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 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 BACK PAY AND LIQUIDATED DAMAGES

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 Back Pay and Liquidated Damages: 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 ne t nthat Plaintiff may not be awarded liquidated damages ee d n' o tni s o because he did not i o etema iw rs " nn h t g od ,liquidated damages"in the Pretrial Order c , is frivolous. It reflects a degree of contempt for this Court far more serious than any fractious misconduct in which the undersigned engaged on the penultimate day of trial. C aa tr tay D fn a t a l b t c rg ld i e u u , o n e h rc ii l, ee d n' b , u i or iy in n o s c u s l e sc l s e n ib s g completely ignore the requirements of Fed.R.Civ.P. 54(c): "xe t s otep r E c p a t h at y

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against whom a judgment is entered by default, every final judgment shall grant 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 that the plaintiff was not ee d n' o tni s on entitled to front pay because plaintiff did not request reinstatement in his pleadings). II. NO WAIVER BY PLAINTIFF OCCURRED. PLAINTIFF HAS EXPRESSLY CLAIMED WILLFUL AGE DISCRIMINATION AND LIQUIDATED DAMAGES, 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 liquidated damages for willful violation of the ADEA. Indeed, Plaintiff has never failed to claim willful age discrimination in any pleadings he has filed, including the Pretrial Order. Paragraphs 1 1a d1 5o Pa t 'it l y 5 2 0 C mp i , and of Pla t 'J l8 2 0 0 n 0 f lnisn i, i f i Ma 2 , 0 4 o ln f a at i is u , 0 4 nf f y First Amended Complaint, expressly alleged willful age discrimination. Paragraphs

1 5 1 4 1 7a d1 8o Pa t 'S c n A n e C mp i e pe s ae e 2 , 3 , 3 n 3 f lnis e o d me d d o ln x rsl lg d if f at y l willful age discrimination. Each complaint included an express demand for liquidated d ma e i tePa e fr ee.Pa t 'D c mb r , 0 4Ii l u 2 () ) a g sn h ry ro R lf lnis e e e 9 2 0 n i R l 6a( i if f t a e 1

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Dsl ue i l e a e t t o "D AL u ae D ma e "(. 0 T e i o rsn u d n smae fA E i i td a g s.p 1 ) h cs cd i qd December 20, 2004 Proposed Scheduling Order signed by Asst. City Atty. Jack A. We o y p 1 )n l e a e t t o "D AL u ae D ma e "p 1 )a d te s k (. 9 i u d n smae fA E i i td a g s (. 2, s i h cd i qd d December 27, 2004 Scheduling Order entered by Magistrate Judge Shaffer. (Scheduling Order, p. 12) 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 2006 Fn l rta O d r e i :" ) 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. e s n , n n x rs rln e p n i g " Fn Per l re, . ) i s a i The cases relied upon by Defendant are HIGHLY distinguishable, and show this Court it would abuse its discretion by denying Plaintiff liquidated damages despite Pa t 'express allegation of willful age discrimination in the Final Pretrial Order. lnis if f 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 that a claim previously asserted had been dropped. The TenhCru s td " t i i t e :[W]e do cta not normally expect to see claims or defenses not contained in the pleadings appearing

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for the first time in the pretrial order, especially in such cursory form. Such a practice d pi s n 'a v ray fa n te p siy discovery, and the opportunity for e r e o e d es r o fi oi , o s l v s r c b 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 n l e :[T]he clear language of the amended complaint, coupled c ne t l"a d o c d d " ul u 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 permittdtej y v ri t s n , despite the ambiguity of the pretrial order. It is e h u ' ed to t d 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 liquidated damages, Defendant may escape liability after issuance of a jury verdict of willful age discrimination 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 alleged intentional discrimination either in his co ln o i teper l re"and held mp i rn h rta od r at i , that teta c ut i n t b s i d cei i c n e u nls in teA Ap i is h r lo rd o a u e t i rt n n o s q e t tk g h D ln f i d s s o y ri a t' f

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claim for compensatory damages. 118 F.3d at 1402-03. Because it construed the pretrial order to be devoid of any desr t no "c o i e t n l rn d i "a dt ci i fa t f tni a w o g o g, n o po s n o n 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 willful age discrimination), 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 es e c rtlt np i i t a s r i d fn i o rs eu a t lw 1 8 r p e h eaai ln f o set n ee d g ' o l e io at f , n 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), p e teta c ut rfs l p r th p i i t a n u h l h r lo rs eu a t emi e ln f o me d 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

