Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0074-MSK-CBS JIMMY L. STROZIER, Plaintiff, v. UNITED STATES POSTAL SERVICE, JOHN E. POTTER, Postmaster General, Defendant.

PROPOSED FINAL PRETRIAL ORDER

Defendants John E. Potter, and the United States Postal Service by and through William J. Leone, Acting United States Attorney for the District of Colorado, and Elizabeth A. Weishaupl, Assistant United States Attorney and Plaintiff Jimmy L. Strozier, pro se, hereby submit the following Final Pretrial Order: I. DATE AND APPEARANCES The pre-trial conference in this matter was held on June 23, 2005 at 9:00 a.m. before Magistrate Judge Craig B. Shafer. Appearing on behalf of the parties was Jimmy L. Strozier, pro se, and Elizabeth A. Weishaupl, Assistant United States Attorney on behalf of the Defendant. II. JURISDICTION Jurisdiction is asserted pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 2000e-5, and the 14th Amendment to the Constitution of the United States of America.

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III. CLAIMS AND DEFENSES A. Plaintiff's Claims The plaintiff asserts that the defendants have deprived him of work and pay. The defendants has cause the plaintiff emotional pain and suffering, inconvenience, loss of enjoyment of life, future pecuniary losses and other non-pecuniary losses, mental anguish, anxiety, humiliation, and indignity (See U.S.C. 1981a(b)(3)). Plaintiff also asserts that the defendant's has intentional discriminated against him on the basic of disability, race, age, and sex (See 42 U.S.C. 2003-200-h-4). The defendants have violated the plaintiff's civil and constitutional rights by willfully and intentional retaliation against the plaintiff for filing several complaints against it. (See 29 C.F.R. 33.3, 14th Amendment Section 1, and 42 U.S.C. 2000e-2 as amended by sections 105). The plaintiff concedes that the defendants have erroneously removed him from service without just cause and created a hostile work environment by third degree assaulting him. Finally plaintiff concedes that the defendant's have conspired to injure him. The Plaintiff requests the following relief from the Defendants 1. Front pay 2. Compensatory damages 3. Back pay with interest starting 01/03 to present 4. Overtime back pay 5. Attorneys fees 6. Nominal damages 7. Interim relief 2

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8. Immediate retirement from the U.S. Postal Service with 100% of base pay. The Plaintiff is seeking a total amount of 10 million dollars from the U.S. Postal Service to be tax free. B. Defendant's Defenses
The Defendant denies that the Postal Service has acted in any way in violation of 42 U.S.C. § 2000 or with any discriminatory motive or intent. Mr. Strozier's termination was not based on his disability or retaliation for any protected activity. With regard to the additional claims of race and sex discrimination, Mr. Strozier stipulated that the race claim would not be tried at his MSPB hearing and presented no evidence or argument that his sex played any part in his termination. He therefore abandoned these claims, failed to exhaust them administratively, and therefore the Court lacks jurisdiction to review these claims. With regard to Mr. Strozier's alleged age discrimination claim Mr. Strozier failed to give notice to the EEOC within 30 days before filing the complaint alleging age discrimination. The age claim is also barred by the statute of limitations as Mr. Strozier also failed to provide a notice of intent to sue within 180 days of the alleged incident of discrimination, his termination. Additionally, there are no factual allegations in either the complaint or any of the evidence to be submitted at trial which will support even an inference that Mr. Strozier's termination was motivated in any way by age and rather that the Postal Service had a bona fide good faith reason to terminate his employment. Mr. Strozier was an employee of the Postal Service covered under a Collective Bargaining Agreement. He admits that he was unable to perform the essential functions of his job. He admits that he requested an accommodation of permanent light duty

