Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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Exhibit E
Cadorna v. City and County of Denver Case No.: 04-CV-1067-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff,

THE CITY & COUNTY OF DENVER, COLORADO, a municipal corporation,

REPORTER' S TRANSCRIPT TRIAL TO A JURY OF 8 - VOLUME VI

Proceedings before the HONORABLE ROBERT E. BLACKBURN, Judge, United States District Court for the District of Colorado, commencing at 8:25 a.m., on the 27th day of June, 2006, in Courtroom A701, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. APPEARANCES MARK B. BRENNAN, 7394 South Downing Circle West, Centennial, Colorado, appearing for Plaintiff. Suzanne M. Claar, Official Reporter 901 19th Street Denver, Colorado 80294-3589 (303)825-8874 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

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course not, but I don't need to have them under oath to get the truth, and I said, Greg, I am trying to show you the courtesy of giving you a chance to fix a problem without having to drag your client down here to testify. I don't really want to do that if there is a simple explanation, but if all you are going to tell me is I should take your word for what really happened, I am sorry, with all due respect, and I mean no disrespect, I cannot. My duties to my client require that I pursue this, and that's all I have to say, your Honor. Thank you. THE COURT: Let me ask. You made reference to the retention of a private process server. Do you have his affidavit or declaration of inability to serve? MR. BRENNAN: Not with me now. THE COURT: Very well. Response, if any, by the defendant. MR. WESOKY: Thank you, your Honor. Very briefly. Rule 45, the defendant believes, requires service, in-hand service. There has been none here, which would give the court authority to exercise its power to reach out and require a witness to come into court. Secondly, there has been no evidence of true evasion of service. Thirdly, the testimony, although canTt be certain what it will be, appears to be more relevant to an issue involving Safeway rather than the defendants here, so the testimony sounds

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like it will be irrelevant or possibly objectionable under Rule 403, and I think the considerations of 611(a) (2), the needless consumption of time. It doesn't appear that the testimony Mr. Stein may or may not offer would go to the relevant issues before this court in this matter. Thank you, your Honor. THE COURT: On this record and the context of this issue, the court finds and concludes as follows: First, I approve, adopt, and incorporate the arguments advanced and authorities cited by the defendant in opposition to this request. I find specifically that there is no evidence of dissembling or evasive conduct by Jim Stein or anyone connected with him. The affidavit, the evidence I have, indicates that simply the subpoena was not served. It does not provide any description or explanation of the circumstances. The fact of the inability to serve was known to the plaintiff as early as June 16, 2006. It does not appear that the plaintiff sought the aid of this court until today in the context of this specific request. We are now in the seventh day of trial, and additionally, I find that the -- because the plaintiff has not before today sought the good offices of this court, this is too little and too late.

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discrimination, in the termination process. Plaintiff has presented absolutely no evidence which would allow this case to go to the jury on the issue of age

4 I discrimination in his termination. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There was simply no evidence that Chief Hart was motivated by age, and there was likewise no evidence -- pardon me -- that Chief Hart withheld any information from the higher-ups. The undisputed testimony is that he put his package of statements together, including the statement of Kevin McKee, and sent it on forward. There was simply a failure of plaintiff to prove in this case any age bias on behalf of Chief Hart. And supplementing that, there is no showing that plaintiff complained to Chief Hart or anybody else that he was a victim of age discrimination. That too is important evidence because it shows plaintiff himself did not believe that. Thus, the defendant should be given a judgment at the end of plaintiff's case as a matter of law on the age discrimination in termination part of this case. Plaintiff next contends that his denial of reinstatement was somehow a product of age bias. Important factor here, your Honor, is that the retirement, the disability retirement, and the age and service retirement, was voluntary. Under well-settled law, in order -- there is a presumption of voluntariness in retirement. It's up to plaintiff to show an involuntary retirement.

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Plaintiff has claimed in this case and introduced evidence only that the reason for his retirement was he needed money. As a matter of law, that is insufficient. There has to be coercion or duress applied by the employer, and the testimony from plaintiff, from the witness stand, was nobody from the fire department even talked to him after his termination. The only person he may have talked to was Chief Sestrich, who simply was talking about a date. The plaintiff testified nobody coerced him, nobody made him retire. Nobody said, retire or else. Nobody said, retire or we are going to get you, or any other type of coercion. It was a considered, well-thought-out decision by the plaintiff. Remember, he came in on February 14th to sign retirement papers. lie signed not one, not two, not three, not four, not five, but six or seven different documents on that day. He had a disability retirement examination scheduled on April 1st. He had plenty of time to reconsider, rethink, consult with anybody he wanted to about that retirement. He did not. It was simply a well-thought-out, well-considered decision, based only upon, and singularly upon, plaintiff's feeling that he needed money. Plaintiff had freedom of choice. The factors generally looked at by a court in determining voluntariness are set forth in Parker v. Board of Regents, a Tenth Circuit case.

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Did the plaintiff have an alternative?

Yes.

