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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. DENVER'S REPLY BRIEF IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF LAW Denver has moved pursuant to Fed. R. Civ. P. 50(b) for judgment as a matter of law on Cadorna's second claim, alleging a failure to reinstate in violation of the ADEA. Denver's Motion is based on two grounds. First, Denver's decision not to reinstate Cadorna did not violate the ADEA, because the safe harbor for age limitations in a bona fide retirement plan for firefighters, set forth in of 29 U.S.C. § 623(j), applies to Cadorna. Second, the decision not to reinstate Cadorna was not "willful" because Denver, in good faith, relied on (a) state law; (b) the ADEA's safe harbor; and (c) the ruling of Administrative Law Judge Criswell that reinstating Cadorna would violate Colorado law. Cadorna has responded with a kitchen-sink approach, advancing every conceivable argument. Denver does not respond to the arguments that are facially meritless.1 The remainder are discussed below.

1

For example, Denver does not respond to Cadorna's argument that under the principle of respondeat superior Judge Criswell was not an independent decision-maker (Resp. at 8-9), since the independence of administrative law judges has nothing to do with who

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ARGUMENT I. DENVER PRESERVED ITS RIGHT TO MOVE FOR JUDGMENT AS A MATTER OF LAW ON CADORNA'S FAILURE TO REINSTATE CLAIM. Cadorna first argues that Denver waived its right to move for judgment as a matter of law under Fed. R. Civ. Rule 50(b) on the failure to reinstate claim because it failed to preserve its argument. Cadorna's claim of waiver is contrary to his other

arguments,2 and to the procedural history of this case. A Rule 50 motion for judgment as a matter of law is liberally construed for purposes of its renewal after the verdict and will be preserved "[a]s long as the trial court is aware of the movant's position." Aguinaga v. United Food & Comm. Workers Int'l Union, 993 F.2d 1463, 1470 (10th Cir. 1993). Here, that standard is easily met. To begin with, Denver argued mid-trial that the decision not to reinstate Cadorna "was not the product of age, but was the product of a disability retirement for which he could not be reexamined. [Judge Criswell] 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." (Tr.1156:18-24) (Ex. E). Additionally, Denver argued for judgment as a matter of law on the failure to reinstate claim both at the close of plaintiff's evidence and prior to submission of the evidence to the jury. (Tr.1153:191156:24; 1532:24-1533:8; 1535:2-7) (Ex. E). Although the Court ruled on the post-

their employer is. Similarly, Denver does not address Cadorna's repeated invocation of the Supremacy Clause to defeat Denver's reliance on state law (Resp. at 4, 9-10), because the ADEA exempts reliance on state law in 29 U.S.C. § 629(j).
2

Cadorna's argument that Denver waived its right to move for judgment as a matter of law based on § 623(j) because it failed to raise the issue at trial (Resp. at 2), is flatly contrary to his argument that Denver's § 623(j) defense is foreclosed by the law of the case doctrine which prohibits "reargument of issues already decided." (Resp. at 5.) 2

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evidentiary motions on reinstatement before Denver could formally assert its argument, (Tr.1534:11-16) (Ex. E), the Court gave both parties credit for all "mid-trial reasons, arguments and authorities." (Tr.1534:4-10) (Ex. E). Following the Court's ruling,

Denver's counsel noted the Court's decision and stated for the record Denver's intention to reassert its motion for judgment as a matter of law on the failure to reinstate claim. (Tr.1535:2-7) (Ex. E). Accordingly, the grounds for Denver's current Rule 50(b) Motion were raised, and acknowledged by the Court "before submission of the case to the jury." Fed. R. Civ. P. 50(a)(2). See Armstrong v. Federal Nat'l Mortgage Ass'n, 796 F.2d 366, 370 (10th Cir. 1986).3 II. DENVER'S DECISION NOT TO REINSTATE CADORNA DID NOT VIOLATE THE ADEA. In its Motion, Denver demonstrated that its decision not to reinstate Cadorna did not violate the ADEA because the decision was made pursuant to a bona fide state or municipal retirement plan for firefighters. (Mot. at 3-5.) See 29 U.S.C. § 623(j)(2). In Response, Cadorna argues that (1) § 623(j) is irrelevant because Denver did not rely on it in denying reinstatement; and (2) even if Denver did rely on § 623(j), the safe harbor did not apply because Cadorna's retirement was not voluntary. (Resp. at 3-5). Neither argument has merit. The first mischaracterizes the facts and prior proceedings, and misreads the ADEA. The second disregards the uncontested evidence to the contrary.

