Free 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.

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION AND SUPPORTING BRIEF FOR JUDGMENT AS A MATTER OF LAW DENYING ADEA CLAIMS ______________________________________________________________________ Plaintiff, William R. Cadorna ("Plaintiff" or "Mr. Cadorna") hereby responds to the December 11, 2006 Motion and Supporting Brief for Judgment as a Matter of Law ("motion") filed by Defendant City and County of Denver ("Defendant" or "City") pursuant to Fed.R.Civ.P. 50(b). Plaintiff responds to the motion as follows: I. INTRODUCTION The City moves for judgment as a matter of law on three all-too-familiar grounds already rejected by this Court in its June 8, 2006 Order on Cross-Motions for Summary Judgment, and, implicitly, by the jury: (1) The City did not violate the Age Discrimination Employment Act, 29 U.S.C. §§621-34 ("ADEA") because 29 U.S.C. §623(j) allegedly

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permitted the City to refuse to reinstate Mr. Cadorna even though he was younger than mandatory retirement age; (2) Even if the City did violate the ADEA when the Hearing Officer and Civil Service Commission refused to reinstate Mr. Cadorna because of his age, no liquidated damages should be awarded because its violation was not willful, as: (a) it allegedly relied in good faith upon state law allegedly prohibiting reinstatement of a firefighter over the age of 50 who has taken a disability retirement; (b) it allegedly relied in good faith upon an allegedly independent judicial determination of the City's obligation to reinstate Plaintiff under state law. II. THE CITY WAIVED ITS RIGHT TO MOVE FOR JUDGMENT AS A MATTER OF LAW ON THESE GROUNDS BY FAILING TO SO MOVE PRIOR TO SUBMISSION OF THE CASE TO THE JURY The City now moves pursuant to Fed.R.Civ.P. 50(b) for judgment as a matter of law on grounds it failed, in compliance with Fed.R.Civ.P. 50(a)(2), to argue or preserve before submission of the case to the jury. The City did not prior to submission of the case to the jury move for judgment as a matter of law in its favor on the basis of 29 U.S.C. §623(j). The City did not prior to submission of the case to the jury move for judgment as a matter of law in its favor on the question of willfulness or the question of liquidated damages on any basis, including that it allegedly relied in good faith upon state law allegedly prohibiting reinstatement of a firefighter over the age of 50 who has taken a disability retirement, or allegedly relied in good faith upon an allegedly independent judicial determination of the City's

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obligation to reinstate Plaintiff under state law. Moreover, the City did not object to instruction of the jury on willfulness on the basis that there was no evidence in the record to support such a finding, and did not move for judgment as a matter of law to that effect before the jury was excused. The City's failure to move for judgment as a matter of law on the grounds now asserted in its Motion for Judgment as a Matter of Law is fatal. The City's failure constituted a waiver under Fed.R.Civ.P. 50(b) of its right to request judgment as a matter of law, whether with respect to liability or damages, on any bases not asserted before the jury was excused. Marshall v. Columbia Lea Regional Hosp., ___ F.3d ___, 2007 U.S. App. LEXIS 389, 8-11 (10th Cir. 2007)(No. 05-2173); United International Holdings v. Wharf Holdings, Ltd., 210 F.3d 1207, 1228-30; Anderson v. United Telephone Co., 933 F.2d 1500, 1503-04 (10th Cir. 1991). The City's Motion for judgment as a matter of law must therefore be denied in its entirety, whether with respect to liability or the availability of liquidated damages. III. THE CITY NEVER REFUSED TO REINSTATE PLAINTIFF IN RELIANCE UPON 29 U.S.C. §623(j). THE CITY'S REFUSAL TO REINSTATE PLAINTIFF THOUGH HE WAS FAR YOUNGER THAN THE DENVER FIRE DEPARTMENT'S MANDATORY RETIREMENT AGE OF 65 WOULD NOT HAVE BEEN PROTECTED BY 29 U.S.C. §623(j), EVEN HAD IT INVOKED IT WHEN IT REFUSED TO REINSTATE HIM. Prior to the Civil Service Commission ("CSC") Hearing Officer's January 30, 2004 decision finding Plaintiff innocent of theft but refusing to reinstate or otherwise compensate him for his unlawful termination because he was over 50, and the CSC's May 20, 2005 decision affirming the Hearing Officer's decision, the only party that referred to 29 U.S.C. §623(j) in any way, shape or form was Plaintiff. Time and again, 3

