Free Motion for Judgment as a Matter of Law - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. MOTION AND SUPPORTING BRIEF FOR JUDGMENT AS A MATTER OF LAW Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, Defendant, City and County of Denver, Colorado ("Denver"), by and through its counsel, hereby moves for judgment as a matter of law on the second claim of Plaintiff, William R. Cadorna ("Cadorna").1 The grounds for this Motion are twofold. First, the decision not to

reinstate Cadorna was not a violation of the Age Discrimination Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"), because 29 U.S.C. § 623(j) provides that age limitations in bona fide retirement plans for firefighters do not violate the ADEA. Second, the decision not to reinstate Cadorna was not willful because it was based on (a) Denver's good faith reliance on state law, which prohibited reinstatement of a firefighter over the age of 50 who had taken a disability retirement; (b) 29 U.S.C. § 623(j), which provides that age
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In its November 27, 2006 Order, the Court ruled that the evidence before the jury was sufficient to support a finding of willfulness (and by inference a finding of liability). (Order at 3.) Accordingly, Denver does not argue again that the evidence was insufficient to support both claims. Rather, Denver's argument is that as to Cadorna's second claim only, Denver did not violate the law, and did not act willfully, when it denied Cadorna's request for reinstatement.

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limitations in bona fide retirement plans for firefighters do not violate the ADEA; and (c) Administrative Law Judge Criswell's ruling that Cadorna's reinstatement would violate Colorado law. Because Denver ­ based on these statutes and judicial ruling ­ acted in good faith and had reasonable grounds for believing that its decision not to reinstate Cadorna did not violate the ADEA, Denver's decision was not willful as a matter of law, and Cadorna is not entitled to liquidated damages with respect to his failure to reinstate claim. This Motion is an alternative motion that arises only if the Court denies Denver's Motion and Supporting Brief for New Trial Because of Attorney Misconduct (the "New Trial Motion"). If the Court grants the New Trial Motion, this decision will become moot. D.C.COLO.LCivR 7.1 CERTIFICATION On December 4, 2006, Denver contacted counsel for Cadorna about this Motion. Cadorna's counsel stated that his client opposed the Motion. INTRODUCTION In this case, Cadorna alleged two claims under the Age Discrimination Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"): (a) a wrongful termination claim, and (b) a failure to reinstate claim. On June 29, 2006, the jury returned a verdict, in the amounts of $100,000 and $510,571 respectively, on Cadorna's first and second claim. The jury also found that both of Denver's violations of the ADEA were willful. On November 27, 2006, the Court entered judgment in favor of Cadorna. The judgment awarded Cadorna $610,510 in compensatory damages, and also awarded Cadorna an equal amount in liquidated damages. As shown below, the judgment of liability, and the award of $510,571 in compensatory damages and $510,571 in

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liquidated damages on Cadorna's second claim, cannot stand. Accordingly, Denver is entitled to judgment as a matter of law as to the total award on Cadorna's second claim. ARGUMENT I. DENVER'S DECISION TO REINSTATE CADORNA DID NOT VIOLATE THE ADEA. The ADEA protects employees who are 40 years of age or older from discrimination based on age. The ADEA has an express exception, however ­ a safe harbor ­ for employment actions made pursuant to a bona fide state or municipal retirement plan for firefighters or law enforcement officers. 29 U.S.C. § 623(j) provides that it "shall not be unlawful" for a municipality to refuse to hire an individual firefighter if he or she has attained the age of retirement pursuant to a bona fide retirement plan. (Emphasis added.) See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 68-69 (2000). Here, a bona fide retirement plan applied to Cadorna. The plan prohibits the employment of firefighters who are disabled ­ that is, who are physically unable to be a firefighter. See Colo. Rev. Stat. § 31-30.5-704-05. In March 2002, Cadorna retired as a firefighter pursuant to a disability retirement, that is, he was determined to be physically unable to be a firefighter. See Colo. Rev. Stat. § 31-30.5-705(1)(person is eligible for disability retirement if he or she is "physically disabled . . . to an extent whereby the member is unable to perform the member's duties."). To obtain reinstatement in 2004, therefore, Cadorna would have had to have been reclassified as not disabled. But under Colo. Rev. Stat. § 31-30.5705(5) ­ which also is part of Denver's pension plan ­ a firefighter who has retired pursuant to a disability retirement cannot be reexamined and reclassified once the firefighter reaches the age of 50. Cadorna was over the age of 50 at the time he sought

