Free Motion to Continue - District Court of Colorado - Colorado

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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, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART and FRANK J. HOFFMAN, Defendants.

PLAINTIFF' MOTION FOR CONTINUANCE OF TRIAL, RE-OPENING OF S DISCOVERY, AND FORTHWITH HEARING

Plaintiff William R. Cadorna ("lni o " Cadorna"hereby moves for Pa t " rMr. if f ) continuance of the trial date of June 19, 2006 in this action to no earlier than January 22, 2007 and re-opening of discovery and extension of the discovery deadline in this case to no earlier than ninety days prior to the new trial date selected in the event the trial is continued. Because of the obvious urgency and importance of this matter, Plaintiff requests an immediate, forthwith hearing for the purpose of presenting and quickly obtaining a decision on this Motion, and/or that Defendant be required to file an immediate response, in lieu of adherence to the usual deadlines for responses to motions. As grounds for this motion, Plaintiff states:

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1.

Plaintiff and his counsel have only very recently become aware of new

evidence that dramatically alters, and significantly i rv s Pa t 'p si wt mpo e , lnis o i n i if f t o h respect to his pending age discrimination, disability discrimination, and §1983 claims, and with respect to the race discrimination claims he previously unilaterally removed from his claims on the basis of evidence then known to him. 2. Manifest injustice will occur if Plaintiff is forced to proceed to trial without

an adequate opportunity to take discovery concerning these newly discovered matters. This court, and the jury, must hear and consider evidence concerning these matters in order properly decide Pa t 'c i . The pending cross-motions for summary lnis lms if a f judgment cannot possibly be decided without consideration of this new evidence. 3. In view of this new evidence, Plaintiff must also be permitted to reinstate

race and §1983 claims that he previously withdrew (but of which he has not yet sought dismissal because of the failure of settlement discussions) before learning of the new evidence that renders those claims more meritorious, and less problematic to place before a jury, than they were previously. 4. Pa t 'c u s l omay e d the Wall Street Journal religiously, and lnis o n e n r l ra s if f l

flw i en t n l e s u eatni ltru htei en t Pa t 'c u s l oo sn rai a n w q i t te ho g h n re. lnis o n e l t o t e vy t if f subscribes to the Denver Post, but has often been foreclosed from reading any local paper in recent months because of his preoccupation with litigation activity in this and other cases, and because of h d ts frh P ssn ra i lrg l rg ri t n i ia t o te o t i e s g e u re ug ai s s e ' c ny a to of tendentiously leftist stories about Iraq from the New York Times. Pa t 'c u s l lnis o n e if f seldom watches local television news programming attentively, if at all.

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5.

C n e u nl Pa t 'c u s l a c mp tlu a aeu tlate last o s q e t, lnis o n e w s o l e n w r ni y if f e y l

week (when his wife brought his attention to a report on a local television news program) that a 36 year-old, White, apparently non-disabled Denver Firefighter named Stan Ford has been on trial in this very Court on federal weapons charges. 6. Pa t 'c u s l i n t anu tMo d y J n 5 2 0 ta the lnis o n e d o l r ni n a , u e , 0 6 h t if f d e l

D n e Fr D p r n ( F "placed Ford on unpaid suspension pending the e v r i e at t" D ) e me D outcome of the criminal case against him (i.e., DFD will presumably reinstate Ford with full back pay in the event he is acquitted), and that, according to the U.S. Department of Justice, he is part of a white supremacist organization in which he and other Denver Firefighters are active. (e atc e c p s fe e t tre n w rp r Pa t ' S e t h d o i o rc n i en t e s e ot lnis a e n s if f counsel located this morning, attached as Exhibit A.) 7. Wh nPa t 'c u s l fr dPa t o tic s a da k dh t e lnis o n e i ome lni fh a e n se i o if f n if f s m

find out what he could about Ford and the case against him, or the alleged white supremacists in the Denver Fire Department, Plaintiff stated that he had recently heard that Ford and a ofe, r fc r, s u na i Pa t 'tr n t nare well n f ro ofes i t me tl lnis emi i i c i nr n if f ao acquainted and participate with others in a cabal of Denver Firefighters who share white supremacist views and a keen interest in exotic "u n h ma -hunting" weaponry. When Pa t 'c u s l se frh s uc o tii omai , lni s tdta te lnis o n e a k d o te o re fh n r t n Pa t t e h th if f s f o if a f Firefighters in question would be in serious jeopardy if their names were disclosed, as the City has issued an [unlawful] order to all Denver Firefighters (even those below the executive ranks that might be in a position to bind the City by their statements) that they are not to speak with Plaintiff or his counsel, on pain of serious discipline.

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8.