3

Because Denver preserved the issue of exemption from ADEA liability under § 623(j) ­ and because Denver was, in fact, exempt from ADEA liability under the safe harbor provision ­ Cadorna's argument that Denver failed to raise affirmative defenses to ADEA liability, (Resp. at 7-8), is immaterial. See Kopec v. Elmhurst, 193 F.3d 894, 902 (7th Cir. 1999) (where provisions of 29 U.S.C. 623(j) were met, city was not required to show that age was "bona fide occupational qualification" under § 623(f)(1)). 3

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A.

Cadorna's Argument that Denver Did Not Rely Upon § 623(j) of the ADEA in Deciding Not to Reinstate Him Lacks Any Support.

Cadorna asserts that Denver did not rely upon § 623(j) of the ADEA in determining that Cadorna could not be legally reinstated.4 Cadorna's contention is

astonishing in light of the overwhelming evidence to the contrary in this case's procedural history.5 In the administrative proceedings, Denver consistently maintained that Cadorna could not legally be reinstated due to state law rules governing his disability retirement. (See Resp't Manager of Safety's Answer Br. at 10-11, Trial Ex. 66; Judge Criswell's Findings, Conclusions and Decision ("Findings") at 21 (Ex. A to Mot.) ("[T]he Manager insists that, because Cadorna chose to retire, I lack the authority to require his reinstatement. I agree.").) Similarly, in proceedings before this Court

Denver relied on §623(j) to show that it had no liability to Cadorna. In its summary judgment papers, for example, Denver expressly argued that under § 623(j), the refusal to reinstate Cadorna did not violate the ADEA because of state law applicable to Cadorna's disability retirement. (City and County of Denver's Br. in Supp. of Mot. for Summ. J. at 24-25; see also Order re: Cross-Motions for Summ. J. ("Summ. J. Order") at 10 n.8). Finally, Judge Criswell's decision, which Denver indisputably relied on, held that Colorado law "positively prohibit[ed]" reinstatement of Cadorna, citing C.R.S. § 31-30.5-705 (2003) governing firefighters' disability retirements. (See Findings at 22 (Ex. A to Mot.); see also Mot. at 6-8).
4

Cadorna does not dispute Denver's reliance on Judge Criswell's Findings. Rather, Cadorna takes the position that Judge Criswell acted as Denver's agent. As shown below (see Section III, infra), Cadorna's position is erroneous.
5

Again, Cadorna's assertion is contrary to his Response. Cadorna contends that he "argued quite passionately" in administrative proceedings that his reinstatement "did not fall within" §623(j) (Resp. at 4), admitting that Denver was relying on that provision. 4

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Cadorna's argument also misconstrues the requirements of the ADEA. Denver did not have to rely expressly upon the safe harbor provision to avoid violating the ADEA in denying Cadorna's reinstatement. Section 623(j) provides, among other

things, that employment decisions made pursuant to a bona fide state or municipal retirement plan for firefighters or law enforcement officers "shall not be unlawful." See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 68-69 (2000). Hence, the ADEA does not

require express reliance upon the safe harbor provision; rather, it requires good faith reliance upon state or local law "pursuant to a bona fide hiring or retirement plan" for firefighters. 29 U.S.C. § 623(j)(1), (2); see e.g., Feldman v. Nassau County, 434 F.3d 177 (2d Cir. 2006) (state statutory age restrictions on hiring of police officers exempt under § 623(j) because statute was not subterfuge to evade ADEA's purposes). There is no dispute that Denver's decision not to reinstate Cadorna was based on the state statutes prohibiting his reinstatement.6 B. Cadorna Did Not Rebut the Presumption That His Disability Retirement Was Voluntary.

