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-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant. RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR ENTRY OF PARTIAL JUDGMENT FOR FRONT PAY IN LIEU OF REINSTATEMENT Defendant, City and County of Denver ("Denver"), by the undersigned Assistant City Attorneys, submits this Response in Opposition to Plaintiff's Motion for Entry of Partial Judgment for Front Pay in Lieu of Reinstatement ("Motion). INTRODUCTION Plaintiff, William R. Cadorna ("Cadorna") has moved for a partial entry of judgment against Denver in the amount of $213,104.76. According to Cadorna, this partial judgment constitutes an equitable award of front pay, which Cadorna requests for the first time by this motion -- he does not seek the preferred remedy of reinstatement. Denver submits that reinstatement is not appropriate either and reserves its right to so

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argue; however, this response is limited in scope to the issue raised by Cadorna's motion ­ whether front pay should be awarded.1 ARGUMENT I. CADORNA HAS WAIVED HIS RIGHT TO REQUEST FRONT PAY. Cadorna seeks equitable relief in the form of front pay. In the Final Pretrial Order, however, Cadorna did not refer to a claim for front pay. D.C.COLO.L.CivR 16.3 and Appendix G, adopted by this Court in REB Civ. Practice Standard IV. A. 2, both require that in the Final Pretrial Order the parties "[s]ummarize the claims" and "[i]dentify the specific relief sought." Notwithstanding this admonition nowhere in the Pretrial Order--not in the summary of claims section or anywhere else--did Cadorna mention front pay or set forth the specific relief he sought. Pursuant to ¶ 12 of the Final Pretrial Order, the pleadings were deemed merged therein, and so the Final Pretrial Order is dispositive of Cadorna's motion and it should be summarily denied.2 See Calaban v. Vaughn, 760 F.2d 662, 664-65 (5th Cir. 1985) (where pretrial order contained no claim for injunctive or declaratory relief, District Court was within its discretion to deny motion to amend to include such claims during or after trial); Tyler v. City of Manhattan, 118 F. 3d 1400, 1403 (10th Cir. 1997) (claim for compensatory damages under ADA properly stricken by district court where pretrial order did not allege intentional discrimination but
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Denver intends to file at least one post-judgment motion in the form of a renewed motion for judgment as a matter of law, or in the alternative, a new trial, in which it may present arguments concerning the issue of reinstatement, depending on what the Judgment ultimately orders. Denver will seek any affirmative relief in such motion(s) rather than in this response to ensure compliance with D.C.COLO.LCiv.R 7.1(C).

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Even if Cadorna could reach back to his Second Amended Complaint (which he cannot, because the Final Pretrial Order is controlling), he did not seek front pay in the Complaint, thereby further underscoring that the motion should be denied.

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a disparate impact claim); Wilson v. Muckala, 303 F. 3d 1207, 1216 (10th Cir. 2002) (cautioning attorneys to "meticulously examine" the pretrial order because it supersedes the pleadings and establishes the issues); Eads v. Unified Sch. Dist. No. 289, 184 F. Supp. 2d 1122, 1130 (D. Kan. 2002) (burden on the parties not the court "to assure that the pretrial order accurately reflects their respective positions regarding the issues, legal theories, and all other matters included therein"). II. CADORNA HAS FAILED TO SHOW THAT HE IS ENTITLED TO FRONT PAY. In addition, Cadorna has not shown that he is entitled to front pay. Under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (2006), reinstatement is the "preferred remedy" when the issue of equitable relief is appropriately before a court. James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th Cir. 1994). A party opposing reinstatement has the burden of providing that "' the employer has exhibited such extreme hostility that, as a practical matter, a productive and amicable working relationship would be impossible.' Id. at 997. In James, " plaintiffs who opposed reinstatement failed to show reinstatement was unworkable due to hostility, harassment, or retaliation." See also Ramos v. Davis & Geck, Inc., 968 F. Supp. 765, 772 (D.P.R. 1997), affirmed 167 F. 3d 727 (1st Cir. 1999) (where employee sought front pay, "employee clearly has the burden of demonstrating that reinstatement is not possible or impractical."). Here, Cadorna fails to meet this burden. Indeed, Cadorna's belated request for front pay is belied by the evidence he presented at trial that he would welcome reinstatement. He unabashedly testified that (a) he "took a lot of pride in being a firefighter" (see attached Ex. No. 1, p.4, l.16); (b) becoming a Denver firefighter was

