Free Brief - 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 MEMORANDUM RE: DISPUTED JURY INSTRUCTIONS AND VERDICT FORM ______________________________________________________________________ Defendant, City and County of Denver, by and through its attorneys, pursuant to REB Civ. Practice Standard IV.E.4.f., submits this memorandum regarding disputed jury instructions and verdict form. At the time of this submission, Plaintiff had not provided Defendant with Plaintiff's proposed jury instructions. Based on a telephone conference conducted in which Plaintiff's counsel stated that he did not know when Defendant's counsel would receive Plaintiff's proposed jury instructions, this Memorandum contains arguments relating to Defendant's instructions that Plaintiff either stated are nonstipulated or competing. Defendant is unable to brief Plaintiff's proposed instructions because, as stated above, they have not been received at the time this brief was finalized at approximately 4:30 p.m., 25 May 2006. Defendant respectfully requests leave to amend this brief should it become necessary to respond to the Plaintiff's proposed jury instructions.

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Defendant's Instruction No. 2: Defendant's Instruction No. 2 is the claims and defenses instruction. It fairly sets forth in brief form Plaintiff's claims and Defendant's defenses without getting into significant detail that could confuse the jury. Because other instructions describe the claims and the proof necessary, this instruction is not necessarily detailed. It sets forth Plaintiff's claims for age discrimination, disability discrimination and violation of procedural and substantive due process. Defendant's Instruction No. 5: Plaintiff could not stipulate to this instruction because of the use of the term "earwitness." Because this is an instruction provided by the Court it should be given. Defendant's Instruction No. 6: Plaintiff could not stipulate to this instruction. Because it is an instruction provided by the Court as one of its stock instructions it should be given. Defendant's Instruction No. 7: Because Plaintiff intends to present the video tape deposition he objects to this instruction. Defendant's position is that Plaintiff's notice of the subject deposition did not contain appropriate notice that it would be in video deposition and therefore the proper procedure is to read the transcript of the deposition and thus instruction no. 7 advising that deposition testimony is the same as testimony from the witness stand should be given. Defendant's Instruction No. 10: Plaintiff could not stipulate to this instruction. However, it is one of the Court's stock instructions and therefore should be given. 2

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Defendant's Instruction No. 15 and 16: These instructions contain the relevant portions of the Colorado State Statutes (31-30.5-604 and 31-30.5-705) upon which the hearing officer of the Civil Service Commission relied in his decision limiting Plaintiff's reinstatement to the effective date of his retirement after overturning the termination. Because of specific reliance on the State's Statutes they should be read to the jury so that the jury has full understanding of the reasons advanced by the hearing officer for his decision. Defendant's Instruction Nos. 18-19: These instructions direct the jury to decide the merits of the Plaintiff's claims regardless of how it views the parties in terms of sympathy, bias, or prejudice for or against either party. These instructions are designed to prevent the jury from rendering their verdicts based on a "David v. Goliath" analysis where one party is victorious based on anything other than the evidence presented at trial. These instructions are a combination of stock jury instructions and have been previous used in this Court. Defendant's Instruction Nos. 20-21: These instructions are designed to instruct the jury on the factors that it must consider if it decides to award damages to the Plaintiff. These instructions notify the jury that it should use reason and fairness, as opposed to sympathy, speculation, or guess work, in determining the proper amount of damages to award to the Plaintiff. These instructions are a combination of instructions that have been used by this Court before and those stock instructions found in O'Malley, Grenig and Lee.

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Defendant's Instruction No. 22: This instruction is the verdict form instruction and instructs the jury on the use of the verdict form. It properly explains to the jury that they are to answer the questions in the verdict form and follow the instructions in the verdict form. Case law instructs defendant's to draft jury verdict forms that prevent double recovery for the same injury. See Ellsworth v. Tuttle, 148 Fed. Appx. 653, 671-673, 2005 U.S. App. LEXIS 11897 (10th Cir. 2005) (Court rejected appellees' claim of double recovery as the jury was not limited in its instructions on how to calculate damages); See also Acevedo-Garcia v. Monroig, 351 F.3d 547, 569 (1st Cir. 2003)("'To the extent that a jury award on both claims would be duplicative, the proper practice is to ensure that the verdict form is structured so as to allow the jury to recompense the plaintiff[`s] injuries just once'"). Defendant's jury verdict form reflects its attempt to prevent double recovery for the same injury. Finally, this jury instruction was previously used by this Court. Defendant's Instruction No. 26: This is the "direct evidence" jury instruction that addresses the evidence put forth by the Plaintiff to prove his age discrimination claim against Denver. This jury instruction sets out the direct evidence burden that the Plaintiff will have to prove to the jury in accordance with United States Supreme Court and Tenth Circuit Court of Appeals case law. Furthermore, this jury instruction places the burden of proof solely on the Plaintiff as ADEA claims do not qualify for burden shifting jury instructions pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Kenworthy v. Conoco Inc., 979 F.2d 1462 (10th Cir. 1992). 4

