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

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

Document 176

Filed 08/25/2006

Page 1 of 8

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 YT D F N A TSR S O S T L ITF ' MOTION L ITF ' E L O E E D N ' E P N E OP AN IFS FOR ENTRY OF PARTIAL JUDGMENT FOR FRONT PAY IN LIEU OF REINSTATEMENT

Plaintiff William R. Cadorna hereby replies to Defendant City and County of D n e'( ee d n"" e v ro " i"A e v r " fn a t D n e" rCt ) ugust 7, 2006 R s o s t Pa t 'Moi s D , y e p n e o lnis t n if f o for Entry of Partial Judgment for Front Pay in Lieu of Reinstatement: I. DEFENDANT IGNORES FED.R.CIV.P. 54(c), WHICH REQUIRES PLAINTIFF BE GRANTED ALL RELIEF TO WHICH HE IS ENTITLED UNDER THE ADEA, EVEN IF HE DID NOT DEMAND SUCH RELIEF IN HIS PLEADINGS. D fn a t c nention that Plaintiff may not be awarded front pay in lieu of ee d n' o t s reinstatement because he did not i o etema iw rs " nn h t g od ,front pay in lieu of c reinstatement"in the Pretrial Order is frivolous. , Defendant ignores the requirements of Fed.R.Civ.P. 54(c): "xcept as to the E party against whom a judgment is entered by default, every final judgment shall grant

-1-

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

Document 176

Filed 08/25/2006

Page 2 of 8

the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relf tep r 'p a i s i i h ats l d g . en y e n " Defendant deliberately conflates the reasonable requirement (reflected in Fed.R.Civ.P. 16 and 26) ta p re n t p rt a c ri t " es ot gte r o h t at s o o eae cod g o t p rn h oy f i n h i j te, by asserting claims for relief at the last moment, with an illusory requirement ui" sc 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. 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 the plaintiff was not ee d n' o tni h t s o entitled to front pay because plaintiff did not request reinstatement in his pleadings). II. NO WAIVER BY PLAINTIFF OCCURRED. PLAINTIFF HAS EXPRESSLY CLAIMED FRONT PAY AS AN ALTERNATIVE TO REINSTATEMENT FROM THE BEGINNING OF THIS ACTION, IN THE PRETRIAL ORDER, AND THROUGH THE CLOSE OF TRIAL, WITHOUT OBJECTION BY DEFENDANT. Defendant cannot possibly claim unfair surprise or prejudice, for it has been aware from the inception of this action that Plaintiff sought reinstatement or front pay. Indeed, Plaintiff has never failed to claim reinstatement or front pay in any pleadings he h s id i l i tePer l re.Pa t 'it l y 5 2 0 C mp i , July 8, a f , c d g h rta O d r lnisn i, l nun e i i f i Ma 2 , 0 4 o ln f a at 2004 First Amended Complaint, and February 28, 2006 Second Amended Complaint all expressly demanded reinstatement, or front pay in lieu of reinstatement, in the Prayer for Relief. Pa t 'D c mb r , 0 4Ii l u 2 () ) i l ue i l e a lnis e e e 9 2 0 n i R l 6a( Ds o rsn u d n if f t a e 1 cs cd estimate of d ma e tru hPa t 'n r lei me t g o 6 . The December a g s ho g lnis oma rte n a e f 5 if f r 20, 2004 Proposed Scheduling Order signed by Asst. City Atty. Jack A. Wesoky included an estimate of d ma e tru hPa t 'n r lei me t g o 6 , as did a g s ho g lnis oma rte n a e f 5 if f r

