Free Proposed Pretrial Order - District Court of Colorado - Colorado

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

Document 278

Filed 09/12/2008

Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01067-MSK-CBS WILLIAM R. CADORNA Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO Defendant.

AMENDED FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference occurred before Judge Marcia S. Krieger on ____________, 200__, in Courtroom A901 of the Alfred Arraj U.S. Court House. Plaintiff and Defendant were represented by: PLAINTIFF'S ATTORNEY: Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO 80161 (303) 552-9550 or 797-7687 DEFENDANT'S ATTORNEYS: Christopher M.A. Lujan Franklin A. Nachman Assistant City Attorneys Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 (720) 913-3100 2. JURISDICTION This Court has jurisdiction over Plaintiff's claims against Defendant under 28 U.S.C. §§1331 and 1367 (a), and is the proper venue under 28 U.S.C. §1391 (b) (2).

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

Document 278

Filed 09/12/2008

Page 2 of 37

3. CLAIMS AND DEFENSES A. Plaintiff's Claims

Narrative Summary: After twenty-seven years of faithful and courageous service as a Firefighter, the City and County of Denver ("City") terminated Plaintiff on January 2, 2003. It did so after a fellow firefighter accused him on December 7, 2002 of shoplifting a cookbook from a Safeway store. The City knew, or had reason to know, of evidence exonerating Plaintiff, yet terminated him. After his termination, on February 14, 2003, Plaintiff applied for age and service retirement (for which he automatically qualified), and simultaneously applied to the Denver Firefighters' Pension Board to convert his age and service retirement to a disability retirement due to hearing loss suffered on the job. Plaintiff has never asserted he is physically unable to work as a firefighter. A Safeway clerk admitted giving Plaintiff permission to take the cookbook he was accused of shoplifting. Therefore, the Denver Civil Service Commission ("Commission") Hearing Officer ("Hearing Officer") overturned Plaintiff's dismissal. However, the Hearing Officer denied Plaintiff reinstatement, or other full relief in lieu of reinstatement. The Hearing Officer limited Plaintiff's back pay to the period between his dismissal on January 2, 2003 and his age and service retirement, which took effect on March 13, 2003. The Hearing Officer unlawfully construed sections of the Colorado "old hire" firefighters pension statute to prohibit Plaintiff's reinstatement, or other full relief for Plaintiff's indisputably unlawful discharge, because Plaintiff is over fifty (50) years of age and was granted a disability retirement. The Denver Civil Service Commission ("Commission"), a final policy-making body of the City, 2

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

Document 278

Filed 09/12/2008

Page 3 of 37

affirmed the Hearing Officer's decision in its entirety, in disingenuous reliance upon a clearly erroneous "finding" (actually, an inadvertent or negligent misstatement by the Hearing Officer) that, contrary to all the undisputed evidence, Plaintiff voluntarily applied for retirement "prior to dismissal". Separate Enumeration of Claims: Plaintiff's February 28, 2006 Second Amended Complaint (in which he eliminated individual Defendant and his race claims) asserts the following claims: Claim 1, Unlawful Termination and/or Failure to Reinstate in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621, et seq. Plaintiff alleges willful violation of the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq., by the City in terminating Plaintiff and refusing to reinstate him, or otherwise grant him full relief in lieu of reinstatement, for pretextual reasons, and in express reliance upon his age. Plaintiff seeks all remedies available to him under the ADEA, including but not limited to back pay, reinstatement or front pay in lieu of reinstatement, liquidated damages, interest, and attorney's fees. Elements: (1) Plaintiff must, through direct or circumstantial evidence, prove by a preponderance of the evidence that age was a motivating factor in his termination, or in the City's refusal to reinstate him, or otherwise grant him full relief for his unlawful termination; (2) Plaintiff relies upon circumstantial evidence to prove that age was a motivating factor in his termination, consisting of evidence that the City knew, or had reason 3