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status. That status was unavailable to him because of the Collective Bargaining Agreement. Mr. Strozier was referred to the Reasonable Accommodation Committee to determine if he was eligible under the Rehabilitation Act for Accommodation. Mr. Strozier told the Committee that his disability did not affect any major life activity. The Reasonable Accommodation Committee gave him three options. Mr. Strozier refused to follow any of these options. He refused to bid on another job, refused to seek a disability retirement and refused to resign. The Postal Service had no other option than to terminate him from his job. Defendant Potter also alleges that Plaintiff failed to mitigate his injuries or damages, that he failed to exhaust his administrative remedies, that his claims are barred in whole or in part by the statute of limitations, that his injuries or damages were caused by third parties over which the Defendant had no control or authority, that he is collaterally estopped from taking any position contrary to that taken below in any judicial or administrative body, and that he was not denied any tangible employment benefit by any action or inaction of the Defendant. Defendant Potter filed a Motion for Summary Judgment regarding the Rehabilitation Act and retaliation claims on February 26, 2004. This motion is fully briefed.

4. STIPULATIONS The following facts are believed to be undisputed: 1. Plaintiff was hired as a clerk distribution clerk in Colorado Springs, Colorado, Processing and Distribution Center in July 1998. 2. Plaintiff's employment was covered by a Collective Bargaining Agreement. 4

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3.

Plaintiff requested to go before the Reasonable Accommodation Committee of the United States Postal Service because he applied for permanent light duty assignment.

4.

Plaintiff requested permanent light duty assignment because of his medical limitations on standing which prevented him from standing for more than 30 minutes and other problems with his spine, back, left leg, and flat feet. .

5.

Plaintiff was nominated to the Reasonable Accommodation Committee for the Postal Service on April 12, 2002.

6

Plaintiff was requested to submit additional medical documentation for the Reasonable Accommodation Committee.

7.

On May 12, 2002, Plaintiff submitted a medical Status Report from his physician stating that his medical condition was "probably permanent" but would always be present.

8.

Plaintiff met with the Reasonable Accommodation Committee on June 26, 2002.

9.

Plaintiff told the Reasonable Accommodation Committee that "he could pretty much dictate what he did outside of the job."

10.

Plaintiff told the Reasonable Accommodation Committee that the condition did not affect his sleeping.

11.

Plaintiff told the Reasonable Accommodation Committee that the condition did not affect his cooking.

12.

Plaintiff told the Reasonable Accommodation Committee that the condition 5

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did not affect his ability to care for himself. 13. Plaintiff told the Reasonable Accommodation Committee that the condition did not affect his ability to shop. 14. 15. In 2002, Plaintiff had about four years service with the Post Office. Plaintiff's physician believes that his medical conditions may vary in intensity but will always be present. 16. 17. Plaintiff believed that he could not do the job that he was awarded. The Reasonable Accommodation Committee found gave Plaintiff three options: (1) apply for another job; (2) apply for disability retirement; or (3) submit a letter of resignation. 18. Plaintiff told on June 27, 2002 that he was not eligible for reasonable accommodation. 19. Plaintiff was given a Notice of Proposed Placement on Enforced Leave in September 17, 2002, and placed on paid administrative leave at that time. 20. 21. Plaintiff's last day of work was on September 17, 2002. Plaintiff was issued a notice of proposed removal for failure to perform essential job duties of his position based on a medical inability to perform on March 14, 2003. 22. Plaintiff was issued a notice of proposed removal for failure to perform essential job duties of his position based on a medical inability to perform on March 14, 2003. 23. Plaintiff was put on enforced leave in November 2002. 6

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24.

Plaintiff was issued a letter decision removing Plaintiff from his employment effective May 25, 2003. 5. PENDING MOTIONS

Defendants moved for summary judgment pursuant to Fed. R. Civ. P.56. The motion is fully briefed and pending before the court. 6. WITNESSES Plaintiff's Witnesses a. non-expert witnesses (1) the following nonexpert witnesses will be present at trial Mr. Larry Bowlin 100 Deneta Drive Manitou Springs, CO 80829-2620 (719) 685-4770 Mr. Bolwin, the plaintiff's former co-worker will testify in person about the defendant's age and disability discriminatory employment practices, plaintiff's ability to work with fellow employees, and plaintiff's character. Mrs. Geraldine Casias 5235 Balsam Colorado Springs, CO 80917 719-532-9177 Mrs. Casias the plaintiff's former co-worker will testify in person about supervisor assaulting the plaintiff, creating a hostile work environment, plaintiff's ability to work with fellow employees and plaintiff's character. Gwendolyn A. Lafi 7527 Waterman Way Colorado Springs, CO, 80922 (719) 380-5437 (719) 459-9607 Mrs. Lafi is plaintiff's former supervisor and co-worker at the Colorado Springs, 7

