Free Proposed Jury Instructions - District Court of Colorado - Colorado

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INSTRUCTION NO. 6 The evidence in the case consists of the sworn testimony of all the witnesses; and all exhibits which have been received in evidence; and all facts which have been admitted stipulated. In deciding the facts, you must consider only the evidence received at trial. Evidence offered at the trial and rejected or stricken by the Court must not be considered by you. Statements, remarks, arguments, and objections by counsel and remarks of the Court not directed to you are not evidence. You are to consider only the evidence in the case and the reasonable inferences from that evidence. An inference is a deduction or conclusion which reason and common sense lead the jury to draw from other facts which have been proved.

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

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INSTRUCTION NO. 41 Where there is an impartial decision maker at the post termination hearing, the fact that there may not have been an impartial decision maker at the pretermination hearing or that any investigation of the charges against the Plaintiff was biased or not impartial does not violate due process of law. Authority: Cacy v. City of Chickashaw, 1997 U.S. App. LEXIS 23039 n. 6 (10th Cir. 1997). Clements v. Airport Auth., 69 F. 3d 3321, 333 n. 15 (9th Cir. 1995). McDaniles v. Flick, 59 F.3d 446, 460 (3rd Cir.) cert. denied 516 U.S. 1146 (1996). McKinney v. Pate, 20 F. 3d 1150, 1162 (11th Cir. 1994).

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INSTRUCTION NO. 42 In order for you to determine whether a procedural due process violation has occurred, you must consider the entire spectrum of pre-deprivation and post-deprivation process provided by government. It is only when the government refuses to provide a process sufficient to remedy any procedural deprivation does a constitutional procedural due process violation arise. Thus, in order for Plaintiff to prevail on his denial of procedural due process claim, he must demonstrate that the procedures available to him through administrative appeals or State Court proceedings were inadequate to remedy any alleged procedural deprivation. If you find that the State Court remedies were inadequate, you must still consider whether Plaintiff had suffered any procedural due process violations. The Plaintiff failed to avail himself of the full procedures provided by State law, does not constitute evidence of their inadequacy. Authority: Zinermon v. Burch, 494 U.S. 113, 125-26 (1990) Collyer v. Darling, 98 F 3d 211, 226-227 (6th Cir.) cert. denied, 520 U.S.1267 (1997) McKinney v. Tate, 20 F.3d 1550, 1557 (11th Cir. 1994), cert. denied, sub nom McKinney v. Osceola, Bd. Of County Comm'rs., 513 U.S. 1110 (1998)

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INSTRUCTION NO. 43 Plaintiff submitted his application for retirement from the Denver Fire Department to the Fire and Police Pension Association called the FPPA, based on his age and number of years of service with the Denver Fire Department, pursuant to Colorado Statute. Plaintiff at the time of his application had twenty-five or more years of service and was 50 years of age or older which are the two prerequisites for a firefighter to retire set out in the Colorado Statute governing firefighters' age and service retirements. That retirement application was granted. Plaintiff then applied to the FPPA to convert his age and service retirement to a disability retirement. That application was granted and Plaintiff's age and service retirement was converted to a disability retirement pursuant to Colorado Statute. If Plaintiff's retirement was voluntary Plaintiff cannot legally receive any relief including any damages in this case. The law presumes that employee retirements are voluntary. Plaintiff has the burden to prove, by a preponderance of the evidence, that his retirement was involuntary. To do so Plaintiff must show that his retirement was the product of coercion or duress of his employer. You may find that Plaintiff's retirement was a product of duress or coercion from the City and County of Denver if the totality of the circumstances show that Plaintiff did not have the opportunity to make a free choice. In determining whether Plaintiff did not have the opportunity to make a free choice you should consider the following factors: 1. 2. 3. Whether Plaintiff had an alternative to retirement. Whether Plaintiff understood his actions. Whether Plaintiff had a reasonable time in which to choose retirement.

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4.

Whether Plaintiff had the opportunity to select the effective date of his retirement.

Involuntariness of retirement or coercion can be shown if Plaintiff was compelled to accept the terms dictated to him by the city. However, that Plaintiff was in an economically stressful situation is not sufficient to support a finding of coercion of duress imposed by an employer. Further, duress or coercion is not measured by the Plaintiff's subjective evaluation of the situation. Rather, to be involuntary Plaintiff's retirement must be caused by external coercion and duress not from any internal misconception or internal pressure. Authority: 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)

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INSTRUCTION NO. 44 Under a federal law entitled the Americans with Disabilities Act, called the ADA, it is unlawful for an employer for discharge and fail to reinstate or otherwise discriminate against an employee because of that employee's disability, if the employee is qualified to do the job with a reasonable accommodation from the employer for the employee's disability. Plaintiff William Cadorna claims that Defendant City and County of Denver discriminated against him by terminating him and later failing to reinstate him to his former position because Plaintiff had a "disability" within the meaning of the ADA. Plaintiff William Cadorna claims that he is qualified to do the job of a firefighter with a reasonable accommodation by Defendant City and County of Denver for Plaintiff's disability. Defendant City and County of Denver denies that it discriminated against Plaintiff William Cadorna in any way and contends that it was not aware of his disability at the time that it terminated the Plaintiff for conduct unbecoming a Denver firefighter, that Plaintiff was not terminated by the final policy maker for the City, the Civil Service Commission, that Plaintiff voluntary resigned his position with the fire department before he prevailed in his appeal of his discharge before the Denver Civil Service Commission, that it followed Colorado statutory law in its decision not to reinstate Plaintiff and Plaintiff could not be a firefighter because he was physically disqualified form that position as revealed in an examination for his application for a disability retirement.