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

Document 278

Filed 09/12/2008

Page 4 of 37

to know, when it terminated Plaintiff that the legitimate business reason it has offered for Plaintiff's termination (that he committed shoplifting) was false or of dubious validity, and was a pretext for Plaintiff's termination. (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155). (3) Plaintiff relies upon circumstantial evidence to prove that his age was a motivating factors in the City's refusal to reinstate him, or otherwise grant him full relief for his undeniably unlawful termination, consisting of evidence that the legitimate business reason(s) offered by the City for refusing to reinstate him or otherwise grant him full relief for his undeniably unlawful termination (that he allegedly retired voluntarily, that he allegedly retired "prior to dismissal", and that his reinstatement, or the grant of other full relief after retirement, is barred by state statute) are pretextual. (Testimony of Plaintiff, Karen McNeil, Ida Roberts, John Criswell, Tracy Howard, Jim Sestrich, Steven Garrod, Kelly Caldwell, Earl Peterson, Brian Kellogg, Chris Olson, Elizabeth Kiovsky, Anna Flores, Cecelia Mascarenas, Sam Williams; Exhibits 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 52, 53, 54, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 155). (4) Plaintiff also relies upon direct evidence that his age was a factor in the City's refusal to reinstate or otherwise grant him full relief for his undeniably unlawful 4

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

Document 278

Filed 09/12/2008

Page 5 of 37

termination, consisting of the Civil Service Commission's express reliance in its decisions upon his being over the age of fifty (50) in explaining its refusal to reinstate him, or otherwise grant him full relief in lieu of reinstatement. (Testimony of Plaintiff, Karen McNeil, Ida Roberts, John Criswell, Tracy Howard, Jim Sestrich, Steven Garrod, Kelly Caldwell, Earl Peterson, Brian Kellogg, Chris Olson, Elizabeth Kiovsky, Anna Flores, Cecelia Mascarenas, Sam Williams; Exhibits 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 52, 53, 54, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 155). Defenses: ADEA: Defendant denies discriminating against Plaintiff on account of his age. The decision makers in this action, most of whom were as old as or older than Plaintiff, did not take into account his age, and may not have even known his age. Defendant terminated Plaintiff's employment based on information which it obtained which suggested that he used his influence as a firefighter to obtain a cookbook from a Safeway store without paying for it. Plaintiff gave conflicting and false information regarding the incident, and repeatedly failed to produce documentary information that would have exonerated him. Safeway, whom Plaintiff also sued and who has settled with Plaintiff, was at least as culpable as the Fire Department. Plaintiff took an age and service retirement, followed by a disability retirement. To obtain disability retirement benefits, Plaintiff was required to certify and prove that he was 5

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

Document 278

Filed 09/12/2008

Page 6 of 37

unable to perform the job of a firefighter. No one coerced him into seeking and obtaining these benefits. As the Civil Service Hearing Officer recognized, state statutory law prohibited the City and County from reinstating Plaintiff once he reached 50 years of age and/or 25 years of active duty. To the extent Plaintiff's age played a role in the failure to reinstate him to his previous employment, it was a lawful role, as set forth in Defendant's affirmative defenses under 29 U.S.C.§623(j) and §31-30.5-705 and §31-30.5-604, C.R.S. (See affirmative defenses, below). During the first trial in this matter, Judge Robert E. Blackburn dismissed Plaintiff's retaliation claim because the Plaintiff failed to "present or preserve" a discrete retaliation claim in the Final Pretrial Order. [See Order RE: Parties' Midtrial Cross Motions for Entry of Judgment as a Matter of Law Under Fed.R.Civ.P. 50(a)] (ECF. No. 154, pp. 10-11). In ruling on Plaintiff's Motion to Reconsider at trial, the Court again dismissed the retaliation claim because "there is nothing that places the parties or the court on notice that a discrete retaliation claim has been pled or preserved in this case." (Trial Transcript, June 28, 2006, p. 1531, ll.14-22). Because this issue has already been dismissed, Defendant objects to Plaintiff's attempted resurrection of this claim at retrial. Affirmative Defense to ADEA Claims: Failure to Mitigate under Colorado Law Defendant has burden of proof on all elements by a preponderance of the evidence. Elements: (1) Plaintiff had a reasonable opportunity to avoid injury (a) Plaintiff has been employable since the time of his termination on January 2, 2003. He has made little or no effort to obtain substitute employment since that time. 6