B c u eo teCts n wu i efrn ewt tec n t t n li to e a s fh i'u l fl tr e c i h o st i a r h t y a n e h i o u g

association of its Firefighters, and its violation of statutory prohibitions on chilling the right of discrimination victims to secure evidence in support of their claims through lawful means, Pa t 'c u s l a n w y f lnis o n e h s o a o quickly investigating and evaluating the if f credibility of the rumor that Ford and the officer(s) in question are active in a white supremacist organization. 9. Obviously, Plaintiff requires a fair opportunity to take discovery concerning

this potentially serious and extremely relevant question. This could dramatically change Pa t 'c u s l v w and tiC ut v w of Pa t 'race discrimination claims lnis o n es i , if f ' e h o rs i , s ' e lnis if f against the City previously withdrawn but not yet dismissed with prejudice, and the constitutional claims against individual Defendants previously withdrawn but not yet dismissed with prejudice. 10. Y s ra , lnis o n e a k dA s City Atty. Jack Wesoky to e t d y Pa t 'c u s l se st e if f .

explain why the City did not afford Mr. Cadorna the same " courtesy"of suspension , pending the outcome of his criminal trial (on an extremely petty charge of shoplifting a $20 cookbook), that it has afforded Firefighter Ford, who is charged with extremely serious felonies and, by virtue of his affinity for weaponry and alleged terrorist leanings, may be far more of a danger to public safety and morals than Plaintiff could ever be. 11. Mr. Wesoky disclaimed intimate familiarity with the details of the Ford

case, which is surprising given his important role in advising DFD concerning employment matters. Mr. Wesoky suggested that Ford had been treated more favorably because the City Charter permits the Manager of Public Safety to suspend

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Firefighters without pay pending the outcome of felony criminal proceedings. This seemed to be more of an admission of patent discrimination against Mr. Cadorna, and s r u v l i o MrC d ra po e ua a ds b tni d epo e s i t than ei s ia o f . a on ' rc d rl n u s te u rc s r hs o o tn s a v g , a satisfactory explanation of why DFD and the City have treated Ford1 so much more tenderly and considerately than Plaintiff. 12. This morning, in the process of their consultation concerning this motion,

Mr. Wesoky supplied Plaintif c u s l i acai f o n e wt i t nto the Charter provision ' s h to concerning this issue, Denver City Charter Part 4, § 9.4.17, which reads as follows: § 9.4.17 Suspension upon filing of indictment or information. Indictment of a member of the Classified Service or the filing of any information by a District Attorney against the member charging any felony shall be cause for suspension of any member of the Classified Service, with or without pay, indefinitely upon order of the Chief of his or her department. Such suspension shall be terminated by restoration to the service or by discharge as soon as the decision of the court becomes final. If the member of the classified service has been suspended without pay and is restored to his or her position, the member shall receive full pay for the entire period of such suspension and his or her eligibility for other benefits of the service shall not be deemed to have been interrupted by such suspension. The conviction of a member of the Classified Service for a felony shall be grounds for discharge. (Charter 1960, C5.73-4; amended June 5, 1962; amended November 4, 1986; Ord. No. 428-02, § 1, 6-3-02, elec. 8-13-02) Mr. Wesoky explained to the undersigned that the City did not treat Plaintiff as favorably as Stan Ford because, in the view of the City, this provision requires suspension without pay in lieu of termination only when a Firefighter is charged with a felony. According to Mr. Wesoky, suspension without pay was not

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Not to mention Michael Brown, who admitted to commission of perjury and obstruction of justice in his role as lead witness against Plaintiff, yet was not prosecuted by the City.

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rq i di MrC d ra c s b c u eh w s n c ag dwt a e u e n . a on ' a e e a s e a o l h re i r s y h misdemeanor. 13. Plaintiff and his counsel were previously unaware of this provision' s

importance to this case. Until late last week, Plaintiff and his counsel were completely unaware that DFD had treated a younger, white Firefighter more favorably than Plaintiff. This is a glaring disparity in treatment that demands close scrutiny. 14. As Denver Fire Department Human Resources Bureau Asst. Chief Steven

J. Garrod testified in his February 1, 2006 deposition, nothing prevented the DFD from simply suspending Plaintiff pending the outcome of the shoplifting charges in County C ut A G r da otsf d h w u h v c n i rdteh n lgo Pa t ' o r s ar l e te , e o l a e o s ee h a dn f lnis . o s i i d d i if f case more appropriate had DFD awaited the outcome of the criminal case against Plaintiff before disposing of the disciplinary charges against him. (See attached excerpts from Garrod Depo, Exh. B, pp.54-66). 15. Plaintiff must be allowed a fair opportunity to obtain discovery concerning

the Cts i'newly discovered decision to treat a younger, White, non-disabled Firefighter y much more favorably, and to obtain discovery concerning the possible association of at least one critical player, and at least one key defense witness, in a racist, potentially criminal, conspiracy among Denver Firefighters that may have played a significant role i Pa t 'tr n t n and in teCts u s q e t s e t n o h at every turn. n lnis emi i , if f ao h i's b e u n mirame t f i y t m 16. Assuming arguendo that l d gp y r i Pa t 'tr n t nw r n t e i l esn lnis emi i ee o an a if f ao

direct participants in a racist, potentially criminal, conspiracy among Denver Firefighters, it is highly probable that they were aware of, or had reason to be aware of, this