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Authority: 42 U.S.C.A. §12112(a) Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.02 (5th ed.2001).

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INSTRUCTION NO. 45 Under the ADA, it is unlawful for an employer to discharge and refuse to reinstate or otherwise discriminate against an employee because of the employee's disability if the employee is qualified to do the job with a reasonable accommodation from the employer for the employee's disability. If you find that the plaintiff was otherwise qualified, as I explained that term to you, and you also find that the plaintiff was able to fulfill all of the essential functions of the job without any accommodation at the time of the adverse job action, then he is a qualified individual. However, if you find that the plaintiff was otherwise qualified, but was not able to fulfill all of the essential functions of the job without accommodation, then you must consider whether there were reasonable accommodations which the defendant could have made which would have enabled the plaintiff to fulfill the essential functions he could not otherwise fulfill. Under the ADA, an employer must be willing to consider making certain changes, or accommodations, in its ordinary work rules, facilities, or the terms and conditions of employment in order to enable a disabled individual to work. A reasonable accommodation is a change which presently or in the near future will enable a disabled employee to perform the essential functions of the job. A reasonable accommodation must be reasonable both in terms of cost and efficiency. Thus, you may consider the financial and administrative burdens which would be placed on the employer if required to make a particular accommodation. You may also consider

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the impact of an accommodation on other employees or on a valid collective bargaining agreement in determining whether a particular accommodation was reasonable. A disabled employee has the obligation to suggest reasonable accommodations to the employer. An employer is not required to grant every request by an employee; it is required to make only those reasonable accommodations which allow the employee to function in the position. An employee may not require an employer to accept a particular accommodation if another one will accomplish the necessary result. An employer is not required to eliminate or alter essential functions of the position as a reasonable accommodation. Thus, the employer is not required to reallocate essential job duties to other employees, or to reduce productivity standards to accommodate the plaintiff. An employee may not reject a reasonable accommodation which would have allowed the employee to fulfill all of the essential functions of the position. If you find that the plaintiff rejected such a reasonable accommodation, then he is not a qualified individual as I have defined that term for you. Authority US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). Mason v. Avaya Communications, Inc., 357 F.3d 1114, 2004 U.S. App. LEXIS 422 (10th Cir. Jan. 13, 2004). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.12 (5th ed. 2001).

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INSTRUCTION NO. 46 In order for Plaintiff William Cadorna to establish his claim of unlawful disability discrimination by Defendant City and County of Denver, he has the burden of proving all the following essential elements by a preponderance of the evidence: First: That he is a disabled person; Second: That he is otherwise qualified; Third: That Defendant City and County of Denver intentionally discriminated against him, that is, the fact that Plaintiff William Cadorna was a qualified person with a disability was a motivating factor in the defendant's decision to discharge Plaintiff and refuse to reinstate him; and Fourth: That Defendant City and County of Denver knew of plaintiff's hearing impairment and plaintiff's hearing impairment was a motivating factor in defendant's decision to discharge the plaintiff and its refusal to fully reinstate the plaintiff to his former position. Fifth: As a direct result of defendant's actions, Plaintiff William Cadorna sustained damages. If any of the above elements has not been proved by the preponderance of the evidence, then your verdict must be for Defendant City and County of Denver. Authority: 42 U.S.C.A. §12112(a) O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.11, §172.20 (5th ed. 2001). Eighth Circuit (Modified)

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Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996) Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996) Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992).

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INSTRUCTION NO. 28 If you find that Defendant discriminated against Plaintiff because of his age you must determine if the Defendant acted willfully in so discriminating. The defendant acted willfully if it deliberately, intentionally, and knowingly discharged the plaintiff because of his age and refused to reinstate him to the position of firefighter after his termination was reversed because of his age, and if it knew that such conduct was unlawful or showed reckless disregard of whether such conduct was unlawful or not. I caution you that the plaintiff need not prove that the defendant specifically intended to violate the ADEA. The plaintiff need only establish that the employer knew or showed reckless disregard of whether its conduct was prohibited by the ADEA. Authority Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). Acrey v. American Sheep Industry Ass' 981 F.2d 1569 (10th Cir. 1992). n, Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544 (10th Cir. 1988). Smith v. Consolidated Mutual Water Co., 787 F.2d 1441 (10th Cir. 1986). Bruno v. Western Electric Co., 829 F.2d 957 (10th Cir. 1987).

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INSTRUCTION NO. 29 Under federal law called the Age Discrimination in Employment Act, an employer may not discriminate against any employee because of that employee's age, when the employee's age is forty years of age or over. Plaintiff William Cadorna claims that Defendant City and County of Denver discriminated against him by terminating him and later failing to reinstate him fully because of his age. More specifically, the plaintiff alleges that defendant violated the law by discharging him because of his age and failing to reinstate him to the position of firefighter after a reversal of his discharge. The Defendant City and County of Denver denies the allegations and contends that the Plaintiff's discharge was overturned and that Plaintiff William Cadorna voluntarily retired from the Denver Fire Department thus extinguishing any right he had to reinstatement to the position of firefighter from which he had retired. Authority: 29 U.S.C.A. §623 3 Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions §106.01 (2000).