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

Document 278

Filed 09/12/2008

Page 7 of 37

(2) Plaintiff unreasonably failed to avail himself of opportunities to avoid injury (a) See Element (1) (a), above. Affirmative Defense to Failure to Reinstate Claim: Safe Harbor under the ADEA, 29 U.S.C. §623(j). Defendant has burden of proof on all elements by a preponderance of the evidence. Elements: (1) Defendant had a bona fide employee benefit plan, that is, it existed

and provided for and paid benefits to employees (a) It is undisputed that such a plan existed and Plaintiff received retirement and other benefits from it. (2) The plan was in effect as of March 3, 1983. (a) There will be testimony that the benefit plan in question was in effect as of that time. (3) Defendant followed terms of the plan. (a) It is undisputed that Defendant followed the terms of the plan in awarding retirement and other benefits to Plaintiff. Affirmative Defense to Failure to Reinstate Claim: Firefighters' old hire pension plans under §31-30.5-705 and §31-30.5-604 C.R.S. (Colorado law). Defendant has burden of proof on all elements by a preponderance of the evidence. Elements: (1) Plaintiff became physically disabled while on active duty. 7

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

Document 278

Filed 09/12/2008

Page 8 of 37

(a) It is undisputed that Plaintiff received a disability retirement pension in 2003 because he became physically disabled while on active duty. (2) Plaintiff was either 50 years of age or older or had completed 25 years of active duty. (a) It is undisputed that Plaintiff was both over the age of 50 and completed 25 years of active duty. (3) Defendant took into account this state statute in its decision not to reinstate Plaintiff. (a) There is evidence that the Civil Service Commission Hearing Officer referenced this statute in deciding not to order reinstatement, and there will be evidence that Defendant took the decision and the statute into account in deciding not to reinstate Plaintiff. Claim 2: 42 U.S.C. §1983 Municipal Liability: For violation by the City of §1983 through deprivation by a final policy-making official or body of his property interest in his employment and liberty interest in his career and reputation without substantive due process. Plaintiff seeks back pay and other compensatory damages, punitive damages, interest, and attorney's fees. Elements: (1) Plaintiff bears the burden of proving by a preponderance of the evidence that a 8

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

Document 278

Filed 09/12/2008

Page 9 of 37

final policy-making official or body of the City deprived him of his property interest in his employment, liberty interest in his career and reputation, or other constitutional rights or protections without substantive due process. (Because of the late submission of this Amended Final Pretrial Order by Plaintiff, the Defendant did not have the opportunity to review the facts and evidence that Plaintiff will rely on to meet his burden in proving his §1983 substantive due process claim. The Defendant has not had the opportunity to address the facts and evidence proffered by Plaintiff in its' defenses section. Should the Court allow Plaintiff to move forward with this claim, Defendant would seek leave to amend its Defenses section of the Amended Final Pretrial Order.); (2) Pre-Termination Constitutional Violations: Plaintiff will prove by a preponderance of the evidence that he was arbitrarily and irrationally denied substantive due process through executive action that was abusive and shocking to the conscience, because: a) the City deliberately conducted the investigation of the allegations against Plaintiff without complying with its own requirements, standards, practices and customs for the investigation of such allegations and preservation of evidence, including but not limited to using an Assistant Chief instead of trained Human Resources Bureau/Internal Affairs investigators to conduct the investigation, and deliberately failing to tape record and transcribe all material witness statements; Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); (Testimony of Plaintiff, Rob 9