In its pre-trial ruling on Denver's summary judgment motion, the Court ruled that a factual issue existed, for the jury's determination, as to whether Cadorna's retirement was voluntary. (See Summ. J. Order at 10-11). The Court noted that Cadorna was required to overcome the presumption that his retirement was voluntary. (Summ. J. Order at 10 n.9); see Emerson v. Widnall, No. 95-6421, 1996 WL 733769, at *3 (10th

6

Cadorna's related argument, that under § 623(j) Denver's refusal to reinstate him was unlawful, cites Denver's mandatory retirement age for firefighters of 65 and claims that because Cadorna was younger than 65, Denver violated the ADEA. (Resp. at 6-7.) This argument completely ignores the applicable provisions, which cover reinstatement following disability retirement. 5

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Cir. Dec. 24, 1996) (Ex. F) ("Absent evidence to the contrary, retirement is presumed to be a voluntary act" (internal quotations omitted).) Cadorna failed to rebut this presumption. Although Cadorna now argues that his retirement was not voluntary due to duress from his discriminatory discharge, his argument ignores the facts. Under state law, Cadorna was not eligible for reinstatement because he requested and received a disability retirement. (See Tr.811:3-815:8 (Ex. B to Mot.).) Cadorna's voluntary choice of a disability retirement triggered the provisions of Colorado law that prevented his reinstatement. Colo. Rev. Stat. § 31-30.5-705(5). Cadorna did not introduce evidence that his selection of a disability retirement was involuntary. Nor can he ­ testimony clearly established that he deliberately chose a disability retirement so that he would receive a more favorable tax treatment. (See Tr.811:3-815:8; see also Mot. at 4-5; Ex. B to Mot.). Cadorna's arguments ignore the undisputed fact that he, and he alone, made the voluntary choice, free from any duress, to select a disability retirement that provided him with substantial tax benefits but foreclosed the possibility of reinstatement.7 Having made that voluntary choice, he must now live with its consequences.

7

The cases involving disability retirement that Cadorna cites in support of his duress theory (Resp. at 11-12), have no bearing on the issue of whether Cadorna voluntarily selected a retirement package that precluded reinstatement. For example, In re Terebetski, 770 A.2d 756 (D.N.J. 2001), concerned a New Jersey state law which required reexamination upon request of a police officer under the age of 55 who retired due to a disability. That case did not involve a claim of duress and the court's distinction between "disability" and "voluntary" retirements, was specific to New Jersey law. Terebetski, 770 A.2d at 758. Likewise, Whatley v. Skaggs, 508 F. Supp. 302 (D. Colo. 1981), did not involve a claim of retirement under duress. And the court in Nix v. Department of Administration, 417 S.E.2d 823 (N.C. App. 1992), found that an employee had retired involuntarily when after being notified that he would be terminated, he took disability retirement "because he felt he had no other option available to him." 417 S.E.2d at 827. Here, by contrast, if Cadorna thought his denial 6

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III.

DENVER'S DENIAL OF REINSTATEMENT WAS NOT WILLFUL. A "willful" violation of the ADEA requires that an employer "do more than act

unreasonably; it must act with knowing or reckless disregard for the ADEA's requirements." Baker v. Delta Air Lines, Inc., 6 F.3d 632, 644 (9th Cir. 1993) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 n.13 (1988)). An employer's good faith reliance upon an independent legal opinion defeats a claim of willfulness. EEOC v. Wyo. Retirement Sys., 771 F.2d 1425, 1431 (10th Cir. 1985); Delta Air Lines, 6 F.3d at 645. Cadorna argues that Denver acted willfully because Judge Criswell was acting as Denver's agent and Denver's reliance on Judge Criswell's Findings was pretextual. (Resp. at 7-12). Neither argument has merit. First, Cadorna contends that Judge Criswell was not acting independently, but rather was acting on behalf, and as the agent, of Denver in issuing his January 30, 2004 ruling that Cadorna could not be legally reinstated under Colorado law. (Resp. at 9). Cadorna's unsubstantiated argument ­ which ignores such inconvenient facts as the fact that Judge Criswell ruled in favor of Cadorna on his wrongful termination claim (Findings at 22-23 (Ex. A to Mot.) ­ is contrary to numerous authorities that recognize the impartiality and independence of administrative law judges. See, e.g., Code of Colorado Regulations Canon 1, 1 CCR 104-2 ("An Administrative Law Judge shall uphold the integrity and independence of the administrative judiciary"; id. Canon 3 ("An Administrative Law Judge shall perform the duties of the office impartially and diligently") (Ex. C to Mot.). was improper, he had other options available to him ­ including an age and service retirement ­ that would not have foreclosed the possibility of reinstatement when he was vindicated. See Colo. Rev. Stat. § 31-30.5-604(1). The other cases in Cadorna's string-cite are equally inapposite. 7

