Free Supplement/Amendment - District Court of Colorado - Colorado

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

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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 SUBMISSION OF SUPPLEMENTAL INFORMATION RELEVANT TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiff, Jason Steinbach, by and through his undersigned counsel, respectfully submits this supplemental information relevant to Defendant's Motion for Summary Judgment. 1. Plaintiff filed his Response to Defendant's Motion for Summary Judgment

("Response") on March 3, 2005, and his Sur-Reply to Defendant's Motion for Summary Judgment ("Sur-Reply") on April 21, 2005. 2. Plaintiff received a supplemental report from his expert, Michael Mead, Ed.D., on

or about July 20, 2005. See A85 [Supplemental Expert Report of Michael Mead, Ed.D.], attached hereto. Dr. Mead is a therapist who evaluated Mr. Steinbach. Dr. Mead's report is relevant to several issues discussed in the parties' briefs regarding summary judgment, most notably the following: a. Defendant has argued that Dr. Mead opined, in January of 2003, that Jason Steinbach was incapable of doing any work. Plaintiff argues that Dr. Mead

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stated only that Jason Steinbach could not do employment in which his disability was not accommodated, but, believed that Mr. Steinbach could perform employment in which an employer accommodated his disability. The supplemental expert report confirms Plaintiff's understanding of Dr. Mead's statement. A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at pp. 2-3. b. Defendant argues that Mr. Steinbach cannot be a witness on his own behalf because he is disabled. Plaintiff argues that this position is factually inaccurate, condescending and discriminatory. Dr. Mead specifically addresses this issue in his report and states that Mr. Steinbach can be a reliable witness. A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at pp. 1-3. 3. Specifically, Plaintiff supplements his Response as follows:

II. RESPONSE TO DEFENDANTS STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Deny as incomplete. Plaintiff agrees that Dr. Mead made that statement.

However, Dr. Mead explains that he was referring only to "competitive employment," not "sheltered employment." See A60 [Affidavit of Michael Mead, Ed.D.], at ¶¶2-5. Specifically, he was stating that Jason Steinbach could not do employment in which his disability was not accommodated. Id. He believed, at the time of the statement, that Plaintiff could perform employment in which an employer accommodated his disability. Id. [ADD: "A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at pp. 2-3."]

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*** 35. Deny as incomplete. Defendant fails to state that the opinions that "remained

unchanged" were opinions of Dr. Mead related to Plaintiff's IQ testing. A23, at p. 7. Further, Dr. Mead did not opine on Mr. Steinbach's ability to do work during the period June 2000 through June 2003 (when employed by Omni), and was not asked to do so. Id., at pp. 1-2. [ADD: "A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at p. 2."] *** III PLAINTIFF'S STATEMENT OF ADDITIONAL UNDISPUTED FACTS 4. Experts evaluating Plaintiff regarding his ability to work acknowledged that certain accommodations would be required for certain jobs, but did not report that Plaintiff was unable to perform the functions of any job: a. Dr. Mead stated, in January of 2003, that Jason Steinbach could not do employment in which his disability was not accommodated, i.e. "competitive employment." See A60 [Affidavit of Michael Mead, Ed.D.], at ¶¶2-5. Id. He did believe that Plaintiff could perform employment in which an employer accommodated his disability. Id. [Add A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at pp. 2-3.]

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4.

Further, Plaintiff supplements his Sur-Reply as follows:

II. RESPONSES TO EVIDENTIARY OBJECTIONS A. AFFIDAVITS A61 [Affidavit of dr. Michael Mead] - Dr. Mead has been properly identified as an expert and, when called as a witness, may explain any writings that he has produced. In addition, in his expert report, Dr. Mead reserved the right to supplement his report. He is presently preparing a supplement to his report to respond to the factual allegations raised in Defendant's summary judgment briefs. [ADD: "See A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at pp. 2-3."] *** III. RESPONSE TO PLAINTIFF DISQUALIFICATION

Defendant Omni Properties attempts, in its Reply, to disqualify Plaintiff Jason Steinbach as a witness on his own behalf because he is disabled. Omni states repeatedly that Jason Steinbach is "incompetent" to contradict the testimony of Omni officials because of "memory impairments." See, e.g. ¶¶99, 119, 122, and 132. There is nothing in the record that would support this disqualification, and, specifically, there has been no opinion offered that would suggest that Mr. Steinbach cannot remember significant conversations related to his work. The Plaintiff begs the Court not to even entertain this attempted sweeping disenfranchisement of disabled persons in the legal system. [ADD: "A85 [Supplemental Expert Report of Michael Mead, Ed.D.], at pp. 13."] 4

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DATED this 11th day of August, 2005.

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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CERTIFICATE OF SERVICE I hereby certify that on August 11, 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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