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

Document 278

Filed 09/12/2008

Page 10 of 37

Brady, Fred DeFeo, Joe Hart, Kelley Caldwell, Steve Garrod, Jim Sestrich, Tracy Howard, Rod Juniel, John Criswell, Earl Peterson, Brian Kellogg; Exhibits 1, 2, 3, 3A, 3B, 6, 11, 12, 13, 14, 15, 16, 25, 26, 58, 63, 68, 75, 155). b) the person(s) conducting the investigation under the direction of senior policy-making officials and attorneys deliberately concealed or downplayed evidence that exonerated Plaintiff, defamed Plaintiff in order to secure his prosecution by a third party, and conspired to secure, and did secure through misrepresentations, fraudulent concealment, and stigmatizing publication of false allegations of criminal conduct, Plaintiff's malicious prosecution and termination without the opportunity for an adequate pre-termination hearing or adequate relief after a post-termination hearing; Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003); Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); Bishop v. Wood, 426 U.S. 341 (1976); Zinermon v. Burch, 494 U.S. 113 (1990); cf., Parrat v. Taylor, 451 U.S. 527 (1981). (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155); c) Plaintiff was not informed of, or given an opportunity to review, evidence corroborating his story and tending to exonerate him, and therefore did not have a meaningful pre-termination hearing bearing the true hallmarks of minimal substantive due process. (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. 10

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

Document 278

Filed 09/12/2008

Page 11 of 37

Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155); d) the City considered and used unsubstantiated rumors of misconduct of which Plaintiff was never notified as unstated grounds for terminating Plaintiff; e) the persons investigating and recommending termination concealed exculpatory information from the officials approving Plaintiff's termination, or the officials approving Plaintiff's termination themselves deliberately ignored exculpatory information. (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff, Tracy Howard, Rod Juniel; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155); f) The foregoing acts were not random or unauthorized, but were pursued in concert, as part of a systematic, calculated, premeditated plan to deprive Plaintiff of his constitutional rights through any means, lawful or unlawful, at the City's disposal; County of Sacramento v. Lewis, 523 U.S. 833 (1998). (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155); (3) Post-termination Constitutional violations: Plaintiff will prove by a preponderance of the evidence that he was arbitrarily and irrationally denied substantive due process through executive action that was abusive and shocking 11

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

Document 278

Filed 09/12/2008

Page 12 of 37

to the conscience because those with policy-making authority, including the Denver City Attorney, Civil Service Commission Hearing Officer, Civil Service Commission Executive Director, and the Civil Service Commission deliberately deprived him of his property interest in his employment, his liberty interest in his career and reputation, and other constitutional rights or protections in at least the following ways: a) Maliciously prosecuting Plaintiff for a trivial crime he did not commit, for which the City would not normally prosecute a citizen under the same circumstances, and securing the cooperation of a third party in Plaintiff's malicious prosecution through misrepresentations and fraudulent concealment, in order to pressure Plaintiff to confess to a crime he did not commit, to pressure Plaintiff into refraining from exercising his constitutional right to appeal his termination through civil proceedings, and to reduce the likelihood of Plaintiff successfully challenging his termination in civil proceedings; Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002). (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155); b) Condoning, and thereby ratifying and adopting as policy, the commission of felony perjury and obstruction of justice by a witness for the prosecution in the criminal proceedings against Plaintiff, thereby infringing Plaintiff's right to fair trial by jury 12

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

Document 278

Filed 09/12/2008

Page 13 of 37

and due process of law. (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155).; c) Senior policy-making officials and attorneys deliberately concealed or downplayed evidence that exonerated Plaintiff, defamed Plaintiff in order to secure his prosecution by a third party, and conspired to secure, and did secure through misrepresentations, fraudulent concealment, and stigmatizing publication of false allegations of criminal conduct, Plaintiff's malicious prosecution, termination, premature retirement, and denial of reinstatement or other full relief; Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004); DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003); Moran v. Board of Police Commissioners, 296 F.3d 638 (8th Cir. 2002); Bishop v. Wood, 426 U.S. 341 (1976); Zinermon v. Burch, 494 U.S. 113 (1990); cf., Parrat v. Taylor, 451 U.S. 527 (1981). (Testimony of Plaintiff, Michael Brown, Kevin McKee, Officer C.W. Jones, Joe Hart, Ron Martinez, David Schuetz, Steven Garrod, Jim Sestrich, Kelly Caldwell, Plaintiff, Tracy Howard, Rod Juniel, John Criswell, Earl Peterson, Brian Kellogg, Chris Olson; Exhibits 1, 2, 3, 3A, 3B, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 155); d) Gross incompetence and malicious, reckless disregard for Plaintiff's constitutional rights; e) Refusing, in explicit or implied reliance upon unlawful construction, or deliberate and 13

