Free Proposed Jury Instructions - District Court of Colorado - Colorado

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INSTRUCTION NO. ______

Under federal law, an employer may not discriminate against any employee because of that employee's age, when the employee's age is 40 years of age or older. Plaintiff William Cadorna claims that Defendant City and County of Denver discriminated against him by terminating his employment and later failing to reinstate him because of his age. Specifically, Plaintiff alleges that Defendant violated the law by accusing him of shoplifting as a pretext for terminating him because of his age. Plaintiff further claims the Defendant violated the law when it failed to reinstate him because the Denver Civil Service Commission refused to reinstate Plaintiff because he was over 50 years of age and had completed 25 years of active duty and had taken a disability retirement. Plaintiff alleges that his disability retirement was not voluntary. Defendant denies Plaintiff's allegation and denies that it discriminated against Plaintiff on the basis of his age. As affirmative defenses Defendant contends that state law prohibited it from reinstating Plaintiff because Plaintiff took a disability retirement and was over 50 years of age and had 25 years of active duty. Defendant did not reinstate Plaintiff because a Denver Civil Service Authority Hearing Office ruled that Plaintiff's retirement was part of a bona fide employee benefit plan and that Plaintiff's reinstatement was precluded by state statute and not subject to liability under the Age Discrimination in Employment Act This state statute is immune from liability under the ADEA.

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29 U.S.C.A. § 623(j); Reeves v. Sanderson, 530 U.S. 133, 140-142 (2000).

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INSTRUCTION NO. ______

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal right, and holding the same or similar stations in life. A public entity is entitled to the same fair jury trial as a private individual. All persons, including public entities and its employees, stand equal before the law, and are to be dealt with as equals in a court of justice.

Federal Jury Practice and Instructions (5th Ed.) §103.12 (modified) (Given at first trial)

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INSTRUCTION NO. ______

Any finding of fact you make must be based on probabilities, not possibilities. A finding of fact may not be based on surmise, speculation, or conjecture.

CJI-Civ. (4th) 3:4 (modified) (Instruction submitted in first trial).

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INSTRUCTION NO. ______

You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witnesses, by the manner in which the witness testifies, by the character of the testimony given, and by evidence to the contrary of the testimony given. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's intelligence, motive, state of mind, and demeanor or manner while on the stand. Consider the witness's ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict, and the extend to which, if at all, each witness is either supported or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently, and innocent misrecollection like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.

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After making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it deserves. A witness may be discredited or impeached by contradictory evidence, or by evidence that at some other time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness's present testimony. You may, in short, accept or reject the testimony of any witness in whole or in part. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness's testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is "knowingly" done if voluntarily and intentionally, and not because of mistake or accident or other reason.

Federal Jury Practice and Instructions (5th Ed.) §105.01 (modified) (Given at first trial)

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INSTRUCTION NO. ______ You have heard the parties stipulate or agree to the existence of certain facts. This agreement or stipulation makes the presentation of any evidence to prove these facts unnecessary. The agreement or stipulation means you that you must accept the following facts as true. We will give you a list of stipulations that we will agree to. 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 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.

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7.

After January 2, 2003, Plaintiff submitted his first written petition for age

and 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 misconduct on which the Manager of Safety based Plaintiff's dismissal.

Federal Jury Practice and Instructions (5th Ed.) §102.11

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INSTRUCTION NO. ______ In order for Plaintiff William Cadorna to prevail in Plaintiff's claim against Defendant City and County of Denver for age discrimination in employment for termination of his employment, the Plaintiff must prove the following three essential elements by a preponderance of the evidence: 1) 2) 3) That the Plaintiff is 40 years of age or older; That Plaintiff is discharged by Defendant; and, That Defendant would not have discharged the Plaintiff because of Plaintiff's age. In other words, the Plaintiff's age must have actually played a role in the Defendant's decision-making process and had a determinative influence on the outcome. The mere fact that Plaintiff is 40 years of age or older and was terminated is not sufficient, in and of itself to establish Plaintiff's claim. If after considering all of the evidence you find that Plaintiff has proven each of these essential elements by a preponderance of the evidence, then your verdict must be for the Plaintiff on this claim, and you should so state in Verdict Form A, paragraph 1. If after considering all of the evidence you find that Plaintiff has failed to prove any one or more of the essential elements by a preponderance of the evidence, then your verdict must be for Defendant on this claim, and you should so state in Verdict Form A, paragraph 1.