He could

have and he did fight his termination. Did he have an alternative? Of course he did. He had counsel during the Civil Service Commission appeal, he had counsel during his criminal prosecution. Did anybody say to him, you have no alternative, you must do this? Absolutely not. There was no evidence of that at all. Did the plaintiff have time to choose? Was he under any time pressure? In this case, the evidence is to the contrary. Plaintiff took his time. It was not for approximately a month and a half after the termination the plaintiff elected to come into the fire department and sign the retirement documents. He had plenty of time to consider his options. He chose to seek a disability retirement. He chose in doing that to advise the pension board that he was disabled for the rest of his life. Nobody told him to do that. Those were his own words. His own writing. His own thoughts expressed on those documents. This is not a case, and there is no evidence to support a scenario where the employer offered the plaintiff a choice. Well, you can retire and we won't do a prosecution. You can retire and we won't report you to the authorities. Thus, imposing some kind of coercion, some outside pressure, from the

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employer. This is simply a case where plaintiff made a choice. Importantly to note, your Honor, I think is plaintiff has alleged only the coercion theory, if you will, of involuntariness. He has not claimed any misrepresentations were made to him, and if he does, the evidence simply does not bear that out. There is no evidence that anybody made any misrepresentations to him. The only representations made were from Karen McNeil as to the tax effects of a disability retirement. That is not a misrepresentation from the employer on a material fact causing plaintiff to submit his retirement. After all, he had come into the Denver Fire Department a month and a half after his termination with his decision to retire already made. I would like to turn, your Honor, now to what I call kind of an embedded retaliation case. And let me go back and finish my thought, please. Because plaintiff's retirement was voluntary, because, as we have stated in response to plaintiff's motion, that the failure to reinstate was not the product of age, but was the product of a disability retirement for which he could not be reexamined. The hearing officer correctly held that plaintiff could not be reinstated, and for that reason, the defendant submits it is entitled to a motion at the close of plaintiff's case as a matter of law. Turning, your Honor, to the retaliation claim. It is

Case 1:04-cv-01067-MSK-CBS
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff,

THE CITY & COUNTY OF DENVER, COLORADO, a municipal corporation,

REPORTER! S TRANSCRIPT TRIAL TO A JURY OF 8 - VOLUME VII

Proceedings before the HONORABLE ROBERT E. BLACKBURN, Judge, United States District Court for the District of Colorado, commencing at 8:35 a.m., on the 28th day of June, 2006, in Courtroom A701, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. APPEARANCES MARK E. BRENNAN, 7394 South Downing Circle West, Centennial, Colorado, appearing for Plaintiff. Suzanne M. Claar, Official Reporter 901 19th Street Denver, Colorado 80294-3589 (303)825-8874 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

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reiterate other than to state itTs clear from the decision of the hearing officer that he relied on the fact of plaintiff's disability, his inability to be a fireman for his ruling on reinstatement. The question of age only came into play with respect to the ability to be reexamined. Once there was a disability, that was the factor upon which the hearing officer relied, as did the commission. Thank you, your Honor. THE COURT: Reply, if any, by the plaintiff, Mr. Brennan. MR. BRENNAN: Briefly. The "but for" factor in the hearing officer and commission's decision to refuse to reinstate my client was his age. For the statute does not prohibit reinstatement of a firefighter who is younger than fifty and takes a disability retirement. The statute does not, by the way, prohibit reinstatement at all. It can only by its express terms prohibits reexamination, but if you adopt, for purposes of discussion, the court's construction, or I should say the hearing officer's construction, of that statute, the fact remains the hearing officer would have felt compelled to reinstate my client had he been younger than fifty. Therefore, it is a clear violation of the age act not

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to have reinstated him on that basis. Thank you. THE COURT: Thank you. With respect to this post-evidentiary Motion for Entry of Judgment as a Matter of Law by plaintiff on his age discrimination claim for failure to reinstate, I give both the plaintiff and the defendant credit for their mid-trial reasons, arguments and authorities, as well as the reasons, arguments and authorities now urged in support of or opposition to this motion. I adopt the same standards of analysis that I did during my mid-trial review of similar motions, and with those standards in mind, I continue to find that genuine issues of disputed material fact exist, which continue to preclude the entry of judgment as a matter of law, and preserves the resolution of these issues for the trier of fact, this jury. Therefore, it is ordered that the plaintiff's post-evidentiary Motion for Entry of Judgment as a Matter of La on its ADEA claim for failure to reinstate is respectfully denied. Further post-evidentiary matters by the plaintiff, Mr. Brennan? MR. BRENNAN: No, your Honor. Thank you. THE COURT: Transitioning to the defendant, post-evidentiary matters by the defendant, Mr. Wesoky.

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MR. WESOKY: Thank you very much, your Honor. With respect to the defendant's post-evidentiary Motion for Judgment as a Matter of Law under Rule 50, I had intended to move the court for judgment as a matter of law on the failure to reinstate claim, but however based on your Honor's ruling, I might be slow, but I am not that slow, I will not address that portion. THE COURT: Thank you. MR. WESOKY: I would like, however, to address the ADEA claim as to the termination portion of plaintiff's claim. THE COURT: Thank you, and you may. MR. WESOKY: May I address the court from the podium? THE COURT: You may, and thank you, counsel. MR. WESOKY: Thank you, your Honor. May it please the court. THE COURT: Thank you. MR. WESOKY: The evidence is now fully in, and the evidence shows the following: All people involved in the termination, be it one who investigated, one who recommended, one who decided, were all older. As I stated in the motion at the close of plaintiff's case, that is an important factor to be considered. Secondly, using your Honor's order on summary judgments, your Honor had raised a question as to whether that was a factual issue with respect to whether Chief Hart withheld