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

Document 278

Filed 09/12/2008

Page 14 of 37

willful disregard of, state and federal statutes and constitutional requirements or prohibitions, to clear the opprobrium and shame associated with Plaintiff's unlawful termination for a crime he did not commit, or to restore Plaintiff's employment and all of his associated property rights and liberty interest in his employment, reputation and career despite his indisputably unlawful termination; Ferraro v. Board of Trustees, ___ F.3d ___, 2001 10CIR 1341, Case No. 00-3261 (10th Cir. 2001); Mitchell v. Moore, ___ F.3d ___, Case No. 98-6446 (10th Cir. 2000); Lovingier v. City of Black Hawk, ___ F.3d ___, 1999 U.S.App. LEXIS 29752 (10th Cir. 1999); Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994); Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483 (10th Cir. 1991). (Testimony of Plaintiff, Karen McNeil, Ida Roberts, John Criswell, Tracy Howard, Jim Sestrich, Steven Garrod, Kelly Caldwell, Earl Peterson, Brian Kellogg, Chris Olson, Elizabeth Kiovsky, Anna Flores, Cecelia Mascarenas, Sam Williams; Exhibits 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 52, 53, 54, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 155); f) Explicitly, deliberately, willfully, clearly erroneously and unlawfully disregarding all of the undisputed evidence available to them or in the record, in deliberate and willful disregard of state and federal statutes and constitutional requirements or prohibitions, including the ADA, in order to avoid reinstating Plaintiff or otherwise grant him full relief for his unlawful termination; Ibid. g) Refusing to restore Plaintiff's employment and all of his associated property rights 14

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

Document 278

Filed 09/12/2008

Page 15 of 37

and liberty interests in his employment, reputation and career in reliance upon willfully fraudulent invention of an alleged disputed issue of fact (concerning the date of Plaintiff's application for retirement) of which Plaintiff had no notice during any post-termination proceedings and which was never a disputed issue of material fact prior to the Commission's final decision affirming the Hearing Officer's Decision; Ibid. h) Knowingly and fraudulently relying upon an undisputedly false, obviously inadvertent or grossly negligent statement or "finding" of "fact" by the Hearing Officer, that was undeniably unsupported by any evidence of any kind, to deny Plaintiff full restoration of his property interest in his employment or his liberty interest in his career and reputation; Ibid. i) Failing to clear, and further perpetuating, the opprobrium and shame associated with Plaintiff's termination for a crime he did not commit by refusing to restore Plaintiff's employment and all of his associated property rights and liberty interests in his employment, reputation and career, leaving him in the same position he would have been in had he not appealed his termination and, therefore, in the eyes of his family, friends, former colleagues and the community, still terminated and ostracized from the Denver Fire Department despite his unlawful termination, and thereby also violating his constitutionally protected right to intimate association; Patel v. Searles, 305 F.3d 130 (2d Cir. 2002). Ibid.; j) The foregoing acts or omissions were not random or unauthorized, but were pursued

