Free Reply to Response to Motion - District Court of Colorado - Colorado


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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. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. DEFENDANT' S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendant, City and County of Denver, submits this reply in support of its motion for summary judgment. I. INTRODUCTION Defendant moved for summary judgment on all Plaintiff's claims - violation of the ADEA, of the ADA and violation of 42 U.S.C. §1983- Due Process of Law violation. This reply addresses issues raised in Plaintiff's response to Defendant's motion. II. PLAINTIFF'S CLAIM UNDER §1983-DEPRIVATION OF DUE PROCESS OF LAW On his §1983 due process claim, for municipal liability of the City, Plaintiff must prove 1) that a constitutional violation occurred and 2) that some official city policy or custom was the moving force behind the violation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1994); Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Randle v. City of Aurora, 69 F.3d 441, 447-448 (10th Cir. 1995)(a municipality is responsible for actions it has officially sanctioned or ordered such as by a written policy,

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decisions made by one with final policy making authority or those taken pursuant to a long standing practice or custom so that it has become official policy). In his response Plaintiff suggests a constitutional deprivation different from that alleged in his complaint. He should not be permitted to raise matters as violative of due process not alleged in his complaint. Further, Plaintiff cannot prove final policy maker with respect to those due process violations claimed in his response. In his third claim Plaintiff claims a deprivation of property and liberty without due process of law alleging that the Denver Civil Service Commission ("CSC") is the policy making body of the City (Complaint ¶154)1, and that the CSC's decision and that of its hearing officer violated his due process rights when he was not fully reinstated to his position of firefighter, despite overturning his disciplinary dismissal, because he retired from the Denver Fire Department ("DFD"). In his response however, Plaintiff directs his argument to the DFD's investigation of the shoplifting allegations against him, arguing that the DFD's bad or improper investigation somehow violated his substantive and procedural due process rights. He argues that the jury may infer that persons conducting the investigation under the direction of senior policy making officials and attorneys engaged in a series of deliberate acts which denied him adequate pre-termination hearing or adequate post-termination relief. (See, Plaintiff's Response p.9). However these are not actions of the CSC and are not part of Plaintiff's complaint. Moreover, Plaintiff cannot prove that the investigation of which he so bitterly complains was the product of the CSC, a policy
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Although he alleges in paragraph 170 of the second amended complaint that somehow the CSC adopted the DFD's investigation of plaintiff, the fact is simply that the hearing officer overturned the disciplinary termination and any allegations that the commission adopted an investigation or somehow was complicit in falsely charging him with criminal conduct is nothing more than unwarranted conclusory statements with no basis in fact.

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maker or of a custom or practice. Plaintiff only relies on his speculation, conjecture, surmise and argument which are insufficient to defeat summary judgment. Self v. Crum, 439 F. 3d 1227, 1230 (10th Cir. 2006). 2 Plaintiff may have a state law tort claim or a claim against individuals, but he has no §1983 claim against the City and his reliance on Pierce v. Gillchrist, 359 F.3d 1279 (Cir. 2004) and Blasio v. Novello, 344 F.3d 292 (2d Cir. 2003) are misplaced. In both cases actions against government officials in their individual capacities were permitted to proceed while official capacity claims (claims against the governmental entity itself) were dismissed. Similarly Plaintiff's reliance on Moran v. Clarke, 296 F.3d 638 (8 Cir. 2002) is misplaced. There Plaintiff alleged that the board and its commissioners conspired with other defendants and the board took final action in disciplining the plaintiff. Id. at 643. Here, there is no allegation of conspiracy and the CSC overturned Plaintiff's discipline. There is no evidence that the CSC had anything to do with Plaintiff's pre-termination process or investigation. Even assuming that Plaintiff can overcome the first hurdle of the § 1983 claim, al policy, the undisputed facts show that there has been no constitutional violation. On his substantive due process claim Plaintiff must have evidence that the conduct complained of shocked the conscience. County of Sacramento v. Lewis, 523 U.S. 883, 846-47 (1998). Nothing the CSC did as final policy maker rises to the shock the conscience level. At best the CSC and its hearing officer made an erroneous (according to Plaintiff a terribly erroneous) decision based upon an improper finding of fact and an improper