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Defendant's Instruction No. 27: Denver's "determinative factor" jury instruction sets forth the burden that the Plaintiff must meet in proving that age was the determinative factor in how it treated him during his discharge and its refusal to reinstate him to his previous position as a firefighter with the Denver Fire Department. The Plaintiff's ability to prove that age is the "determinative factor" in Denver's behavior is crucial for the jury to find against Denver on his age claim. Defendant's Instruction No. 28: This instruction instructs the jury that if they found in favor of Plaintiff on ADEA claim, they should consider whether the contact was willful so the Court can, if necessary, award liquidated damages. Because the damages under the ADEA are an equitable remedy but the jury is permitted to decide the willfulness issue, this instruction is appropriate without referencing that the jury should find any amount of wages and benefits and due. Defendant's Instruction No. 29: In his complaint, the Plaintiff claims that Denver has discriminated against him on the basis of age by: 1) discharging him and 2) failing to reinstate him fully to his former position. See Complaint, paras. 125-127, 131-137. This jury instruction reflects the Plaintiff's age discrimination claim. Denver maintains that it did not commit age discrimination because it, through the Denver Civil Service Commission, overturned the Plaintiff's discharge and further it maintains that Plaintiff voluntarily retired under state law. This jury verdict accurately states Denver's defense to Plaintiff's age discrimination claim. 5

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This "nature of the claim" jury instruction is permissible under federal statute and the pattern federal jury instruction from Devitt, Blackmar & Wolff. Defendant's Instruction No. 30: This stock jury instruction enumerating the elements that the Plaintiff must prove in order to prevail in his age discrimination claim is derived from Devitt, Blackmar & Wolff and also appears in the Eleventh Circuit pattern jury instructions. Furthermore, this jury instruction places the burden of proof solely on the Plaintiff as ADEA claims do not qualify for burden shifting jury instructions pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Kenworthy v. Conoco Inc., 979 F.2d 1462 (10th Cir. 1992). Defendant's Instruction No. 31: This instruction sets forth the elements upon which Plaintiff basis his claim for a procedural due process violation (pretermination). It gives the jury a framework for Plaintiff's pretermination due process claim. Defendant's Instruction No. 32: This is simply an instruction setting forth the provisions of 42 U.S.C. §1983 and tells the jury the statutory authority for Plaintiff's due process claim and should be given so that the jury knows the parameters of the statute under which Plaintiff's due process claims brought. Defendant's Instruction No. 33: This contains the elements of a pretermination due process claim and notifies the jury that it is Plaintiff's burden to prove all four elements. The instruction also clears up what might be confusion for the jury by advising that a hearing in the pretermination procedure does not mean a judicial like proceeding. 6

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Defendant's Instruction No. 34: Based on Tenth Circuit Law this is an admonition to the jury that the pretermination hearing need not be elaborate and that a face to face meeting with the supervisor is sufficient under the law to meet the requirements of pretermination due process. This gives the jury a "bottom line" from which they can judge the adequacy of the pretermination procedures provided by Defendant. (This instruction is being tendered without prejudice to the Defendant's position because the Denver Civil Service Commission is the final policy maker in this matter, the pretermination process provided by the Fire Department is irrelevant.) Defendant's Instruction No. 35: This instruction advises the jury of the necessity to find a final policy maker for municipal liability. It points out to the jury the difference between what an average person might believe, that an employer is responsible for actions of its employees, and contrast that to the requirements of a finding of municipal liability under 42 U.S.C. §1983. The instruction is based on an instruction from the 11th Circuit and correctly instructs the jury that in order to find municipal liability, they must find the actions of the civil service commission are the actions that deprived Plaintiff of his constitutional rights. Defendant's Instruction No. 36: This is a supplement to instruction number 35 and again cautions the jury and instructs them of the need to find official action by the Denver Civil Service Commission in order to find the city liable. Again, it is based on pattern instructions from the Eleventh Circuit and states the appropriate law.