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INSTRUCTION NO. 30 In order for Plaintiff William Cadorna to prevail on his claim against Defendant City and County of Denver for age discrimination in employment, the plaintiff must prove the following three (3) essential elements by a preponderance of the evidence: First: that Plaintiff William Cadorna was within the protected age group, that is, was forty years of age or over; Second: that Plaintiff William Cadorna was discharged from his employment and not reinstated by Defendant City and County of Denver; Third: that the Plaintiff's age was a motivating factor in this action, that is, but for his age the defendant would not have taken the action. When the plaintiff has offered evidence which causes you to conclude that the defendant took the action complained of (discharge and failure to reinstate), because of age, plaintiff is entitled to recover unless the defendant proves that it would have taken the same action concerning plaintiff regardless of plaintiff's age. In showing that plaintiff's age was a motivating factor for the action, the plaintiff is not required to prove that his age was the sole motivation or the primary motivation for the defendant's decision. The plaintiff need only prove that his age played a part in the decision by the defendant. In addition, the plaintiff is not required to produce direct evidence of unlawful motive. Intentional discrimination, if it exists, is seldom admitted, but is a fact which may be inferred from the existence of other facts. You should be mindful that the law applicable to this case requires only that an employer not discriminate against an employee because of the employee's age. So far as you are concerned in this case, an employer may discharge, refuse to promote or

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otherwise adversely affect an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendant even though you personally may not approve of the action taken and would have acted differently under the circumstances. Authority: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Kenworthy v. Conoco, Inc., 979 F.2d 1462 (10th Cir. 1992). 3 Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions §106.03 (2000). Eleventh Circuit Pattern Jury Instructions, §1.4.1 (2000).

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INSTRUCTION NO. 31 Plaintiff William Cadorna claims that the Defendant, The City and County of Denver violated §1983 of Title 42 of the United States Code by denying him procedural due process of law before he was terminated. Specifically Plaintiff claims that while employed by Denver he was discharged without first having been given adequate notice of the charges against him, without first being given a summary of the employer's evidence against him supporting those charges and without having been given an adequate opportunity to respond to those charges. Defendant denies that Plaintiff was discharged without first having been given notice of the charges against him, a summary of the evidence against him and an opportunity to respond to those charges. Authority: 42 U.S.C. §1983 O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §168.80 (5th ed. 2001). Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) Montgomery v, City of Ardmore, 365 F.3d 926, 936 (10th Cir. 2004).

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INSTRUCTION NO. 32 The Federal Statute under which Plaintiff brings this suit, §1983 of Title 42 of the United States, was enacted by Congress to enforce the 14th Amendment to the United States Constitution. The 14th Amendment to the Constitution provides that: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law. §1983 provides that a person may seek relief in this Court by way of damages against any person, including a municipality who, as a result custom, policy, ordinance, regulation or decision subjects the person to the deprivation of any rights, privileges, or immunities secured or protected by the constitution or the laws of the United States. Authority: 42 U.S.C. §1983 O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §168.90 (5th ed. 2001) (modified).

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INSTRUCTION NO. 33 To prove Plaintiff's claim that he was denied procedural Due Process of Law before his termination, referred to as pre-termination Due Process, Plaintiff must prove the following four things by a preponderance of the evidence: 1) That Plaintiff was a permanent employee of Defendant City and County of Denver. In this case, it has been stipulated that Plaintiff was a permanent employee of the City and County of Denver. 2) That Plaintiff was discharged from that employment. 3) That before Plaintiff's discharge Plaintiff was not given notice of the charges against him, that he was not given a summary of the employer's evidence against him or that he was not given an opportunity to respond to those charges at a hearing with his employer. 4) That as a result of not receiving notice of the charges against him, not being given notice of the employer's evidence against him or not being given an opportunity to respond to those charges at a hearing with his employer, he suffered damage. The term hearing in this instruction does not mean a formal judicial like proceeding before a neutral hearing officer where the parties present witnesses and evidence. Authority: O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §168.100 (5th ed. 2001) (modified). Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985). Montgomery v, City of Ardmore, 365 F.3d 926, 936 (10th Cir. 2004).

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INSTRUCTION NO. 34 The purpose of the pre-termination hearing is to serve as a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. The pre-termination hearing, though necessary, need not be elaborate. A brief face to face meeting with a supervisor provides sufficient notice and opportunity to respond to satisfy the pretermination due process requirements. Authority: Montgomery v. City of Ardmore, 365 F 3d 926, 937 (10th Cir. 2004) quoting West v. Grand County, 967 F. 2d 362, 368 (10th Cir. 1989).

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INSTRUCTION NO. 35 The rules of law that apply to the Plaintiff's claim against the City and County of Denver on his claim that Due Process of Law was denied, are different than the rules of law that would ordinarily apply to claim against a corporation. Ordinarily, a corporation is legally responsible for the acts of its employees carried out in the regular course of their job duties as employees. This is known in the law as the doctrine of "respondeat superior" which means "let the superior respond" for any losses or injuries wrongfully caused by its employees in the performance of their jobs. This doctrine does not apply, however, in a case such as this where the Plaintiff claims a violation of constitutional rights. In this case, the City and County of Denver can be held liable only if you find that the deprivation of the Plaintiff's constitutional rights was a direct result of the City's ordinance, regulation, decision, policy or custom. A governmental entity is responsible only when an injury in inflicted through the execution of its policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. It is not enough merely to show that a City employee or employees caused the Plaintiff's injury. It has been stipulated that the City's policy maker within the meaning of this instruction was the Denver Civil Service Commission. Therefore, if you find that the acts of the Civil Service Commission, and only those acts, deprived the Plaintiff of constitutional rights, the City and County of Denver is liable for such deprivations.

