Free Trial Brief - 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, COLORADO, a Municipal Corporation, Defendant. DENVER'S TRIAL BRIEF Defendant, the City and County of Denver (hereafter "Denver"), by its attorneys, submits its Trial Brief pursuant to REB Civ. Practice Standard IV.F. I. Plaintiff's age claim must be dismissed based on new Tenth Circuit precedent.

In denying Denver summary judgment on Plaintiff's ADEA claim, the Court found that the "plaintiff thus has presented evidence suggesting that defendant's stated reason for terminating plaintiff may be unworthy of credence," Order, p.9, and that the "alleged withholding of evidence [by Assistant Fire Chief Hart] that might be construed as corroborating plaintiff's version of events could be interpreted by reasonable jurors as having skewed the ultimate termination decision." Id. p. 9, n.7. In the Court's view, there is a genuine issue of fact on pretext for age discrimination.

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However, in EEOC v. BCI Coca-Cola Bottling Company, 2006 U.S. App. LEXIS 13968 (10th Cir. Case No. 04-2220) announced one day before this Court's Order (attached), the Tenth Circuit held that to survive summary judgment on a "subordinate bias theory" ("cat's paw"), "the plaintiff must first establish a genuine issue of material fact concerning the bias of the subordinate. It must then establish genuine issues of material fact as to whether the proffered reason for the employment action is pretexual, which in a subordinate bias claim requires the plaintiff to demonstrate a causal relationship between the subordinate's actions and the employment decision." Here, a review of the record shows that the Plaintiff cannot meet the evidentiary burden necessary for a prima facie case on his subordinate bias theory of age discrimination. There is no evidence that Hart had an age bias against Plaintiff - no ageist statements, no ageist actions such as differing treatment of firefighters over 40. While Plaintiff has certainly assailed Hart's investigative prowess and believes that Hart may have disliked him, Plaintiff has offered no evidence to prove Hart's age bias necessary to survive summary judgment under BCI's holding.1 II. Plaintiff's substantive due process claim cannot survive as there is no fundamental right to public employment

In denying Denver's summary judgment on Plaintiff's substantive due process claim, the Court noted a split in the circuits on whether there is a substantive due process right in public employment, that the Tenth Circuit has not spoken directly on the
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This Court declined to find that the Plaintiff voluntarily retired as a matter of law ruling that the existence of a genuine dispute of material fact with regard to Plaintiff's ADEA claim precluded a finding that his retirement was voluntary. Order, p. 10. Because there is no proof of ageist discrimination under the ADEA's subordinate bias theory as discussed above, this eliminates one method for Plaintiff to prove that his resignation was made under duress from a "discriminatory discharge." Id.

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issue and the divergence of opinions within the district courts of this circuit on that issue. Order, p.6, n.3. Although the Tenth Circuit has previously accorded limited substantive due process protections to a public employee in Garcia v. City of Albuquerque, 232 F.3d 760, 770-71 (10th Cir. 2000) and a tenured professor in Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 529-32 (10th Cir. 1998), these decisions did not specifically hold that a public employee's right to continued employment is a fundamental right necessary to implicate substantive due process protection. See Washington v. Glucksburg, 521 U.S. 702, 720-721 (1997) (Substantive due process protects only those fundamental rights and liberties which are objectively rooted deep in this nation's history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed). Those fundamental rights include those enumerated in the bill of rights and those penumbral rights such as the right to privacy, to vote and to procreate. See McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (cert. denied 115 S.Ct. 898 (1995) at 1556 (Bill of Rights); Planned Parenthood v. Casey, 506 U.S. 833, 896 (1992) (right to privacy); Harper v. Virgina Bd.of Elections, 383 U.S. 663, 670 (1996) (voting); See also Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1257 (10th Cir. 1996) (substantive due process protection generally accorded to matters relating to marriage, family, procreation and the right to bodily integrity). Moreover, both Garcia and Tonkovich are of limited precedential value. They ultimately derived their conclusions that substantive due process extended to tenured public employment based on the holding in Brenna v. Southern Colo. State College, 589 F.2d 475 (10th Cir. 1978), which in turn relied exclusively on Martin v. Harrah Indep.

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Sch. Dist., 579 F.2d 1192 (10th Cir. 1978), for its holding on substantive due process, a case that was subsequently reversed by the U.S. Supreme Court on that precise issue. See Harrah Indep. Sch. Dist. v. Martin, 440 U.S. at 198-99 (rejecting the notion that the plaintiff's property interest in the renewal of her teaching contract was entitled to substantive due process protection where that property interest did not resemble in the least recognized fundamental rights involving basic matters of procreation, marriage, and family life). Because this question is one of law for the Court and Plaintiff has cited no evidence to show that the Denver Civil Service Commission (the final policy-maker per stipulation by the parties) did nothing other than restore his public employment, Plaintiff's substantive due process claim should be dismissed.2 See also Archuleta v. Colo. Dept. of Institutions, 936 F.2d 483, 490 (10th Cir. 1991) (where plaintiff had a procedurally adequate post-termination hearing, resulting in reinstatement of employment, she had no substantive due process claim based on loss of employment). III. A. Evidentiary Issues Plaintiff's Proposed Evidence