-2-

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

Document 176

Filed 08/25/2006

Page 3 of 8

the December 27, 2004 Scheduling Order entered by Magistrate Judge Shaffer. (Scheduling Order, p. 11). Pa t '"e aaeE u rt no Ca "nteA r 1 , lnis S p rt n meai f lms i h pi 7 if f o i l 2 0 Fn l rta O d r e i :" ) 0 6 i Per l re b g s ( ADEA: Willful violation of the Age Discrimination a i n 1 in Employment Act, 29 U.S.C. §612, et seq., by terminating Plaintiff and refusing to reinstate him, or otherwise grant him full relief in lieu of reinstatement, for pretextual ra o s a di e pe s ea c u o h a e.(i l rta O d rp 3(emphasis e s n , n n x rs rln e p n i g " Fn Per l re, . ) i s a i added). The cases relied upon by Defendant are HIGHLY distinguishable, and show this Court it would abuse its discretion by denying Plaintiff front pay d s i Pa t ' e p e lnis t if f express demand for front pay (in the alternative) in all pleadings, including the Final Pretrial Order. In Wilson v. Muckala, 303 F.3d 1207 (10th Cir. 2002), the Tenth Circuit confronted a highly distinguishable situation in which a plaintiff asserted a claim for negligent infliction of emotional distress in her original complaint, dropped it from her amended complaint, did not plainly assert such a claim in the pretrial order, then sought a jury instruction, and obtained a jury verdict for, negligent infliction of emotional distress. The defendant complained that he was completely surprised that the claim rma e p ro tep i is a e e i d at fh ln f c s . n a t' f Unlike the instant case, the defendant in Muckala had good reason to believe ta ac i pe i s a s r dh db e do p d T eT nhCru s td " h t lm rv u l set a e n rp e . h e t i i t e :[W]e do a o y e cta not normally expect to see claims or defenses not contained in the pleadings appearing for the first time in the pretrial order, especially in such cursory form. Such a practice

-3-

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

Document 176

Filed 08/25/2006

Page 4 of 8

d pi s n 'a v ray fa n te p siy i o ey a dteo p r n y o e r e o e d es r o fi oi , o s ld c v r, n h p ot i fr v s r c b s ut motion practice, and is subject to abuse by those who employ a sporting theory of j te T el d b g a o F dRCv . 6t a o s rr e n to n i 3 3F3 u i . h a a l o l f e ..iP 1 o v i upi , o fme t . 0 .d sc u e . d s t " 1215-16. The court went on to state that an ambiguous pretrial order must be evaluated "o tx ay, n c ne t l"a dconcluded: " ul [T]he clear language of the amended complaint, coupled with the ambiguous language of the pretrial order, lead us to conclude that there was insufficient documentary support for the allegation of a claim of negligent infliction of emotional distress."303 F.3d 1216. It is apparent that, had the amended complaint in Muckala included an express claim for negligent infliction of emotional distress, the Tenth Circuit would have p r t dtej y v ri t s n , despite the ambiguity of the pretrial order. It is emi h u ' ed to t d t e rs c a therefore highly misleading to cite dicta from cases such as Muckala (to the effect that the pretrial order " supersedes" pleadings), for the untenably unjust proposition that, the even though Defendant knew from the inception of this case through the end of trial that Plaintiff sought front pay as an alternative to reinstatement, Plaintiff is foreclosed from seeking front pay because of an alleged ambiguity in the Final Pretrial Order. In Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir. 1997), the Tenth Circuit confronted another highly distinguishable situation in which an ADA plaintiff "a n t hd o ae e i e t n l i r n t ne h rnh c mp i o i teper l re"and held lg d n ni a d ci ai i e i i o ln rn h rta od r l t o s mi o t s at i , that the trial court did not abuse its d cei i c n e u nls in teA Ap i is i rt n n o s q e t tk g h D ln f s o y ri a t' f claim for compensatory damages. 118 F.3d at 1402-03. Because it construed the per l re t b d v i o a y e ci i o "c o i e t n l rn d i "a dt rta od ro e e o f n d sr t n fa t f tni a w o g o g, n o i d po s n o n

-4-

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

Document 176

Filed 08/25/2006

Page 5 of 8

contain only a claim of disparate impact, the plaintiff was foreclosed from seeking compensatory damages. 118 F.3d at 1403-04. Clearly, had the plaintiff in Tyler asserted claims of intentional discrimination in the pretrial order (as Plaintiff did in this case for reinstatement, or other relief in lieu of reinstatement), the Tenth Circuit would have upheld his right to seek relief in the form of compensatory damages. Hullman v. Board of Trustees, 950 F.2d 665 (10th Cir. 1991), upheld the trial c ut rfs l ao a§ 9 3f espeech retaliation plaintiff to assert, in defending o rs eu a t lw 1 8 r ' o l e against a motion for summary judgment, allegations of retaliation for accusations of financial mismanagement not recited in the pretrial order. Carbalan v. Vaughn, 760 F.2d 662 (5th Cir. 1985), upheld th ta c ut rfs l p r th p i i t a n e r lo rs eu a t emi e ln f o me d i ' o t at f his pleadings mid-trial to include a claim for declaratory or injunctive relief never before stated in any complaint or in the pretrial order. In both cases, the Court of Appeals was heavily influenced by the unfair surprise or prejudice the defendant suffered because of the great disparity between the claims against which it reasonably expected to defend at trial and those the plaintiff attempted to introduce at the last possible moment. Similarly, in Eads v. Unified School District, 184 F.Supp.2d 1122 (D.Kan. 2002), the court declined, in the midst of considering a motion for summary judgment, to allow amendment of the pretrial order under Fed.R.Civ.P. 16(e) to include a new claim under FERPA that had not previously been asserted in any pleadings. It found that the risk of unfair surprise and prejudice to the defendant posed by tardy addition of a new statutory c i w s oge th t o te h dtep i is o tni ta d n l f s lm a s ra ta i uw i e h ln f c ne t n h t e i o i motion to a t g a t' f o a t amend would be manifestly unjust. 184 F.Supp.2d at 1131.

