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

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

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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.

P AN IFSR P Yto D F N A TSR S O S t P AN IFS AMENDED L ITF ' E L E E D N ' E P N E o L ITF ' MOTION PURSUANT to Fed.R.Civ.P. 15(b) and 16(e) to AMEND PRETRIAL ORDER to CONFORM to THE EVIDENCE and/or PREVENT MANIFEST INJUSTICE

Plaintiff William R. Cadorna hereby replies to Defendant City and County of D n e'( ee d n"" e v ro " i"R s o s t Pa t 'Amended Motion e v r " fn a t D n e" rCt ) e p n e o lnis s D , y if f Pursuant to Fed.R.Civ.P. 15(b) and 16(e) to Amend the Pretrial Order to Conform to the Evidence and/or to Prevent Manifest Injustice: 1. D fn a t se tep i o Pa t 'rln eu o F dRCv . 5b ee d n mi s h o t f lnis ea c p n e ..iP 1 () s n if f i .

to support his Amended Motion to Amend. 2. Defendant expressly and impliedly consented to the submission to the jury

of the question of willful age discrimination. Not once during any phase of pretrial proceedings or the trial itself, including during the jury instruction conference, did Defendant object to instruction of the jury on willful age discrimination, except to state its

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disingenuous position that liquidated damages may not be assessed against a municipality because they are tantamount to punitive damages. 3. Defendant first raised its objection to an award of liquidated damages or

f n p y nteb s o Pa t 'ae e w i r f u hc i p s r t a o h a i f lnis lg d a e o s c lms o t o s if l f v a -trial. Therefore, had Plaintiff failed to include a claim for liquidated damages or front pay in lieu of reinstatement in any of his complaints or other pleadings, this Court would nevertheless be required to treat those pleadings as amended to include such claims. Brandon v. Holt, 469 U.S. 464, 471 (1985); Green Country Food Market v. Bottling Group, 371 F.3d 1275, 1280-81 (10th Cir. 2004); Rios v. Bigler, 67 F.3d 1543, 1551-52 (10th Cir. 1995); Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456-57 (10th Cir. 1982). 4. Plaintiff included quite explicit claims for liquidated damages and front pay

or other relief in lieu of reinstatement in his complaints. Therefore, Plaintiff does not require retrospective amendment of his complaints, unless this Court reads them to be in any way deficient in stating such claims. If so, his Motion to Amend should be treated as encompassing a motion under Fed.R.Civ.P. 15(b) to amend his complaints to include claims under for liquidated damages and front pay. T tie tn, lnis i t nt o h x tPa t 'cai o s e if to f F dRCv . 5b ma b v w da a"o s k e i me s r" e ..iP 1 () y e i e s h u e e p g a ue. . e n 5. However, th e s ni p i o Pa t 'cai t F dRCv . 5b i e se t l o t f lnis i t n o e ..iP 1 ()s a n if to f .

that, even if Plaintiff had failed to state a claim for liquidated damages explicitly in his complaints or tePer l re, ee d n'e pe s implied consent to submission h rta O d rD fn a t x rs or i s of the question of willful age discrimination to the jury would require this Court to treat

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Pa t 'p a i s sn l i a express claim for liquidated damages, and to enter lnis l d g a i u n n if e n f cdg judgment granting liquidated damages. 6. If this Court would be required by Fed.R.Civ.P. 15(b) to enter judgment for

liquidated damages in those circumstances (in which Defendant might more legitimately h v c i dta i a mie f m tei e t nc n en gPa t 'c i fr a e lme h t w s s d r h n pi o c ri lnis lm o a t l o c o n if a f liquidated damages), it would be manifestly unjust to deny Plaintiff liquidated damages or front pay in the circumstances that actually exist. Fed.R.Civ.P. 16(e); Green Country Food Market v. Bottling Group, 371 F.3d 1275, 1280-81 (10th Cir. 2004); Portis v. First National Bank, 34 F.3d 325, 331-32 (5th Cir. 1994); Frank Music v. MGM, 772 F.2d 505, 515 (9th Cir. 1985); Sauers v. Alaska Barge and Transport, 600 F.2d 238, 244 (9th Cir. 1979); Stewart v. Shelby Tissue, 189 F.R.D. 357, 360-61 (W.D.Tenn. 1999). 7. Pa t 'pleadings clearly stated a claim for liquidated damages and front lnis if f

