Free Proposed Jury Instructions - District Court of Colorado - Colorado

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

Document 117

Filed 05/26/2006

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Pani' C mp t gINSTRUCTION NO. 2 litf o ei fs n Statement of Claims and Defenses

This case is a civil case, as distinguished from a criminal case. The party who brought this action is called the Plaintiff. The party against whom the case is brought is called the Defendant. In this case the Plaintiff is William Cadorna and the Defendant is the City and County of Denver. I in wra y uas mmay fh Pa t 'c i , wl o e d o l u r o te lnis lms if a f a das mmay f ee d n'a s e o d fn e t to ec i : n u r o D fn a t n w r r ee s s o h s lms s a A. Mr. Cadorna' Claims s Mr. Cadorna has sued the City of Denver for: (1) Violation of rights guaranteed to him as a Denver City employee by the United States Constitution, including deprivation of his property and liberty interests in his employment and career as a Denver Firefighter without procedural and substantive due process, deprivation of his right to fair trial by jury, and deprivation of his right to be free from malicious prosecution. He seeks to enforce these constitutional rights through the Civil Rights Act of 1871, 42. U.S.C. §1983, which protects the constitutional rights of municipal employees or citizens affected by unconstitutional municipal actions; (2) Age discrimination, and retaliation for exercising his rights under, the Age Discrimination in Employment Act; (3) Disability discrimination, and retaliation for exercising his rights under, in violation of the Americans With Disabilities Act. Mr. Cadorna claims that policy-making officials of the City engineered his termination and prosecution for shoplifting even though they have known since

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

Document 117

Filed 05/26/2006

Page 2 of 4

December 8, 2003 that Safeway Clerk Kevin McKee gave him permission to take the cookbook without paying for it. Mr. Cadorna claims that City officials used the shoplifting claim as a pretext, or false excuse, for terminating him because of his age and to deprive him of his constitutionally protected property and liberty interests in his 27-year employment and career as a Denver Firefighter. Mr. Cadorna claims that he did not voluntarily retire after his termination. Mr. Cadorna claims that the City forced him to retire against his will by unlawfully terminating him and depriving him of any income. Mr. Cadorna also claims that the City violated his constitutional right to due process, freedom from unlawful search and seizure, and a fair jury trial when it concealed exculpatory evidence, and relied upon and condoned perjured testimony and destruction of exculpatory evidence in maliciously prosecuting him for a crime it knew he did not commit. Mr. Cadorna further claims that the City violated the Age Discrimination in Employment Act, the Americans With Disabilities Act, and his constitutionallyguaranteed procedural and substantive due process rights when: (1) the Denver Civil Service Commission Hearing Officer refused to reinstate Mr. Cadorna because he is over fifty years of age and was granted a disability retirement after his termination; (2) the Civil Service Commission Hearing Officer limited Mr. Cadorna'monetary s remedy to just 2 and one-half months of salary, for the period between his termination on January 2, 2003 and his age and service retirement application on

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

Document 117

Filed 05/26/2006

Page 3 of 4

March 13, 2003; (3) the Denver Civil Service Commission afme teH ai O fe'd c i f i d h e r g f r e io r n i s c sn refusing to reinstate Mr. Cadorna because of his age and disability retirement and, in addition, found that an inaccurate statement at one point in the Hearing O fe'd c i ta MrC d rav l tr a pe frei me tpi t f r e io h t . a on o nai p ld o rte n "r ro i s c sn u l y i r o d mi a meant that Mr. Cadorna had no right to appeal his termination in the i s l s s" first place; (4) Retaliated against Mr. Cadorna for exercising his rights under the Age Discrimination in Employment Act and the Americans With Disabilities Act, by taking the foregoing actions against him. In sum, Mr. Cadorna claims that, having failed to prove that he shoplifted the cookbook, the City has used a variety of other unlawful grounds as another pretext, or false excuse, for refusing to reinstate or fully compensate him for his unlawful termination, and that the City has continued to unlawfully deprive him of his property and liberty interest in his employment and career as a Denver Firefighter without constitutionally required procedural or substantive due process. Mr. Cadorna claims that the City has maliciously prosecuted him and refused to reemploy or fully compensate him because of his age, because of his hearing disability, as retaliation for his complaints of age and disability discrimination, and to deprive him without due process of his constitutionally guaranteed property and liberty interests in his employment and career as a Denver Firefighter.

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

Document 117

Filed 05/26/2006

Page 4 of 4

B D fn a t A s e o D fn e . . ee d n' n w r r ee s s s Defendant denies that the Plaintiff was terminated because his termination was overturned through the process available to appeal any discipline. Defendant also denies that it terminated and did not reinstate Plaintiff because of his age or disability. Defendant also contends that Plaintiff voluntarily retired pursuant to the provisions of state law from his position when his appeal of his termination was pending thus cutting off any right to reinstatement or damages. Defendant also denies that it retaliated against the Plaintiff because of his earlier complaints. Defendant further denies that Plaintiff was deprived of his constitutional procedural or substantive due process rights. Defendant also contends that Plaintiff has failed to mitigate his damages by not taking sufficient action to lessen his damages after his employment as a Denver Firefighter ended. These are the issues you are to determine, but are not to be considered by you as evidence in the case.

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