Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00685-EWN-OES

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Filed 08/29/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No: 04-cv-0685-EWN-OES

JASON STEINBACH, Plaintiff, v. OMNI PROPERTIES, Defendant. _____________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY ______________________________________________________________________________ Plaintiff, Jason Steinbach, by and through his undersigned counsel, respectfully submits this response to Defendant Omni Properties' Notice of Supplemental Authority (Document #69): 1. The case of Bass v. SBC Communications, Inc., No. 04-3946, 2005 WL 1903734

(8th Cir. August 11, 2005) is inapplicable here. The issue in Bass was whether the plaintiff could perform the essential duties of his job with or without accommodation. The record on this issue in that case included a letter from Bass' physician saying that he could not. Bass offered no evidence in rebuttal, except his own statements, that he could perform his job:

In support of its motion for summary judgment on this issue, SBC presented the findings of its physician that Bass was unable to return to work. In response, Bass offered no rebuttal medical evidence, but relied solely on his own statements that he could have returned to work during the month of August. These statements are insufficient to avoid summary judgment. 2005 WL 1903734, *2 (emphasis added).

Case 1:04-cv-00685-EWN-OES

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2.

In this case, Defendant Omni Properties offers a letter from a therapist (January 8,

2003, letter from Dr. Mead) saying that Jason Steinbach could not work. Unlike Mr. Bass, however, Mr. Steinbach has offered compelling evidence to rebut the alleged statement that he could not work, including, but not limited to the following: · Mr. Steinbach has offered an affidavit of Dr. Mead stating that he meant that Mr. Steinbach could not work in a position in which he was not accommodated. See A60 [Affidavit of Michael Mead, Ed.D.], at ¶¶2-5, attached to Plaintiff's Response to Defendant's Motion for Summary Judgment. Mr. Steinbach has offered a supplemental expert report stating that he meant that Mr. Steinbach could not work in a position in which he was not accommodated. See Exhibit 1 [Supplemental Expert report of Dr. Michael Mead]. Mr. Steinbach has offered Omni's own documents, including but not limited to performance evaluations stating that Mr. Steinbach was doing a "great job." See A51 and A52 [Evaluations], attached to Plaintiff's Response to Defendant's Motion for Summary Judgment. Mr. Steinbach has offered the statement of the Community Manager, as related by Joseph Steinbach, Sr., that Jason Steinbach was doing a great job. See A70, at 66:12-68:19, attached to Plaintiff's Response to Defendant's Motion for Summary Judgment.

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WHEREFORE, Plaintiff, Jason Steinbach, respectfully requests that this Court strike Defendant's Notice of Supplemental Authority, or, in the alternative, decline to follow the holding in Bass v. SBC Communications, Inc.

DATED this 29th day of August, 2005.

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Respectfully submitted:

s/Patricia S. Bangert Patricia S. Bangert, Esq. Bangert & Associates, LLC 3773 Cherry Creek Drive North, Suite 575 Denver, Colorado 80209 Attorney for Plaintiff

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Case 1:04-cv-00685-EWN-OES

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CERTIFICATE OF SERVICE I hereby certify that on August 29, 2005, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Colleen Meyers Rea

s/Patricia S. Bangert
_______________________________

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