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Plaintiff argued quite passionately, in his post-hearing and appellate briefs, that the City's motion in reliance upon C.R.S. §31-30.5-705(1) to deny Plaintiff reinstatement must fail because it would violate the ADEA, and did not fall within the narrow exception, in 29 U.S.C. §623(j), permitting municipalities to establish mandatory retirement ages for police and firefighters. These arguments were willfully ignored by the Hearing Officer, an alleged expert in employment law, who made no reference to 29 U.S.C. §623(j) [and must have forgotten about the Supremacy Clause, see, e.g., Lawrence County v. Led-Deadwood School District No. 40-1, 469 U.S. 256 (1985)], but instead relied upon state law, in refusing to reinstate or otherwise compensate Plaintiff for his unlawful termination. These arguments were ignored by the City Attorney, who relied, in his appellate brief to the CSC (Trial Exhibit 66, attached) upon state law and the alleged voluntariness of Plaintiff's retirement to foreclose his reinstatement, and made no mention of 29 U.S.C. §623(j). These arguments were likewise ignored by the CSC, which also made no mention of 29 U.S.C. §623(j) in its decision (Trial Exhibit 68, attached). In other words, the City's final policy-making officials did not rely upon the alleged "safe harbor" of 29 U.S.C. §623(j) to justify their refusal to reinstate Plaintiff. Yet, the City persists in attempting to mislead this Court into finding that 29 U.S.C. §623(j) forecloses a finding that the City's indisputably express reliance upon Plaintiff's age to deny his reinstatement was a willful violation of the ADEA. Apparently, in the parallel universe in which the City operates, the actual reasons that it refused to reinstate or

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otherwise compensate Plaintiff for his unlawful termination are of no consequence, so long as its artful counsel remain willing to insult the intelligence of this Court by persisting in claiming that reasons that played no role in the City's unlawful refusal to reinstate Plaintiff nevertheless supply a defense. This is particularly surprising, since this Court already disposed of this contention prior to trial, when it stated in its Order on Cross-Motions for Summary Judgment: "[i]f plaintiff's retirement was not voluntary, he would have been entitled to reinstatement, and defendant's now-defunct age restriction, which applies by its terms only to `original appointments,' would be inapplicable." This, by the way, is the law of the case. Unioil v. Elledge (In Re Unioil, Inc.), 962 F.2d 988 (10th Cir. 1992). The law of the case doctrine is a "restriction self-

imposed by the courts in the interest of judicial efficiency. It is a rule based on sound public policy that litigation should come to an end and is designed to bring about a quick resolution of disputes by preventing continued reargument of issues already decided." Fox v. Mazda Corp. of America, 868 F.2d 1190, 1194 (10th Cir. 1989) (citations omitted). The law of the case doctrine "encompasses a court's explicit decisions, as well as those issues decided by necessary implication." Williamsburg Wax Museum v. Historic Figures, Inc., 258 U.S. App. D.C. 124, 810 F.2d 243 (D.C. Cir. 1987) (citations omitted). The City's Motion for Judgment as a Matter of Law is the quintessence of "continued reargument of issues already decided." Since, however, the City insists upon "continued reargument of issues already decided", Plaintiff must reciprocate. Once again, 29 U.S.C. §623 sets forth in exhaustive detail those employment practices that are prohibited, or permitted, under