Plaintiff would have to argue that the CSC, as final policy maker, somehow conducted or directed the investigation and adopted it as an official policy. The Denver Charter does not give the CSC that power. The CSC hears appeals from disciplinary actions just as it did in this case. See Denver City Charter §§9.4.14 and 15. (Exhibit A-12)

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conclusion of law. This is not governmental action that shocks the conscience. See Moran at 647 ("In general substantive due process "is concerned with violations of personal rights... so severe... so disproportionate to the need presented, and... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane official policy literally shocking to the conscience." citing In Re Scott County Master Docket, 672 F.Supp. 1152, 1166, (D.Minn. 1987)). Plaintiff argues that the DFD"s "biased" and otherwise improper investigation violated his pre-termination due process rights. If that is an issue Plaintiff can now raise, pre-termination process need only include oral or written notice of the charges, an explanation of the employer's evidence and an opportunity for the employee to tell his side of the story. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545-46 (1997), and the adequacy of predetermination procedures are examined in light of available post-termination procedures. See Langley v. Adams County, 987 F.2d 1473, 1480 (10th Cir. 1993). Where there is an impartial decision maker at the posttermination hearing then the decision maker at the pre-termination hearing need not be impartial. Cacy v. City of Chickashaw, 1997 U.S. App. Lexis 23039 n.6 (10th Cir. 1997). Clements v. Airport Auth., 69 F.3d 321, 333 n.15 (9th Cir.1995); McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir.), cert denied 516 U.S. 1146 (1996); McKinney v, Pate, 20 F.3d 1150, 1562 (11th Cir. 1994). Thus, even if the investigation was biased, or improper, that is irrelevant to a pre-termination due process claim. If an impartial decision maker is not a requirement of pre-termination process so long as one is provided during the post-termination process then certainly an unbiased investigation is not a prerequisite of

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pre-termination process so long as an unbiased decision maker can undue any wrong at the post-termination hearing. Plaintiff contends that a jury could infer someone in the City knew of Michael Brown finding a cookbook with Plaintiff's name and other information in it, and this somehow tainted Plaintiff's entire disciplinary process. However, Plaintiff is collaterally estopped from so arguing. (The elements of collateral estoppel are set forth in Defendant's opening brief). In the CSC hearing, the hearing officer found that Brown recanted his trial testimony given in May 2003, sometime in June 2003, and that "it is undisputed that neither any representative of the Fire Department or the City Prosecutor was aware of the discovery of this cookbook at the time of Cardona's first shoplifting trial in May 2003." See Ex. 3 p.12 and 13. Thus, it has been found as fact that when Plaintiff was dismissed in January 2003, when the recommendation was made to dismiss him by the fire chief earlier, and when the allegations were investigated by the DFD, nobody with the City knew that a second cookbook was discovered. Also, that somebody knew of the found cookbook is speculation and conjecture not evidence. Plaintiff also argues that because the DFD investigation did not follow its own procedural guidelines a jury could infer a due process violation. However, the investigation conducted by Assistant Chief Joseph Hart complied with the DFD procedures. DFD directive 106.01, Exhibit A-30, provides that the discipline process can be initiated at any supervisory level, that when an officer has reason to believe that conduct standards have been violated he must begin an investigation into the conduct at issue, determine what discipline is appropriate and recommend the level of discipline. That is precisely what happened here. (Exhibit A-1). Plaintiff's contention that the 5

