Free Reply to Response to Motion - 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

04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

P AN IFSR P YT D F N A TSR S O S T L ITF ' E L O E E D N ' E P N E O P AN IFSMOTION FOR PARTIAL SUMMARY JUDGMENT L ITF '

Pa t Wia R C d ra( lni o " . a on "h rb replies to lni l m . a on " a t " rMrC d ra) ee y if l f i P if f D fn a t i a dC u t o D n e'( ee d n"" e v ro " i"A r 2 , 0 6 ee d n Ct n o ny f e v r " fn a t D n e" rCt ) pi 1 2 0 y s D , y l R s o s t Pa t 'Moi fr at l u e p n e o lnis t n o P ra S mmay if f o i r Judgment: I. THE CITY SEEKS TO IMPLICATE THIS COURT IN ITS CONTINUING C N PR C T C MMI T E TO P AN IFSC R E B A O TN O S IA Y O O T H F F L ITF ' A E R Y D P IG A LUDICROUSLY WRONGHEADED D FNTO O " O U T R " E III N F V L N A Y . The C mmi i H ai O fe ( e r gO fe"fu dta Pa t h not o s o e r g f r" ai f r o n h t lni ad sn n i c H n i ) c if f committed theft, and overturned Plaintiff's dismissal. However, with spectacularly obtuse disregard for governing law or rules of statutory construction, he arbitrarily refused to reinstate Plaintiff or otherwise make him whole for the loss of his career, and l tdPa t 'b c p y otep r db te nh d mi a o J n ay , 0 3a d i e lnis a k a t h ei ew e i i s l n a u r 2 2 0 n mi if f o s s s his age and service retirement on March 13, 2003. The Commission, a final policy-

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ma i b d o teCt afme teH ai O fe'd c i i i e tirety on the k g o y fh i, f n y i d h e r g f r e io n t n r n i s c sn s b s o ak o nfl h o :h H ai O fe'go s n gg n mi ttme t fa t a i f n w a e o d te e r g f r rsl e le t s ae n o fc s s n i s c y i s a o ep i i h d c i ta Pa t rte "r rod mi a . (See copy of t n o t i e io h t lni ei d pi t i s l nn s sn if r f o s s" Commission Decision and Final Order, Exh. A-10, or Exh. 3). Through the entirety of this case, at all levels, including before the Hearing Officer, it has been undisputed that Plaintiff did not apply for retirement until after his dismissal.(e Cts n w r S e i'A s e y admitting all or part of Paragraphs 37, 38, 40, 46, 47, 61, 62, 64, 65, 67, 68, 69, 70, 71, 7 , 4 7 , 6 7 , 3 8 , 5 9 , 7 9 , 0 , 0 , 0 , 0 , 0 , n 1 9o Pa t ' 3 7 , 5 7 , 7 8 , 4 9 , 6 9 , 8 1 3 1 4 1 5 1 6 1 7 a d 0 f lnis if f Second Amended Complaint; Exh. 11, PTO Stipulations 32-49). Thus did the City succeed in stealing something far more precious than a $20 cookbook from Plaintiff: his honor, his dignity, his sense of purpose, and his career.1 In furtherance of its perfidious corruption of the rule of law in the service of petty bureaucratic animosity, the City would have this distinguished Court join in the conspiracy. U leteCts o ls nls ri mio snteCv S ri nk h i'c mp i t eve n n i h il ev e i y aa y l i i c Commission, however, this Court is devoted to the truth and the rule of law above all else, and is as immune to undue influence as any human institution can be. Hence, the City resorts to that which it does best: deception. It hopes to deceive this Court into concluding that it would be in the best of judicial company were it to declare without b n f o ta ta Pa t 'a pc t nfrei me t f r itermination was not e ei fr l t lnis p lai o rte n at h t i h if f i o r e s coerced by his unlawful termination, but was, as a matter of fact and law, "o nay. v l tr" u

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Not to mention hunde s fh u a d o d lr i l t an g a db n f , o t a datre ' rd o to s n s f oasn o e ri s n e ei c s , n t n y l s n t s s o s fees.