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29 U.S.C. § 623(j); Reeves v. Sanderson, 530 U.S. 133 (2000); O'Connor v. Consolidated Claim Caterers, Corp., 517 U.S. 308 (1996); Hazen Paper Co., v. Biggins, 507 U.S. 604, 610 (1993).

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INSTRUCTION NO. ______ In order for Plaintiff William Cadorna to prevail in Plaintiff's claim against Defendant City and County of Denver for age discrimination in employment based on Defendant's failure to reinstate Plaintiff to employment, the Plaintiff must prove the following three essential elements by a preponderance of the evidence: 1) 2) 3) That Plaintiff was 40 years of age or older; That Plaintiff was not reinstated to his employment by Defendant; and, That Defendant would not have failed to reinstate Plaintiff to his employment because of Plaintiff's age. In other words, Plaintiff's age must have actually played a role in the Defendant's decision-making process and had a determinative influence on the outcome. The mere fact that Plaintiff is 40 years of age or older and was not reinstated is not sufficient, in and of itself to establish Plaintiff's claim. If after considering all of the evidence, you find that Plaintiff has proven each of these essential elements by a preponderance of the evidence, and Defendants have not proved either of their affirmative defenses, then your verdict must be for Plaintiff on this claim and you should so state in Verdict Form B, paragraph 1. If after considering all of the evidence, you find that Plaintiff has failed to prove any one or more of the essential elements by a preponderance of the evidence, or that Defendant has proved one or both of its affirmative defenses, then your verdict must be for the Defendant on this claim, and you should so state in Verdict Form B, paragraphs 1, 2 or 3.

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29 U.S.C. §623(j); Reeves v. Sanderson, 500 U.S. 133 (2000); O'Connor v. Consolidated Claim Caterers Corp., 517 U.S. 308 (1996); Hazen Paper v. Biggins, 507 U.S. 604 (1993).

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INSTRUCTION NO. ______ You should be mindful that the law applicable in this case requires only that an employer not discriminate against an employee because of the employee's age. An employer may terminate or refuse to reinstate an employee for any other, nondiscriminatory reason, good or bad, fair or unfair. Defendant's reasons do not have to be reasons you would approve of or act on; neither does the law require an employer to extend any special or favorite treatment to employees in a protected age group.

Lucas v. Dover Corp., 857 F. 2d 1397-1403-1404 (10th Cir. 1988); Hardy v. S.F. Phosphates Limited Company, 185 F. 3d 1076 (10th Cir. 1999) (Instruction submitted in first trial).

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INSTRUCTION NO. ______ In determining whether Defendant acted illegally in failing to reinstate Plaintiff to his former position on the basis of age, you should consider whether Plaintiff retired voluntarily or involuntarily prior to the time he requested reinstatement. If you find by a preponderance of the evidence that Plaintiff's retirement was voluntary, then you cannot find that Plaintiff suffered an adverse employment action in the context of his claim for failure to reinstate on the basis of age and, thus, you can not find that Defendant discriminated against Plaintiff in refusing to reinstate him to his former position or grant him monetary benefits beyond the date of his retirement. Plaintiff has the burden to prove, by a preponderance of the evidence, that his retirement was involuntary. To do so, Plaintiff must show by a preponderance of the evidence that his retirement was the product of coercion or duress by his employer. You may find that Plaintiff's retirement was a product of duress or coercion if the totality of the circumstances show by a preponderance of the evidence that Plaintiff did not have the opportunity to make a free choice.