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claim was so great that it outwe h dtep i is o tni ta d n l f s t nt i e h ln f c ne t n h t e i o i moi o g a t' f o a t o amend would be manifestly unjust. 184 F.Supp.2d at 1131. III. " A C F RT EG O E , r HANGED BY ITS OWN PETARD" S U E O H O S "o " : DEFENDANT' F IU ET O J C U TLA T RT EV R ITT S AL R O B E T N I F E H E DC O P AN IFSC AM F LIQUIDATED DAMAGES ON THE GROUND IT L ITF ' L I OR WAS WAIVED IN THE PRETRIAL ORDER, OR CANNOT BE ASSERTED AGAINST A MUNICIPALITY, ITSELF CONSTITUTED WAIVER OF THAT OBJECTION AND AFFIRMATIVE DEFENSE, and IMPLIED OR EXPRESS C N E TT T ILO P AN IFSC AM F RLQUIDATED DAMAGES. O S N O RA F L ITF ' L I O I D fn a t R s o s oPa t 'Moi fr ee d n' e p n et lnis t n o Entry of Partial Judgment for Back s if f o Pay and Liquidated Damages represents the first time that Defendant has ever asserted ta Pa t 'ae ai o wl l g d ci n t ni teFn l h t lnis lg t n f iu a e i r ai n h i Pretrial Order was if l o f l f s mi o a insufficient to support his claim for statutorily-mandated liquidated damages.1 Therefore, under Fed.R.Civ.P. 16(e), and the precedents cited by Defendant in its Response, Defendant waived its right to challenge an award of liquidated damages to Plaintiff on that basis. Youren v. Tintic 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 auet s t ac i w s a ed on appeal, in i 9 1( fn e a e n ln f fir o t e lm a w i . d a t' l f a a v 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. 1987)(trial court properly refused to consider equitable defenses not raised in pretrial order).
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Defendant did, at one point in the jury instruction conference, assert for the first time its view that municipalities may not be held liable for liquidated damages because of their supposed punitive nature.

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Never, in its ans es oPa t 'trec mp i s i a y rta moi s o i w r t lnis he o ln , n per l t n , rn if f at n i o the Final Pretrial Order, did Defendant assert the affirmative defense that a municipality is exempt from liquidated damages under the ADEA. Therefore, under Fed.R.Civ.P. 8(c), Fed.R.Civ.P. 16(e), and the precedents cited by Defendant in its Response, Defendant waived its right to challenge an award of liquidated damages to Plaintiff on that basis. Youren v. Tintic School District, 343 F.3d 1296, 1304-05 (10th Cir. 2003). Defendant did n t b c t Pa t ' o teC ut, rf rdj yn t co o o o j to lnis rh o rs pof e u i r t n n e if, f ' e r su i willfulness on the ground that Plaintiff had waived his claim for liquidated damages. D fn a t i n t b c t tea ta i t co o tej y n" iu v l i o te ee d n d o o j to h c l s u t n fh u o wl l ia o fh d e u nr i r l " o tn f ADEA on the ground that Plaintiff had waived his claim for liquidated damages. Defendant never asserted until after trial that Plaintiff had waived his claim for liquidated damages. D fn a t c mp t fir t o j t i n t s w i i r h t o j to an ee d n' o l e aue o b c d o j t a e t i to b s e l e d u v sg ect award of liquidated damages to Plaintiff; it also constituted express or implied consent to amendment of the Final Pretrial Order (to the extent it did not expressly state a claim for liquidated damages) to include a claim for liquidated damages. Fed.R.Civ.P. 15(b); 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,