Plaintiff has endorsed 102 exhibits and 54 witnesses (17 will-call and 37 maycall).3 Many of Plaintiff's witnesses and exhibits should be excluded as hearsay, irrelevant, cumulative in nature, calling for an opinion on the ultimate issue and/or not being relevant to the remaining claims. Denver filed its Objections to the Plaintiff's
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Defendant did not brief this issue on summary judgment based on Garcia and Tonkovich, both of which accepted, without critical analysis, some substantive due process protection for tenured public employees. Both however did not address the first prong for such analysis ­ whether public employment is a fundamental right. Upon review of the law Denver now seeks a revistation of that issue. 3 Counsel conferred on 09 June 2006 to discuss the issues involving exhibits and witnesses. While progress was made, much of the Plaintiff's evidence remains despite the Court's recent ruling.

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Exhibits on 28 April 2006 citing, pursuant to F.R.C.P. Rule 26 (a) (3), grounds other than FRE 402 and 403. In addition to the grounds and exhibits objected to there, Denver seeks the exclusion of the following exhibits as well: 1. Safeway Exhibits

Plaintiff has endorsed several exhibits that are related to the alleged shoplifting incident at a Safeway supermarket. PTO, pp. 50-51, exhibits 2-7; 14-15. In addition to the hearsay in them, Denver objects as these exhibits are cumulative (FRE 403) and irrelevant (FRE 401 and 402). Exhibit 14 (the photographs of the store on 30 August 2005) and exhibit 15 (Safeway's deterrence and detention policy) are particularly irrelevant given the age of the photographs and the fact that Safeway's theft prevention policies have no bearing on the decisions made by the City. Finally, these exhibits are irrelevant to the Plaintiff's existing legal claims. 2. Plaintiff's Criminal Prosecution in Denver

Plaintiff has endorsed several exhibits related to Denver's shoplifting prosecution. PTO, pp. 51-52, exhibits 16-20. These exhibits are cumulative (FRE 403), and irrelevant. (FRE 401 and 402). Exhibit 17 (the summons and complaint completed by a Denver police officer) and exhibit 18 (docket sheet from Denver County Court) are unnecessary as the parties have already stipulated to this charge in the PTO. Id. at p.18, stipulation no. 17. 3. Plaintiff's 1999 EEOC Charge Against Denver

Plaintiff has endorsed two exhibits in connection to his 1999 EEOC charge against Denver. PTO, p. 53, exhibits 41-42. Denver objects to these documents on the

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grounds of relevancy (FRE 401 and 402) and juror confusion (FRE 403). Neither of the exhibits is relevant to prove either of Plaintiff's legal claims. Further, the allegations in the 1999 complaint are different than the age and due process allegations made in this case which heightens the likelihood that these different allegations could lead to juror confusion. Denver is asking for the Court to preclude the admission of these exhibits. 4. Withdrawn Union Representation of Plaintiff

Plaintiff has endorsed exhibits related to a union's withdrawal of representation in his Civil Service matter. PTO, p. 53, exhibits 52-53. Neither of the exhibits is relevant to prove either of Plaintiff's legal claims. (FRE 401 and 402). 5. Plaintiff's Appeal to the Civil Service Commission

Plaintiff seeks to introduce fifteen exhibits that are directly connected to his appeal in front of the Civil Service Commission. PTO, pp. 53-55, exhibits 57-73, 77. These documents contain the statements and arguments of counsel which may be taken as expert testimony by the jury without the foundation as required under FRE 702 and as an opinion on the ultimate issue (FRE 704).4 Finally, these exhibits are cumulative in nature (FRE 403). 6. Miscellaneous Documents

Plaintiff seeks admission into evidence several miscellaneous documents that are of limited relevance in proving his claims and are objectionable on other grounds. First and foremost is Plaintiff's endorsement of Judge John Criswell's decision in the 2004 Civil Service Commission appeal of Denver Police Officer James Turney. PTO,

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These arguments are also found in Denver's Objections to Plaintiff's Exhibits, pp. 2-3.

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p.55, exhibit 80. Officer Turney was involved in the highly publicized fatal shooting of a developmentally disabled African-American teenager and received a disciplinary suspension from the Manager of Safety for his conduct in that incident. In Turney's Civil Service Commission appeal, Judge Criswell reduced the Manager of Safety's ten month suspension to ten days. Plaintiff's sole reason for seeking admission of this exhibit is to impugn Judge Criswell's judgment or prejudice the jury against him based on a controversial decision made in another case under obviously different facts and circumstances. The Turney decision is irrelevant (FRE 401, 402), and even if relevant, substantially more prejudicial than probative (FRE 403). Plaintiff also seeks admission of a numerical table prepared by Denver Fire Department Benefits Manager Ida Roberts. PTO, p.56, exhibit 84. This table shows the amount of money Plaintiff could have earned had he remained employed as a firefighter. The jury should not see this exhibit because it is irrelevant (FRE 401, 402) because damages for ADEA purposes are determined by the Court. Further, this exhibit is objectionable as it calls for the witness to give an opinion on the ultimate issue under FRE 704. Finally, Plaintiff seeks to admit a certificate of appreciation for work that he did more than two decades ago. PTO, pp.49-50, exhibit 1. That event simply occurred too far in the past to be relevant. (FRE 401, 402).