(Instruction Given at first trial)

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INSTRUCTION NO. ______ If you find by a preponderance of the evidence that Defendant discriminated against Plaintiff because of his age, either in terminating him or in refusing to reinstate him, you must determine if the Defendant acted willfully in so discriminating. Defendant acted willfully if you find by a preponderance of the evidence that its termination or failure to reinstate were violations of the law, or acted in reckless disregard of that fact, that its conduct was willful. If Defendant did not know, or knew only that the law was potentially applicable, and did not act in reckless disregard as to whether its conduct was prohibited by law, even if it acted negligently, then its conduct was not willful.

Hazen Paper Co., v. Biggins, 507 U.S. 604, 617 (1993).

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INSTRUCTION NO. ______

The words "cause," "caused," or "proximately caused" as used in these instructions means an act or failure to act that in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have happened. If more than one act or failure to act contributed to the claimed injury, then each act or failure to act may have been a cause of the injury. A cause does not have to be the only cause or the last or nearest cause. It is enough if the act or failure to act joins in a natural and probable way with some other act or failure to act in causing some or all of the claimed injury.

Federal Jury Practice and Instructions (5th Ed.) §102.60 (modified) Restatement (Second) of Torts, §§430-461

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INSTRUCTION NO. ______ If you do find in favor of Plaintiff, you must determine damages in accordance with these instructions. The fact that I am instructing you on the measures of damages does not mean that I am instructing you as to which party is entitled to your verdict or that I am instructing you whether to award or not award damages. The questions of whether damages are to be awarded, and the amounts of such damages, if any, are for your consideration alone. If you decide to award damages, you should fix the amount using calm discretion and sound reason, not sympathy, prejudice, conjecture, or speculation. Difficulty or uncertainty in determining the precise amount of damages does not, however, prevent you from deciding an amount. You should use your best judgment based on the evidence.

Federal Jury Practice and Instructions (5th Ed.) §106.02 (modified)

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INSTRUCTION NO. ______

If you find that Defendant discriminated against Plaintiff on the basis of age, then you must determine an amount that is fair compensation for Plaintiff's damages, if any. You may award compensatory damages only for injuries that Plaintiff proves by a preponderance of the evidence were caused by Defendant's allegedly discriminatory conduct. The burden is on Plaintiff to prove by a preponderance of the evidence the existence and amount of his damages and the fact that Defendant's unlawful conduct proximately caused his damages. You may award damages for back pay, which includes damages for lost wages, salary, and benefits, between the date of March 15, 2003, and the date of your verdicts. In determining the amount of any damages that you decide to award, you should be guided by common sense. You must use sound judgment in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages as punishment or based on sympathy, speculation, or guess work. On the other hand, the law does not require that Plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.

29 U.S.C. §626

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INSTRUCTION NO. ______

If you find that Plaintiff has proven that he was discriminated against on the basis of his age, but that his damages have no monetary value, then you must return a verdict for Plaintiff in a nominal amount of not more than one dollar ($1.00).

(Instruction given at first trial)

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INSTRUCTION NO. ______

If you find by a preponderance of the evidence that Defendant is liable for age discrimination and that Plaintiff has suffered damages caused by Defendant's age discrimination, Plaintiff may not recover for any item of damage which he could have avoided through reasonable effort. A person who claims damages resulting from the wrongful act or acts of another has a duty under the law to use reasonable diligence to mitigate ­ to avoid or minimize those damages. If you find by a preponderance of the evidence that Plaintiff unreasonably failed to take advantage of an opportunity to lessen his damages, you should deny him recovery for those damages that he would have avoided had he taken advantage of the opportunity. You are the sole judge of whether Plaintiff acted reasonably in avoiding or minimizing his damages. Although Plaintiff may not sit idly by when presented with an opportunity to reduce his damages, he is not required to exercise unreasonable efforts or incur unreasonable expenses to mitigate damages, and he is not required to seek or accept other employment that is not substantially similar to his past employment. Defendant has the burden of proving by a preponderance of the evidence the damages that Plaintiff could have mitigated. In deciding whether to reduce Plaintiff's damages because of his failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether Defendant has satisfied its burden of proving that Plaintiff's conduct was not reasonable.