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the ADEA. In general, it is unlawful for a private or municipal employer to "limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. §623(a)(2). The ADEA contains explicit, narrowly drawn exceptions that permit age discrimination under very limited circumstances. For instance, the ADEA permits consideration of age when it is demonstrably a "bona fide occupational qualification", 29 U.S. §623(f)(1), or when age is a factor in a bona fide seniority system, unless the seniority system requires or permits the involuntary retirement of an individual because of his or her age. 29 U.S.C. §623(f)(2). The ADEA also permits the establishment of a uniform mandatory retirement age for firefighters and law enforcement officers. 29 U.S.C. §623(j). The mandatory retirement age for Denver Firefighters is sixty-five. Denver Muni. Code §18-572(a). Other than in conformity with a mandatory retirement age

established and applied in conformity with the strict terms of §623(j), a municipality may not discriminate against a firefighter by refusing to employ or reinstate him because of his age. Minch v. City of Chicago, 363 F.3d 615, 2004 U.S. App. LEXIS 6927 (7th Cir. 2004); Drnek v. City of Chicago, 192 F.Supp.2d 835 (N.D.Ill. 2002); See, also, Johnson v. City of Baltimore, 472 U.S. 353 (1985) and Public Employee Retirement System of Ohio v. Betts, 492 U.S. 158 (1989)(partially overruled by Older Workers Benefit Protection Act of 1990). The Hearing Officer's construction of C.R.S. §31-30.5-705 to prohibit Plaintiff's reinstatement because he was (at the time of the Hearing Officer's

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decision) fifty-one years old, fourteen years short of the mandatory retirement age, is a blatantly indefensible violation of the ADEA. So the jury found after due deliberation, and so must this Court rule. IV. DENVER FAILED TO ESTABLISH ANY COGNIZABLE AFFIRMATIVE DEFENSE UNDER THE ADEA. THE CITY AND CSC ARE THE SAME LEGALLY. THE CITY'S RELIANCE UPON STATE LAW TO REFUSE TO REINSTATE PLAINTIFF WAS IPSO FACTO WILLFUL. As amended by the Older Workers Benefit Protection Act of 1990, the ADEA sets forth 6 affirmative defenses in §4(f), 29 U.S.C. §623(f). Defendant failed to prove the affirmative defense of "good cause" for Plaintiff's discharge. As explained above,

Defendant did not, and may not, rely on "the terms of a bona fide seniority system", both because it waived its right to rely upon it to support its Motion, and because its elements are not satisfied. The only other ADEA affirmative defenses that Defendant's Motion might theoretically be construed to invoke (albeit tardily, having also waived them under Fed.R.Civ.P. 50, and therefore to no effect) are: (1) "BFOQ", that is, that Plaintiff did not meet a bona fide occupational qualification, or (2) reasonable factors other than age, in the form of state law or the CSC's interpretation, as the City's highest policy-making officials with responsibility for firefighter employment issues, of state law. The City failed entirely to meet the requirements of these affirmative defenses. Because the City's implicit or explicit reliance upon these defenses requires express acknowledgement that Plaintiff's age was a determinative factor in the City's refusal to reinstate Plaintiff, the City's inability to establish these defenses establishes beyond any

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peradventure that the City's refusal to reinstate Plaintiff constituted a willful violation of the ADEA. The City and the Civil Service Commission are One and the Same Legally: The City has for some time attempted to rely upon the legally insufficient fiction that it is legally distinct from the Civil Service Commission for purposes of assessing liability under the ADEA. It is only through this fiction that it can hope to sustain its argument that it is not liable for willful violation of the ADEA because it was the CSC, not the Denver Fire Department ("DFD"), that refused (at the DFD's request) to reinstate Plaintiff. This fiction is untenable. In Plaintiff's substantive due process action under 42 U.S.C. §1983, he could establish the City's municipal liability under that statute only by proof that a policy-making official of the City deprived him of his liberty interest in his career or reputation. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). Under §1983, there is no municipal

respondeat superior liability for the actions or omissions of a non-policy-making official. The City stipulated that the Civil Service Commission Hearing Officer and the Civil Service Commission were policy-making officials for the City for purposes of establishing liability under §1983, i.e., if their decisions violated substantive due process, the City was unquestionably liable to Plaintiff under §1983. The standard for municipal liability under the ADEA is not as high. Municipal liability under the ADEA can be established through application of traditional respondeat superior principles. Therefore, if the City could be held liable for the actions or