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"every boy's dream;" (c) being a firefighter was "probably one of the most rewarding careers that you could ever have" (id. at p. 4, ll. 12-13); (d) "being a fireman was the best thing that I could ever do;" and (e) "all I ever wanted to do in the last 25 years is be a fireman" (Id. at p. 9, ll. 5-9). Further, Cadorna testified that he filed his federal lawsuit because of his dissatisfaction with the decision made by the Civil Service Commission stating he "didn't receive a fair judgment, because if I had, I would be back to being a Denver fireman." (Id. at p. 98, ll. 13-15). He went on, "I want to be made whole again. I want to be Bill Cadorna, the fireman. I want to retire on my time, not be forced to retire." (Id. at p. 98, ll. 21-23). Cadorna, through his attorney, reiterated his desire for reinstatement in an article after the trial in the July 3, 2006 edition of the Rocky Mountain News where he stated that he "still wants to be reinstated to the department." (See attached Ex. 2.) Although Cadorna' lawyer argues that reinstatement is impossible, that s argument is not based on any evidence. Rather, Cadorna' attorney merely asserts, s without any support, that because the individuals responsible for his termination and the denial of reinstatement allegedly remain within the offices of the Department of Safety, the Civil Service Commission, and the City Attorney, "the risk of further discrimination and retaliation remains very high." (Mot. ¶ 5). That unsubstantiated assertion, without more, fails to show the "extreme hostility" that would justify a remedy other than reinstatement. See James, 21 F.3d at 997. Moreover, no evidence produced at trial from the Civil Service Commission suggests that Cadorna will be subjected to "extreme hostility" if he were reinstated as a firefighter. Indeed, the only evidence is to the contrary. Both the Hearing Officer and

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Commission ruled in Cadorna' favor and reversed the discipline based on the s misconduct charges against him for the Safeway incident, awarding him back pay from the date of dismissal (January 2, 2003) through the date of his voluntary retirement (March 15, 2003). And the only trial exhibits from the Commission illustrate that both the Hearing Officer and the full Commission relied on controlling state law in denying Cadorna' reinstatement to the Denver Fire Department. (See Trial Ex. Nos. 63 & 68). s Thus, no evidence shows that the Civil Service Commission would maintain any hostile animus against Cadorna. Cadorna' assertion that individuals in the City Attorney's Office and the s Department of Safety are hostile to him is also unsupported by the evidence. Cadorna points to no specific evidence from the trial record in his motion to prove that the City Attorney's Office would make a productive and amicable working relationship between the parties "impossible." Furthermore, the only evidence from the Department of Safety came from the former Manager of Safety Tracy Howard. Cadorna can point to no evidence of animus from Mr. Howard's testimony. Moreover, Mr. Howard was the Manager of Safety until August 8, 2003 and is currently the Deputy Manager of Safety, (see attached Ex. No. 3, p.38, ll.9-18; p.39, ll.9-20), and has no responsibility for human resources matters such as the discipline of Denver Fire Department Employees. (Id. at p.39, ll.9-20). Mr. Howard was the only witness from the Department of Safety and his testimony does not support a finding that reinstatement is impossible. The evidence from the Denver Fire Department likewise does not support a finding of hostility supporting front pay in lieu of reinstatement. Former Chief Rod Juniel recommended Cadorna's termination. But he retired from the Denver Fire Department

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in August 2003 and is currently the Fire Chief in National City, California. Cadorna cannot credibly claim that Chief Juniel would prevent him from having a productive and amicable relationship with the Denver Fire Department. The jury heard from numerous other witnesses from the Denver Fire Department. None of these witnesses testified about objecting to Cadorna's possible reinstatement, and Cadorna can only speculate that these witnesses would discriminate or retaliate against him should reinstatement be ordered by the Court. Of the witnesses who testified from the Fire Department, two of them warrant further scrutiny: Frank Hoffman and Asst. Chief Joseph Hart. Cadorna testified that Lt. Hoffman's actions towards him "was the start of six months of hell." (See attached Ex. No. 1, p.13, l.20). Cadorna described incidents to the jury where Lt. Hoffman yelled at him for spilling oil in the fire house (Id. at p.11, ll.2225; p.12, ll.1-4); made him work alone in the fire house (Id. at p.36, ll.10-25; p.37, ll.1-5); and threw his cooking pot in the trash. (Id. at p.17, ll.8-25; p.18, ll.7-9). Cadorna cannot rely on this evidence to show that reinstatement is not a viable option because Lt. Hoffman retired from the Denver Fire Department in October 2003 making any of his past conduct irrelevant to the viability of reinstatement for the Cadorna. Asst. Chief Hart's conducting an investigation into Cadorna's actions that precipitated his dismissal also does not support a finding for front pay in lieu of reinstatement. Although Asst. Chief Hart conducted this investigation, there was no evidence produced at trial to prove that he would make a productive and amicable working relationship an "impossibility" in the future. This fact was further accentuated by Cadorna's counsel when he, during his initial summation, characterized Asst. Chief Hart as "a good guy. I think you would all agree. You watched him testify, and he