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GMF. Mrs. Lafi will testify in person about plaintiffs' behavior, attitude, job performance, plaintiff's ability to lead others and run the section in the absence of a supervisor, plaintiff's medical restrictions, and all the different jobs the plaintiff performed. Mrs. Lafi will testify about the defendants behavior and attitude during a mediation hearing conducted on 26 January 2002. Mrs. Lafi will testify about employee provoking violence directed toward the plaintiff on October 19, 2001. Chuck Bader Mr. Bader is a Union Steward at the Colorado Springs GMF and co-worker of the plaintiff. He will testify in person about defendants attitude and actions toward plaintiff, grievances filed by plaintiff, plaintiff's character, and disparity of treatment against the plaintiff. Mr. Bader's address is unknown, however he may be reached at 3655 E. Fountain Blvd., Colorado Springs, CO 80910. Joe C. Jones 1525 Jet Wing Drive Colorado Springs, CO 80916 (719) 596-4198 Mr. Jones who is plaintiff's former co-worker will testify in-person about the plaintiff's attitude, appearance, job performance, and the defendant's attitude and discriminatory employment practices. Rich Price 3655 E. Fountain Blvd. Colorado Springs, CO 80910 (719) 570-5350 Mr. Price is a Supervisor at the Colorado Springs, GMF. He will testify in person about plaintiffs' modified duty assignment and duty description. (2) The following nonexpert witnesses for the plaintiff may be present at trial if the need arises. Michael Elberling 3523 Elmorro Road Colorado Springs, CO 80910 (719) 591-4265 Mr. Elbering will testify in person about plaintiff's character, different jobs that the plaintiff performed, and ability to work with fellow employees and run the 8

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section. Ruben Perez, Jr. 3905 Oberding Drive Colorado Springs, CO 80911 (719) 391-9211 Mr. Perez the plaintiff's former co-worker will testify in person about the plaintiffs attitude, job performances, about co-worker provoking violence against plaintiff and defamation of character directed toward plaintiff. Jeff Smith 3655 E. Fountain Blvd. Colorado Springs, CO 80910 (719) 570-5373 Mr. Smith is a supervisor at the GMF. He will testify in person about an incident involving the plaintiff with supervisor Ankie Hiton, plaintiff's job performance, attitude, and appearance. (3) The Plaintiff will not have any nonexpert witnesses where testimony is expected to be presented by means of a deposition and if not taken stenographically a transcript of the pertinent portion of the deposition testimony. B. Expert Witnesses to be called by Plaintiff 1. The following expert witnesses will be present at trial for the plaintiff. Velma Campbell St. Mary Corwin Centura Health Building Pueblo VA Clinic 4112 Outlook Blvd. Pueblo, CO 81008 (719) 553-1008 Dr. Campbell will testify in person about her findings and recommendations of the plaintiff's medical condition for reasonable accommodation. Melinda Mitchell, LCSW Veterans Administration Outpatient Clinic 25 N Spruce Colorado Springs, CO 80905 9

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(719) 327-5698 Ms. Mitchell will testify about plaintiff's V 62.2 Occupational problem and prognosis. Sarah Kelly, MS NP Eastern Colorado HSC Colorado Springs, CO 80903 Ms. Kelly will testify in person of her findings of plaintiff's medical conditions and restrictions. 2. There are no expert witnesses who may be present at trial for the plaintiff. 3. The plaintiff will not have any expert witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. Defendant's Witnesses a. Defendant will call the following witnesses 1. Char Ehernshaft Coordinator/Colorado-Wyoming District Reasonable Accommodation Committee 1225 17th Street, Suite 700 Denver, CO 80203 303-454-0100

