Free Proposed Jury Instructions - District Court of Colorado - Colorado

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

Document 117-16

Filed 05/26/2006

Page 1 of 2

P AN IFSC MP TN INSTRUCTION NO. 43 L ITF ' O E IG Voluntariness After his termination, Plaintiff submitted his application for retirement from the Denver Fire Department. Plaintiff at the time of his application had twenty-five or more years of service and was 50 years of age or older, and so automatically qualified for age and service retirement. That retirement application was granted. Plaintiff then applied to convert his age and service retirement to a disability retirement based on hearing loss that he suffered while still employed as a Firefighter. That application was granted, a dPa t 'a ea ds ri rte n w s o v r dt ad a iy n lnis g n ev e ei me t a c n et o i bi if f c r e s l t retirement pursuant to Colorado Statute. You are called upon to determine whether Plaintiff'p s s ot -termination retirement was voluntary, as it was caused by his termination that was later found to be unlawful. Y uma f dta Pa t 'rte n w s po u t f ue s r o ri by the City o y i h t lnis ei me t a a rd c o d rs o c ec n n if f r o and County of Denver if the totality of the circumstances show that Plaintiff had no choice other than to retire following his termination. If Plaintiff was compelled to accept the terms dictated to him by the city, his retirement was not voluntary. Due s r o ri in t a ue b tePa t ' rs o c ec n s o me s rd y h lnis o if f subjective evaluation of the situation. It is measured by whether a reasonable person in his position would have felt he had any choice other than to retire. Authority: Emerson v. Secretary of the Air Force, ___ F.3d ___, 1996 U.S.App. LEXIS 33513 (10th Cir. 1996)(unpublished); Walker v. Mountain States Telephone, 686 F.Supp. 269 (D.Colo. 1988)(retirement in face of demotion is not voluntary); Whatley v.

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

Document 117-16

Filed 05/26/2006

Page 2 of 2

Skaggs, 508 F.Supp. 302 (D.Colo. 1981)(disability would not have occurred but for unlawful termination, hence not a bar to back pay), aff'd 707 F.2d 1129 (10th Cir. 1983); Mason v. Association for Independent Growth, 817 F.Supp. 550 (E.D.Pa. 1993)(citing Whatley v. Skaggs with approval); Stacy v. Batavia Local School District, 779 N.E.2d 216 (Ohio S.Ct. 2002)(unlawfully terminated bus driver did not waive right to reinstatement by retiring after termination); In re: Terebetski, 770 A.2d 756 (N.J.App. 2001)(disability retirement by police officers did not constitute voluntary retirement); Nix v. Dept. of Administration, 417 S.E.2d 823 (N.C.App. 1992)(disability retirement taken after notice of termination is "hardly a voluntary career change", 417 S.E.2d at 827). Lehney v. City of Pittsburgh, 183 F.3d 220, 227 (3rd Cir. 1989) Hargray v. City of Hallendale, 57 F.3d 1560, 1568 (11th Cir. 1995) Stone v. University of Maryland, 855 F.2d 167, 173-174 (4th Cir. 1988) Parker v. Board of Regents, 981 F.2d 1159, 1162 (10th Cir. 1992) Emerson v. Widnall, 1996 U.S. App. LEXIS 33513 (10th 1996, Case No. 95-6421) Christie v. United States, 207 Ct. Cl. 333, 518 F.2d 584, 587 (1975)