Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 117-8

Filed 05/26/2006

Page 1 of 3

Pa t 'C mp t gIs u t nt S p l t ee d n'29 and 30, pertaining to lnis o ei n t co o u p n D fn a t if f n r i a s Pa t 'A E Ca lnis D A lms if f i

Mr. Cadorna claims that the City used the allegation that he had shoplifted a cookbook as a pretext, or false excuse, for terminating him, and that the real reason it terminated him was his age, which was fifty on the date of his termination. If you find that Mr. Cadorna has proved by a preponderance of the evidence that the allegation that he shoplifted a cookbook was a pretext for terminating him because of his age, you must find that his termination violated the ADEA. Mr. Cadorna also claims that the City again discriminated against him because of his age, over fifty, and unlawfully retaliated against him for asserting his rights under the ADEA, by refusing to reinstate him or otherwise grant him a full remedy even though the Civil Service Commission Hearing Officer found that he did not commit the offense of shoplifting that was used as the justification for terminating him. The Hearing Officer refused to reinstate Plaintiff or grant him other relief to which he was otherwise entitled in express reliance upon the fact Plaintiff was over fifty years of age a tet o teH ai O fe'd c i . th i fh e r g f r e io me n i s c sn As justification for his express reliance u o Pa t 'a ei rfs gt ri tt p n lnis g n eu i o e s e if f n na or grant other relief to Plaintiff, the Hearing Officer relied upon a Colorado Statute that h c n t e t po it lnis e s tme t e a s o h a e e o s u d o rh i a t 'ri t e n b c u e f i g .This Colorado r bP if f na s statute cannot, under the Supremacy Clause of the United States Constitution, be used as a justification or defense for explicit age discrimination. Therefore, the Hearing

Case 1:04-cv-01067-MSK-CBS

Document 117-8

Filed 05/26/2006

Page 2 of 3

O fe'd c i ta Pa t c u n t eri ttdo ga tdoh ru rlf f r e io h t lni o l o b e s e r rne te fl ee i s c sn if f d na l i constitutes what is called direct evidence of age discrimination. Unless the City produces evidence proving to you by a preponderance of the evidence that it still would have refused for a lawful reason to reinstate Plaintiff had he been younger than 50, or 40, at the time of the He r gO fe'd c i , o mu ti ai f r e io y u s f d n i s c sn n that the City committed unlawful age discrimination in refusing to reinstate Plaintiff in rln eu o teH ai O fe'd c i . ea c p n h e r g f r e io i n i s c sn Atr . a on a p a dteH ai O fe'd c i t teCv S ri f MrC d ra p e l h e r g f r e io o h il ev e e e n i s c sn i c C mmi i ,h C mmi i afme teH ai O fe'd c i i i e tey I o s o te o s o f sn s n i d h e r g f r e io n t ni t n r n i s c sn s r . addition to the grounds relied upon by the Hearing Officer, the Commission also relied u o i d tr n t nta as tme t t n p i i teH ai O fe'd c p n t eemi i h t t e n a o e o t h e r g f r e ision s ao a nn n i s c ta Pa t a pe frei me tpi t d mi a me n ta Pa t d n t a e h t lni p ld o rte n "r ro i s l a th t lni i o h v if f i r o s s" if d f ter h t a p a h tr n t ni tefs p c , n ta Pa t 'a p a a d h i to p e l i emi i n h i t l e a d h t lnis p e l n g s ao r a if f request for reinstatement should be denied on that basis, as well. As I told you earlier, the parties have stipulated that Plaintiff did not apply for any form of retirement until after his termination on January 2, 2003, and that no one introduced any evidence or statements of any kind in the proceedings before the Hearing O fe o C mmi i ta Pa t a pe frei me tpi t d mi a . f r r o s o h t lni p ld o rte n "r ro i s l i c sn if f i r o s s" Mr. Cadorna contends that the Commission knew or had good reason to know f m e i n era i a aa l t inteoh r at o teH ai O fe'd c i , r o v e c e dy v ib o t h te p r fh e r g f r e io d l l e i s n i s c sn in the rc r o tepo e d g b fr teH ai O fe, n i MrC d ra Cv e od fh rc e i s eoe h e r g f ra d n . a on ' il n n i c s i Service Commission personnel file, that there was no factual basis for the Hearing

Case 1:04-cv-01067-MSK-CBS

Document 117-8

Filed 05/26/2006

Page 3 of 3

O fe's tme t t n p i i h d c i ta MrC d raa pe frei me t f r t e n a o e o t i e io h t . a on p ld o rte n i s a c nn s sn i r "r rod mi a .MrC d rac i ta teCommission nevertheless used what pi t i s l o s s " . a on lms h th a the Commission knew to be a misstatement of the facts by the Hearing Officer c n en gted t o MrC d ra rte n a pc t nas a pretext, or false o c ri h ae f . a on ' ei me t p lai n s r i o excuse, for refusing to reinstate him because of his age and in retaliation for his exercising his rights under the ADEA. If you find that Mr. Cadorna has proved by a preponderance of the evidence that the C mmi i u e teH ai O fe'i i ua lmistaken statement in one part o s o s d h e r g f r n s tb sn n i s dp c y o h d c i ta MrC d raa pe frei me tpi t d mi a a a pretext f i e io h t . a on p ld o rte n "r ro i s l s s sn i r o s s" for refusing to reinstate him or grant him other relief in lieu of reinstatement, you must find that teCts eu a t ri tt h or grant him full monetary relief for his h i'rfs l e s e i y o na m termination violated the ADEA.