Ms. Ehrenshaft is the Coordinator, Colorado/Wyoming District Reasonable Accommodation Committee for the United States Postal Service. She will testify regarding the USPS reasonable accommodation procedures and process, including regulations and rules, the Committee's conclusions with regard to Mr. Strozier, and information regarding Strozier's submissions and testimony before the Committee and as to other information to which she has personal knowledge in this case. 2. Walter Gale Manager of Distribution Operations Colorado Springs, P&DC 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

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Mr. Gale is the Manager of Distribution Operations, Tour 1, Colorado Springs, Colorado. He will testify regarding his knowledge of Mr. Strozier, Mr. Strozier's job duties, conversations, observations, and communications with Mr. Strozier and others regarding Mr. Strozier, Light Duty availability and how a person applies for Light Duty at the Colorado P&DC, and as to any other information to which he has personal knowledge in this case. 3. Gary Gilmore Plant Manager Colorado Springs, P&DC 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Gilmore is the Plant Manager at the Colorado Springs, P&DC. He will testify regarding plant operations, factors, policies, and regulations concerning light duty assignment and other Postal Service regulations regarding claims of discrimination, how a party requests such light duty assignments, who is eligible for light duty assignments, the collective bargaining agreement, conversations with Mr. Strozier regarding his grievances and requests for light duty and accommodation, and conversations with others and communications regarding Mr. Strozier. 4. Karen Knight Human Relations Colorado Springs, P&DC 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Ms. Knight is the Manager of Human Relations at the Colorado Springs, P&DC. She will testify regarding the Postal Service rules and regulations governing human resources at P&DC, the bidding process, the reasonable accommodation process, conversations with Mr. Strozier and others regarding Mr. Strozier's grievances, EEO's, and termination, applicability of light duty with the Collective Bargaining Agreement, Mr. Strozier's biding process in light of the Reasonable Accommodation Committee's decision, and other information to which she has personal knowledge. 5. Bo Meyer Manger of Distribution Operations Colorado Springs, P&DC 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100 11

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Mr. Meyer will testify regarding his knowledge and observations of Mr. Strozier, conversations regarding Mr. Strozier, with Mr. Strozier and others, medical restrictions required by Mr. Strozier's condition, his review of documentation, including essential job functions of Mr. Strozier's job, his knowledge of Mr. Strozier's medical condition and restriction, Postal Service regulations and rules regarding seeking reasonable accommodation, and Mr. Strozier's ultimate termination. 6. Gwendolyn Anna Lafi 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Ms. Lafi will testify regarding her communications with and observations of Mr. Strozier and others. She was formally Mr. Strozier's supervisor and will testify regarding his essential job functions, her participation in the grievance and removal process and as to other matters in her personal knowledge.

7.

Chuck Bader 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Bader was a co-worker of Mr. Strozier and will testify regarding his observations and communications with Mr. Strozier and others. He will testify regarding Mr. Strozier's job duties, job performance, essential functions of his job, the grievance process, the collective bargaining agreement and conversations with Strozier regarding Mr. Strozier's employment, his options under the union contract and as to other information within his personal knowledge regarding Mr. Strozier's employment.. b. May call witnesses 1. Joe C. Jones 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Jones may be called to testify regarding his knowledge and observations of Mr. Strozier and his employment. 2. Ruben Perez, Jr. 12

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3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100 Mr. Perez may be called to testify regarding his knowledge and observations of Mr. Strozier and his employment

3.

Paul Byers 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Byers may be called to testify regarding his knowledge and observations of Mr. Strozier and his interactions with the union, union representatives, and managment, the grievance process, and conversations with Mr. Strozier regarding his employment 4. Rich Price 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Price may be called to testify regarding his knowledge and observations of Mr. Strozier and his employment 5. Ankie F. Hiton 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Hiton may be called to testify regarding his knowledge and observations of Mr. Strozier, conversations with Mr. Hiton his supervision of Mr. Strozier, and conversations with Mr. Strozier and others regarding Mr. Strozier's temporary assignment.

6.

Jeff Smith 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

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Mr. Smith may be called to testify regarding his knowledge and observations of Mr. Strozier and his employment

6.

