Free Response - 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 Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO a municipal corporation, Defendant. ______________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S PROPOSED JURY INSTRUCTIONS ______________________________________________________________________ Defendant, City and County of Denver, by and through its attorneys, submits this Response to Plaintiff's Proposed Jury Instructions that he filed after this Court's deadline for submitting these instructions on 26 May 2006. Due to Plaintiff's counsel's inability to confer about his instructions "well in advance of trial" and his inability to submit his instructions to Denver in advance of 25 May as is contemplated by this Court's Practice Standards, Denver could not respond to these instructions in its Memorandum in Support of its Disputed Jury Instructions and Verdict Form that it filed on 25 May 2006 and therefore tenders this brief in opposition to Plaintiff's proposed jury instructions. Defendant's Primary Objection to Plaintiff's Proposed Jury Instructions: In addition to the specific objections stated below, Denver's primary objection to the Plaintiff's jury instructions is that his instructions are heavily weighted towards

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tendering arguments to the jury as opposed to genuine instruction on what the state of the law is on his claims. "A district court has broad discretion in instructing the jury." See Hastings v. Boston Mutual Life Ins. Comp., 975 F.2d 506, 510 (8th Cir. 1992). Further, this Court can refuse to give jury instructions that are argumentative and are a rendition of the Plaintiff's version of facts. See U.S. v. Risch, 87 F.3d 240, 242 (8th Cir. 1996) ("The District Court was under no obligation to give an instruction of this sort to the jury."); See also U.S. v. Pitt-Des Moines, Inc., 168 F.3d 976, 990 (7th Cir., 1999); Wall Data Inc. v. Los Angeles County Sheriff's Dept., 2006 U.S. App. LEXIS 12100 (9th Cir., 2006). Because the Plaintiff's proposed jury instructions resemble more of a closing argument than instruction on the law, the Defendant respectfully moves this Court to reject these instructions and instead submit Denver's jury instructions at trial. Objection to Plaintiff's Competing Instruction No. 2: Plaintiff for the first time in this lawsuit seeks to add a violation of the Fourth Amendment as a legal basis for recovery against Denver. In the first three pages of this instruction, the Plaintiff now pleads that Denver "violated his constitutional right to...freedom from unlawful search and seizure" and that Denver deprived him of his right to be "free from malicious prosecution." Denver argues for this Court to strike any language referring to a Fourth Amendment violation and malicious prosecution as the Plaintiff failed to plead such claims in his Second Amended Complaint nor did he include these as substantive claims in the Final Pretrial Order. Plaintiff's failure to include these claims in his Second Amended Complaint and Final Pretrial Order should

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operate as a waiver therefore precluding him from trying to argue them in his jury instructions. Objection to Plaintiff's Competing Instruction No. 7: Denver objects to this instruction and the Plaintiff's use of a witness' videotaped deposition at trial because of Plaintiff's counsel's failure to notify Denver that this deposition would be videotaped as is required in the notice provision found in F.R.C.P. Rule 30 (b) (2). Objection to Plaintiff's Competing Instruction Nos. 15 and 16: Denver's theory of the case is based, in part, on its reliance on state statutes for its refusal to reinstate the Plaintiff to his former position. Denver's jury instructions do not require that the jury determine if it acted in compliance with this statute. These statutes were only given to the jury as context for understanding Denver's treatment of the Plaintiff. Denver objects to Plaintiff's jury instructions as they are argumentative and an attempt by the Plaintiff to deprive Denver of an opportunity to state its theory to the jury. Objection to Plaintiff's Competing Instruction No. 19: Denver objects to this instruction because it is argumentative, confusing, and it misstates the law. The Plaintiff's "race, national origin, or ethnicity of a party" is irrelevant to his disability discrimination, age discrimination, and due process claims. Furthermore, Denver objects to this instruction as it misstates the law that the "Plaintiff is a former public employee [and this] gives him certain rights that he would not have if he were a private employee,..." Private employees, in certain circumstances, may have