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DFD's human resource department investigators were required to be involved in the investigation is incorrect and even if Hart's investigation was tainted or biased, the impartial post termination hearing officer provided the necessary due process.. Plaintiff's post-termination adversary hearing provided adequate procedural due process and the facts show no conscience shocking conduct in that proceeding. Plaintiff's successful post-termination hearing had all elements necessary to satisfy procedural due process. Plaintiff was represented by counsel, cross-examined witnesses and presented witnesses and evidence, and the hearing was before an independent hearing office. (See Defendant's Opening Brief ). To avoid the obvious fact that he had sufficient post-termination process, Plaintiff argues on p.11 that a jury may conclude that 1) the city tried to pressure Plaintiff to confess to a crime he did not commit - however Plaintiff did not confess, 2) to pressure plaintiff into refraining from exercising his constitutional right to appeal his termination through civil proceedings and to reduce the likelihood of Plaintiff successfully challenging his termination in civil proceedings ­ however Plaintiff did challenge his dismissal and was successful and 3) that somehow the city infringed his right to a fair trial by jury and due process of law. This is puzzling because it does not go to the issue of post-termination due process which plaintiff admittedly received. Again this is more speculation and conjecture which will not defeat summary judgment. Plaintiff complains that the hearing officer and the CSC violated §1983 by committing grave error in their decisions when the hearing officer based his decision on a fact which was not supported by evidence and the commission seized on that fact to affirm the hearing officer - that plaintiff had submitted his application for retirement 6

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before he was dismissed as a disciplinary matter. Plaintiff had a remedy for that erroran appeal to the State district court under CSC Rule XII (6)(a), (Exhibit A-13), providing that a decision of a hearing officer can be appealed either to the CSC or directly to the District Court but if an appeal is made to the CSC it can only be on the grounds of new evidence, erroneous rules interpretation, policy consideration or inconsistent treatment. CSC Rule XII (6)(b) In an appeal to the CSC to review a hearing officer's decision it is bound by evidentiary facts found by the hearing officer. Denver City Charter §9.4.15 (F) C.S.C. Rule XII (5) (E)(6). ("The hearing officer's finding of fact shall binding upon the commission."). Thus, plaintiff had an adequate procedural remedy for an erroneous finding of fact. Having foregone that opportunity he cannot now complain that he was denied procedural due process because he appealed to the CSC rather than the District Court. Cotton v. Jackson, 216 F. 3d, 1331 (11th Cir. 200) (if adequate state remedies are available and plaintiff fails to take advantage of them he cannot rely on that failure to claim that the state deprived him of procedural process.) Plaintiff's claim that the hearing officer's decision and the CSC's affirmance somehow violated his substantive due process is identical to his procedural due process claim - that the hearing officer and the CSC made grave errors in their decisions. Plaintiff argues that because the CSC adopted the hearing officer's incorrect finding of fact his substantive due process rights were somehow violated. Having failied to appeal to the State district court Plaintiff cannot now complain that the erroneous finding of fact violated his due process rights. McKinney v. Pate, at 1557. Moreover, even assuming hearing officer and/or CSC's error in their decisions such is not conscience shocking Plaintiff's pre-termination due process claim is barred by collateral estoppel 7

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The requirements for collateral estoppel are set forth in Defendant's opening brief. At the very least plaintiff is collaterally estopped from litigating the issue of the sufficiency of the contemplation of discipline notice. The hearing officer determined that the contemplation of discipline letter was sufficient. See Ex. A-3 p.17-19. Also Plaintiff's affidavit, Ex. 22 ¶ 19 shows that he had a pre-termination hearing at which he gave his side of the story Thus, through the operation of collateral estoppel and the undisputed facts Plaintiff had adequate pre-termination process here. II. PLAINTIFF HAS NO EVIDENCE OF AGE DISCRIMINATION

Plaintiff suggests that a jury could infer that the city was motivated by age discrimination and seized upon a pretext for terminating him. However, Plaintiff must show that the reasons given for the termination was a pretext for age discrimination not just a pretext. Stover v. Martinez, 382 F.3d 1064, 1070-71 (10th Cir. 2004). Plaintiff has produced no evidence of pretext for age discrimination As to age discrimination in the failure to fully reinstate, the cases on which Plaintiff relies are not on point. In Drnek v. City of Chicago, 192 F.Supp. 2d 835 (N.D.Ill. 2002) and Minch v. City of Chicago, 363 F.3d 15 (7th Cir. 2004) the issue was under what circumstances a mandatory retirement program for public safety personnel might constitute a subterfuge to evade the ADEA. The cases went to the Seventh Circuit on a question certified by the District Court - whether there was any evidence with which a plaintiff could demonstrate a subterfuge under §623 (j)(2) of the ADEA, if there was no violation of §623 (j)(1). The holding in Minch is limited and offers Plaintiff no support III. PLAINTIFF HAS NO EVIDENCE OF DISABILITY DISCRIMINATIION