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reinstatement. To reexamine and reclassify Cadorna so that he would be eligible for reinstatement, therefore, would have violated Colorado law. Prior to trial, Denver moved for summary judgment on Cadorna's second claim, arguing that under 29 U.S.C. § 623(j), the refusal to reinstate Cadorna was not unlawful under the ADEA. The Court denied Denver's motion, ruling that a question of fact existed as to whether Cadorna's retirement was voluntary. (See Order re: Cross-

Motions for Summary Judgment ("Summ. J. Order") at 10-11; but see Judge Criswell's Findings, Conclusions and Decision ("Findings") at 21 (Cadorna "voluntarily elected to retire") (Ex. A).)2 The Court noted, however that Cadorna had the burden of

overcoming the presumption of voluntariness. (Summ. J. Order at 10 n.9.) See also Feldman v. Nassau County, 434 F.3d 177, 184 (2d Cir. 2006) ("Plaintiff bears the burden of establishing that a particular hiring plan is a subterfuge"). As a matter of law, Cadorna failed to overcome the presumption of voluntariness. Although Cadorna doubtless will argue that his retirement was not voluntary because it was due to "wrongful action, such as discriminatory discharge," Emerson v. Widnall, No. 95-6421, 1996 WL 733769, at *2 (10th Cir. Dec. 24, 1996)(Ex. B), such an argument misses the point. The prohibition against reinstatement did not arise because Cadorna retired. It arose because Cadorna requested and received a disability retirement (with all of the attendant tax advantages). (See Tr. 811:3-815:8 (Ex. C).) If Cadorna had accepted an age and service retirement, he would not have been prohibited from seeking reinstatement. See Colo. Rev. Stat. § 31-30.5-604(1). It was only because he
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The Court based its conclusion that the statutory bar would not apply if Cadorna's retirement was not voluntary on the fact that the age restriction applied only to original appointments. (Summ. J. Order at 11.) But the provisions relied on by Judge Criswell ­ Colo. Rev. Stat. § 31-30.5-705(5) ­ has no such language. 4

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applied for and received a disability retirement that he was prohibited from being reinstated. Colo. Rev. Stat. § 31-30.5-705(5). And Cadorna's selection of the type of disability was entirely voluntary; Cadorna, in essence, traded a reduction in taxes for the right to reinstatement.3 Accordingly, Cadorna failed to show that his termination was not voluntary, and the refusal to reinstate him was not unlawful under the ADEA. II. DENVER DID NOT ACT WILLFULLY IN DENYING REINSTATEMENT TO CADORNA BECAUSE DENVER HAD A GOOD FAITH BELIEF THAT COLORADO LAW PROHIBITED CADORNA'S REINSTATEMENT. The award of liquidated damages on Cadorna's second claim is likewise erroneous as a matter of law. A plaintiff is only entitled to liquidated damages for "willful" violations of the ADEA. 29 U.S.C. § 626(b) (2006). The touchstone of any award of liquidated damages is a finding that the defendant "willfully" violated the ADEA. 29 U.S.C. § 626(b). In order to prove willful discrimination, a plaintiff must establish through evidence the "employer either knew or showed reckless disregard" as to whether its conduct violated the ADEA. Trans World Airlines v. Thurston, 469 U.S. 111, 128 (1985); Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) (same). The Supreme Court has specifically rejected the suggestion that an employer acts willfully if it knew or should have known of the possibility that the employee involved was covered by the statutory provisions, concluding that such a definition "would result in an award of double damages in almost every case." Thurston, 469 U.S. at 127-28. Instead, the Court has held that if an employer acts in good faith and has reasonable grounds for believing that its actions are not violations of the ADEA, the

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Moreover, Cadorna's supposed disability was hearing loss, a disability that does not improve over time. Thus, Cadorna either was not eligible for reinstatement because he continued to be disabled, or he received a disability retirement under false pretenses. 5