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It is indisputable that Denver relied upon the administrative law judge's independent legal opinion. Cadorna did not present any evidence at trial to show that Denver did not rely upon Judge Criswell's Findings. Moreover, this Court acknowledged Denver's reliance on state law and the safe harbor of § 623(j) in its Order Re: CrossMotions for Summary Judgment. (Summ J. Order at 10 n.8). Judge Criswell's decision expressly found that Cadorna could not be reinstated legally due to his disability retirement where he was over the age of 50. (See Findings at 21-22 (Ex. A to Mot.).) The decision specifically cited Colorado statutory provisions that create a retirement plan for Denver firefighters. (Id.) The ADEA provides that a state or municipality may "fail or refuse to hire" a firefighter based on his age if the decision is made "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of the ADEA." 29 U.S.C. § 623(j)(1), (2). The

provisions relied upon by Judge Criswell in his independent legal interpretation and subsequently relied on by Denver constitute a bona fide retirement plan that is not a subterfuge to evade the purposes of the ADEA.8 Thus, Denver's actions satisfied

§ 623(j) of the ADEA and its good faith reliance upon Judge Criswell's opinion established as a matter of law that Denver did not act "willfully." Wyo. Retirement Sys., 771 F.2d at 1431; Delta Air Lines, 6 F.3d at 644-45.9

8

Cadorna presented no evidence at trial to show that Denver's retirement plan was not a bona fide plan under the provisions of the ADEA.
9

Cadorna claims that the grounds for willful discrimination asserted in Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273 (10th Cir. 2003), in which the Tenth Circuit upheld a liquidated damages award under the ADEA, were "far less compelling or persuasive." (Resp. at 11) (emphasis in original). Minshall has nothing to do with this case. In Minshall, the defendant argued that it had a good faith belief that its decision not to renew its employee's contract was lawful because the employee never 8

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CONCLUSION For the reasons set forth above and in the Motion, if the Court denies Denver's New Trial Motion, Denver requests that the Court rule that as a matter of law and undisputed evidence, Denver's decision not to reinstate Cadorna was not unlawful under the ADEA, was made in good faith, and was based on a reasonable belief that the decision did not violate the ADEA. Denver further requests the Court to direct entry of judgment as a matter of law on Cadorna's second claim, and to reduce the judgment by $1,021,142, the amount of compensatory and liquidated damages awarded on the second claim. Respectfully submitted this 23rd day of February, 2007. BROWNSTEIN HYATT FARBER SCHRECK, P.C. By: _s/ Richard P. Barkley_________ Richard P. Barkley James S. Hardy 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202-4437 (303) 223-1100 s/ Christopher M.A. Lujan____________ CHRISTOPHER M.A. LUJAN Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 (720) 913-3100 ATTORNEYS FOR DEFENDANT complained that the employer was discriminating against him. 323 F.3d at 1283. Moreover, another of the defendant's employees testified that she had been instructed not to hire anyone under the age of 40 to replace the plaintiff. Id. The lack of similarity between Minshall and this case, where Denver relied on an independent interpretation of state law and no such damning evidence was present, is clear. 9

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 23rd day of February, 2007, a true and correct copy of the foregoing DENVER'S REPLY BRIEF IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF LAW was served via the CM/ECF system to the following: Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Email: [email protected] s/ Richard P. Barkley_________ Richard P. Barkley

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