Free Motion for Judgment - 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.

PLAINTIFF' MOTION FOR ENTRY OF PARTIAL JUDGMENT FOR FRONT PAY S IN LIEU OF REINSTATEMENT

Plaintiff William R. Cadorna ("lni o " Cadorna"hereby moves pursuant Pa t " rMr. if f ) to 28 U.S.C. §626(b) and Fed.R.Civ.P. 54 and 58, and in accordance with the Juy r' s June 29, 2006 verdict, for entry of partial judgment in his favor for front pay of $213,104.76, in lieu of reinstatement. As grounds for this motion, Plaintiff states: 1. On June 29, 2006, the Jury in the trial of this action issued its verdict

finding Defendant liable to Plaintiff for willful age discrimination in terminating Plaintiff, and awarded Plaintiff $100,000.00 in back pay and other benefits as defined in Jury Instruction No. 26. Also on June 29, 2006, the Jury in the trial of this action issued its verdict finding Defendant liable to Plaintiff for willful age discrimination in refusing to reinstate or otherwise fully compensate Plaintiff for his unlawful termination, and

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awarded Plaintiff an additional $510,571.00 in back pay and other benefits as defined in Jury Instruction No. 26. 2. Under 28 U.S.C. §626(b), Plaintiff is entitled to reinstatement to his former

employment as a Firefighter I for Defendant. 3. After careful reflection, however, Plaintiff has concluded that the degree of

hostility and prejudice displayed toward him by Defendant and its officials (almost all of whom remain employed by the Department of Public Safety or the Office of the City Attorney) from the time he was first accused of shoplifting through conclusion of trial, is such that, as a practical matter, a productive and amicable working relationship between Plaintiff and Defendant is impossible. 4. Plaintiff loved his work as a Firefighter. He has suffered greatly from

having it stolen from him by Defendant through discrimination, fraud and malicious prosecution. He has long dreamed of the day when he could once again don the uniform of a Denver Firefighter and return to work with his head held high. 5. Yet, there can be no denying that, for so long as those responsible for

Pa t 'd ci n tr tr n t n a dteCts i r n lnis i r aoy emi i , n h i'd ci atory refusal to restore i f s mi f ao y s mi Pa t 'e l me t e p eh u j t i sa remain in control of the Department lnis mp y n d s i i n s d mi l if f o t s u s s, of Public Safety, the Civil Service Commission, and the Office of the City Attorney, the risk of further discrimination and retaliation remains very high. 6. The utter shamelessness of the Defendant in prolonging this matter for

years beyond the point at which common decency and respect for (or fear of) the law might have caused another organization to leave well enough alone leaves little doubt

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ta, e p etee omi o tev ri i tic s , ee d n'ofis ol k h td s i h n r t fh ed t h a e D fn a t fc ls a t y cn s s ia c accountability for their actions that they would not hesitate to retaliate against Plaintiff if given the opportunity. 7. Plaintiff therefore requests that this honorable Court grant him front pay in

lieu of reinstatement, in accordance with EEOC v. Prudential Fed. Savings & Loan Assoc., 763 F.2d 1166, 1172-73 (10th Cir. 1985), and other decisions finding or holding that front pay in lieu of reinstatement is the better option when extreme hostility or prejudice has so poisoned the relationship that a productive and amicable working relationship between the parties is impossible: Whittington v. Nordam Group, Inc., 429 F.3d 986, 1000-01, (10th Cir. 2005); Abuan v. Level 3 Communications, 353 F.3d 1158, 1178 (10th Cir. 2003); Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1553 (10th Cir. 1988); Minshall v. McGraw-Hill Broadcasting Co., 2001 U.S.Dist LEXIS 25177 (D.Colo. 2001--J. Brimmer); Davoll v. Webb (II), 968 F.Supp. 549 (D.Colo. 1997--- J. Kane); Goico v. Boeing Co., 347 F.Supp.2d 986 (D.Kan. 2004). 8. Plaintiff is not required to request reinstatement as a condition precedent

to an award of front pay in lieu of reinstatement. EEOC v. Prudential, supra, 763 F.2d 1173, footnote 2. 9. Plaintiff testified at trial that he would in all likelihood have exercised his

r h t e c teD fr dR te n O t nPo rm ( R P) nO tb r 1 2 0 , i to l th eer ei me t pi rga " O "o c e 3 , 0 3 g e e r o D o and continued working as a Firefighter for five years thereafter, through October 31, 2008. Plaintiff requests that this Court grant him front pay and benefits from the date of tej y v ri, u e2 , 0 6 tru hO tb r 1 2 0 . h u ' ed tJ n 9 2 0 ,ho g c e 3 , 0 8 rs c o

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10.