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7.

Action/testimony of the Civil Service Commission

Plaintiff has stipulated that the Civil Service Commission's action in affirming the decision of the Hearing Officer in the administrative appeal of Plaintiff's termination constituted the final policymaker action for purpose of his § 1983 substantive due process claim. PTO, pp. 16-17. See also, Second Amended Complaint, Third Claim for Relief pp. 30-34. Plaintiff has also indicated his intention to call one or more of the Commissioners to be questioned about their written administrative decision. The Commission is a quasi-judicial entity, and is entitled to absolute immunity for its actions. See, e.g., Atiya v. Salt Lake County, 988 F.2d 1013, 1017 (10th Cir. 1993) (members of County Career Service Council entitled to quasi-judicial immunity as to § 1983 claim alleging wrongful dismissal); Saavedra v. City of Albuquerque, 73 F.3d 1525, 1530 (10th Cir. 1996) (Albuquerque Personnel Board entitled to absolute judicial immunity from plaintiff's § 1983 claim alleging wrongful dismissal in violation of due process). Moreover, Plaintiff cannot delve into the decision-making process which led to the Commission's decision. See, e.g., United States v. Morgan, 313 U.S. 409 (1941). B. 1. Defendant's Proposed Evidence Evidence Regarding Plaintiff's Prior Conduct

Denver will seek to admit into evidence documents (defendant's Exhibits 61 -70 in the Pretrial Order) and testimony, through Plaintiff, his wife and Jefferson County Deputy Sheriff Gordon Roe, of Plaintiff's charge and guilty plea of domestic violence and the facts underlying that charge, and facts regarding Plaintiff's DUI charge and conviction, on the issue of the cause of Plaintiff's alleged emotional distress.

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The conduct giving rise to the domestic violence and DUI charges occurred on 22 September 2002, and Plaintiff pled guilty to a reduced charge in the domestic violence matter on 29 October 2002, shortly before his termination on 02 January 2003. These incidents, Defendant contends, are the source of, or at least a contributing factor to, Plaintiff's emotional distress and are relevant to the issues of causation and damages. Defendant anticipates an objection to this evidence based on FRE 404 (b), evidence of other bad acts to prove the character of a person to do the bad act in question. Rule 404 (b) was designed not with the potential prejudicial effect of such evidence in mind as it was with ensuring that restrictions would not be placed on the admission of such evidence. Orijas v. Stevenson, 31 F. 3d 995, 1000 (10th Cir.) cert. denied 513 U.S. 1000 (1994), citing Huddleston v. United States, 485 U.S. 681, 688-89 (1988). Thus "404 (b) adopts an inclusionary approach, generally providing for the admission of all evidence of other acts that is relevant to an issue in trial, excepting only evidence offered to prove criminal propensity." Weinstein's Federal Evidence §404.20[3] (Joseph M. McLaughlin ed., 2d ed. 1997). Protection against the unfair prejudice of 404 (b) evidence is provided by four requirements before such evidence is admitted ­ 1) the evidence must be offered for a proper purpose. Here that purpose is for causation and damages, 2) the evidence must meet the relevancy requirement of Rule 402. Here the evidence is relevant to the issues of causation and damages, 3) the court must access whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice under

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Rule 403. Here, the potential unfair prejudice does not substantially outweigh the probative value, and 4) that the court, upon request, give a limiting instruction as to the proper purpose of the evidence. Orijas at 1000, citing Huddleston at 691-92. With these protections the evidence of Plaintiff's domestic violence and DUI charges and their underlying facts should be admitted on the issues of damages. IV. PROPER CONSTRUCTION OF STATE PENSION STATUTE

In the Final Pretrial Order, both parties flagged for the Court a special issue regarding the proper interpretation of Colorado's "Old Hire" Firefighters' Pension Statutes, C.R.S. §§31-30.5-604 and 31-30.5-705(5). PTO, pp. 62-63. At trial, Denver will argue to the jury that these are the statutes that prohibited the Civil Service Commission from ordering the reinstatement of Plaintiff to his former position. Further, Denver will argue that the Plaintiff's multiple voluntary applications for retirement (under age and service and disability retirements) triggered the application of this law which ultimately led to the primary reason why he is no longer employed as a firefighter. Respectfully submitted this 12th day of June 2006. By: s/ Christopher M.A. Lujan____________ Christopher M. A. Lujan Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720/913-3100 Facsimile: 720-913-3190 E-mail: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 12, 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/ Marilyn Barela Marilyn Barela, Legal Secretary Office of the Denver City Attorney

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