pay. His mere omission of the precise tr " u ae d ma e " rf n p ynlu ems l i td a g s o "o t a i i i d q r e o ri ttme t( r o rlf fe s e n"f ms fee either required by statute upon a finding of willful age na o i discrimination or known by Defendant to be an equitable alternative to reinstatement) from the Final Pretrial Order in no way misled Defendant concerning the claims it faced. T e i va lf wb s tt f m af d go " iu d ci n t n w i w s u e h yn i b l y t ue r et yo a o i i fwl l i r ai , h h a q i nn l " s mi o f c t clearly described in the Final Pretrial Order. 8. That is, of course, why Defendant failed to object to instruction of the jury

on willful age discrimination. Until it started scrambling after trial for grounds, however

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tenuous, upon which to reduce its financial exposure1, Defendant and its counsel never doubted that it faced possible liability for willful age discrimination, liquidated damages, or front pay in lieu of reinstatement. 9. D fn a t e p rc u s l fir t o j toi t co o tej y n ee d n' x et o n es aue o b c t n r t n fh u o s ' l e su i r

willful age discrimination on the basis that Plaintiff had allegedly waived such a claim was no oversight. It was instead guided by their belief at the time that there was no reasonable, good faith basis for such an objection.2 10. A n tdi Pa t 'Moi t A n , n e tev r a s oe n lnis t n o me d u d rh ey uthorities upon if f o

w i D fn a tee , ee d n'o nfir t o j t teFinal Pretrial Order or at h h ee d n rls D fn a t w aue o b c i h c i s l e n trial to submission of the question of willful age discrimination to the jury waived D fn a t r h t o j toe t o j g n fri i tddamages. Youren v. Tintic ee d n' i to b c t nr f d me to lu ae sg e y u qd School District, 343 F.3d 1296, 1304-05 (10th Cir. 2003). See, also, McGinnis v. Ingram Equipment Co., 918 F.2d 1491,1494 (11th Cr1 9 ) ee s b s do p i is aue i 9 1( fn e a e n ln f fir . d a t' l f to state a claim was waived on appeal, in part because it was not raised in pretrial order); Canal Insurance Co. v. First General Insurance Co., 889 F.2d 604,609 (5th Cir. 1989)(trial court did not abuse discretion when it refused to consider a defense based on insurance policy exclusion because it was not raised in the pretrial order); Hotel Emp., et al., Health Trust v. Elks Lodge 1450, 827 F.2d 1324,1328-29 (9th Cir.

1

Including, paradoxically, by retaining outside counsel at, presumably, $350+/hour for Mr. Barkley and $ 5 /o ro A s Ct Atre J c We o y rc nl 2 0h u fr st i t n y a k s k' e e t-admitted son. . y o s y 2 The daunting prospect of a judgment for no less than $1.22 million (and having to explain to the City Council and Mayor why a case they routinely belittled and made no serious effort to settle may in the end cost the taxpayers well over $1.5 million) has apparently altered their perception of reality, and impaired their legal judgment.

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1987)(trial court properly refused to consider equitable defenses not raised in pretrial order). 11. Tellingly, Defendant fails, notwithstanding its access to the entire trial

transcript, to identify any point at which it objected to instruction of the jury on willful age discrimination on the basis that Plaintiff had allegedly failed to preserve such a claim. That is because it cannot. 12. Tellingly, Defendant does not--and cannot--contest in any way that it was

required to object in the Pretrial Order, or at trial, to submission of the question of willful age discrimination to the jury, but failed to do so. 13. Tellingly, Defendant makes no attempt to explain or excuse its failure to

object in the Final Pretrial Order, or at trial, to submission of the question of willful age discrimination to the jury. 14. Nor does Defendant dispute the importance of the requirement that it

object in the Final Pretrial Order or at trial to submission of the question of willful age discrimination to the jury, or the significance of its failure to comply with that requirement. 15. Th C ut rc g i na da c pa c ta Pa t s ce s l s td i o rs e o n i n ce tn e h t lni u c sf l t e s ' t o if f uy a

and preserved a claim for willful age discrimination, and, therefore, for liquidated damages, was reflected in its approval and preparation of a jury instruction and verdict fr c n en gtej y d tr n t no w eh r ee d n'a ed ci n t ni om o c ri h u ' eemi i f h te D fn a t g i r ai n n rs ao s s mi o terminating or refusing to reinstate Plaintiff was willful.