15

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

Document 278

Filed 09/12/2008

Page 16 of 37

in concert, as part of a systematic, calculated, premeditated plan to deprive Plaintiff of his constitutional rights through any means, lawful or unlawful, at the City's disposal. Ibid. Defenses: §1983 Substantive Due Process Claim In the first trial, the trial court found in favor of the Defendant that the Plaintiff failed to prove his §1983 substantive due process claim and entered a judgment against Plaintiff as a matter of law pursuant to Fed.R.Civ.P. 50 (a) (1). Defendant objects to any attempts by Plaintiff to resurrect his dismissed claims and respectfully moves that this Court deny the attempt by Plaintiff to retry this claim at a second trial. Because of the late submission of this Amended Final Pretrial Order by Plaintiff, the Defendant did not have the opportunity to review the facts and evidence that Plaintiff will rely on to meet his burden in proving his §1983 substantive due process claim. The Defendant has not had the opportunity to address the facts and evidence proffered by Plaintiff in its' defenses section. Should the Court allow Plaintiff to move forward with this claim, Defendant would seek leave to amend this section of the Amended Final Pretrial Order. Should the Court conclude that Plaintiff is entitled to retry the §1983 substantive due process claim to a new jury, the Defendant asserts the following defenses. Plaintiff's claims a substantive due process violation. Defendant denies that Plaintiff was deprived of substantive due process rights. With respect to Plaintiff's claim that he was deprived of a liberty interest without due 16

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

Document 278

Filed 09/12/2008

Page 17 of 37

process of law, Plaintiff was entitled to "a name clearing hearing". Plaintiff had that name clearing hearing before the hearing officer of the Denver Civil Service Commission and thus was not deprived of a liberty interest without due process of law. As to Plaintiff's claim for violation of substantive due process of law, because Plaintiff had all appropriate procedures, his substantive due process claim must fail. Additionally, Plaintiff cannot show that any of the conduct of any government actor is so outrageous as to shock the conscience of the Federal District Judge as required to show and prove a substantive due process violation. Plaintiff apparently bases his substantive due process claim on the fact that he is unsatisfied with and critical of the Civil Service Commission's proceedings. However, Plaintiff's termination, of which he is so critical, was overturned in the Civil Service Commission hearing and thus, he was not "terminated." Because Plaintiff's "name was cleared" through the Civil Service Commission proceeding, Plaintiff has no substantive due process violation claim. With respect to Plaintiff's claim that his substantive due process was violated by what he alleges as an erroneous, improper determination ruling or opinion by the Civil Service Commission, such is not conscience shocking as it is, at best, "judicial error." Additionally, Plaintiff had or has the ability to appeal that determination. That the Commission ruled that Plaintiff could not be reinstated to the position of firefighter because of his retirement, does not amount to a substantive due process violation. As a matter of law such is not conscience shocking. As to Plaintiff's damages, Plaintiff has failed to mitigate his damages by failing or

17

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

Document 278

Filed 09/12/2008

Page 18 of 37

refusing to seek employment. Damages are the result of his own actions and conduct. Also, Plaintiff has either failed to exhaust all administrative remedies required or failed to complete all conditions precedent to the bringing of this action, particularly receipt of a right to sue letter as required before this action can be brought. 4. STIPULATIONS 1. Plaintiff was a member of the classified service of the Denver Fire Department

commencing July 1, 1976. 2. 3. Plaintiff's date of birth is October 31, 1952. Defendant City and County of Denver ("City") is a municipal corporation and

local government established and existing pursuant to Article XX, § 6, of the Constitution of the State of Colorado. 4. Plaintiff William Cadorna is or was 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. 5. Defendant City and County of Denver is a municipal corporation, local

government, "person" and "employer" subject to this court's jurisdiction under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. This court has jurisdiction over Plaintiffs' claims against the City under 28 U.S.C. §§ 1331 and 1367(a). 6. On January 2, 2003, Manager of Safety Tracy Howard entered a Departmental

Order of Disciplinary Dismissal dismissing Plaintiff from the Denver Fire Department. 7. After January 2, 2003, Plaintiff submitted his first written petition for age and 18

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

Document 278

Filed 09/12/2008

Page 19 of 37

service retirement. 8. On March 13, 2003, the Board of Trustees of the Denver Firefighters Pension

Fund approved Plaintiff's application for age and service retirement, effective March 13, 2003. 9. After January 2, 2003, Plaintiff submitted a written petition to the Denver

Firefighters' Pension Fund Board to convert his age and service retirement to a disability retirement. 10. On or about April 25, 2003, the Firefighters Pension Fund Board approved