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seems on the face of it to be a nice fellow...He can't be such a bad guy else he wouldn't be an assistant fire chief." (See attached Ex. No. 4, p.8, ll.3-6). This ringing endorsement from Cadorna himself is yet another example of why a productive and amicable working relationship is not impossible. Cadorna's request for front pay in lieu of reinstatement is confounding in light of his testimony at trial described above. Despite his longing to be a fireman, his motion for front pay is supposedly grounded in "careful reflection." Even if so, however, it is not grounded in law. He has produced no evidence from the trial record demonstrating that Denver has exhibited "such extreme hostility" to make a productive and amicable working relationship "impossible." III. CADORNA' COMPLETE FAILURE TO ATTEMPT TO MITIGATE HIS S DAMAGES BARS A FRONT PAY AWARD. Cadorna is further barred from obtaining equitable relief because he completely withdrew from the job market failing to mitigate his damages. In a discrimination claim, a plaintiff is required to mitigate his damages. See Whatley v. Skaggs Co., 707 F.2d 1129, 1138 (10th Cir. 1983) ("It is true . . . that the plaintiff has a duty to mitigate his damages, presumably by seeking employment elsewhere.") (citation omitted). The plaintiff "has a duty under the law to use reasonable diligence to mitigate ­ to avoid or minimize those damages." (Jury Instruction No. 28.) See also Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982). The duty to mitigate applies to front pay requests. EEOC v. Prudential Fed. Sav. and Loan Ass'n, 763 F. 2d 1166, 1173 (10th Cir. 1985). Although Cadorna has a duty to mitigate his damages, it is Denver who has the burden of proving a failure to mitigate. See Spulak v. K Mart Corp., 894 F. 2d 1150, 1158 (10th Cir. 1990). Denver demonstrated Cadorna's failure to mitigate by showing

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that he "withdrew entirely from the employment market." Tubari, Ltd. v. NLRB, 959 F.2d 451, 454 (3rd Cir. 1992). See also Roach v. Am. Radio Sys. Corp., 80 F. Supp.2d 530, 534 (W.D. Pa. 1999) (age discrimination case); Wooley v. Colonial Sch. Dist., No.91407 MMS, 1993 U.S. Dist. LEXIS 19110 *6-8 (D. Del. May 11, 1993) (discussing applicability of NLRA cases' mitigation requirements to discrimination cases noting that in a discrimination case defendant's burden on failure to mitigate satisfied where plaintiff made no search for comparable interim employment citing Tubari and stating that "Unlike the lost earnings incurred because of discrimination, the losses incurred by plaintiff's failure to mitigate are incurred at plaintiff's own choice."); Caufield v. Center Area Sch. Dist., No. 04-2538, 2005 U.S. App. LEXIS 9278 *13 (3rd Cir. May 20, 2005). Cadorna freely admitted that he withdrew entirely from the "employment market." At no time after his dismissal from the Denver Fire Department on January 2, 2003 did Cadorna apply for any other job or even look for another job. Although his duty to mitigate did not compel him to "accept other employment that [was] not substantially similar to his past employment" as a firefighter, (Jury Instruction No. 28.) this point is moot as Cardona never looked for employment at all. Cadorna testified: "Um, I couldn't get a job because I had been fired from the fire Department wrongly, I was listed as a thief, a stigma that I couldn'bear. Everywhere that I t would ­ or if I wanted to apply for a job, all they would have to do is look and see Bill Cadorna, ex-fireman, thief." (See attached Ex. No. 1, p. 101, ll.14-19) (emphasis added).) Cadorna' explanation for sitting on his hands and doing nothing to search for s comparable work or any work is untenable because many people work after a criminal shoplifting citation, and ultimately his criminal shoplifting charge was dismissed in July 2003 and he received a favorable ruling from the Civil Service Commission Hearing