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omissions of the Civil Service Commission Hearing Officer and the Civil Service Commission under §1983, there is absolutely no question that it is likewise liable for their actions under the ADEA. Dolly v. Yeadon, 428 F.Supp.2d 278, 283-86 (E.D.Pa. 2006)(applying municipal liability principles under §1983 and ADEA). If the Denver Civil Service Commission Hearing Officer and the Civil Service Commission, as the final decision-makers for the City, expressly relied upon Plaintiff's age as grounds for refusing to reinstate or otherwise fully compensate him for his unlawful termination, they were not acting independently of the City; they were acting on behalf of the City, as a matter of law, Ibid, and the City is indisputably liable under the ADEA for their doing so. The City must, of course, be quite well aware that the alleged requirements of state law do not, under the Supremacy Clause, supply an affirmative defense to otherwise willful age discrimination. That is undoubtedly why it never until now asserted (and therefore waived under Fed.R.Civ.P. 50) what is tantamount to the affirmative defense of reliance upon state law, or upon the Civil Service Commission's erroneous interpretation and application of state law, as a "reasonable factor other than age". It is well established that, as Plaintiff has argued since 2003, the ADEA preempts any state statute that purportedly prohibits reinstatement of an unlawfully terminated firefighter because he is over 50, or any other statute or practice based on state or local law that conflicts with the ADEA. EEOC v. County of Allegheny, 705 F.2d 679, 682 (3d Cir. 1983); EEOC v. City of Altoona, 723 F.2d 4, 6-7 (3rd Cir. 1983); EEOC v. Massachusetts, 858 F.2d 52, 54 (1st Cir. 1988); EEOC v. Commonwealth of Massachusetts, 987 F.2d 64, 67-74 (1st Cir. 1993); EEOC v. City of Altoona, 723 F.2d 4,

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6-7 (3rd Cir. 1983); EEOC v. Marathon County, ___ F.Supp. ___, 1981 U.S. Dist. LEXIS 15705 (W.D. Wis. 1981). There is certainly no question that the final policy-making officials of the City who terminated or refused to reinstate Plaintiff did so with full knowledge of the existence of the ADEA and with full knowledge, as Plaintiff argued quite vehemently in CSC proceedings, of the risk that their termination of Plaintiff or refusal to reinstate him because of his age might violate the ADEA. Tracy Howard and Rod Juniel, the

Manager of Public Safety and the DFD Chief at the time of Plaintiff's termination, both testified that they knew at the time that age discrimination was against the law, and that Plaintiff was in the protected age group. There is likewise no question that the CSC hearing Officer and the CSC itself were fully apprised of their obligations under the ADEA, yet deliberately chose to ignore them. They instead willfully relied upon state law they knew to be preempted by the ADEA to refuse to reinstate or otherwise compensate Plaintiff for his unlawful termination because he was over the age of 50. It is impossible to imagine a more willful, bad faith violation of the ADEA. Age was not just the "predominant" factor in the City's refusal to reinstate or otherwise compensate Plaintiff. Anderson v. Phillips Petroleum Co., 861 F.2d 631 (10th Cir. 1988); Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544 (10th Cir. 1988). It was the express, principal, foremost reason, the direct and proximate cause. But for his age, the City would not have refused to reinstate or otherwise compensate Plaintiff for his unlawful termination. On grounds far less compelling or persuasive than this, the Tenth Circuit has endorsed

