Free Proposed Jury Instructions - District Court of Colorado - Colorado

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

Document 114

Filed 05/25/2006

Page 1 of 9

INSTRUCTION NO. 2 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. The Plaintiff claims that Defendant terminated him and refused to reinstate him to his position after the termination was overturned in an administrative hearing because of his age, over 40, and a disability, a hearing impairment, in violation of federal law prohibiting discrimination in employment on the basis of age or disability. Plaintiff also claims that he had complained of age or disability discrimination in the past and his termination and the City's denial of full reinstatement was in retaliation for that earlier complaint of discrimination. Plaintiff also claims that Defendant deprived him of his constitutional rights by denying him procedural and substantive due process of law by not providing him the required procedures both before and after his termination and that the conduct of the City in not fully reinstating him was so egregious that it shocked the conscience. As a result of defendant's actions, Plaintiff claims that he is entitled to an award of damages from the Defendant. 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

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

Document 114

Filed 05/25/2006

Page 2 of 9

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 action to lessen his damages as the result of Plaintiff's voluntary retirement. These are the issues you are to determine, but are not to be considered by you as evidence in the case.

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

Document 114

Filed 05/25/2006

Page 3 of 9

INSTRUCTION NO. 5 There are two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence ­ such as the testimony of an eyewitness or earwitness. The other is indirect or circumstantial evidence ­ the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. As a general rule, the law makes no distinction between direct or circumstantial evidence, but requires that the jury find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial.

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

Document 114

Filed 05/25/2006

Page 4 of 9

INSTRUCTION NO. 7 Certain testimony has been read into evidence from a deposition. A deposition is testimony taken under oath before trial and preserved in writing. You are to consider that testimony as if it had been given by the witness from the witness stand.

REB Jury Instruction in Rodriguez v. City & County of Denver, 01-RB-1173 (CBS)

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

Document 114

Filed 05/25/2006

Page 5 of 9

INSTRUCTION NO. 10 If any reference by the Court or by counsel to matters of testimony or exhibits does not coincide with your own recollection of that evidence, it is your recollection which should control during your deliberations and not the statements of the Court or of counsel. You are the sole judges of the evidence received in this case.

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

Document 114

Filed 05/25/2006

Page 6 of 9

INSTRUCTION NO. 15 C.R.S. 31-30.5-604 (2005) Colorado State statute, Section 31-30.5-604. "Firefighters' hire pension plans old municipalities of at least one hundred thousand in population" provides in relevant part as follows: (1) In municipalities having a population of at least one hundred thousand, any old hire member of the fire department who has served at least twenty-five years of active duty and has attained the age of fifty years shall be retired within thirty days after making application for retirement, except during periods of national emergency, and such person shall be paid a monthly pension equal to one-half the amount of the monthly salary said person received as a member of said department as of the date of application for retirement. For so long as the old hire member is in retirement, there shall be added to the amount of the member' pension one-half of any increase in s salary and longevity or additional pay based on length of service granted to the rank formerly occupied by the member in the department. (2) (a) When, for any reason, the rank or grade within a fire department is abolished or ceases to exist and a retired old hire member of such department, on or after April 30, 1963, is in receipt of a pension or annuity from the fund by reason of retirement in such classification, grade, or rank, such member shall receive the member' regular s pension payment for the grade or rank occupied at the time of the member' retirement. s In addition, such member of a fire department shall receive additional benefits as follows: The fraction which such member' regular pension payment for the grade or s rank occupied at the time of the member' retirement bears to the regular pension s payment for the next higher rank at such time shall be computed; and such member shall receive one-half of any increase in salary and longevity pay or additional pay based on length of service granted to the next higher rank or grade in such department multiplied by the fraction as above computed; but if the next higher and next lower ranks or grades of the department receive equal money increases, such member shall receive one-half of any increase without multiplication of the fraction above computed. An old hire member of such department who, on July 1, 1969, is in receipt of a pension or annuity from the fund, by reason of retirement in a rank or grade which has been abolished or has ceased to exist, shall have the member' benefits as above described s recomputed, and any additional moneys to which the member is entitled shall be paid to the member as if this provision were in effect at the date of the member' application for s retirement. (b) The provisions of this subsection (2) shall apply alike to all those who retired under this section and to those who retire under the provisions of section 31-30.5-705.

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

Document 114

Filed 05/25/2006

Page 7 of 9

INSTRUCTION NO. 18 You must not be influenced by sympathy, bias, or prejudice for or against any party in this case.

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

Document 114

Filed 05/25/2006

Page 8 of 9

INSTRUCTION NO. 48 The Plaintiff must prove by a preponderance of the evidence that he has a disability. The plaintiff must prove by a preponderance of the evidence that as a result of an impairment, he is substantially limited in the ability to perform a major life activity. Plaintiff claims that he is substantially limited in the activity of hearing. Hearing is a major life activity. The term ' ' substantially limited'means considerable or to a large ' degree. To show that he is substantially limited in the activity of hearing Plaintiff must show by a preponderance of the evidence either that he is unable to hear or that he is significantly restricted in his ability to hear when compared to the average person in the general population. In doing so, you should consider: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long-term impact, or the expected permanent or long-term impact, of or resulting from the impairment; and An impairment need not be permanent in order to substantially limit a major life activity, as long as it is a long-term impairment. For these purposes, long-term is defined as indefinite or unknowable in duration, and expected to last at least several months. A temporary, non-chronic impairment of short duration with little or no long-term impact does not qualify as an impairment which substantially limits a major life activity. For example, a broken leg or the need to recuperate for several weeks after surgery are not substantial limitations on a major life activity.

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

Document 114

Filed 05/25/2006

Page 9 of 9

The impairment must be substantial in terms of the Plaintiff's own experience. That is, it is not the name of an impairment or a condition that matters, but rather the effect of an impairment on the life of a particular person. Authority: Toyota Motor Mfg, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999) Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). Doebele v. Sprint/United Mgt. Co., 342 F. 3d 1117, 1129 (10th Cir. 2003) Aldrich v. Boeing Corp., 146 F.3d 1265 (10th Cir. 1998) O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.34 (5th ed. 2001) also citing Eighth Circuit Instruction on "Substantially Limits." Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998). Holt v. Grand Lake Mental Health Ctr., 443 F.3d 762 (10th Cir. 2006).