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A.

Retirement after Unlawful Termination is Involuntary: Plaintiff relies

upon the well-established principle, derived from the equ a l pi ieo "n l n i b r c l fu c a t e np e h n s, ta rte n pe ittdb a e l e'u l fl co s a n t e a d " h tei me t rc i e y n mp y r n wu a t n c n o b r pa o s a i voluntary and therefore cannot bar reinstatement or recovery of lost wages or benefits. Plaintiff also relies upon the obvious principle that thev l tr e s f lnis o nai s o Pa t ' u n if f retirement after his termination is a question for the fact-finder, and cannot be resolved on a motion for summary judgment. Emerson v. Secretary of the Air Force, ___ F.3d ___, 1996 U.S.App. LEXIS 33513 (10th Cir. 1996)(unpublished); Walker v. Mountain States Telephone, 686 F.Supp. 269 (D.Colo. 1988)(retirement in face of demotion is not voluntary); Whatley v. Skaggs, 508 F.Supp. 302 (D.Colo. 1981)(disability would not have occurred but for unlawful termination, hence not a bar to back pay), aff'd 707 F.2d 1129 (10th Cir. 1983); Mason v. Association for Independent Growth, 817 F.Supp. 550 (E.D.Pa. 1993)(citing Whatley v. Skaggs with approval); Stacy v. Batavia Local School District, 779 N.E.2d 216 (Ohio S.Ct. 2002)(unlawfully terminated bus driver did not waive right to reinstatement by retiring after termination); In re: Terebetski, 770 A.2d 756 (N.J.App. 2001)(disability retirement by police officers did not constitute voluntary retirement); Nix v. Dept. of Administration, 417 S.E.2d 823 (N.C.App. 1992)(disability retirement taken after notice of termination is "hardly a voluntary career change", 417 S.E.2d at 827). B. Defendant Conceals that None of the Cases upon which it

Relies Involve Retirement After Termination--They Involve Retirement to Avoid Termination, or Claims of Constructive Discharge: From the inception

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of this case, Defendant has misleadingly offered decisions such as Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584 (U.S.Ct.Cl. 1975), as support for its c ne t nta Pa t 'c i aefrc s db h ae e l"o nay o tni h t lnis lms r oe l e y i lg d v l tr o if a f o s l y u rte n" f r itr n t n ei me tat h emi i . r e s ao Defendant has yet to acknowledge that these cases are either inapposite or distinguishable, because they invariably involve resignations or retirements tendered in advance of or in the face of threatened terminations for cause, undesirable transfers, demotions, or failures to promote. See, e.g., Leheny v. City of Pittsburgh, 183 F.3d 220 (3rd Cr1 9 ) lni ' D , u po e s n e u l rtco c i w r frc s d i 9 9( a t sA A d e rc s a d q a poe t n lms ee oe l e . P if f i a o by their voluntarily electing to an enhanced early retirement option, absent any compulsion from the employer); Murphy v. United States, 2006 U.S. Claims LEXIS 44 (Fed.Cl. 2006)(resignation to avoid transfer); Moskowitz v. Dept. of Treasury, 2003 U.S.App. LEXIS 22787 (Fed.Cir. 2003)(resignation upon return to work from disciplinary suspension); Dougherty v. Dept. of Defense, 2003 U.S. App. LEXIS 10657 (Fed.Cir. 2003)(early retirement after receipt of notice of proposed removal); Taylor v. Dept. of Interior, 2002 U.S.App. LEXIS 9706 (Fed.Cir. 2002)(employee unhappy with failure to win promotion elected early retirement); Gavin v. United States, 2000 U.S. Claims LEXIS 174 (Fed.Cl. 2000)(unsatisfactory work environment was not duress sufficient to render resignation involuntary); Tannehill v. United States, 1989 U.S.Cl.Ct. LEXIS 194 (Fed.Cl. 1989)(retirement by military officer in face of undesirable post was voluntary). C. Defendant Also Conceals that, Even if Plaintiff had Resigned or Retired i teF c o teCt' U fu d dT raso P o e uino T r n t n n h a e fh i s no n e he t f rs c t y o r emiai , o