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Officer in January 2004 overturning his termination for the shoplifting incident. Knowing this, Cadorna ultimately was never required to represent to prospective employers that he was dismissed as a firefighter for shoplifting. Cardona simply sat by and allowed his damages to increase while taking no action to find alternative employment, despite his cry that he needed money, the only reason he gave for retiring. When an employer, like Denver, has met its burden of proving a failure to mitigate, the appropriate remedy is to preclude awarding front pay. See Rousch v KFC Nat'l Mg'mt. Co., 10 F.3d 392, 400 (6th Cir. 1993) (plaintiff's failure to seek alternative employment to make up lost wages and intentionally limiting her income in order to continue receiving social security benefits terminated her entitlement to front pay); Dominic v. Consolidated Edison Co. 822 F.2d 1249, 1258 (2d Cir. 1987) (had defendant proved that plaintiff failed to mitigate his damages front pay would have been foreclosed); Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728-29 (2d Cir. 1984) (award of front pay "does not contemplate that plaintiff will sit idly by and be compensated for doing nothing"); Caufield v. Center Area Sch. Dist., 2005 U.S. App. LEXIS 9278, at *14 ("When an employer successfully proves a failure to mitigate...any front-pay award will be foreclosed") (emphasis added), citing Ford Motor Co. v. EEOC, 458 U.S. 219, 233-234 (1982). See also West v. Nabors Drilling USA Inc. 330 F. 3d 379, 393 (5th Cir. 2003) (employer satisfies burden of failure to mitigate by showing that employee has not made reasonable efforts to obtain work and in such case need not establish the availability of substantially equivalent employment); Denesha v. Farmers Ins. Exch., 161 F.3d 491, 502 (8th Cir. 1998) (mitigation requirement is one of reasonable diligence - where plaintiff made one application for employment in 33

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months required subtraction from jury award as plaintiff must make some sustained minimal effort to obtain comparable employment); Payne v. Sec. Sav. & Loan Ass'n., 924 F.2d 109, 111 (7th Cir. 1991) (while a plaintiff may be discouraged, he cannot abandon his efforts at mitigation even in the face of difficulties). Because Cadorna admitted doing nothing to look for comparable work, or any work, which is a complete failure to mitigate damages, this Court should deny Cadorna's request for any front pay, as his withdrawal from the job market constitutes a complete and utter failure to even attempt to mitigate his damages.3 IV. CADORNA HAS FAILED TO PROVE AN AMOUNT FOR FRONT PAY. Cadorna bears the burden of proving an amount for front pay. See Davoll v. Webb (II), 968 F. Supp 549, 557 (D. Colo. 1997) (citing Hansel v. Public Serv. Co. of Colorado, 778 F.Supp 1126,1136 (D.Colo. 1991)) ("The burden falls on the plaintiff to prove an amount, if any, of a front pay award"). Cadorna requests salary and benefits to October 2008 and requests $8,727.00 for a vacation payout and $22,878.72 for a sick leave payout that he speculatively and without evidence asserts would have been paid him in October 2008. Cadorna has simply failed to submit evidence establishing that he is entitled to an amount certain for front pay, even if he were otherwise entitled to it. Cadorna has not offered any expert testimony, nor has he discounted his demand to present value. Id. at 1334-1335. Cf. Simpson v. Ernst & Young, 100 F.3d 436, 445 (6th Cir. 1996)

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Compare Cadorna's deliberate withdrawal from the job market with the plaintiff in Moore v. Univ. of Notre Dame, 22 F. Supp.2d 896, 907 (N.D. Ind. 1998), who the court found mitigated his damages by seeking and obtaining employment shortly after discharge and "currently work[ing] three different jobs." Cadorna, by contrast, did nothing to look for other work. 10