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conspiracy, and looked the other way. Plaintiff must threrefore be allowed a full and fair opportunity to investigate and discover evidence concerning this possibility, as it would o v u lb h h rl a toted tr n t nw eh r lni'rc (s n, b i s e i l e v n t h eemi i h te Pa t s a e A i ) o y gy e ao if f a national origin (Filipino/Mexican-American), age (50 when terminated, 51 when denied reinstatement or full relief by the Hearing Officer because of his age and disability, and 52 when denied reinstatement or full relief on the basis of a known falsehood, i.e., pee tta h a pe frei me tpi t d mi a ) eemoi t gfc r i te rtx h t e p ld o rte n "r ro i s l w r , i r o s s" tai a t sn h v n o multiplicity of ways in which the City has violated his constitutional and statutory rights. 17. The Stan Ford case is, moreover, just one compelling reason to continue

the trial and extend discovery. 18. Another compelling reason is the need for Plaintiff to file an EEOC charge

of age, race, and disability discrimination against the City based upon its disparate treatment of Stand Ford and Plaintiff, something previously unknown to Plaintiff. 19. Yet another compelling reason is that, in view of this new evidence,

Plaintiff intends to renew some, if not all, of his race, color and national origin claims against the City, as well as §1983 claims against individual defendants, that have not yet been settled or dismissed. 20. An additional compelling reason is the very recent disclosure that Civil

Service Commission Chairman Christopher Olson (who presumably cast the decisive v t a a s Pa t i teC mmi i 'refusal, on the basis of a known falsehood, to oe g i t lni n h o s o s n if f sn ga t lni ri ttme t r te fl ee, roc n i rh mei o Pa t ' rn Pa t e s e n o oh ru rlfo t o s e te rs f lnis if na f l i d t if f highly meritorious appea o tel a b s o teH ai O fe'D c i ) is the l fh e l a i fh e r g f r e io g s n i s c sn

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subject of allegations of serious wrongdoing, including unlawful discrimination, in his principal occupation as Director of Safety Services for the City of Englewood. 21. Reportedly, Olson is, as the result of these allegations, the subject of a

continuing i e t ai b teD n e Ct Atre 'O fet d tr n w eh r n sg t n y h e v r i t n y fc o eemi h te v i o y o s i e recently disclosed, highly embarrassing evidence of his discrimination and/or incompetence in handling personnel issues may have affected or undermined decisions in which he has participated as Chairman of the Denver Civil Service Commission. (See atc e t n ci o C a n l rp r r o nF r g 'Ma 1 , 0 6i e t ai t h d r sr t f h n e 7 e ot J h er is y 9 2 0 n sg te a a p e ua v i v report and interview of Olson, Exh. C, of which Plaintiff and his counsel did not learn until May 21, 2006.) 22. T ers l o teCt Atre 'i e t ai o Os nare obviously h e u s fh i t n y n sg t n f l t y o s v i o o

h h maei a drl a toPa t 'c i o d ci n t na du c n t t n l i l tr l n e v n t lnis lms f i r ai n n o st i a gy a e if a f s mi o i o u conduct in the handling of his termination and Civil Service Appeal. Plaintiff and his counsel only recently learned of these allegations against Olson, and must be afforded a full and fair opportunity to discover the nature and extent of allegations against Olson, to interview or depose Olson and other material witnesses (including but not limited to me es fh Ct Atre 'O fei e t ai Os n about them, and to mb r o te i t n y f n sg t g l ) y o s i v i n c o s b o n a dd c v rh fla e o F r g 'i ev wo Os n u p e a n i o e te u tp s f er isn ri f l . s l ua t e o 23. T eCt Atre 'O feis a r da tei lai s f l n h i t n y fc s o l me th mpc t n o Os ' y o s i a i o os

mi o d c ta inome Pa t 'c u s l s n u th t i r d lnis o n e yesterday that it will seek a preposterous c tf if f Motion for Sanctions that would, among other things, foreclose Plaintiff from crossexamining Olson at trial.

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24.