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CJI-Civ 4th 5:2 (Modified) Model Jury Instruction for Ninth Circuit No. 12.3.1

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INSTRUCTION NO. ______

If you find that Plaintiff William Cadorna has established each of the essential elements of his claim, then you will consider the defense alleged by Defendant that the treatment of Plaintiff was in accordance with state law which provides that no member of a fire department who becomes physically disabled while on active duty may be reexamined for the purpose of determining of fitness of such firemen to return to active duty in the department if such fireman has reached the age of 50 years or has completed 25 years of active duty in the department before the date of such retirement. Defendant has the burden of proving each of the following by a preponderance of the evidence: 1) 2) That Plaintiff became physically disabled while on active duty; That the Plaintiff was either 50 years of age or older or had completed 25 years of active duty; and, 3) Defendant took into account this state statute in its decision not to reinstate Plaintiff.

29 U.S.C. §623(j) §31-30.5-705, C.R.S.

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INSTRUCTION NO. ______

If you find that Plaintiff William Cadorna has established each of the essential elements of Plaintiff's claim, then you will consider the defense alleged by the Defendant City and County of Denver that the treatment of Plaintiff was part of a bona fide employee benefit plan. Defendant has the burden of proving each of the following by a preponderance of the evidence: 1) That an employee benefit plan was bona fide, that is, that it existed and provided for and paid benefits to employees; 2) That the plan was in effect as of March 3; 1983; and, 3) That the Defendant followed the terms of the plan.

Federal Jury Practice and Instructions (5th Ed.) §173.62

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INSTRUCTION NO. ______

If you find that Defendant City and County of Denver unlawfully discriminated against Plaintiff on the basis of his age, then you determine the amount of damages that Plaintiff William Cadorna has sustained, if any. That is, if you find that Defendant unlawfully discriminated against Plaintiff on the basis of his age when it terminated his employment and failed to reinstate him, you are to award Plaintiff an amount equal to the loss of pay and benefits Plaintiff would have received from the time that Plaintiff was discharged until the date of trial or the time that Plaintiff planned to retire, before his termination. If you find that Defendant unlawfully discriminated against Plaintiff on the basis of Plaintiff's age when it terminated his employment, but in favor of Defendant on Plaintiff's claim for Defendant's failure to reinstate him to his employment, you are to award Plaintiff an amount of loss pay and benefits from the time of his termination to the time that Defendant declined to reinstate him to his employment. You should deduct from either of these sums whatever wages or compensation Plaintiff has obtained from other sources during this period.

Federal Jury Practice and Instructions (5th Ed.) §173.70 (Modified)

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INSTRUCTION NO. ____ You have heard evidence that there was an earlier trial of this case. You must decide this case solely on the evidence presented to you in this trial. The earlier trial should have no bearing on your decision in this case.

Federal Jury Practice and Instructions (5th Ed) §102.42 (To be given only if it is clear that jury has heard of earlier trial)

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INSTRUCTION NO. ______ Ladies and Gentlemen of the Jury: Now that you have heard the evidence and will soon hear argument, it becomes my duty to give you the instructions of the court as to the law applicable to this case. It is your duty as jurors to follow the law as I shall state it to you, and to apply the law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me. Counsel may quite properly refer to some of the governing rules of law in their arguments. If, however, any difference appears to you between the law as stated by counsel and that stated by the court in these instructions, you are, of course, to be governed by the court's instructions. Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts, but rather yours. You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, bias, prejudice, or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences. Anything you may have seen or heard outside the courtroom is not evidence, and must be disregarded entirely.