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(plaintiff presented well documented economic analysis of present value of future damages and defendant produced no adequate credible explanation to counter those calculations).4 Therefore, the salary and benefit amount of his front pay demand should be denied as speculative. To support his claim for front vacation payout, Cadorna points to the testimony of Ida Roberts, Denver Fire Department Benefits Manager. Ms. Roberts testified that she manages both benefits and payroll issues for the department. (See Attached Ex. No. 5, p.4, ll.8-10). Ms. Roberts prepared a document, exhibit 57, explaining the salary and benefits that the Plaintiff would have earned from 2003-2008. This exhibit does not, however, contain estimated payout amounts for vacation or sick leave. Ms. Roberts' basis of knowledge of vacation pay was limited to three specific areas: 1) the number of vacation hours a firefighter with ten years worth of service earns per year (168) (see attached Ex. No. 5, p.31, ll.12-17); 2) the policy prohibiting accrued vacation time from carrying over from year to year (id. at p.36, ll.9-12); and 3) the hourly rate of vacation pay for a firefighter during a 48-hour work week in 2008 ($26.48) (id. at p.58, ll.10-11). More importantly, Ms. Roberts could not testify with any degree of certainty to the amount Cadorna might have earned in vacation leave for 2008. When asked during her examination what Cadorna's number of hours would have been for 2008, Ms. Roberts testified, "[w]e have another individual in the office that does all the sick and vacation, so I'm not up to speed on those hours or how they calculate it." (Id. at p.35, ll.5-10). A front pay calculation must also take into account a plaintiff's failure to mitigate. Prudential, 763 F.2d at 1173. If the Court decides to award some front pay to Cadorna, at the very least, the amount should be greatly reduced because of Cadorna's complete failure to mitigate his damages.
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Further, when Ms. Roberts was asked to testify about the amount of vacation hours a member would have for 2008, she testified, "I am not sure. You are asking me questions that I do not work with every day, so I just cannot remember. Even if they lose it, I am not sure if they accrue the vacation or get paid for the sick leave." (Id. at p.36, ll.13-19). Finally, Exhibit 57 sheds no light on the amount of vacation Cadorna would have received for 2008. While Ms. Roberts was able to derive an hourly rate of vacation pay at trial, she could not provide the number of vacation hours available to Cadorna to provide for an accurate award of front pay for vacation. The critical missing piece is the likely number of hours that would have remained in Cadorna' vacation bank at the end of the year. s Although Cadorna alleges in his motion that "he normally took all of his vacation at year's end," this assertion is belied by his testimony that "the only times we could go on vacation at the time because my wife was teaching when the kids were in school was to do Christmas and spring break, and we would usually go skiing for a couple of days." (See attached Ex. No. 1, p. 56, ll. 3-6). This testimony does not support Cadorna's request for vacation pay. More importantly, the Court cannot accurately rely on the 168 hour mark provided by Ms. Roberts to calculate Cadorna' vacation payout for 2008 because that amount would s presume that Cadorna would not use any vacation hours for that year, and, by Cadorna' own admission, he took some vacation every year. Because the Court would s have to rely on speculation, as opposed to the evidence produced at trial, front pay should be precluded for vacation as Cadorna has failed to meet his burden for proving front pay. Hansel v. Public Serv. Co. of Colo., 778 F.Supp 1126, 1137 ("Quantification

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of front pay cannot be speculative; there must be some basis in the record upon which to base an award of future earnings"). Indeed, and perhaps most importantly, Cadorna already received a payout for 168 hours of vacation when he was dismissed, and since that was the maximum number of hours he could accrue, he is not entitled to be paid again for the same hours for which he has already been paid. Therefore, his request for vacation leave pay as part of front pay award should be denied. Similarly, Cadorna' request for a sick leave payout of $22,878 lacks evidentiary s support. Although Ms. Roberts was able to testify that firefighters receive sick pay and that it is accrued in addition to vacation, she could not testify to the rate of accrual for sick pay. (See attached Ex. No. 5, p.38, ll.1-3). When Ms. Roberts was asked by Cadorna' counsel to compute the amount of sick pay for the Cadorna, she was s prohibited from doing so under a sustained objection from Denver. (Id. at p.38, ll.6-14). Contrary to Cadorna' assertion that he would have received $22,878 in 2008, there is s no evidence in the record to support this claim. The requested front pay based on sick leave also assumes that the Cadorna never used any sick leave throughout the year. Because Cadorna has failed to meet his burden of proving that he would have earned and been paid for unused sick leave if he had retired in 2008, his request for sick leave pay as part of a front pay award should be denied as well.5

While Denver does not concede the jury's back pay award, should the Court enter judgment on the amount of $510,571 or anywhere close to that amount, the Court should not order any front pay because any such amount would be a windfall to Cadorna as the $510,571 amount is not supported by the evidence, as will be established in Denver's post-judgment motion. See Auban v. Level 3 Commc'ns, 353 F.3d 1158, 1176 (10th Cir. 2003).
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Similarly, while Denver has objected by a separate response to Cadorna's motion for liquidated damages, if the Court does award any liquidated damages, front pay would 13

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CONCLUSION Cadorna has waived any right to ask for front pay at this belated point, and Denver would be prejudiced if front pay were awarded since it was never on notice that he was seeking front pay until this motion was filed. He also completely failed to mitigate his damages, has not demonstrated that reinstatement would be hostile or otherwise inappropriate, and the amount he presents is speculative and unsupported by the evidence. Therefore, Cadorna's motion for front pay should be denied. Dated this 7th day of August, 2006. Respectfully submitted, s/_Christopher M.A. Lujan___________ Christopher M.A. Lujan Jack M. Wesoky Assistant City Attorney Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected] Attorneys for Defendant City and County of Denver

also be inappropriate because liquidated damages would be so substantial as to merit a denial of front pay. Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992); Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir. 1990); Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985). 14

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of August, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204

/s Christopher M.A. Lujan Assistant City Attorney Denver City Attorney's Office Litigation Section 201 West Colfax Ave., Dept. No. 1108 Denver, Colorado 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected]

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