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Authority: O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §168.101 (5th ed. 2001) adapted from the 11th Circuit. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Randle v. City of Aurora, 69 F.3d 441, 447-48 (10th Cir. 1995)

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INSTRUCTION NO. 36 Plaintiff claims that the Defendant City and County of Denver, a municipality, is liable to him for the denial of constitutional rights he alleges. Denver may be liable where you find that Plaintiff has been deprived of his constitutional rights in such deprivation is done pursuant to a governmental custom, policy, ordinance, regulation or decision. When a person is injured as the proximate result of the government's policy, custom, regulation or decision, made by those officials whose acts may fairly be said to represent official policy, Defendant Denver itself is responsible for the injury that is caused. Defendant Denver may be liable to Plaintiff if you find that the deprivation is done pursuant to a custom, policy, ordinance, regulation or decision of the Defendant Denver that was a proximate cause of the deprivation of Plaintiff's constitutional rights. The Denver Civil Service Commission was the agency of the City whose acts constitute final official policy of Defendant for purposes of this case. Therefore, if you find that the acts of the Civil Service Commission deprived Plaintiff of his constitutional rights, Denver may be liable for such deprivation. Authority: O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §168.101 (5th ed. 2001) adapted from the 11th Circuit.

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INSTRUCTION NO. 37 Plaintiff also claims that the Defendant Denver violated §1983 otf Title 42 of the United States Code by denying him his constitutional right to substantive due process of law. As with Plaintiff's claim for denial of procedural due process of law, the City can be held liable only if you find that the deprivation of Plaintiff's constitutional right to substantive due process of law was a direct result of the City's ordinance, regulation, decision, policy or custom. To prove Plaintiff's claims that his substantive due process rights were violated, he must prove that the Denver Civil Service Commission decision affirming the Hearing Officer's decision overturning his disciplinary dismissal and reinstating Plaintiff to March 13, 2005, by giving him back pay to that date, but not fully reinstating him to the position of firefighter was shocking to the conscience. Plaintiff must do more than show that the Civil Service Commission intentionally or recklessly caused injury to him by abusing or misusing government power. Shocking to the conscience means that the Civil Service Commission's decision was so egregious and so outrageous that it may be fairly said to shock the contemporary conscience. Authority: County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); Collins v. City of Harker Heights, 503 U.S. 115, 126-129 (1992).

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INSTRUCTION NO. 38 Plaintiff William Cadorna also claims that the Defendant, The City and County of Denver violated §1983 of Title 42 of the United States Code by depriving him of his liberty interest in his good name and reputation as that affects his protected property interest in employment. To prove his claim that his liberty interest, his good name and reputation as it affected any protected property interest in his employment, without due process of law Plaintiff must establish the following things by preponderance of the evidence. 1. That statements of his employer impugned his good name, reputation, honor or integrity. 2. 3. That the statements were false. That the statements occurred in the course of terminating the Plaintiff or foreclosed other employment opportunities. 4. That the statements were published.

When used in this instruction the word published means that the information that plaintiff contends adversely affected his good name and reputation was disseminated beyond the government of the City and County of Denver. Intra-government dissemination, by itself, as a matter of law, is not publication. If you find that Plaintiff has proven all four of these elements by a preponderance of the evidence then Plaintiff was entitled to an adequate name clearing hearing after his termination. An adequate name clearing hearing requires that after Plaintiff was terminated he was offered a hearing in which he had the opportunity to confront and cross-examine the employer's witnesses against him, that he had the opportunity to

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present witnesses and evidence on his own behalf, that he had the opportunity to be represented by an attorney and that the hearing take place before an impartial decision maker. If you find that Plaintiff had an adequate name clearing hearing your verdict on plaintiff's claim of denial of a due process liberty interest must be for the Defendant. Authority: Workman v. Jordan, 32 F.3d 475, 480 (10th Cir.), cert denied, 514 U.S. 1015 (1995). Asbill v. Housing Authority of Choctaw Nations, 796 F.2d 1499, 1503 (10th Cir. 1984). Harris v. Blake, 798 F.2d 419, 422 n.2 (10th Cir. 1986)

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INSTRUCTION NO. 39 Plaintiff also claims that the Defendant, The City and County of Denver violated §1983 of Title 42 of the United States Code by denying him due process of law after his termination, referred to as post-termination due process. In order to prevail on his claim of denial of post-termination due process Plaintiff must prove he did not have a posttermination hearing with the following rights: 1. 2. 3. To confront and cross-examine witnesses of the City against him. To be represented by counsel. To have the opportunity to present testimony and evidence on his own behalf. 4. To have the hearing before an unbiased and impartial hearing officer or decision maker. If you find that Plaintiff did not have one or more of these rights at a posttermination hearing your verdict on Plaintiff's claim that he was denied post-termination due process must be for the Plaintiff. However if you find that Plaintiff had all four of the above at a post-termination hearing your verdict must be for the Defendant on Plaintiff's post-termination due process claim. Remember, that due process requires only that Plaintiff have a meaningful opportunity to present his claim. It does not guarantee success on those claims. Authority: Workman v. Jordan, 32 F.3d 475, 480 (10th Cir.) cert. denied, 514 U.S 1015 (1995) Mangels v. Pena, 789, F.2d 836, 838 (10th Cir. 1986). American National Bank and Trust v. City of Chicago, 826 F. 2d 1547, 1550 (7th Cir) cert denied, 484 U.S. 977 (1987).