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Defendant's Instruction No. 37: Plaintiff also claims a denial of his substantive due process rights. This instruction describes that the city can only liable for violation of substantive of due process rights if the challenged conduct, the action of the Denver Civil Service Commission, was shocking to the conscience which standard is taken directly from Supreme Court precedent, County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998) and Collins v. City of Harker Heights, 503, U.S. 115, 126-129 (1992). Defendant's Instruction No. 38: This is the instruction on Plaintiff's claim of deprivation of a due process liberty interest. It sets forth the elements Plaintiff must prove to show that he had a liberty interest, defines the term "published" as it is used in Section 1983 liberty interest jurisprudence, instructs that if the elements are met Plaintiff must show that he did not have an adequate name clearing hearing and provides the elements of the name clearing hearing. The instruction is taken from Tenth Circuit law, Workman v. Jordan, 32 F.3d 475, 480 (10th Cir.) cert denied, 514 U.S. 1015 (1995). Defendant's Instruction No. 39: This is the instruction on Plaintiff's claim for denial of procedural due process after his termination. This instruction contains the four elements of a constitutionally sufficient post-termination hearing and that due process of law does not guarantee success but only an opportunity for Plaintiff to present his claim. The instruction alerts the jury that due process is only a process and not a guarantee of success and instructs the jury that simply because plaintiff may have not received all the relief he deemed appropriate, that is not a constitutional violation. 8

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Defendant's Instruction No. 40: Instruction No. 40 contains plaintiff's burden to prove that the Civil Service Commission or its hearing officer was not impartial for purposes of determining the adequacy of post-termination due process. It is taken from Supreme Court and Tenth Circuit law describing the significant burden on an individual challenging a posttermination hearing based on impartiality of the adjudicator. Defendant's Instruction No. 41: This instruction sets forth the well established law for determining whether a judicator, this case the Civil Service Commissioner and its hearing offer will biased or not impartial for purposes of determining the adequacy of the post-termination adversarial hearing. The instruction is based on well settled Supreme Court and Tenth Circuit law and because Plaintiff and because Plaintiff claims impartiality on behalf of those serving as adjudicators, this instruction should be given. Defendant's Instruction No. 42: Instruction number 42 tells the jury that a due process violation cannot be proven if the Plaintiff did not use the procedures available to him. That is he cannot claim a procedural due process violation if he did not use those procedures that are provided to remedy perceived due process violations. Again, this is based on well established law as cited in the instruction. Defendant's Instruction No. 43: This instruction advises the jury concerning Plaintiff's retirement. It sets forth the undisputed facts of Plaintiff's retirement and then sets forth the law on retirements ­ first that a retirement is presumed voluntary, second that it is Plaintiff's burden to show that 9

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the retirement was involuntary and in this case a product of coercion or duress from his employer and then sets forth the elements or matters which the jury can consider to determine if the retirement was the product of coercion or duress. It finally advises the jury that such coercion or duress must be from the employer and not merely an internal pressure or internal misconception by the employee. The instruction is taken from several cases including two from the Tenth Circuit, Parker v. Board of Reasons, 981, F 2d 1159, 1162 (10th Cir. 1992) and Emerson v. Widnall, 1996 U.S. App. LEXIIS 33513 (10th Circuit 1996, Case No. 95-6421). Defendant's Instruction No. 44: Plaintiff's disability discrimination claim is based on his belief that he was qualified for his position at the time of his discharge. See Complaint, ¶. 142. Further, Plaintiff avers that he could perform the essential functions of his job with or without a reasonable accommodation. Id. Plaintiff also maintains Denver discriminated against him because of his disability when it discharged him and refused to reinstate him fully to his former position. Id. at ¶¶. 148-151. Denver maintains that it did not commit disability discrimination because it did not know that the Plaintiff suffered from hearing loss until after he voluntarily retired due to a disability under state statute. This jury verdict accurately states Denver's defense to Plaintiff's age discrimination claim. This "nature of the claim" jury instruction is permissible under federal statute and the pattern federal jury instruction from Devitt, Blackmar & Wolff.

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Defendant's Instruction No. 45: This jury instruction instructs the jury that it must consider the employee's disability, qualifications, and whether or not a reasonable accommodation by Denver would allow for the Plaintiff to fulfill the essential functions of his job. This jury instruction is particularly important because it instructs the jury of the notice that the Plaintiff must provide Denver with in requesting a reasonable accommodation to perform the essential functions of his job. Defendant's Instruction No. 46: This jury instruction enumerates the elements that the Plaintiff must prove in order to prevail in his disability discrimination claim as set forth in federal statute, federal jury pattern instructions, and the Sixth, Seventh, Eighth and Eleventh Circuit Courts of Appeals. Defendant's Instruction No. 47: This jury instruction defines the term "disability" solely for the purposes of determining a verdict on the Plaintiff's ADA claim. This instruction further notifies the jury that they may not rely on this definition for determining this term that is found in C.R.S. §31-30.5-705. Defendant's Instruction No. 48: This jury instruction on the term "substantially limited" is based primarily on the stock instructions found in O'Malley, Grenig & Lee but has been modified to include the terms "considerable or to a large degree" and the requirement that "the impairment must be substantial in terms of the Plaintiff's own experience" as is found in Doebele v. Sprint/United Mgt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003), Smith v. Midland Break 11

