DUE PROCESS OF LAW 153. Plaintiff incorporates, as if fully set forth herein, all allegations contained in all

preceding paragraphs of this complaint. 154. 155. The Denver Civil Service Commission is a policy-making body of the City. To the extent the Commission adopted, ratified, condoned, affirmed, or followed

the findings, conclusions, or decisions of the Hearing Officer in Pa tf case, the Hearing ln fs i i' Officer constituted a policy-making official of the City.

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156.

The Hearing Officer and Commission refused to order that Plaintiff be reinstated

or otherwise be granted full relief despite f d ght ln fse i t n a ul fl i i t Pa tf t m n i w s n w u n n a i i' r ao a . 157. The Hearing Officer and Commission refused to reinstate Plaintiff or otherwise

grant Plaintiff full relief in reliance upon findings or conclusions for which there was no evidentiary support in the record before him. 158. The Hearing Officer and Commission refused to reinstate Plaintiff or otherwise

grant Plaintiff full relief wtdl e ti ie neo ln fsee l po c d i t i ebr en f r c t Pa tf f r l rt t r h . h i a dfe i i' d ay e e g s 159. Pa tfi e apa d h H a n O f e si i s n cn ln ft l pel t er g fcr f d g ad oclusions to the ii m y e e i i ' nn

Commission, and in his appeal and arguments to the Commission asked the Commission to r e eh H a n O f e se slo e r t er g fcr r uat reinstate Plaintiff or otherwise grant Plaintiff full relief vs e i i ' f b e pain t th H a n O f e s eio cu nt eeoce wt t Ct s y m hs i h t er g fcr dc i ol o b r nid i h i ' zg a e i i ' sn d c l h e y obligations under federal laws prohibiting age and disability discrimination, with case law cnt i Pa tf f e li t o wt fna et peeto de rcs osu g ln fse r r h ,r i udm n l r p f u poes rn i i' d a g s h a c s . 160. The City did not appeal any part of the H a n O f e s eio, c d gh er g fcr dc i i l i t i i ' sn nu n e

H a n O f e s eio t th Cthd ae t ss i i bre o poi t t ln fs er g fcr dc i h t i a f l o utnt udn f rv gh Pa tf i i ' sn a e y id a s n a i i' termination was justified. 161. In Pa tf apatt C m i i ,o Pa tfn t Cta i e t t ln fs pelo h o m s o bt ln fadh i fr d h i i' e s n h ii e y fm a

Plaintiff first applied for retirement after his dismissal, and addressed the legal merits of the H a n O f e s eio il ho t t er g fcr dc i n i tfh undisputed fact. i i ' sn g a 162. Neither Plaintiff nor the City introduced any evidence in any proceedings before

the Hearing Officer or Commission showing, or in any way suggested or argued, that Plaintiff ap e frer etpi t d m s l pld o r i m n"r ro i i a . i te o s s"

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163.

At no time in any of the proceedings before the Hearing Officer or the

Commission was Plaintiff on notice that the date of his application(s) for retirement was in dispute, or that there was any doubt that he applied for retirement after his dismissal. 164. All of the undisputed evidence in the record of the proceedings before the Hearing

Officer and the Commission showed that Plaintiff first applied for retirement after his dismissal. No evidence to the contrary was presented or introduced by either party in any of the proceedings before the Hearing Officer and the Commission. 165. T e o m s o a i e t H a n O f e s eio ii entirety, but did h C m i i fr d h er g fcr dc i n t s n fm e i i ' sn s

not adesh m rs f ln fs u e u s t oj t n t t l aad at l aio dr t e to Pa tf nm r ste b cosoh e ln f u bs f s e i i i' o ad ei e g ca s t H a n O f e s eio. h er g fcr dc i e i i ' sn 166. The Commission knew or had reason to know when it issued its decision that

there was no evidence of any kind in the record before the Hearing Officer or the Commission t t ln fr i d pi t d m s l but seized upon a patently inadvertent or negligent h Pa tfer "r ro i i a , a i i te o s s" m s a m no f tnh H a n O f e s eio, aPa tfpld o r i m n "rior i te etfa i t er g fcr dc i t t ln fap e frer etp st c e i i ' sn h ii i te td m s l a gonso a i i t H a n O f e s eio ad e s g bad faith to o i i a ,s rud frfr n h er g fcr dc i n r ui in s s" fm g e i i ' sn f n adesh m rs f ln fs b coso h l asbt c,nes tad ee la ,f dr t e to Pa tf oj t n t t e lus neudrte n f r l o s e i i i' e i e g a a da w t H a n O f e s eio. h er g fcr dc i e i i ' sn 167. In defiance of or dl e ti ie neo ln fsee l po c d i t ebr en f r c t Pa tf f r l rt t r h , i a dfe i i' d ay e e g s

a t ei nen h r od e riiPa tf apacne i t dt so Pa tf l h v ec i t e r bf etn ln fs pelocr n h a ( f ln fs le d e c o i i' n g e e) i i' retirement, and all of the evidence in its own administrative records, the Commission willfully ad r dl t r i uo a ov u m s a m n o f tn h H a n O f e s eio, n f uu n y ee pn n bi s i te et fa i t er g fcr dc i a e l ld o st c e i i ' sn

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tt e etht ln fr i d pi t d m s l ta i t H a n O f e s eio i o h f ct Pa tfer "r ro i i a , fr h er g fcr dc i n e f a i i te o s s " o fm e i i ' sn its entirety. 168. The Commission intentionally denied Plaintiff a full remedy for his unlawful

t m nt nn eac uo a nn e i i ir i e pn "o-evidentiary non-finding of non-f to i o n net n r ao ln a " ft w i n o, c s v i that is, in reliance upon a deliberate falsehood. 169. The Commission deliberately engaged in the subterfuge of disingenuously relying

uo a aee " ni o ei n a f tcne i Pa tf dto r i m n i odro pn n lgd f d g fv etr a " ocr n ln fs a fer etn re t l i n d iy c n g i i' e te avoiding reinstating or granting full relief to Plaintiff for his indisputably wrongful termination. 170. As a policy-making body of the City, the Commission, by denying Plaintiff

reinstatement or other full relief for his unlawful termination, has, with deliberate indifference to Pa tf f e l po c d i t adopted, ratified, condoned, and affirmed as its own ln fse r l rt t r h , i i' d ay e e g s decision the un