Darlene Lucero 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Ms. Lucero may be called to testify regarding her knowledge and observations of Mr. Strozier and his employment 7. Rolandis Summer 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Mr. Summer may be called to testify regarding his knowledge and observations of Mr. Strozier and his employment, the union grievance process, his representation of Mr. Strozier in the union grievance process, his explanation of the process, discussions with Mr. Strozier regarding his employment, his grievances, his enforced leave, his due process meetings, and other information discussed with Mr. Strozier during his employment. . 8. Geraldine Cassias 3655 E. Fountain Blvd Colorado Springs, CO 80910 303-454-0100

Ms. Cassias may be called to testify regarding her knowledge and observations of Mr. Strozier and his employment 12. Jon Inglis Postal Service Equal Opportunity Office Manager EEO Dispute Resolution for Colorado Wyoming District

Mr. David or another representative of the Postal Service Equal Opportunity Office may be called regarding Mr. Strozier's EEO record, his abandonment of claims of race and sex before the Postal Service EEO and other matters within his knowledge regarding Mr. Strozier and Postal Service EEO procedures. 13. Any witness endorsed by Plaintiff 14

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14.

Any witness as necessary for rebuttal or impeachment 7. EXHIBITS

a. Plaintiff's Exhibits (1) Plaintiff(s): Exhibit No. 1. Plaintiffs medical return to duty (page 1). Letter from supervisor Ankie JP Hiton disallowing plaintiff entrance into U.S. Postal facility located at 3655 E. Fountain Blvd. Co Spgs, Co. 80910 (page 2). Diagnosis V.62.2 Occupational Problem (page 3). Release for work by Postal Physician. (page 4). Request for notification of absence (page 5). Plaintiff s medical restrictions and problem (page 6). Exhibit No. 2. Letters of warning with my response and note on it (pages 1-4). Step 1 grievance and facts typed by Chuck Bader tour 1 union steward with pencil correction made by the plaintiff (page 5-8). Investigative interview with plaintiffs note on it (pages 9-10). Letters from the plaintiff that was faxed to Gary Gilmore and Roy Pacifico (pages 11-14). Faxed messages sent to Roy Pacifico and statement to Gary Gilmore (Plant Manager), the union, and Tal Middleton (pages 15-17). Plaintiff s clock rings (pages 18-19). Plaintiff s pay stub with LWOP circled dated January 2002 (page 20). Step 1 grievance meeting and decision (page 21)_ Postal Regulation (page 22). Step 2 grievance final decision (page 23). Plaintiff's response to settlement decision step 2 grievance (page 24). Plaintiffs rebuttal statement (pages 25-26). Step 2 grievance settlement (page 27). Exhibit No. 3. Memorandum dated 2/7/00 (page 1). Letter to Postal employees dated 2/24/00 (page 2). Memorandum dated 8/30/01 (pages 3-4). Postal Regulation letter (pages 5-6). Memorandum dated 9/25/97 (pages 7-8). Safety and health policy dated 5/23/96 (page 9). EEO policy statement (page 10). Holiday pay and attendance letter (page 11). Exhibit No. 4. Plaintiff's statements given to EEOC concerning workplace conditions dated 5/20/00 for filing a complaint copies were also given to the following people. Gary Glmore, Tal Middleton, Chuck Bader, Cliff Guffey, ACLU, and Human Resources, Personnel, and PEDC office (pages 1-23). U.S. Postal Service Standards of Conduct (page 24). Plaintiff s statement dated 10/19/01 (pages 225-26). Plaintiffs statement on supervisor dated 12/22-23/00 (pages 2729). Exhibit No. 5. Letter forth ACLU dated 1/28/02 (page 1). Letter from Cliff Guffey (APWU, AFL-CIO) dated //7/02 (page 2). Letter from Roy Pacifico (Pies. Local APWU, AFL-CIO (pages 3-4). Letter about damage to vehicle on government property dated 11/27/00 (pages 5-6). Fax messages from plaintiff to different agencies about my issues 15