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Plaintiff offers no evidence to rebut that no decision maker at the time of the disciplinary dismissal knew of his hearing limitation. Therefore it is impossible for that decision to be based on discriminatory animus. As to the disability discrimination by the CSC's ruling limiting Plaintiff's reinstatement, Plaintiff claims in his response that his affidavit notes that he has 70% hearing loss in one ear and 30% hearing loss in the other. The affidavit says no such thing. Plaintiff avers that he is unable to hear normal voices or sounds behind him, has difficulty understanding what people say unless he could watch them speak and has to listen to the radio or television at a high volume. He offers no evidence as to how his hearing compares to other members of the pubic. His statements are insufficient to support a claim of disability discrimination based on a hearing loss. IV. PLAINTIFF'S RETIREMENT WAS VOLUNTARY

.Plaintiff relies on Emerson v. Secretary of the Air Force, U.S. App. Lexis 33513 (10th Cir. 1996), arguing that the voluntariness of a retirement is a jury question. The Court stated that a variety of circumstances can vitiate freedom of choice in retirement "including duress or coercion, time pressure and misleading information supplied by the government upon which the employee relies." Id. There is no evidence of time pressure as the city did not give Plaintiff any deadline; there is no evidence that plaintiff received "misleading information" from the city; and the only duress is internal to Plaintiff who felt an economic need to get retirement benefits (Exhibit A-22). Plaintiff's affidavit that somehow he was tricked into retiring does not support "coercion." Plaintiff testified under oath that he elected to retire because of economic reasons, Exhibit A-22, but is now claiming that he was somehow tricked into retirement 9

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offering his own conclusory statements and hearsay via affidavit. To the extent the affidavit relies on hearsay it is not admissible for summary judgment purposes, Thomas v. IBM, 48 F.3d 478, 485, (10th Cir. 1995) and his self-serving conclusory statements are not sufficient to create an issue of fact. Hall v. Bellmon, 935 F.2d 1106, 1111, (10th Cir. 1991); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (disregarding an affidavit contrary to affiant's earlier sworn statements and designed to create a sham issue of fact) The cases upon which Plaintiff relies do not offer him support. In Walker v. Mountain States Telephone Company, 686 F.Supp. 269 (D. Colo. 1988), the issue was whether the employee was constructively discharged and retired because of intolerable working conditions; in Whatley v. Skaggs, 508 F. Supp. 302 (D. Colo. 1981), the issue was whether a disability suffered by plaintiff in a job he took after he retired limited back pay after the court determined he was wrongfully terminated; in In Re Terebetski, 778 A.2d 756 (N.J. App. 2001) the issue was whether under the state's retirement system a police officer over 45 and under 55, retired on disability, could be reinstated; and in Stacy v. Batavia School District, 779 N.E.216 (Ohio 2002) the issue of plaintiff's layoff was controlled by state statute prohibiting a public employer from abolishing an employee's job and contracting it to a private employer, and the burden was on the employer to prove the employee involuntarily waved his right to public employment. Here, Plaintiff's retirement is presumed voluntary and he must rebut that presumption. CONCLUSION For the foregoing reasons Defendant requests summary judgment in its favor Respectfully submitted this 2nd day of May 2006. 10

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JACK M. WESOKY Assistant City Attorney s/ Jack M. Wesoky Jack M. Wesoky Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202-5332 Telephone: 720-913-3100 Fax: 720-913-3190 E-Mail: [email protected] Attorney for Defendant City and County of Denver

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 2, 2006, I electronically filed the foregoing DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: 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 Denver City Attorney

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