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INSTRUCTION NO. 40 In assessing whether the hearing officer and Civil Service Commission was biased or not impartial for purposes of determining whether there was a posttermination procedural due process violation, there is a presumption in the law of honesty and integrity in those serving as adjudicators. Due process is violated only when the risk of unfairness because of a biased decision maker is intolerably high under the circumstances of the particular case. There must be some substantial reason to conclude that the decision maker, the Denver Civil Service Commission hearing officer or the Civil Service Commission was actually biased with respect to the factual issues being adjudicated in the posttermination hearing. Authority: Withrow v. Larkin, 421 U.S. 35, 47, 58 (1975). Mangels v. Pena, 789 F.3d 36, 838 (10th Cir. 1986).

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INSTRUCTION NO. 41 Where there is an impartial decision maker at the post termination hearing, the fact that there may not have been an impartial decision maker at the pretermination hearing or that any investigation of the charges against the Plaintiff was biased or not impartial does not violate due process of law. Authority: Cacy v. City of Chickashaw, 1997 U.S. App. LEXIS 23039 n. 6 (10th Cir. 1997). Clements v. Airport Auth., 69 F. 3d 3321, 333 n. 15 (9th Cir. 1995). McDaniles v. Flick, 59 F.3d 446, 460 (3rd Cir.) cert. denied 516 U.S. 1146 (1996). McKinney v. Pate, 20 F. 3d 1150, 1162 (11th Cir. 1994).

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INSTRUCTION NO. 42 In order for you to determine whether a procedural due process violation has occurred, you must consider the entire spectrum of pre-deprivation and post-deprivation process provided by government. It is only when the government refuses to provide a process sufficient to remedy any procedural deprivation does a constitutional procedural due process violation arise. Thus, in order for Plaintiff to prevail on his denial of procedural due process claim, he must demonstrate that the procedures available to him through administrative appeals or State Court proceedings were inadequate to remedy any alleged procedural deprivation. If you find that the State Court remedies were inadequate, you must still consider whether Plaintiff had suffered any procedural due process violations. The Plaintiff failed to avail himself of the full procedures provided by State law, does not constitute evidence of their inadequacy. Authority: Zinermon v. Burch, 494 U.S. 113, 125-26 (1990) Collyer v. Darling, 98 F 3d 211, 226-227 (6th Cir.) cert. denied, 520 U.S.1267 (1997) McKinney v. Tate, 20 F.3d 1550, 1557 (11th Cir. 1994), cert. denied, sub nom McKinney v. Osceola, Bd. Of County Comm'rs., 513 U.S. 1110 (1998)

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INSTRUCTION NO. 43 Plaintiff submitted his application for retirement from the Denver Fire Department to the Fire and Police Pension Association called the FPPA, based on his age and number of years of service with the Denver Fire Department, pursuant to Colorado Statute. Plaintiff at the time of his application had twenty-five or more years of service and was 50 years of age or older which are the two prerequisites for a firefighter to retire set out in the Colorado Statute governing firefighters' age and service retirements. That retirement application was granted. Plaintiff then applied to the FPPA to convert his age and service retirement to a disability retirement. That application was granted and Plaintiff's age and service retirement was converted to a disability retirement pursuant to Colorado Statute. If Plaintiff's retirement was voluntary Plaintiff cannot legally receive any relief including any damages in this case. The law presumes that employee retirements are voluntary. Plaintiff has the burden to prove, by a preponderance of the evidence, that his retirement was involuntary. To do so Plaintiff must show that his retirement was the product of coercion or duress of his employer. You may find that Plaintiff's retirement was a product of duress or coercion from the City and County of Denver if the totality of the circumstances show that Plaintiff did not have the opportunity to make a free choice. In determining whether Plaintiff did not have the opportunity to make a free choice you should consider the following factors: 1. 2. 3. Whether Plaintiff had an alternative to retirement. Whether Plaintiff understood his actions. Whether Plaintiff had a reasonable time in which to choose retirement.

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4.

Whether Plaintiff had the opportunity to select the effective date of his retirement.

Involuntariness of retirement or coercion can be shown if Plaintiff was compelled to accept the terms dictated to him by the city. However, that Plaintiff was in an economically stressful situation is not sufficient to support a finding of coercion of duress imposed by an employer. Further, duress or coercion is not measured by the Plaintiff's subjective evaluation of the situation. Rather, to be involuntary Plaintiff's retirement must be caused by external coercion and duress not from any internal misconception or internal pressure. Authority: 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)