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16.

In effect, Defendant dares to ask this Court to declare itself either mentally

or legally incompetent, or both, by admitting that it only imagined, or mistakenly concluded, that Plaintiff had properly preserved a claim for willful discrimination without objection from Defendant. 17. D fn a t s g e t nta Pa t 'Moi b d n db c u ePa t ee d n' u g so h t lnis t n e e i e a s lni s i if f o e if f

" k s oatmp t e p i o e c s h fir t rq e t i i tdD ma e i te ma e n t e to x ln r xu e i aue o e u s L u ae a g sn h a s l qd Final Prer l re"or impliedly admits that he failed to claim liquidated damages or ta O d r i , front pay in the Pretrial Order, is utter nonsense. 18. Plaintiff has quite expressly denied that he failed to comply with the

requirement that he set forth his claims in the Pretrial Order, and has recited in exhaustive detail the numerous places in which he expressly claimed liquidated damages and front pay in his pleadings, and expressly claimed willful age discrimination and reinstatement or other relief in lieu of reinstatement, in the Final Pretrial Order. 19. The more telling, and actual, omission is Defendant'continuing, and s

quite assiduous, avoidance of any acknowledgement or discussion of the requirements of Fed.R.Civ.P. 54(c):E c p a t tep r a a s w o aj "xe t s o h at g i t h m u y n dgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rn ee ie te , v ni h p r h s o d ma d ds c rlf tep r ' e d rd s ni d e e f e at a n t e n e u h ee i h ats t l t y i n y p a i s This rule clearly obviates denying Plaintiff any remedies to which he is l d g. e n " entitled for any claims for relief he properly asserted and preserved in his pleadings and in the Final Pretrial Order, and proved at trial.

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20.

Again, Defendant deliberately conflates the reasonable requirement

(reflected in Fed..iP 1 a d2 )h t at s o o eaea c ri t " es ot g RCv . 6 n 6 ta p re n t p rt cod g o t p rn . i n h i te r o j te b a s rn claims for relief at the last moment with an illusory h oy f sc " y set g ui i requirement that all possible forms of relief for violation of a federal statute be stated in the pleadings, including the Pretrial Order, or forever be waived. 21. Again, this is simply not the law. Anderson v. Phillips Petroleum Co., 861

F.2d 631, 638 (10th Cir. 1988)(rejecting, in reliance upon Fed.R.Civ.P. 54(c), the d fn a t c ne t nta teplaintiff was not entitled to front pay because plaintiff did ee d n' o tni h th s o not request reinstatement in his pleadings). 22. Smir , ee d n'rln eu o Koch v. Koch Industries, 203 F.3d i l l D fn a t ea c p n ay s i

1202 (10th Cir. 2000) is quite misplaced, as it is highly distinguishable. In Koch, the Tenth Circuit confronted a case in which no formal motion to amend the pretrial order was ever made. The case was an enormously complex commercial case that went to trial thirteen years after it was filed, and in which numerous pretrial orders were exchanged. The accounting evidence the plaintiffs sought to present at trial was of a sort that the defendants had no reason to anticipate would be offered at trial because it had been excluded by a motion in limine. The Tenth Circuit found that the defendants would have been badly prejudiced by being deprived of the opportunity to prepare and present countervailing evidence at trial. See, also, Davey v. Lockheed-Martin, 301 F.3d 1204 (10th Cir. 2002)(refusal to permit last-minute amendment of pretrial order to add affirmative defense an abuse of discretion).

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23.

In the instant case, Defendant can point to no prejudice that it may have

suffered because the Final Pretrial Order did not explicitly state that Plaintiff sought " u ae d ma e " rf n p y. l i td a g s o "o t a " i d q r 24. Defendant was, unlike the defendants in Koch, on clear notice that it was

accused of willful age discrimination, and had a full and fair opportunity to present any and all evidence it might offer to rebut that claim. Defendant has identified no evidence o a y i ta i o l h v ofrd b t i n t f rb c u ePa t " rl f n k d h t w u a e f e , u d o of , e a s lni mee " n t d e d e if f y claimed willful age discrimination in the Final Pretrial Order, and did not explicitly restate his claim for liquidated damages. 25. To the contrary, Defendant did everything in its power to persuade this