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Statements and arguments of counsel are not evidence in the case. However, when the attorneys on both sides have stipulated or agreed as to the existence of a fact, the jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved. Unless you are otherwise instructed, the evidence in the case consists of the sworn testimony of the witnesses, regardless of who may have called them, all exhibits received in evidence, regardless of who may have produced them, and all facts which may have been admitted, stipulated, or judicially noticed. The mere number of witnesses appearing for or against a particular fact, issue, or proposition does not in and of itself prove or disprove that fact, issue, or proposition. Any evidence as to which an objection was sustained by the court, and any evidence ordered stricken by the court, must be disregarded entirely. You are to consider only the evidence in the case. However, in your consideration of the evidence, you are not limited to just the statements of the witnesses. In other words, you are not limited solely to what you see and hear as the witnesses testified. You are permitted to draw, from the facts which you find have been proved, such reasonable inferences as you feel are justified in the light of your experience. At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it is difficult and time consuming for the reporter to read back lengthy testimony.

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The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree. Any verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. However, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times that you are not partisans. You are judges - judges of the facts. Your sole interest is to seek the truth from the evidence in the case and return a just verdict based upon the evidence in the case and the law as the court has presented it to you.

Federal Jury Practice and Instructions §101.01 (Modified)

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INSTRUCTION NO. ______ You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witnesses, by the manner in which the witness testifies, by the character of the testimony given, and by evidence to the contrary of the testimony given. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worth of belief. Consider each witness' intelligence, motive and state of mind and demeanor or manner while on the stand. Consider the witness' ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently, and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail and whether the discrepancy results from innocent error or intentional falsehood.

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After making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it deserves. A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something, or has failed to say to do something, which is inconsistent with the witness' present testimony. You may, in short, accept or reject the testimony of any witness in whole or in part. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is "knowingly" done if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

Federal Jury Practice and Instructions §101.43 (Modified)

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INSTRUCTION NO. ____

You are instructed that §31-30.5-604, "Firefighters' old hire pension plans-- municipalities of one hundred thousand in population" provides as follows: (1) In municipalities having a population of at least one hundred thousand, any old hire member of the fire department who has served at least twenty-five years of active duty and has attained the age of fifty years shall be retired within thirty days after making application for retirement, except during periods of national emergency, and such person shall be paid a monthly pension equal to one-half the amount of the monthly salary said person received as a member of said department as of the date of application for retirement. For so long as the old hire member is in retirement, there shall be added to the amount of the member's pension, one-half of any increase in salary and longevity or additional pay based on length of service granted to the rank formerly occupied by the member in the department. (2) (a) When, for any reason, the rank or grade within a fire department is abolished or ceases to exist and a retired old hire member of such department, on or after April 30, 1963, is in receipt of a pension or annuity from the fund by reason of retirement in such classification, grade, or rank, such member shall receive the member's regular pension payment for the frad or rank occupied at the time of the member's retirement. In addition, such member of a fire department shall receive additional benefits as follows: The fraction which such member's regular pension payment for

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the grade or rank occupied at the time of such member's retirement bears to the regular pension payment for the next higher rank at such time shall be computed; and such member shall receive one-half of any increase in salary and longevity pay or additional pay based on length of service granted to the next higher rank or grade in such department multiplied by the fraction as above computed; but if the next higher and next lower ranks or grades of the department receive equal money increases, such member shall receive one-half of any increase without multiplication of the fraction above computed. An old hire member of such department who, on July 1, 1969, is in receipt of a pension or annuity from the fund, by reason of retirement in a rank or grade which has been abolished or has ceased to exist, shall have the member's benefit as above described recomputed, and any additional moneys to which the member is entitled shall be paid to the member as if this provision were in effect at the date of the member's application for retirement. (b) The provisions of this subsection (2) shall apply alike to all those who retired under this section and to those who retire under the provision of section 31-30.5-705.

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INSTRUCTION NO. ______

Colorado state statute, Section 31-30.5-705, "Firefighters' old hire pension plans ­ municipalities of at least one hundred thousand in population" provides in relevant part as follows: (1) Any old hire member of a fire department in a municipality having a

population of at least one hundred thousand, who becomes mentally or physically disabled while on active duty during regularly assigned hours of duty from any cause not self-inflicted nor due to the habitual use of intoxicants or drugs to an extent whereby the member is unable to perform the member's duties shall be retired by the board. Any old hire member of said fire department who has completed five years or more as a member of the department but who is unable to perform the member's duties by reason of heart disease or any disease of the lungs or respiratory tract shall be presumed, unless said presumption is overcome by competent evidence, to have contracted said disease while on active duty as a result of strain or the inhalation of noxious fumes, poison, or gases and shall be retired by the board. (2) In cases where a special position or assignment can or may be assigned

to such member, the member may be assigned to such special position or assignment. Any such retirement shall be for the period of the disability, and no longer, and shall be governed by the provisions of subsections (3), (4), and (5) of this section. (3) The old hire member shall be paid a monthly pension equal to one-half the

amount of the member's monthly salary as of the date of the member's retirement plus