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244 (9th Cir. 1979); Stewart v. Shelby Tissue, 189 F.R.D. 357, 360-61 (W.D.Tenn. 1999).2 IV. D F N A TSC AM O E E TO A AMU IIA IYF O E E D N ' L I F X MP I N S NCP LT R M LIQUIDATED DAMAGES IS UTTER NONSENSE. As Defendant acknowledges, there is no authority whatever for its assertion that it is exempt from a claim for liquidated damages because it is a municipality. The very cases to which it refers, Cross v. New York City Transit Authority, 417 F.3d 241 (2d Cir. 2005) and Potence v. Hazelton Area School District, 357 F.3d 366 (3d Cir. 2004), are quite thorough and categorical in their rejection of such an exemption. See, also, Heller v. Elizabeth Forward School District, ____ F.3d ____, 2006 U.S. App. LEXIS 13547 (3rd Cir. 2006)(Unpublished); Titus v. Moon Area School District, ____ F.Supp.2d ____, 2006 U.S. Dist. LEXIS 11031 (W.D.Pa. 2006); Franz v. Kernan, 951 F.Supp. 159 (E.D.Mo. 1996). D fn a t a s ro ta A E liquidated damages are a proxy for ee d n' set n h t D A s i criminal liability is untenable. Congress rejecteda o t no teF S 'ci n l d pi fh L As r a o mi penalties by the ADEA. ADEA liquidated damages derive from teF S 'po io fr h L As rv i o sn civil liquidated damages, the only difference being that ADEA liquidated damages require willful discrimination. Ibid. V. PLAINTIFF PRESENTED MORE THAN SUFFICIENT EVIDENCE TO SUPPORT A FINDING OF WILLFUL AGE DISCRIMINATION 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

2

As a precaution against any possibility, however remote, that this Court might otherwise find merit in D fn a t p si , lni wlb s p rt moi (s e u e b Local Rules), move pursuant to ee d n' o i n Pa t i y e aae t n a rq i d y s t o if l f , o r Fed.R.Civ.P. 15(b) and 16(e) to amend the Final Pretrial Order to conform to the evidence or to avoid manifest injustice.

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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.). Having failed miserably to ei d pi t i s l r o s s" distract the jury from the obvious cravenness and illegality of its conduct, Defendant now seeks to retry the question of whether it willfully violated the ADEA. In Cross v. New York City Transit Authority, supra, 417 F.3d 241 (2d Cir. 2005), the Second Circuit held that subterfuge or procedural irregularity may evidence willful a ed ci n t n "h ce t no ac l l e s befg t s p ot na v re g i r ai :T e rai f a u td u tr e o u p ra d es s mi o o ca u employment action supports an inference that the employer knew or recklessly ignored the fact that their real reason for demoting the plaintiffs--age--w s n wu " 1 F3 a u l fl 4 7 .d a . at 253, citing, inter alia, Kirsch v. Fleet St., Ltd.,148 F.3d 149, 164-65 (2d Cir. 1998), Benjamin v. United States Merchs. & Mfrs, 873 F.2d at 44-45, Russo v. Trifari, Krussman and Fishel, Inc., 837 F.2d 40, 45 (2d Cir. 1988). E s nil D fn a t ru s o te"rd mi n fc rts atu tdb te se t l, ee d n ag e frh pe o n ta t "e t rc l e y h ay a o i a Tenth Circuit in Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544 (10th Cir. 1988) but expressly repudiated by Hazen Paper Co. v. Biggins, 507 U.S. 604 (9 3."f r 1 9 ) At e Biggins, courts have found willful violations in a variety of circumstances, including w e teew s v e c ta ted fn a td c rd p r r n ee a ai s w e h n h r a e i n e h th ee d n "o t e " ef ma c v l t n , h n d o o u o the company management was aware the termination dramatically departed from

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established procedures, when the company officer who terminated the plaintiff was an attorney presumed to be familiar with the ADEA, when the human resources director imposed mandatory retirement without investigating whether this complied with discrimination laws, when a state agency knew that its retirement program violated the A E . ."Larson, 8-146 Employment Discrimination §146.01 (Matthew Bender, D A .. 2006). There is no question the officials who terminated Plaintiff and rejected his appeal were well aware of the possibility their conduct or decisions violated the ADEA. They d v e as befg fr lnis emi t ni tefr o ak o i lfl ae ai e i d u tr e o Pa t 'tr n i n h om f n wn y a e lg t n s u if f ao g s l o of shoplifting they elected not to investigate thoroughly, discriminatorily terminated Plaintiff before the outcome of criminal proceedings against him, then expressly refused to reinstate him because of his age. If ta'not willful, what is? ht s

WHEREFORE, Plaintiff respectfully requests that tiH n rb C ut rn Pa t ' h o oa l o rga t lnis s e if f Motion for Entry of Partial Judgment for Back Pay and Liquidated Damages forthwith. 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

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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 Back Pay and Liquidated Damages Response t Pa t 'Moi fr at l u o lnis t n o P ra S mmay u g n via electronic mail to: if f o i r J d me t Jack M. Wesoky, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202

/s/

Mark E. Brennan

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