Court and the jury that any discrimination that occurred could not have been willful because it was allegedly undertaken quite innocently, in well-meaning compliance with tes t fei tr' ension statute. h t e i f hesp a rg 26. Though Defendant cannot identify anything it would have done differently

h dPa t n tmee " lme wl l g d ci n t ni teFn l rta O d r a lni o " rl c i d iu a e i r ai n h i Per l re, if f y a l f s mi o a i Defendant asserts, wholly without support in the record, that Plaintiff must have deliberately concealed its intent to seek front pay in lieu of reinstatement in order to induce sympathy on the part of the jury and lull Defendant into refraining from crossexamining Plaintiff more actively on the question of his desire to return to work. 27. Since front pay is an equitable remedy to be determined by the Court, it

never occurred to Plaintiff to request front pay from the jury. It would have been improper to do so. Moreover, had Plaintiff sought front pay in lieu of reinstatement from

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the jury, Defendant would undoubtedly have objected most strenuously, and this Court w u q i a po r tlh v b x dteu d ri e 'e r. o l u e p rpi e a e o e h n es n d as d t a y g s 28. T es c ry f lnis e i t rtr t w r i v wo h rte n h i ei o Pa t 'd s e o eun o okn i f i ei me t n t if f r e s r

was an issue about which Defendant had a full and fair opportunity to cross-examine Plaintiff, and about which Defendant did in fact cross-examine Plaintiff. 29. In any event, the sincerity of Pa t 's tddesire to return to work, i.e., lnis t e if a f

his subjective intent in requesting reinstatement, is quite irrelevant. This C ut o rs ' equitable determination of whether to reinstate Plaintiff, or grant him front pay notwithstanding Pa t 'sincere desire to regain the career taken from him, instead lnis if f h g s ntiC ut a s sme t f h te, i nD fn a t d mo s ae h sl i e o h o rs se s n o w eh rg e ee d n' e n t td o tt n s ' v s r iy i to Plaintiff and willingness to abuse its authority3 to effect his termination and prevent his reinstatement, reinstatement is inadvisable. 30. More than anything, Plaintiff wishes that the last four years of his life could

be given back to him, as though the nightmare to which the City callously subjected him had never occurred. He loved being a Denver Firefighter, and would love to have remained a Denver Firefighter. 31. However, the renewed spectacle of a lengthy parade of high City officials

testifying that they see nothing wrong in their persistent abuse of Plaintiff, and would do everything the same way all over again, left Plaintiff and his family quite reasonably concerned after trial that the City would make his life a living hell were he to return to the firehouse. That is why he requested front pay in lieu of reinstatement, as is his right
3

Including the expenditure of many hundreds of thousands of dollars in staff and attorney time to defend e e temo t d fn ied pi t no Pa t 'r hs vn h s i ee s l e r ai f lnis i t n b v o if g . f

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under the ADEA, and as Defendant knew he might from the inception of this litigation. If, however, this Honorable Court decides otherwise, Plaintiff will respect its decision, and once again wear the uniform of a Denver Firefighter with pride, and trepidation. WHEREFORE, Plaintiff respectfully requests that this Honorable Court order that the Pretrial Order be treated for all purposes as having been amended to include explicit claims for liquidated damages and front pay in lieu of reinstatement, and ga t lnis rn Pa t ' if f Motion for Entry of Partial Judgment for Back Pay and Liquidated Damages forthwith. DATED this 25th day of October, 2006. Respectfully submitted, /s/

Mark E. Brennan

Mark E. Brennan, P.C., #14012 P.O. Box 2556 Centennial, CO. 80161 Phone: (303) 552-9394 or 797-7687 Email: [email protected] ATTORNEY FOR PLAINTIFF Certificate of Service The undersigned hereby certifies that on this 25th day of October, 2006, he sent a copy of this Pa t 'Reply Brief in support of his Amended Motion to Amend Pretrial lnis if f Order to Conform to the Evidence and/or Prevent Manifest Injustice via electronic mail to the following person(s):
Christopher J. Lujan, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 Richard Barkley, Esq. Brownstein, Hyatt & Farber 410 17th St., 22nd Floor Denver, CO. 80202

/s/

Mark E. Brennan

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