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one-half of any increase in salary and longevity or additional pay based on length of service granted during the period of the member's retirement to the rank occupied by the member in the department. The member, after retirement, shall continue to accrue longevity, and the member's length of service shall continue to extend in the same manner and with the same limitations, as if the member were still active and not retired. Said pension shall continue to be paid as long as the member is in retirement. (4) All applicants for disability pensions shall be examined by one or more

physicians selected for the purpose by the board and may be examined by one or more physicians selected by the applicant. All expenses of examination by the physician chosen by the board shall be paid by the board out of said fund. (5) The board shall establish such general rules as it deems proper for the

purpose reexamination of all old hire members who have been retired for disability to determine from time to time the fitness of such members to return to active duty in the department. No such member who has reached the age of fifty years, either before or after the member's retirement, shall be reexamined. No such member who has completed twenty-five years of active duty in the department before the date of such retirement shall be reexamined. No member on the retired list shall be examined sooner than one year after date of retirement and not more often than once a year thereafter. In the event it is found by the board that any old hire member on the retired list has recovered from the disability that caused the member's retirement, such member, if the member is under fifty years of age and has served less than twenty-five years of active duty, shall be removed from the retired list and ordered to report to the

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chief officer of the fire department within thirty days for assignment to active duty. During said period of thirty days such member may file a written protest in which the member shall state any objection that the member may have to the member's removal from the retired list. The decision of the board shall be suspended pending a hearing on said protest, at that hearing the member shall have a right to appear and to be represented by counsel. During the period that any member is ordered retired for disability by the board, such member, if under age fifty years and having served less than twenty-five years of active duty, shall be carried on a special roll of the fire department and listed as inactive.

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INSTRUCTION NO. _____ You are instructed that 29 U.S.C. §623 (j), "Employment as firefighter or law enforcement officer" reads as follows: It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken-- (1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained-- (A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or (B) (i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or (ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of--

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(I)

the age of retirement in effect on the date of such discharge under such law; and

(II) age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

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INSTRUCTION NO. ______

Plaintiff submitted his application for retirement from the Denver Fire Department based on his age and number of years of service with the Denver Fire Department, pursuant to Colorado Statute. Plaintiff at the time of his application had twenty-five or more years of service and was 50 years of age or older which are the two prerequisites for a firefighter to retire set out in the Colorado Statute governing firefighters' age and service retirements. That retirement application was granted. Plaintiff then applied to the FPPA to convert his age and service retirement to a disability retirement. That application was granted and Plaintiff's age and service retirement was converted to a disability retirement pursuant to Colorado Statute. If Plaintiff's retirement was voluntary Plaintiff cannot legally receive any relief including any damages in this case. The law presumes that employee retirements are voluntary. Plaintiff has the burden to prove, by a preponderance of the evidence, that his retirement was involuntary. To do so Plaintiff must show that his retirement was the product of coercion or duress of his employer. You may find that Plaintiff's retirement was a product of duress or coercion from the City and County of Denver if the totality of the circumstances show that Plaintiff did not have the opportunity to make a free choice. In determining whether Plaintiff did not have the opportunity to make a free choice, you should consider the following factors: 1. Whether Plaintiff had an alternative to retirement.

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2. 3. 4.

Whether Plaintiff understood his action. Whether Plaintiff had a reasonable time in which to choose retirement. Whether Plaintiff had the opportunity to select the effective date of his retirement.