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the same rights as a public employee and it is a misstatement by the Plaintiff to suggest otherwise. See Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985). Finally, the Plaintiff offers no legal authority for this instruction. Objection to Plaintiff's Competing Instruction No. 26: In addition to being argumentative, this instruction should be precluded from use because this jury instruction intentionally minimizes the impact of age on proving this claim. To prevail in this claim, the Plaintiff must prove that age was the determinative factor behind Denver's treatment of him. This standard is substantially higher than the standard listed in the Plaintiff's instruction ("Plaintiff need only prove that age was a motivating factor...that his age played a part.") (Emphasis supplied.) The Tenth Circuit instructs a jury to use the "determinative factor" standard to determine its verdict on this claim. See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544 (10th Cir. 1988); Smith v. Consolidated Mutual Water Co., 787 F.2d 1442 (10th Cir. 1986). Objection to Plaintiff's Competing Instruction No. 27: Denver objects to this instruction on the grounds that it is confusing and it misstates the law as stated in the Turner and Mitchell cases that are cited as authority by the Plaintiff. When listing the elements for direct evidence, Plaintiff inappropriately uses the term "inference" in the first introductory sentence to this instruction. The use of contradictory terms runs counter to providing the jury with clear instruction. Further, Plaintiff's attempt to instruct the jury that a plaintiff may "raise an inference of discriminatory animus...by offering evidence comparing himself to younger, similarly situated individuals who are treated more favorably" is not supported by the

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case law offered by the Plaintiff. In Turner v. North American Rubber, Inc., the Fifth Circuit expressly found that favorable treatment to a younger individual "is clearly insufficient for [the plaintiff's] ultimate burden of proving intentional age discrimination." See Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992). In Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992), this decision advised that "it is fundamental that to make a comparison of discriminatory plaintiff's treatment to that of non-minority employees, the plaintiff must show that the `comparables' are similarlysituated in all respects." Citing from Stotts v. Memphis Fire Dept., 858 F.2d 289 (6th Cir. 1988). This jury instruction by the Plaintiff is faulty because he makes no mention to the jury of his requirement in showing "that the comparables are similarly-situated in all respects" as is required under the case law that he cites as authority for this instruction and should be stricken as a result. Objection to Plaintiff's Competing Instruction No. 28: Denver objects to the last paragraph of this instruction as argumentative. Objection to Plaintiff's Competing Instruction Nos. 29 and 30: Denver objects to this entire jury instruction as argumentative and lacking any legal support as authority for its submission to the jury.

Objection to Plaintiff's Competing Instruction No. 34:
Denver objects to this instruction as it is argumentative and it misstates the law on the requirements for a pre-termination hearing under procedural due process. As the Tenth Circuit clearly held, a pre-termination hearing "need not be elaborate" and requires: "1) oral or written notice to the employee of the charges against him, 2) an

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explanation of the employer's evidence, and 3) an opportunity for the employee to present his side of the story." See Montgomery v. City of Ardmore, 365 F.3d 926, 935936 (10th Cir. 2004). The Plaintiff's position that a legal pre-termination hearing includes "the information in the possession of the employer...and whether there are reasonable grounds to believe that the charges against the employee are true"...and the right "to know of and use any evidence that may weigh in his favor" are not required for a legal pre-termination hearing. Finally, the cases cited by the Plaintiff (Pierce, DiBlasio, Moran, Zinermon, and County of Sacramento) address the requirement for substantive due process law under §1983. Because Pierce, DiBlasio and Moran address issues involving malicious prosecution, and the Plaintiff waived this claim when he failed to plead this claim in his Second Amended Complaint and in the Final Pretrial Order, any reference to this claim should be stricken from this instruction. It should also be noted here that the Pierce, DiBlasio and Moran decisions are of limited use here because those cases addressed individual liability under §1983 claims and did not address municipal liability under this claim.