T iw u b c n ie t i Pa t 'tsmo y o c ri h oin l h o l e o s tn wt lnis e t n c n en g i r i s d s h if f i n s ga

plans and expectations, and would also be quite consistent with those decisions that have characterized front pay for a period of two years or so to be quite reasonable. See, e.g., Abuan, supra, 353 F.3d at 1179-80; Davoll II, supra, 968 F.Supp at 557-58. 11. D fn a t Manager of Benefits, Ida Roberts, testified that Plaintiff would ee d n' s

have earned $5,155.00 in salary per month in 2006, $5,304.00 in salary per month in 2007, and $5,509.00 in salary per month in 2008. (See, also, Exh. 57). Hence, from July 1, 2006 through December 31, 2006, Plaintiff would have earned 6 X $5,155.00 = $30,930.00 in salary. In 2007, he would have earned 12 X $5,304.00 = $63,648.00 in salary. Until his retirement on October 31, 2008, he would have earned 10 X $5,509.00 = $55,090.00. In short, had Plaintiff remained employed from the end of the trial through October 31, 2008, he would have earned $149,668.00 in additional salary, and Plaintiff should receive this amount as part of a front pay award. 12. Ida Roberts also testified that Plaintiff would, in addition to his salary, have

received an eight per cent (8%) contribution to his pension account per annum through the date of his retirement. Had he continued to work from the end of the trial through October 31, 2008, these contributions would have been: (1) for 2006, one-half of $4,948.80 = $2474.40; (2) for 2007, $5,091.84; (3) for 2008, $4,407.20. These amounts total an additional $11,973.44 ta s o l b i l e i Pa t 'f n p y h t h u e n u d n lnis r t a d cd if o f award. (See, also, Exh. 57).

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13.

Ida Roberts also testi dta tee l e'mo tls aeo h a h f h th mp y r i e o s nh h r f e l y t

insurance, assuming1 its cost remained flat through October 31, 2008, would be $709.20. For the twenty-eight months from July 1, 2006 through October 31, 2008, this would total 28 X 709.20 = $19,857.60 that h u b i l e i Pa t 'f n p y s o l e n u d n lnis r t a d cd if o f award. (See, also, Exh. 57). 14. Ida Roberts also testified that, assuming Plaintiff had not used any of the

vacation accrued in 2007 as of October 31, 2008, he would have received a payout of $8,727.00 in unused vacation accrued in 2007 and the first ten months of 2008. Given Pa t 'u c nrd tdtsmo y h tg e h s n ry h n r l to a o h lnis n o t ie e t n ta, i n i e i i, e omay o k l f i if f ac i v s ot l l s v c t na y a'e d tia u t h u b i l e i Pa t 'f n p y w r. a ai t e r n ,h mo n s o l e n u d n lnis r t a a ad o s s d cd if o f 15. Finally, Ida Roberts testified that, unlike vacation, which must be used in

the year following its accrual, sick leave pay may be carried over from year-to-year. Ms. Roberts testified that, had he not been terminated, Plaintiff would have accrued $22,878.72 in sick leave, which would have been paid out on his last day of work on October 31, 2008. T ia u t h u b i l e i Pa t 'f n p y w r. h mo n s o l e n u d n lnis r t a a ad s d cd if o f 16. In sum, Plaintiff respectfully requests that this honorable Court grant him

the following sums as front pay in lieu of reinstatement: Salary through 10/31/08 8% Pension Contribution Employer Medical Insurance Share Vacation Payout 10/31/08 Sick Leave Payout Total Front Pay: $149,668.00 11,973.44 19,857.60 8,727.00 22,878.72 $213,104.76

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Unwarranted but acceptable to Plaintiff for these purposes.

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17.

Pa t wl y e aaemoi s b t ia d i a rq e to atre ' lni ib s p rt if l f t n u mi s d i n le u s fr t n y o h t o o s

fees and expenses. Plaintiff has by separate motion submitted his request for liquidated damages. 18. In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies

that he consulted with opposing counsel concerning the subject of this motion, and opposing counsel stated his opposition to it. WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court enter partial judgment in his favor for front pay of $213,104.76, in lieu of reinstatement. DATED this 10th day of July, 2006. Respectfully submitted,

/S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1, the undersigned hereby certifies that, on this 10th day of July, 2006, he served, o tiC ut e c o ifn ss m served, rh o rs l t n i g yt s ' er cl i e a copy of the foregoing Motion for Entry of Partial Judgment for Front Pay in Lieu of Reinstatement on the following person(s) via electronic mail: Jack Wesoky, Esq. Christopher Lujan, Esq. Office of the City Atty. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 /S/

Mark E. Brennan

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