Involuntariness of retirement or coercion can be shown if Plaintiff was compelled to accept the terms dictated to him by the city. However, that Plaintiff was in an economically stressful situation is not sufficient to support a finding of coercion of duress imposed by and employer. Further, duress or coercion is not measured by the Plaintiff's subjective evaluation of the situation. Rather, to be involuntary Plaintiff's retirement must be caused by external coercion and duress not from any internal misconception or internal pressure. Authority: Lehney v. City of Pittsburgh, 183 F. 3d 220, 227 (3rd Cir. 1989) Hargray v. City of Hallendale, 57 F. 3d 1560, 1568 (11th Cir. 1995) Stone v. University of Maryland, 855 F. 2d 167, 173-174 (4th Cir. 1988) Parker v. Board of Regents, 981 F. 2d 1159, 1162 (10th Cir. 1992) Emerson v. Widnall, 1996 U.S. App. LEXIS 33513 (10th 1996, Case No. 95-6421) Christie v. United States, 207 Ct. Cl. 333, 518 F. 2d 584, 587 (1975)

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INSTRUCTION NO. ___

The bailiff will now escort you to the jury room. Upon reaching the jury room, you are to elect one of your members to be the foreperson of the jury. Your foreperson will preside over your deliberations and shall sign whatever verdict you reach. The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to it. Your verdict must be unanimous. Only one verdict shall be returned signed, and it and these instructions shall remain in the possession of your foreperson until such time as they are called for in open court. Upon reaching a verdict, you will inform the bailiff of this Court, who in turn will notify the Court, and you will remain in your jury room until called into the Courtroom. You will be provided with two forms of verdict. When you have unanimously agreed upon your verdict, you will select the forms which reflect your verdicts, and the foreperson will sign them as the Court has stated. The forms you will receive read as follows: Verdict Form A and Verdict Form B. You are further instructed that no inferences are to be drawn from the order in which the Court reads the verdicts.

Federal Jury Practice and Instructions (5th Ed.) §103.50 (Modified)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 04-cv-01067-MSK-CBS WILLIAM R. CADORNA, v. Plaintiff,

VERDICT FORM A ­ DISCRIMINATION ON THE BASIS OF AGE TERMINATION OF EMPLOYMENT We, the jury, present our Answers to Questions submitted by the Court to which we have all agreed we have all agreed: 1. Has Plaintiff proved by a preponderance of the evidence all three (3)

essential elements of his claim for age discrimination in the termination of his employment as set forth in Instruction No ____? ANSWER: Yes _____ No _____

[If you have answered Question number 1 "yes," proceed to Question number 2. If you answered Question number 1 "no," please disregard the remaining Questions and sign and date Verdict Form A.]

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2.

Do you find by a preponderance of the evidence that Plaintiff has suffered

compensatory damages in the form of back pay, as defined in Instruction No. ___, as a result of such discrimination? ANSWER: Yes _____ No _____

[If you have answered "yes" to both Question number 1 and Question number 2, above, then answer Question number 3. If you have answered "yes" to Question number 1 and "no" to Question number 2, then skip Question number 3 and answer Question number 4.] 3. What is the total amount of compensatory damages in the form of back

pay, as defined in Instruction No. ___, that you find, by a preponderance of the evidence, Defendant is liable to pay Plaintiff? ANSWER: $ _______________ [If you have indicated that Plaintiff is entitled to an award of compensatory damages in response to Question number 3, skip Questions number 4 and 5 and answer Question number 6.] 4. If you have answered "yes" to Question number 1 and "no" to Question

number 2 above, do you believe that Plaintiff is entitled to an award of nominal damages, as discussed in Instruction No. _____? ANSWER: Yes _____ No _____

[If you have answered "yes" to Question number 4, then answer Question number 5. If you have answered "no" to Questions number 4, then skip
Verdict Form A Page 2 of 3

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Questions number 5 and 6 and sign and date Verdict Form A.] 5. If you have found that Plaintiff is entitled to an award of nominal damages,

what is the amount of nominal damages not to exceed $1.00 that you find by a preponderance of the evidence Defendant is liable to pay Plaintiff? ANSWER: $ _______________ 6. If you found that Plaintiff is entitled to an award of compensatory damages

in response to Question Number 3 above, do you find that Plaintiff has proven by a preponderance of the evidence that Defendant's action in terminating him was willful, as that term is defined in Instruction No. ___? ANSWER: Yes _____ No _____

Dated this _____ day of _____________, 2008.