Objection to Plaintiff's Competing Instruction Nos. 35 & 36 :
Denver objects to this jury instruction on the grounds that it is argumentative, confusing, and it is a misstatement of facts. The third and last paragraphs of this instruction are confusing because of the mixed messages the instruction sends a juror in connection with the respondeat superior issue. In the third paragraph, the instruction states that Denver may be liable for the acts of a single policy-maker yet in the last

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paragraph the jury is instructed that respondeat superior is not applicable in a §1983 claim. Finally, the Plaintiff is trying to persuade this Court to instruct the jury that as a matter of law Denver's policy makers include, "the Chiefs of the Denver Fire Department, the Manager of Public Safety, the Denver City Attorney, the Denver Civil Service Commission Hearing Officer and the Denver Civil Service Commission." Denver objects to this portion of the instruction as the Plaintiff pled in his Second Amended Complaint that the Denver Civil Service Commission is the policy-making body of the City. Further, the parties stipulated that the Civil Service Commission is the policy-making body as well in the Final Pretrial Order. See Final Pretrial Order, p.16, ¶3. This instruction is an attempt by the Plaintiff to cure a faulty pleading and as a result, this instruction should be precluded from submission to the jury. Objection to Plaintiff's Competing Instruction No. 37: As previously argued, Denver objects to this instruction on malicious prosecution and violations of the Fourth and Eighth Amendments as it is argumentative in nature and an attempt by the Plaintiff to raise new legal issues that were not previously pled and submitted in the Second Amended Complaint or as a substantive claim in the Final Pretrial Order. Objection to Plaintiff's Competing Instruction No. 38:

Denver objects to this instruction on the grounds previously asserted in Plaintiff's instruction numbers 35, 36, and 37. The Pierce, DiBlasio and Moran
decisions cited by Plaintiff are of limited use here because those cases addressed

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individual liability under §1983 claims and did not address municipal liability under this claim. Objection to Plaintiff's Competing Instruction No. 39: Denver objects to this instruction because it misstates the law on postdeprivation due process. Plaintiff contends, in part, that he did not have a legal postdeprivation hearing because there was not an "adequate remedy for any losses suffered..." The case law does not require a jury to look at the remedies available to the Plaintiff to find that Denver's post-deprivation process comports with the law. See American Nat'l. Bank v. City of Chicago, 826 F.3d 1547, 1550 (7th Cir.) cert denied, 484 U.S. 977 (1987) ("Due Process requires only that a person have a meaningful opportunity to present his claims; it does not guarantee success.") Objection to Plaintiff's Competing Instruction No. 41: Denver objects to this instruction on the grounds previously asserted in Plaintiff's instruction number 39. Objection to Plaintiff's Competing Instruction No. 42: Denver objects to this instruction and the last sentence in particular as it is not necessary for a jury to look at the adequacy of the remedy to find that Denver's predeprivation, and post-deprivation, procedures complied with the due process requirements enumerated in the Montgomery and American Nat'l Bank decisions listed above.

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Objection to Plaintiff's Competing Instruction No. 43: Denver objects to this instruction on the grounds that it is confusing and it misstates the law on voluntary resignation. Plaintiff has previously used the term "postdeprivation" in connection with his due process claim and Plaintiff is now using it for an instruction on voluntary resignation. This term is easily confusing to a juror who is being asked to determine evidence as it relates to two separate legal claims thus heightening the possibility that this duel use of the same term could confuse a juror. Denver further objects to this instruction because of the Plaintiff's improper insertion of the objective / reasonable person standard in determining the voluntariness of Plaintiff's resignation. None of the cases cited by the Plaintiff (Emerson, Walker, Whatley, Mason, Stacy, Terebetski or Nix) support the use of this standard in determining the voluntariness of a resignation whereas the "totality of the circumstances" inquiry into the Plaintiff's actions cited in Denver's instruction accurately states the law on voluntary resignations.

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Respectfully submitted this 1st of June, 2006. JACK M. WESOKY Assistant City Attorney CHRISTOPHER M.A. LUJAN Assistant City Attorney

By:_/s Christopher M.A. Lujan____ Jack M. Wesoky Christopher M.A. Lujan Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720-913-3100 Facsimile: 720-913-3190 E-Mail: [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF MAILING I certify that on June 1, 2006, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S PROPOSED JURY INSTRUCTIONS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: 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 Cristina Helm Cristina Helm, Paralegal OFFICE OF THE CITY ATTORNEY

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