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actions cannot be considered willful and the plaintiff will not be entitled to recover liquidated damages. Id. at 128 n.22. Similarly, the Tenth Circuit has expressly held that a plaintiff is not entitled to an award of liquidated damages under § 626(b) if the employer relies in good faith on an independent legal interpretation of state law in defending against a plaintiff's ADEA claims. EEOC v. Wyo. Retirement Sys., 771 F.2d 1425, 1431 (10th Cir. 1985). The Ninth Circuit likewise has held that an employer's good faith reliance on a judicial opinion that sanctions various age-related employment restrictions as a matter of law negates the conclusion that the employer acted willfully, and bars any award of liquidated damages under 29 U.S.C. § 626(b). See Baker v. Delta Air Lines, 6 F.3d 632, 644-645 (9th Cir. 1993). Here, it cannot be denied that Denver acted in good faith and had reasonable grounds for believing that its decision not to reinstate Cadorna was not a violation of the ADEA. First, Denver relied in good faith on an "independent interpretation of state law:" the ruling by Administrative Law Judge John Criswell that Cadorna was not eligible for reinstatement. On January 30, 2004, Judge Criswell ruled that Cadorna was not

entitled to reinstatement ­ indeed Cadorna could not be reinstated legally ­ because reinstatement under Cadorna's circumstances (where he was over 50 years of age and had retired on a disability retirement) was prohibited by state law. (See Findings at 2122 (Ex. A).) Judge Criswell ruled that because Cadorna sought and was granted

retirement, state law did not provide a mechanism for "un-retir[ing]" Cadorna. (Id. (citing C.R.S. § 31-30.5-604 (2003).) Further, Judge Criswell found that under Colorado law, because Cadorna had sought, and had been granted, disability retirement, he had to be re-examined and re-classified to return to work. (Id. at 22 (citing C.R.S. § 31-30.5-

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705 (2003).).

State law, however, prohibited members of certain groups, including

firefighters, from being re-examined and re-classified if the person was over the age of 50. (Id.) Accordingly, Judge Criswell concluded that these two state statutes prohibited Cadorna's re-examination and reinstatement. (Id.)4 Second, the ADEA contains a safe harbor provision, which 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). Because the statutory

provisions relied on by Judge Criswell were part of the retirement plan for Denver firefighters ­ a bona fide retirement plan that was not a subterfuge to evade the purposes of the ADEA ­ Denver acted in good faith in concluding that under § 623(j), Colorado's statutory provisions were valid under the ADEA, and actions taken in accordance with them were not violations of the ADEA. Accordingly, as a matter of law Denver did not act willfully in refusing to reinstate Cadorna. Wyo. Retirement Sys., 771 at 1431; Delta Air Lines, 6 F.3d at 644-645. In summary, therefore, Cadorna's failure to reinstate claim against Denver rested solely on its denial of Cadorna's demand to be reinstated. But the decision not to

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Cadorna has suggested, without any evidentiary support, that Judge Criswell was not acting independently, but was an agent of Denver. This suggestion ignores the fact that Judge Criswell ruled in favor of Cadorna on his wrongful termination claim. Moreover, it ignores the status and role of Administrative Law Judges. Numerous rules, statutes, and courts recognize and mandate 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 2 ("An Administrative Law Judge shall avoid impropriety and the appearance of impropriety in all activities"); id. Canon 3 ("An Administrative Law Judge shall perform the duties of the office impartially and diligently") (Ex. C).) 7

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reinstate Cadorna was based exclusively on the following: (1) Cadorna was more than 50 years of age and had retired on a disability retirement; (2) Colorado law, and Denver's retirement plan which incorporated the applicable provisions of Colorado law, prohibited reinstatement of a firefighter who both had retired pursuant to a disability retirement and was more than 50 years of age; (3) the ADEA contained a safe harbor provision stating that age limitations in a bona fide retirement plan for firefighters did not violate the ADEA; and (4) the Administrative Law Judge who heard Cadorna's appeal ruled that under Colorado law, Cadorna was not eligible for reinstatement. These

uncontested facts demonstrate that, as a matter of law, Denver's decision not to reinstate Cadorna was made in good faith and was not a willing violation of the ADEA. Accordingly, the award of liquidated damages on Cadorna's second claim was legal error and should be reversed. CONCLUSION For the reasons set forth above, if the Court denies Denver's New Trial Motion, Denver requests the Court to 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 Cadorna's second claim.

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Respectfully submitted this 11th day of December, 2006. BROWNSTEIN HYATT & FARBER, P.C. s/ Richard Barkley__________________ Richard P. Barkley Hamid M. Khan 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 s/ Christopher Lujan________________ Christopher M.A. Lujan, Esq. Asst. City Attorney, Litigation Section City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202 ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 11th day of December, 2006, a true and correct copy of the foregoing MOTION AND SUPPORTING BRIEF FOR RENEWED 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/ Melissa Brenneman______________ Melissa Brenneman

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