_____________________________ FOREPERSON _____________________________ _____________________________ _____________________________

_________________________ _________________________ _________________________ _________________________

Verdict Form A Page 3 of 3

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 04-cv-01067-MSK-CBS WILLIAM R. CADORNA, v. Plaintiff,

THE CITY AND COUNTY OF DENVER, a municipal corporation, Defendant. VERDICT FORM B ­ DISCRIMINATION ON THE BASIS OF AGE FAILURE TO REINSTATE OR AWARD BENEFITS BEYOND DATE OF RETIREMENT

We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Has Plaintiff proved by a preponderance of the evidence all three (3)

essential elements of his claim for age discrimination in the failure to reinstate him or award him benefits beyond the date of his retirement as set forth in Instruction No. ___? ANSWER: Yes _____ No _____

[If you answered Question number 1 "yes," proceed to Question number 2. If you answered Question number 1 "no," please disregard the remaining Questions and sign and date Verdict Form B.]

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2.

Has Defendant proved by a preponderance of the evidence all three (3) essential elements of its affirmative defense of the Safe Harbor provision of the Age Discrimination in Employment Act as set forth in Instruction No. ___ ? ANSWER: Yes ____ No ___

[If you answered Question number 2 "yes," please disregard the remaining Questions and sign and date Verdict Form B. If you answered Question number 2 "no," proceed to Question number 3] 3. Has Defendant proved by a preponderance of the evidence all three (3) essential elements of its affirmative defense of the Firefighters' old hire pension plans under state law as set forth in Instruction No. ___? ANSWER: Yes ___ No ___

[If you answered Question number 3 "yes," please disregard the remaining Questions and sign and date Verdict Form B. If you answered Question number 3, "no," proceed to Question number 4]

4.

Do you find by a preponderance of the evidence that the Plaintiff has

suffered compensatory damages in the form of back pay, as defined in Instruction No. _____, as a result of such discrimination? ANSWER: Yes _____ No _____

[If you have answered "yes" to both Question number 1 and Question number 4 above, and "no" to Question number 2 and Question number 3 above, then answer Question number 5]

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5.

What is the total amount of compensatory damages in the form of back

pay, less mitigation of damages as defined in Instructions No. ____ and in Instruction No. ___, if any, that you find, by a preponderance of the evidence, Defendant is liable to pay Plaintiff? ANSWER $ ________________ [If you have indicated that Plaintiff is entitled to an award of back pay in response to Question number 4, then skip Questions number 4 and 5 and answer Question number 6.] 6. If you have answered "yes" to Question number 1 and "no" to Question

number 2 and Question number 3 above, do you believe that Plaintiff is entitled to an award of nominal damages, as discussed in Instruction No. ____? ANSWER: Yes _____ No _____

[If you have answered "yes" to Question number 4, then answer Question number 5. If you have answered "no" to Question number 4, then skip Question number 5 and answer Question number 6.] 7. If you have found that Plaintiff is entitled to an award of nominal damages,

what is the amount of nominal damages not to exceed $1.00 that you find by a preponderance of the evidence Defendant is liable to pay Plaintiff? ANSWER $ ________________ 8. If you have found that Plaintiff is entitled to an award of damages in

response to Question numbers 4, and/or 5, 6 or 7 above, do you find that Plaintiff has proven by a preponderance of the evidence that Defendant's action in refusing to

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reinstate him or award him benefits beyond the date of his retirement was willful, as that term is defined in Instruction No. ___? ANSWER: Yes _____ No _____

Dated this _____ day of _____________, 2008.

_____________________________ FOREPERSON _____________________________ _____________________________ _____________________________

_________________________ _________________________ _________________________ _________________________