-5-

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

Document 176

Filed 08/25/2006

Page 6 of 8

III.

PLAINTIFF PRESENTED MORE THAN SUFFICIENT EVIDENCE TO SUPPORT A FINDING OF HOSTILITY SUFFICIENT TO WARRANT AN AWARD OF FRONT PAY IN LIEU OF REINSTATEMENT. Plaintiff presented a wealth of persuasive evidence proving that Defendant:

terminated him in knowing reliance upon false allegations of a crime it had reason to know he did not commit; discriminatorily terminated him before knowing the outcome of the criminal case against him; abused its prosecutorial powers to attempt to secure his conviction with the aid of perjury and obstruction of justice; discriminatorily refused to reinstate him, even after it concluded that there was no evidence to support his termination, in express reliance upon his age and a known falsehood--that Plaintiff rte "r rod mi a . (See Trial Exhibits 63 and 68). The very people charged ei d pi t i s l r o s s" with protecting Plaintif r hs eeh ri ttd J me S s i , e uy n g r f f i t w r e e s e , a s e tc D p t Ma a e o ' g s na rh Public Safety Tracy Howard, Ma a e o P bc aey lnL C b ,h Ct Atre ' n g r f u l S ft Av a a e te i t n y i i y o s Office, and the Civil Service Commission, are the very people who have persecuted Plaintiff for so long. To be sure, Pa t 'c u s l lnis o n e was somewhat complimentary of Joe Hart, in his if f closing. C u s l s tme t w r n t v e c , u ag me t C u s l p ro ei o n es t e ns ee o e i n e b t ru n. o n es up s n ' a d ' portraying Hart in an ambiguous light was to overcome any positive feelings jurors might have toward Hart. Given the shockingly fawning opinion of Hart expressed by the Civil Service Commission Hearing Officer, counsel was sensitive to the need to avoid attacking Hart, who can be quite charmingly affable and is himself a skilled firefighter, too venomously. It might alienate some jurors. Nevertheless, counsel sought to portray Hart, and every level of Defend n'b ra ca y as complicit in a patently unlawful a t ue u rc, s

-6-

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

Document 176

Filed 08/25/2006

Page 7 of 8

c n p a y od s o Pa t 'c re because of his age. This could hardly be o s i c t e t y lnis ae r r r if f c aa tr e a a "n os me t h rc i d s n e d re n" ez ! Defendant bore the burden of proving that Plaintiff failed to mitigate his damages. Defendant presented little or no evidence in support of its contention that he did not. T ej y a po eli t c dwt rs e toPa t 'd t t mi aeh d ma e , h u w s rp r n r t i e p c t lnis uy o t t i a g s r y su e h if f i g s and clearly found, in the absence of any proof to the contrary by Defendant, that Plaintiff fulfilled whatever duty to mitigate his damages his particular circumstances (a lifelong firefighter terminated and publicly prosecuted for theft, and therefore foreclosed from further employment in his field) required. Defendant lost on this point, fair and square. That the jury was unimpressed by its argument on this point, or any other, supplies this C ut i n b s u o w i t n ly h j y v ri. o rwt o a i p n h h o ui te u ' ed t h s c l f rs c WHEREFORE, Plaintiff respectfully reque t ta tiH n rb C ut rn Pa t ' s h th o oa l o rga t lnis s s e if f Motion for Entry of Partial Judgment for Front Pay in Lieu of Reinstatement. DATED this 25th day of August, 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

-7-

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

Document 176

Filed 08/25/2006

Page 8 of 8

Certificate of Service The undersigned hereby certifies that on this 25th day of August, 2006, he sent a copy of this Pa t 'R p t D fn a t August 7, 2006 R s o s t Pa t ' lnis e l o ee d n' if f y s e p n e o lnis if f Motion for Entry of Partial Judgment for Front Pay in Lieu of Reinstatement via electronic mail to: Jack M. Wesoky, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202

/s/

Mark E. Brennan

-8-