Plaintiff's petition for disability retirement and changed his retirement status to disability retirement. 11. On January 30, 2004, a Hearing Officer for the Civil Service Commission issued

a decision on Plaintiff's appeal. He reversed the Manager of Safety's disciplinary termination of Plaintiff. He found the City failed to sustain its burden of proving that Plaintiff was guilty of the misconduct on which the Manager of Safety based the dismissal. 5. PENDING MOTIONS Plaintiff has moved for leave to: (1) take additional discovery from the City and the Firefighters and Police Pension Association ("FPPA") for the purpose of updating discovery previously obtained concerning the nature and extent of Plaintiff's lost pay and benefits; (2) take additional discovery from Safeway or its present or former employees concerning the whereabouts and contents of documents obtained or prepared by Safeway employees during the investigation of the allegations against Plaintiff or Asst. Store Mgr. Michael Brown which were not produced by Safeway in response to previous subpoenas, but the existence of which was 19

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

Document 278

Filed 09/12/2008

Page 20 of 37

confirmed by former Safeway employees David Schuetz and Michael Brown in sworn testimony; (3) obtain and offer expert testimony from an Economist and Labor Market Expert concerning Plaintiff's damages, efforts at mitigation, and the tax effects of a lump sum award of damages on Plaintiff. Plaintiff will file motions in limine to foreclose testimony, statements, questions or introduction of any evidence by Defendant concerning at least the following matters: (1) the amount of Plaintiff's disability retirement annuity benefit, which is a collateral source; (2) any information of any kind concerning allegations, or investigation of allegations, concerning the handling of funds or any other conduct or omissions by Plaintiff at Station 25 in 1998; (3) any other alleged conduct or misconduct by Plaintiff that was not expressly identified by Defendant as the reason for Plaintiff's termination. Defendant filed a Motion to Delay Resetting of Jury Trial on September 12, 2008 seeking a postponement of a jury trial until all discovery issues have been settled and legal matters have been adjudicated. Defendant will file a Motion to Compel on or before September 15, 2008 seeking an Order from this Court compelling Plaintiff to disclose all financial discovery relevant to potential mitigation of damages. Defendant also seeks leave to file Daubert motions on Plaintiff's experts. Defendant will seek leave from the Court to file a Motion for Partial

Summary Judgment on the issue of whether or not Defendant's reliance on a state retirement statute for firefighters is immune from liability under the ADEA "safe harbor" provision in 29 U.S.C. §623 (j). Denver will also file motions in limine on issues involving the first trial and issues involving prior acts under FRE 404 (b). Defendant seeks a briefing schedule from the

20

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

Document 278

Filed 09/12/2008

Page 21 of 37

Court on these issues. 6. WITNESSES See attached Joint Witness List. 7. EXHIBITS a. See attached Joint Exhibit List.

b. Copies of listed exhibits must be provided to opposing counsel no later than three days before trial. 8. DISCOVERY As stated above, in Section 5 concerning Motions, Plaintiff seeks leave to conduct limited additional discovery for the purpose of updating damages discovery, for the purpose of locating or discovering the reason for the withholding or destruction by Safeway of investigative statements and records the existence of which has been revealed through sworn testimony but which were not previously produced by Safeway, and for the purpose of preparing expert testimony concerning Plaintiff's damages or the adequacy of his efforts at mitigation. Defendant will seek leave to obtain discovery from Plaintiff relevant to potential mitigation of damages. Defendant will seek leave to obtain discovery from Plaintiff on his efforts to mitigate his damages since June, 2006. Defendant will also seek leave to obtain discovery from the Plaintiff on damages and on using a labor market expert at trial. 9. SPECIAL ISSUES Though their subpoenas were quashed by Judge Blackburn, Plaintiff must identify and subpoena as witnesses the Denver Civil Service Commission employees, executives, Hearing