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Inc., 138 F.3d 1304 (10th Cir. 1998) and Holt v. Grand Lake Mental Health Ctr., 443 F.3d 762, (10th Cir. 2006). Defendant's Instruction No. 49: This jury instruction incorporates the "major life activity of working" requirement with the "substantially limited" requirement necessary for the Plaintiff to prove that he is disabled within the meaning of the ADA. Defendant's Instruction No. 50: This jury instruction defines the Plaintiff's "recorded impairment" theory of his ADA claim. This instruction requires the Plaintiff to prove that he has a record of impairment by showing that he actually suffered from a physical impairment that substantially limited one or more of his major life activities as is required under Tenth Circuit jurisprudence. See Sorenson v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999). Defendant's Instruction No. 51: This jury instruction defines the Plaintiff's "regarded as disabled" theory of his ADA claim. Defendant's Instruction No. 52: This jury instruction defines what the Plaintiff must prove in order to recover under his disability discrimination claim. This jury instruction is a melding of instructions from O'Malley, Grenig & Lee and caselaw from the Seventh, Eighth and Tenth Circuit Courts of Appeals. This instruction directs the jury to use the "but-for" causation test in determining whether "but-for" the Plaintiff's disability that Denver would have discharged him and "but-for" his disability Denver would have refused to reinstate him. Finally, this 12

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instruction directs the jury to find in favor of Denver even if it disagrees with Denver's judgment or finds that its treatment of the Plaintiff was unfair. Defendant's Instruction No. 52A: This instruction is the good faith belief instruction advising the jury that if the Defendant's action in terminating or refusing to reinstate Plaintiff was based on an honestly held belief that Plaintiff engaged in the conduct which provided the basis for his termination or that State Statutes and his retirement prevented the reinstatement, even if that belief is mistaken, the City is not liable to the Plaintiff for discrimination damages. This instruction is based on settled Tenth Circuit law and such good faith belief instruction specifically referenced in the Whittington v. The Nordham Group, 429 F. 3d 1986, 998 (10th Cir. 2005). Defendant's Instruction No. 53: This instruction is the pattern instruction for nominal damages from O'Malley, Grenig & Lee. Defendant's Instruction No. 54: This jury instruction on the Plaintiff's duty to mitigate damages is derived from the Fifth Circuit's pattern jury instructions. Defendant's Instruction No. 55: This jury instruction on "retaliation" is the stock jury instruction from the Eleventh Circuit Court of Appeals. This jury instruction has been modified to elaborate on the temporal proximity requirement that the Plaintiff must prove in order to prevail on his retaliation claims. The language on proximity is found Arnett v. University of Kansas, 373 F.3d 1233, 1241 (10th Cir. 2004). 13

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Defendant's Instruction No. 56: This is the jury instruction on compensatory damages that is derived from federal statutes 42 U.S.C. §§ 1981 (a) and 2000e-5(g). Defendant's Verdict Form: Denver has tendered a jury verdict form that includes questions covering the Plaintiff's age discrimination, disability discrimination, procedural due process, and substantive due process claims that the jury must unanimously agree on before finding in favor of the Plaintiff. The purpose for including all of the Plaintiff's claims on one form is to eliminate the possibility that a jury could improperly award him double recovery for a single injury. See Ellsworth v. Tuttle, 148 Fed. Appx. 653, 671-673, 2005 U.S. App. LEXIS 11897 (10th Cir. 2005) (Court rejected appellees' claim of double recovery as the jury was not limited in its instructions on how to calculate damages); See also AcevedoGarcia v. Monroig, 351 F.3d 547, 569 (1st Cir. 2003)("'To the extent that a jury award on both claims would be duplicative, the proper practice is to ensure that the verdict form is structured so as to allow the jury to recompense the plaintiff[`s] injuries just once'").

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Respectfully submitted this 25th day of May, 2006. JACK M. WESOKY Assistant City Attorney CHRISTOPHER M.A. LUJAN Assistant City Attorney

By:_s/ Jack M. Wesoky___________ 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 May 25, 2006, I electronically filed the foregoing DEFENDANT'S MEMORANDUM RE: DISPUTED JURY INSTRUCTIONS AND VERDICT FORM 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/ Marilyn Barela Marilyn Barela, Legal Secretary OFFICE OF THE CITY ATTORNEY

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