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INSTRUCTION NO. 44 Under a federal law entitled the Americans with Disabilities Act, called the ADA, it is unlawful for an employer for discharge and fail to reinstate or otherwise discriminate against an employee because of that employee's disability, if the employee is qualified to do the job with a reasonable accommodation from the employer for the employee's disability. Plaintiff William Cadorna claims that Defendant City and County of Denver discriminated against him by terminating him and later failing to reinstate him to his former position because Plaintiff had a "disability" within the meaning of the ADA. Plaintiff William Cadorna claims that he is qualified to do the job of a firefighter with a reasonable accommodation by Defendant City and County of Denver for Plaintiff's disability. Defendant City and County of Denver denies that it discriminated against Plaintiff William Cadorna in any way and contends that it was not aware of his disability at the time that it terminated the Plaintiff for conduct unbecoming a Denver firefighter, that Plaintiff was not terminated by the final policy maker for the City, the Civil Service Commission, that Plaintiff voluntary resigned his position with the fire department before he prevailed in his appeal of his discharge before the Denver Civil Service Commission, that it followed Colorado statutory law in its decision not to reinstate Plaintiff and Plaintiff could not be a firefighter because he was physically disqualified form that position as revealed in an examination for his application for a disability retirement.

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Authority: 42 U.S.C.A. §12112(a) Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.02 (5th ed.2001).

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INSTRUCTION NO. 45 Under the ADA, it is unlawful for an employer to discharge and refuse to reinstate or otherwise discriminate against an employee because of the employee's disability if the employee is qualified to do the job with a reasonable accommodation from the employer for the employee's disability. If you find that the plaintiff was otherwise qualified, as I explained that term to you, and you also find that the plaintiff was able to fulfill all of the essential functions of the job without any accommodation at the time of the adverse job action, then he is a qualified individual. However, if you find that the plaintiff was otherwise qualified, but was not able to fulfill all of the essential functions of the job without accommodation, then you must consider whether there were reasonable accommodations which the defendant could have made which would have enabled the plaintiff to fulfill the essential functions he could not otherwise fulfill. Under the ADA, an employer must be willing to consider making certain changes, or accommodations, in its ordinary work rules, facilities, or the terms and conditions of employment in order to enable a disabled individual to work. A reasonable accommodation is a change which presently or in the near future will enable a disabled employee to perform the essential functions of the job. A reasonable accommodation must be reasonable both in terms of cost and efficiency. Thus, you may consider the financial and administrative burdens which would be placed on the employer if required to make a particular accommodation. You may also consider

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the impact of an accommodation on other employees or on a valid collective bargaining agreement in determining whether a particular accommodation was reasonable. A disabled employee has the obligation to suggest reasonable accommodations to the employer. An employer is not required to grant every request by an employee; it is required to make only those reasonable accommodations which allow the employee to function in the position. An employee may not require an employer to accept a particular accommodation if another one will accomplish the necessary result. An employer is not required to eliminate or alter essential functions of the position as a reasonable accommodation. Thus, the employer is not required to reallocate essential job duties to other employees, or to reduce productivity standards to accommodate the plaintiff. An employee may not reject a reasonable accommodation which would have allowed the employee to fulfill all of the essential functions of the position. If you find that the plaintiff rejected such a reasonable accommodation, then he is not a qualified individual as I have defined that term for you. Authority US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). Mason v. Avaya Communications, Inc., 357 F.3d 1114, 2004 U.S. App. LEXIS 422 (10th Cir. Jan. 13, 2004). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.12 (5th ed. 2001).

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INSTRUCTION NO. 46 In order for Plaintiff William Cadorna to establish his claim of unlawful disability discrimination by Defendant City and County of Denver, he has the burden of proving all the following essential elements by a preponderance of the evidence: First: That he is a disabled person; Second: That he is otherwise qualified; Third: That Defendant City and County of Denver intentionally discriminated against him, that is, the fact that Plaintiff William Cadorna was a qualified person with a disability was a motivating factor in the defendant's decision to discharge Plaintiff and refuse to reinstate him; and Fourth: That Defendant City and County of Denver knew of plaintiff's hearing impairment and plaintiff's hearing impairment was a motivating factor in defendant's decision to discharge the plaintiff and its refusal to fully reinstate the plaintiff to his former position. Fifth: As a direct result of defendant's actions, Plaintiff William Cadorna sustained damages. If any of the above elements has not been proved by the preponderance of the evidence, then your verdict must be for Defendant City and County of Denver. Authority: 42 U.S.C.A. §12112(a) O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.11, §172.20 (5th ed. 2001). Eighth Circuit (Modified)

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Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996) Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996) Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992).

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INSTRUCTION NO. 47 A' ' disability'is defined by the ADA as a mental or physical impairment that ' substantially limits one of the major activities of life or a record of such an impairment or that the individual is regarded by the defendant as having such an impairment. This definition of "disability" that I am giving you is how that term is defined by the ADA and used for determining if a person has a disability under that act. The word "disability" is found in Colorado Revised Statute §31-30.5-705 as I have instructed you in jury instruction number ____. In that statute the term "disability" does not have the same meaning. 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). Aldrich v. Boeing Corp., 146 F.3d 1265 (10th Cir. 1998) Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.30 (5th ed. 2001). Cleveland v. Policy Mgmt. Systems Corp., 526 U.S. 795 (1999).

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INSTRUCTION NO. 49 Plaintiff William Cadorna contends that he is substantially limited in the major life activity of working. To prove this, the plaintiff must prove by a preponderance of the evidence that he had a significant restriction in the ability to perform a class of jobs or a broad range of jobs in various classes. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Nor does working mean at a job of plaintiff's choice. A' ' class of jobs'is defined as those jobs utilizing similar training, knowledge, ' skills or abilities within the geographical area where the plaintiff lives and works. In determining whether the plaintiff was substantially limited in the ability to perform the major life activity of working, you should take into consideration the factors I mentioned before, that is, the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long-term impact, or the expected permanent or long-term impact, of or resulting from the impairment. In addition, you should take into consideration the following factors: 1) The number and type of jobs from which plaintiff has been disqualified because of the impairment; 2) The geographical are to which the plaintiff has reasonable access; and 3) the plaintiff's job training, experience and expectations.