21

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

Document 278

Filed 09/12/2008

Page 22 of 37

Officer, or Commissioners who administered or participated in Plaintiff's Civil Service Commission appeal as the Hearing Officer and Commission were jointly the final policy-making and decisional authorities for the City and their actions or omissions form the principal basis of Plaintiff's claims of unlawful failure to reinstate on account of age and §1983 substantive due process claims. Plaintiff also must reassert and retry his claims of denial of substantive due process in violation of 42 U.S.C. §1983, which were dismissed by Judge Blackburn mid-trial prior to submission of the case to the jury, but are now properly the subject of retrial. Defendant has flagged several special issues that it intends to raise in future motions that are referenced in Section 5, infra. Defendant will object to any attempts by Plaintiff to resurrect the ADEA retaliation and §1983 substantive due process legal claims that were dismissed at the first trial. Because of the late submission of this Amended Final Pretrial Order by Plaintiff, the Defendant did not have the opportunity to review the facts and evidence that Plaintiff will rely on to meet his burden in proving his §1983 substantive due process claim. The Defendant has not had the opportunity to address the facts and evidence proffered by Plaintiff in its Defenses section. Should the Court allow Plaintiff to move forward with this claim, Defendant would seek leave to amend that section of the Amended Final Pretrial Order. The parties are unable to agree on the number of stipulations that should be tendered to the Court. The Defendant tendered fourteen stipulations to Plaintiff for his approval. Plaintiff agreed to eleven of those, which are included herein. Plaintiff tendered to Defendant the same 49 stipulations that were submitted to the jury at the first trial. (Jury Instruction No. 14).

22

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

Document 278

Filed 09/12/2008

Page 23 of 37

10. SETTLEMENT a. Counsel for the parties and any pro se party met in person on November 09, 2005

and on May 11, 2006, to discuss in good faith the settlement of the case. b. The participants in the settlement conference, included counsel, party

representatives, and any pro se party. c. d. conferences. e. It appears from the discussion by all counsel and any pro se party that there is The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party do intend to hold future settlement

some possibility of settlement. f. The date of the next settlement conference before the magistrate judge or other

alternative dispute resolution method. The parties requested a settlement conference with Magistrate Judge Shaffer and submitted confidential settlement statements on August 25, 2008. Because of the press of business, Magistrate Judge Shaffer has not yet set a date for a settlement conference. g. Counsel for the parties and any pro se party considered ADR in accordance with

D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

23

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

Document 278

Filed 09/12/2008

Page 24 of 37

12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. The parties have requested a trial by jury. The parties request that eight (8) days be reserved for trial. The jury trial will be held before U.S. District Judge Marcia S. Krieger, in Courtroom A901, Ninth Floor, Alfred A. Arraj Court House, 901 19th Street, Denver, Colorado. 4. See Section 5.

24

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

Document 278

Filed 09/12/2008

Page 25 of 37

DATED this ____ day of ____________, 2008. BY THE COURT:

____________________________________ Judge, United States District Court

APPROVED: /s/ Mark E. Brennan Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO 80161 Telephone: 303-552-9550 or 797-7687 Attorney for Plaintiff /s/ Christopher M.A. Lujan Christopher M.A. Lujan Franklin A. Nachman Assistant City Attorneys Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720-913-3100 Attorneys for Defendant

25

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

Document 278

Filed 09/12/2008

Page 26 of 37

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

Document 278

Filed 09/12/2008

Page 27 of 37

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

Document 278

Filed 09/12/2008

Page 28 of 37

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

Document 278

Filed 09/12/2008

Page 29 of 37

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

Document 278

Filed 09/12/2008

Page 30 of 37

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

Document 278

Filed 09/12/2008

Page 31 of 37

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

Document 278

Filed 09/12/2008

Page 32 of 37

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

Document 278

Filed 09/12/2008

Page 33 of 37

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

Document 278

Filed 09/12/2008

Page 34 of 37

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

Document 278

Filed 09/12/2008

Page 35 of 37

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

Document 278

Filed 09/12/2008

Page 36 of 37

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

Document 278

Filed 09/12/2008

Page 37 of 37