On Sunday, May 21, 2006, after l ri o teF r g s r, lni' e n g fh er i t y Pa t s a n ua o if f

counsel sent Olson a cursory email message via the Englewood webmaster referring to the Ferrugia story and expressing his pleasure at the opportunity to cross-examine Olson about its subject at trial. (Copy attached, Exh. D). TheCts he tn dmoi i'trae e y tn o c ni ta Os n tsmo y n e co s o fms h t l ' e t n u d r rs-examination will be quite helpful to r os i Pa t 'c s , n ta po in Pa t a o p r n y ba d c v r c n en g lnis a e a d h t rv i lni n p ot i o ti i o ey o c ri if f dg if f ut n s n Os n mi o d c a dteCt Atre 'i e t ai ii eai . l ' s n u t n h i t n y n sg t n smp rte os c y o s v i o v 25. Fn l, lni wli aMoi t Ds u l teCt Atre 'O fe i l Pa t if ay i f ll f e t n o i af h i t n y fc o q i y y o s i

f m rpe e t gteCt b c u eme es fh Ct Atre 'O feh v r e rs ni h i e a s o n y mb r o te i t n y f y o s i ae c become, in light of these new disclosures, necessary witnesses in this case. 26. In the April Final Pre-Trial Conference, the Magistrate Judge alerted the

parties to his concern that, because both parties had listed Asst. City Attorney John R d n a awte s teCt Atre 'O fema b s b c t aMo for e mo d s i s,h i t n y f n y o s i c y e u j to e tion Disqualification. The Magistrate Judge i t c dPa t 'c u s l a a y u h n r t lnis o n e t t n s c su e if f h motion would have to come from Plaintiff, notwithstanding the independent obligation of the City Attorney to comply with the Colorado Rules of Professional Conduct. 27. Because he did not wish to further delay the trial of this action on that

basis alone, Plaintiff w u n t uh r ePa t 'c u s l file a Motion to Disqualify o l o a toi lnis o n e t d z if f o the City Attorney on the basis that John Redmond is a necessary witness. 28. In view of the recent disclosures concerning the Ford case and Olson

investigation, Plaintiff now feels that it is imperative that he file such a motion, and will do so within 24 hours.

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29.

There is now no question that, in addition to John Redmond, other

members of th D n e Ct Atre 'O fe i l i b t o l tdt J c We o y e e v r i t n y f , c d g u n tmi o a k s k, y o s i nun c i e must be subjected to discovery and testimony concerning: (1) the investigation of Civil S ri C mmi i d c i s i l i Pa t ' ta ma h v b e ti e b ev e o s o e io , c d g lnis h t y a e e n a td y c sn sn nun if, f n Os n p rc ai ;2 p rc ai o teCt Atre 'ofei teF r c s a d l ' ati t n () ati t n fh i t n y fc n h od a e n os ip o ip o y o s i the discriminatory decision to suspend Ford rather than immediately terminate him; (3) tep rc ai o teCt Atre 'ofei ac n p a y o induce Plaintiff to retire h ati t n fh i t n y fc n o s i c t: ip o y o s i r with the threat of termination; terminate Plaintiff on the basis of false evidence in order to compel his age and service retirement; induce Plaintiff after his termination to apply for disability retirement and use it as grounds for disputing his right to full relief in the Civil Service Commission appeal he had just filed [see attached copies of e-mails among DFD Human Resources personnel and Jack Wesoky concerning the handling of Pa t 'rte n a pc t n a dh p n i Cv S ri Commission appeal, lnis ei me t p lai s n i e d g il ev e if f r i o s n i c Exh. E]; (4) p rc ai o teD n e Ct Atre 'O fei ac n p a y ou e ati t n fh e v r i t n y fc n o s i c t s ip o y o s i r criminal proceedings against Plaintiff as an extortionate means of pressuring him into withdrawing his Civil Service Commission appeal; (5) participati o teCt Atre ' o fh i t n y n y o s Office and Civil Service Commission personnel or officials in fabrication of spurious grounds for denying Plaintiff full relief for his indisputably unlawful termination. 30. Plaintiff previously requested continuance of the trial be a s o Pa t ' c u e f lnis if f

financial difficulties and need for more time in which to retain experts. This Court denied that motion.

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31.

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. 32. A forthwith hearing of this motion is essential, as trial is scheduled for just

twelve days from now. WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court continue the trial of this action from June 19, 2006 to no earlier than January 22, 2007, re-open discovery, and extend the discovery deadline in this case to no earlier than ninety days prior to the new trial date. DATED this 7th day of June, 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(D), the undersigned hereby certifies that, on this 7th day of June, 2006, he served a copy of the foregoing Motion to Continue Trial and Re-open Discovery on the following person(s) via electronic mail: William Cadorna 5503 S. Moore St. Littleton, CO. 80127 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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