Authority: Toyota Motor Mfg, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999)

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Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) Bragdon v. Abbott, 524 U.S. 624 (1998). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions § 172.34 (5th ed. 2001).

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INSTRUCTION NO. 50 A person may be disabled under the ADA when they are recorded as disabled. An individual has a "record of such an impairment" if the individual "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." In order to establish a record of such impairment, Plaintiff William Cadorna must prove that he actually suffered a physical impairment that substantially limited one or more of his major life activities. Authority: 29 C.F.R. §1630.2(k) O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.37 (5th Ed. 2001). Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999) citing from Hilburn v. Murata Electronics North America, Inc. 181 F.3d 1220, 1229 (11th Cir. 1999).

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INSTRUCTION NO. 51 Plaintiff may also prove that he is disabled under the ADA if he can prove by a preponderance of the evidence that the City and County of Denver regarded him as disabled. A person is "regarded as disabled" when (1) the employer mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) the employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major activities. That Plaintiff's hearing impairment qualified him for a disability retirement form the Denver Fire Department standing alone is not sufficient to show that the City regarded him as disabled under the ADA. Authority: 42 U.S.C.A. §2101 (2) (C) Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.36 (5th ed. 2001).

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INSTRUCTION NO. 52 The third element of a claim under the Americans with Disabilities Act is that the defendant discriminated against plaintiff because of the disability. To satisfy this element, the plaintiff must prove by a preponderance of the evidence that the defendant took an adverse employment action against plaintiff because of plaintiff' disability or that the disability was a motivating factor in the s decision to take that adverse action or the defendant failed to make reasonable accommodation as required by the ADA. This means that the plaintiff' disability was a factor that made a difference in the s decision to take this action. Thus, this element is not satisfied if you find that the defendant would have taken the same action in the absence of plaintiff' disability. s The Plaintiff William Cadorna must establish by a preponderance of the evidence that his disability was a determinative factor in the action taken by the Defendant City and County of Denver. The plaintiff need not establish that his disability was the sole factor motivating the defendant. Disability may be one of a number of factors contributing to the defendant' action. The plaintiff demonstrates that disability was a s determinative factor if he shows that ' for'disability, the adverse action would not ' but ' have happened--that is, but for his disability, he would not have been discharged from his position and but for his disability he would have been reinstated. In order for the disability to have been a motivating factor in the defendant' s decision, the defendant must have known that the plaintiff had a disability. This means that the person who made the decision to take the adverse action knew that plaintiff had a disability.

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Defendant City and County of Denver may discharge or otherwise adversely affect an employee, including Plaintiff William Cadorna for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of Defendant City and County of Denver even though you personally may not approve of the action taken and would have acted differently under the circumstances. Authority: Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). Moysis v. DTG Datanet, 278 F.3d 819 (8th Cir. 2002). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.64 (5th ed. 2001). 29 U.S.C. § 623(a). Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544 (10th Cir. 1988). Smith v. Consolidated Mutual Water Co., 787 F.2d 1442 (10th Cir. 1986).

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INSTRUCTION NO. 52A In determining whether the Plaintiff was discriminated against on the basis of his age or disability, if the City terminated him or refused to reinstate him based on an honestly held belief that he engaged in the conduct which provided the basis for his termination or that the state statutes and his retirement prevented his reinstatement, even if that belief is mistaken, the City is not liable to the Plaintiff for damages based on discrimination. Authority: Whittington v. The Nordham Group, 429 F. 3d 986, 998 (10th Cir. 2005). Tran v. Trustees of the State Colleges, 355 F.3d 1263, 1268-69 (10th Cir. 2004).

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INSTRUCTION NO. 53 If you find in favor of Plaintiff William Cadorna in response to Instruction ______ and if you answer "no" in response to Instruction _________, but you find that plaintiff's damages have no monetary value, then you must return a verdict for Plaintiff William Cadorna in the nominal amount of one dollar. Authority: O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §172.73 (5th ed. 2001).

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INSTRUCTION NO. 54 A person who claims damages resulting from the wrongful act of another has a duty under the law to use reasonable diligence to mitigate--to avoid or minimize those damages. If you find the Defendant City and County of Denver is liable and Plaintiff William Cadorna has suffered damages, the plaintiff may not recover for any item of damage which he could have avoided through reasonable effort. If you find by a preponderance of the evidence the plaintiff unreasonably failed to take advantage of an opportunity to lessen his damages, you should deny him recovery for those damages which he would have avoided had he taken advantage of the opportunity. You are the sole judge of whether the plaintiff acted reasonable in avoiding or minimizing his damages. An injured Plaintiff may not sit idly by when presented with an opportunity to reduce his damages. However, he is not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating the damages. The defendant has the burden of proving the damages which the plaintiff could have mitigated. In deciding whether to reduce the plaintiff's damages because of his failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether the defendant has satisfied his burden of proving that the plaintiff's conduct was not reasonable. Authority: Fifth Circuit Pattern Jury Instructions, §15.15 (1999).