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Plaintiff Would Not be Foreclosed from Pursuing his Claims Under §1983, the ADA, or the ADEA: Defendant also has yet to acknowledge that the decisions upon which it relies consistently distinguish circumstances in which they find resignation or retirement to be voluntary from circumstances in which the employer has deprived the employee of any meaningful choice through duress, coercion, misrepresentation or other unlawful conduct or unilateral action. Like Stone v. University of Maryland, 855 F.2d 167 (4th Cir. 1988)2, decisions such as Hargray v. City of Hallendale, 57 F.3d 1560 (11th Cir. 1995) do not support D fn a t p si , u i ta s r u lu d r n i In Hargray, a public works ee d n' o i n b t s d ei s n emi t s t o ne o y e. manager resigned during investigation of alleged theft to forestall his termination and prosecution. The Court found he did so voluntarily, but indicated it would have found his resignation involuntary had there been evidence that his municipal employer knew or had reason to know the evidence would not support prosecution, or if there were evidence that it had made material misrepresentations to induce his resignation. Hargray, 57 F.3d at 1569-70, citing Stone, supra, Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584 (U.S.Ct.Cl. 1975), Scharf v. Dept. of the Air Force, 710 F.2d 1572 (Fed.Cir. 1983), Schultz v. United States Navy, 810 F.2d 1133, 1135-37 (Fed.Cir. 1987), Covington v. Dept. of Health & Human Services, 750 F.2d 937, 942-44 (Fed.Cir. 1984). It is particularly noteworthy that Hargray e pclrj tda pc t no te"tn p t x li e c it e e p lai fh s d a y i o a a df h" n i tprinciple (Defendant has so recklessly and misleadingly trumpeted) in cases g of wrongdoing by the employer:

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Dsu s di d tinPa t 'Moi fr at l u i se n ea i lnis t n o P ra S mmay u g n. c l if f o i r J d me t

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"p ci l,e i ai s a b v l tr e e w e teo la en te S e i ay rs n t n c n e o nay v n h n h n l rai f l c g o u y t v to resignation is facing possible termination for cause or criminal charges. [cite] Resignations obtained in such cases where an employee is faced wt s c u p a a t l rai s r n v r e s v l tr b c u e" e i u h n l s n a en te ae e et l s o nay e a s t h e t v he u h fc rma s h t lni h dac o e [lni c u s n p t n f h. a te i ta p i f a n at f h i .Pa t ] o l t d a a d i t c if f d a g " Christie, 518 F.2d at 587. The one exception to this rule is where the employer actually lacked good cause to believe that grounds for the termination and the criminal charges existed. Stone, 855 F.2d at 174; Schultz, 810 F.2d 1136-37; Christie, 518 F.2d at 587-88. 57 F.3d at 1568 (emphasis added). Those are precisely the circumstances in this case. Plaintiff alleges, and has diligently mined a wealth of evidence tending to prove, that Defendant denied him due process, and discriminatorily terminated or refused to reinstate him, in reliance upon false allegations of, and threats of prosecution for, a crime it had good reason to know he did not commit, and persisted in depriving him of his property and liberty interest in his career, and discriminatorily refusing to reinstate him, even after it concluded that there was no evidence to support his termination. Plaintiff has also mined a wealth of evidence showing that the City fraudulently induced him to apply for disability retirement by touting its tax advantages without also informing him it intended to use his doing so against him in his pending Civil Service appeal. (Exh. 23, April 29, 2003 Letter from Karen McNeil to Plaintiff). I tic s , lni c o et "tn p t n f h" iu l fl r n t n n h a e Pa t h s o s d a a d i th n wu t mi i . s if f a g s a e ao However, even under the cases cited by Defendant, had he instead chosen to resign or retire to forestall termination, he would not be foreclosed from challenging his tr n t no teCts eu a t ri tt h u d r 1 8 ,h A Ao teA E . emi i rh i'rfs l e s e i n e § 9 3 te D rh D A ao y o na m See, also, Angarita, et al. v. St. Louis County, 981 F.2d 1537 (8th Cir. 1992)(police