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a finding of willful age discrimination and award of liquidated damages. See, e.g., Minshall v. McGraw-Hill Broadcasting Co., 323 F.3d 1273, 1282-83 (10th Cir. 2003). V. The Evidence Overwhelmingly Supports the Jury's Finding that Plaintiff Did Not Retire Voluntarily, and that the City's Assertion that He Did Was in Complete Bad Faith This ground has also been plowed time and again, and remains barren. "To determine whether a retirement is voluntary, a court must examine the surrounding circumstances to test the ability of the employee to exercise free choice." Emerson v. Widnall, 104 F.3d 367, 1996 WL 733769 at *3 (10th Cir. Dec. 24, 1996) (citing Covington v. Department of Health & Human Servs., 750 F.2d 937, 941-42 (Fed. Cir. 1984)). There are a variety of circumstances that can vitiate that freedom, including duress or coercion, time pressure, and misleading information supplied by the employer. Id. Duress may result from wrongful action, such as discriminatory discharge. Id., citing Arneson v. Heckler, 879 F.2d 393, 396 (8th Cir. 1989). See also, Walker v. Mountain States Telephone, 686 F.Supp. 269 (D.Colo. 1988)(retirement in face of demotion is not voluntary); Whatley v. Skaggs, 508 F.Supp. 302 (D.Colo. 1981)(disability would not have occurred but for unlawful termination, hence not a bar to back pay), aff'd 707 F.2d 1129 (10 Cir. 1983); Mason v. Association for Independent Growth, 817 F.Supp. 550 (E.D.Pa. 1993)(citing Whatley v. Skaggs with approval); Stacey v. Batavia Local School District, 779 N.E.2d 216 (Ohio S.Ct. 2002)(unlawfully terminated bus driver did not waive right to reinstatement by retiring after termination); In re: Terebetski, 770 A.2d 756 (N.J.App. 2001)(disability retirement by police officers did not constitute voluntary retirement); Nix v. Dept. of Administration, 417 S.E.2d 823 (N.C.App. 1992)(disability

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retirement taken after notice of termination is "hardly a voluntary career change", 417 S.E.2d at 827). Here, Mr. Cadorna was terminated on January 2, 2003 as a result of a false allegation of shoplifting. Judge Criswell found that Mr. Cadorna's actions were not theft and the charge of "stealing" could not be sustained. The jury heard overwhelming evidence that the City's decision to terminate Mr. Cadorna based on the false allegation of shoplifting was a pretextual basis for terminating Plaintiff. There were several witnesses who testified to discriminatory conduct which Mr. Cadorna endured. (See testimony of Craig Hopp, Tr. 156:11-20, testimony of Jerome Fleming, Tr. 186:17-25, 187:1-18, testimony of William Cadorna, Tr. 777:24-25, 778:1-21, 781:3-9). The jury found credible evidence here that the City's actions were willful. The City obscures the fact that Mr. Cadorna's choice to retire was involuntary. Clearly, Mr. Cadorna would not have retired had he not been discriminatorily terminated. To the contrary, Mr. Cadorna would have continued to work for the City despite his modest hearing loss. (See Tr. 808:19-25, 809:1-19, 839:1-17, 842:6-13, 1010:7-12). Mr. Cadorna planned to retire from the City on his own time and intended to work for so long as he was able. (See Tr. 839:1-17, 1045:1-17). There was more than sufficient evidentiary basis for a reasonable jury to find that Plaintiff's retirement was not voluntary and that City willfully violated the ADEA by refusing to reinstate Mr. Cadorna in express reliance upon his age.

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WHEREFORE, for the reasons set forth above, this Court should DENY the City's Motion and Supporting Brief for Judgment as a Matter of Law and AFFIRM the jury verdict, including the full amount of liquidated damages awarded, in its entirety. Respectfully submitted this 31st day of January, 2007. MARK E. BRENNAN, P.C. /s/ Mark

E. Brennan

P.O. Box 2556 Centennial, CO 80161 (303) 552-9394 or (303) 797-7687 [email protected] ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 31st day of January, 2007, a true and correct copy of the foregoing RESPONSE TO MOTION AND SUPPORTING BRIEF FOR JUDGMENT AS A MATTER OF LAW was served via the CM/ECF system to the following: Richard P. Barkley Hamid M. Khan Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, Colorado 80202 Christopher M.A. Lujan Assistant City Attorney, Litigation Section 201 West Colfax, Department 1108 Denver, Colorado 80202 /s/ Mark E. Brennan

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