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INSTRUCTION NO. 55 Plaintiff William Cadorna alleges that Defendant City and County of Denver retaliated, that is, took revenge against the Plaintiff because the Plaintiff had previously taken steps seeking to enforce the Plaintiff's lawful rights or complained of discrimination under the Age Discrimination in Employment Act or the Americans with Disabilities Act. You are instructed that those laws prohibiting discrimination in the work place also prohibit any retaliatory action being taken against an employee by an employer because the employee has asserted rights or made complaints under those laws. So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as means of seeking to enforce what the employee believed in good faith to be his lawful rights. To establish "good faith," however, it is insufficient for the Plaintiff to merely allege that his belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable. In order to establish the claim of unlawful retaliation, therefore, the plaintiff must prove by a preponderance of the evidence: First: The he engaged in statutorily protected activity, that is, that he in good faith asserted claims or complaints of discrimination prohibited by federal law; That an adverse employment action then occurred: That the adverse employment action was causally related to the plaintiff's statutorily protected activities; and That the plaintiff suffered damages as a proximate or legal result of such adverse employment action.

Second: Third:

Fourth:

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For an adverse employment action to be "causally related" to statutorily protected activities it must be shown that, but for the protected activity, the adverse employment action would not have occurred. Or, stated another way, it must be shown that the protected activity by the plaintiff was a substantial, motivating cause that made a difference in the Defendant's decision. In determining if Plaintiff's protected activity is causally related to any adverse employment action you may consider the time between the protected activity and the adverse action. However, even if the two events occurred in close proximity, that alone is insufficient to establish the necessary causal relation. You should be mindful, however, that the law applicable to this case requires only that an employer not retaliate against an employee because the employee has engaged in statutory protected activity. So far as you are concerned in this case, an employer may discharge or otherwise adversely affect an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the defendant even though you personally may not approve of the action taken and would have acted differently under the circumstances. Authority: Eleventh Circuit Pattern Jury Instructions, §1.9.3 (2000). Arnett v. University of Kansas, 373 F.3d 1233, 1241 (10th Cir. 2004).

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INSTRUCTION NO. 56 The purpose of damages is to award just and fair compensation for the loss, if any, which resulted from the defendant' violation of the plaintiff' rights. Compensatory s s or actual damages seek to make the party whole--that is, to compensate the plaintiff for the damage that the plaintiff has suffered as a result of the defendant' discriminatory s actions. Compensatory damages are not limited merely to expenses that the plaintiff has borne. Instead, compensatory damages should fairly and justly compensate the plaintiff for the financial loss, not including lost wages, salary or benefits, that he has suffered as a result of any discriminatory action by the employer, and any mental anguish suffered as a result of that conduct. If you return a verdict in favor of the plaintiff, then you must award him such money as you believe will fairly and justly compensate the plaintiff for any loss sustained as a direct consequence of the conduct of the defendant. The damages you award must be fair and reasonable, neither inadequate nor excessive. Authority: 42 U.S.C. §§ 1981a and 2000e-5(g)

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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, a municipal corporation, Defendant. VERDICT FORM The Jury Must Unanimously Agree on the Answers to All of the Questions. We, the jury, provide our answers to the following questions: 1. Has Plaintiff proved by a preponderance of the evidence that the City and

County of Denver intentionally discriminated against him on the basis of his age by terminating him and failing to reinstate him to his firefighter position because of his age? ___________ Yes 2. ___________ No

Has Plaintiff proved by a preponderance of the evidence that the City and

County of Denver intentionally discriminated against him on the basis of his disability by terminating him and failing to reinstate him to his firefighter position because of his disability? ___________ Yes ___________ No

(If you answered Questions 1 and/or 2 "Yes," Go on to Question 3. If you answered Questions 1 and 2 "No," Go on to Question 5).

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3.

Has Plaintiff proved by a preponderance of the evidence that he suffered

damages as a proximate result of such discrimination. ___________ Yes ___________ No

(If you answered Question 3 "Yes," Go on to Question 4. If you answered Question 3 "No," Go on to Question 5). 4. State the amount, if any, of compensatory damages that Plaintiff should

be awarded from Defendant because of the discrimination? $________________ 5. Has Plaintiff proved by a preponderance of the evidence that the City and

County of Denver deprived him of his right to procedural due process of law. ___________ Yes 6. ___________ No

Has Plaintiff proved by a preponderance of the evidence that the City and

County of Denver deprived him of his right to substantive due process of law ___________ Yes ___________ No

(If you answered Questions 5 and/or 6 "Yes," Go on to Question 7. If you answered Questions 5 and 6 "No," sign and date this form). 7. Has Plaintiff proved by a preponderance of the evidence that he suffered

damages as a proximate result of being denied due process of law. ___________ Yes ___________ No

(If you answered Question 7 "Yes," Go on to Question 8. If you answered Question 7 "No," sign and date this form). 8. State the amount, if any, of damages that Plaintiff should be awarded from

Defendant because of the denial of due process of law. $______________

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(Sign and date this form) The Foreperson and each juror should sign and date this form of verdict. _________________ Foreperson _________________ Juror _________________ Juror _________________ Juror ________________ Juror ________________ Juror _________________ Juror __________________ Juror _______________ Date _______________ Date ________________ Date ________________ Date ________________ Date ________________ Date ________________ Date ________________ Date