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officers who resigned in the face of allegations of criminal conduct did not voluntarily resign because the municipality employed coercive interrogation techniques, engaged in misrepresentations, and departed from its usual procedures for investigating allegations of misconduct); Covington v. Dept. of Health & Human Services, 750 F.2d 937 (Fed.Cir. 1984)(retirement after a RIF notice, coupled with misinformation about the effect of retirement, rendered retirement involuntary). Therefore, Pa t 'retirement after his involuntary and unlawful termination lnis if f simply cannot be deemed voluntary under controlling precedent. That is why Defendant has never, in any of the lengthy proceedings through which it has dragged Plaintiff, been able to cite a single case squarely on point, or even close, for the proposition that Pa t 'rte n w s o nay No respectable court in the land would endorse lnis ei me t a v l tr. if f r u such a ludicrous suggestion. Only in the Wonderland of the Denver Civil Service Commission could one expect the Mad Hatter to declare that a retirement that indisputably occurred after ama 'tr n t na tay curdbefore, just because n emi i c l o c r s ao ul e the White Rabbit says so, or to endorse the absurd notion that a retirement precipitated by unlawful termination and malicious prosecution could be voluntary. Even assuming arguendo ta Pa t 'rte n atr iu l fl r n t n h t lnis ei me t f h n wu t mi i if f r e s a e ao could be deemed voluntary, it would not provide the City with a pretext for the additional unlawful act of refusing to reinstate him. Lundstedt v. City of Miami, 1995 U.S.Dist. LEXIS 21884, pp. 14-20 (S.D.Fla. 1995)(Firefighter who voluntarily retired due to disability could not be foreclosed from applying for reinstatement. Even if he was no l g r n"mp y e u d rh A Ao R h bi t nA th w s n"p la to o e a e l e " n e te D r e a iai c e a a a pc n fr n o l o t , i

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e l me te te t bi c i u d rh A Aa dR h bi t nA t Moreover, mp y n" ni d o r g lms n e te D n e a iai c o t l n a l o t . h pe i s ok r'o e s t nc i o s t me t i n t a h s b e u n i rv u w resc mp n ai lm r et n d o b r i u s q e t s o o a l e d s disability discrimination claims under the doctrines of collateral estoppel or res judicata.) II. DISABILITY DISCRIMINATION--THERE IS A TRIABLE ISSUE OF FACT WHETHER PLAINTIFF IS SUBSTANTIALLY IMPAIRED IN THE MAJOR LIFE ACTIVITY OF HEARING. Plaintiff's disability claims are based on a hearing disability certified by a licensed physician, Dr. Stephen Hessl (Exh. A-8), a disability sufficiently serious to warrant the D n e Frf he'P n i B ad d c i t ga t i ad a iy ei me t f r e v r i i tr e s n o r' e io o rn h eg s o s sn m i bi rte n at s l t r e his unlawful termination. (Exh. A-7). As Plaintiff explained in his Affidavit (Exh. 22), he has 70% hearing loss in one ear, and 30% hearing loss in the other. He cannot hear many sounds if they are behind him, strains to understand normal conversation, has difficulty understanding people unless he can watch their lips and faces, and must play the television or other electronic devices, including the telephone, at very high volume in order to understand what is being said. Pa t 'h ai l ss lnis e r g o isubstantially limiting if f n s because he is significantly restricted as to the condition, manner or duration under which he can perform the indisputably major life activity of hearing as compared to the condition, manner, or duration under which the average person in the general population can hear. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003). The severity of Pa t 'h ai l ss ra.T ed rt no h h ai l s lnis e r g o ige t h uai f i e r g o if f n s o s n s is permanent. Therefore, Plaintiff meets the standards set forth in Doebele for establishing that he is substantially limited in the major life activity of hearing.

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P rc l li t cv a dh l u iteDs i o Ai n 'e t od ai atu r n r te n e fl h ir t f r o a x a ri r i ay su i p s tc z s r n l y thoughtful decision in Finical v.Collections Unlimited, 65 F.Supp. 2d 1032 (D.Ariz. 1999). On the basis of evidence remarkably similar to that adduced by Plaintiff to support a determination that he is substantially impaired in the major life activity of hearing, the court successfully distinguished unmitigated hearing loss lePa t ' i lnis k if f from the corrected vision at issue in Sutton v. United Airlines, 527 U.S. 471 (1999), the high blood pressure at issue in Murphy v. United Parcel Service, 527 U.S. 516 (1999), or the monocular vision at issue in Ab r o 'v Kri b r, 527 U.S. 555 (1999), and l t n . i n ug es s kg decid d " ]n t e i telh mo ta oa l t Pa t ,h n n v gp r ,h e : [ o s u d n h i t s fv rb o lni te o mo i at te c r g e if f n y e i n erg ri b t tee tn o Pa t 'h ai l s n tec mp n aoy v e c e ad g oh h x t f lnis e r g o a d h o e s tr d n e if f n s measures she employs creates a genuine issue of material fact with respect to whether Pa t 'i a me t u s nill t te` j l a ti' f e r g"6 FS p . lnismp i n ` b t t l i s h ma ri cvyo h ai . 5 .u p if f r s a ay mi' o f it e n 2d at 1042. III. P AN IFSDS BLT R TR ME TP Y N SA EAC L A E A L ITF ' IA IIY E IE N A ME T R O LTR L S U C T A MA N TB U E T O F E D F N A TSB C P Y O R E H T Y O E S D O FS T E E D N ' A K A LIABILITY. Defendant seriously misconstrues, and misrepresents, the effect of the collateral source rule in this case. Had the Hearing Officer and Commission granted Plaintiff reinstatement plus back pay, minus his disability retirement payments, they unquestionably would have violated the collateral source rule. Arneson v. Callahan, 128 F.3d 1243 (8th Cr1 9 ) f mi d tc c ut rfs l rd c b c p y w r i 9 7( f n ir t o rs eu a t e u e a k a a ad . ai g si r ' o under Rehabilitation Act and Tile VII by the amount of disability retirement benefits the plaintiff received). They went even farther. They completely ignored the collateral

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source rule, and other governing authority requiring that Plaintiff be made whole for his unlawful termination, and seized upon his disability retirement as grounds for denying him any remedy whatever, whether it be reinstatement, back pay, or otherwise. If it would be unlawful under the collateral source rule to deduct one cent of his disability pension from his back pay award, it surely must be even more unlawful to deny him any relief whatever because he obtained a disability pension. Lundstedt v. City of Miami, supra, 1995 U.S.Dist. LEXIS 21884, pp. 14-20 (S.D.Fla. 1995)(Firefighter who voluntarily retired due to disability could not be foreclosed from applying for reinstatement. Even if h w s ol g r n"mp y e u d rh A Ao R h bi t n e a n o e a e l e " n e te D r e a iai n o l o t A th w s n"p la to e l me te te t bi c i u d rh A Aa d c e a a a pc n fr mp y n" ni d o r g lms n e te D n , i o t l n a R h bi t nA t Moe v rh pe i s ok r'o e s t nc i o s t me t e a iai c l o t . ro e, i rv u w resc mp n ai lm r et n s o o a l e did not bar his subsequent disability discrimination claims under the doctrines of collateral estoppel or res judicata.) DATED this 2nd day of May, 2006. Respectfully submitted,

/s/

Mark E. Brennan

Mark E. Brennan, P.C., #14012 P.O. Box 2556 Centennial, CO. 80161 Phone: (303) 552-9394 or 797-7687 Email: [email protected] ATTORNEY FOR PLAINTIFF

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Certificate of Service The undersigned hereby certifies that on this 2nd day of May, 2006, he sent a copy of this Pa t 'Reply t D fn a t R s o s t Pa t 'Moi fr at l lnis if f o ee d n' e p n e o lnis t n o P ra s if f o i Summary Judgment via electronic mail to: Jack M. Wesoky, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202

/s/

Mark E. Brennan

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