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with defendant (pages 7-19). Fax activity report from plaintiff to different agencies (20-23). Plaintiff s phone bill and call to different agencies about these issues and letters to different agencies (pages 26-27). Exhibit No. 6. Interview for complaint EEO case number 1E- 809-0006-02 (pages 1-2). No agreement letter (mediation) case no. 02- WNA -249-7002 (page 3). Memorandum for Mediation Conference case number 1E-809-0006-02 (pages 4-5). Pre- Complaint dated 12/17/01 (pages 6-8). Plaintiff s letter to EEO representative dated 1/14/02 and 12/20/01 (pages 9-10). Notice of rights to file individual complaint dated 2/6/02 case number 1 E-809-0006-02 (pages 11-13). Letter to EEO representative dated 2/8/02 (page 14). Exhibit No 7. Plaintiffs Request for relinquish of job 9083135 dated 2/20/02 (pages 1-6). Light Duty Package (pages 1-7). Job analysis/Essential Function (page 8).Notice of Personnel Actions (pages 9-10). Exhibit No. 8. Plaintiffs pay stubs from U.S. Postal. Service dated 1/03 through 1/04 (pages 1-9), Pay statements of Military Retiree Account (pages 10-17). Exhibit No. 9. Plaintiffs medical records and assessment (pages 1-45). Exhibit No. 10. Case law Doubting Thomas (pages I-10). Exhibit No. 11 Order 182-46 release from active military duty dated 9/23/94 (page 1). Certificate of release or discharge from active duty DD Form 214 (pages 23).Bachelor of Biblical Studies Degree (page 4). NCO Evaluation Report (pages 513). Postal Service Notice of Rating (job qualified for) (pages 14-16). Resume's sent out for job search (pages 17-23). Exhibit No. 12. Hostile Enviro=ent Court Ruling (pages 1-2). Important related civil rights laws retaliation (pages 3-5). The Civil Rights Act of 1991 (pages 6-9). what is required to prove Retaliation or reprisal (pages 10-11). What is required to prove discrimination in employment (pages 12-13). Front Pay (pages 14-20). Back pay (pages 2I-23). Exhibit No. 13 Plaintiffs Notice of Appeal case number 02-N-379 (CBS) (page 1). U.S. Court of Appeals 10'~'Cir Order and Judgement (pages 2-3). Order Directing Commence Civil Action dated 2/26/02 (pages 4-6). Amended Final Judgement (pages 7-9). Exhibit No. 14. 5 USCS 7701 (pages 1-20)

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Exhibit No. 15. 5 USCS 7501 (pages 1-5), 5 USCS 2302 (pages 6-12). 42 USCS Sec 1981a damages in case of intentional discrimination in employment (pages 13-15). Exhibit No. 16. Related case Davoll, Clair, and Escobedo v. Denver Police Dept and Civil Service Commission for the city and county of Denver (pages 1-40). Exhibit No. 17. 5 USCS 7511 (pages 1-3), 5 USCS 7512 (pages 4-10) and 5 USCS 7513 (pages 11-15). Exhibit No. 18. EEOC Compliance Manual (pages 1-20). Exhibit No. 19. APVWU Manual Article 2 (pages 1-2), Article 13 (pages 1-4), and Article 16 (pages 1-3). Exhibit No. 20 Statements of Character (pages 1-6). Exhibit No. 21. Related Court Cases. Brown v. U.S. Postal Service (pages 1-3), Kitaura v. U.S. Postal Service (pages 4-10), and Pollard v. E.I. Dupont DE Company (pages 11-26). Exhibit No. 22. Improper request for medical evidence violates rehabilitation. act, EEOC findings (page 1-3). Early retirement options (pages 4-5). Bread and butter issues not a diet plan (page 6). The fight for job security (page 7). Contract improves unions position (pages 8-9). Court rules abusive behavior not allowed in the workplace (page 10). Exhibit No. 23. The Rehabilitation Act of 1973 (pages 1-7). The American with Disabilities Act (pages 8-11) Exhibit No. 24. Discrimination based on Disability (pages 1-9).Federal EEO Laws (pages 10-16). Exhibit No. 25. Union Strengthens Internal Due Process Protections (pages 1-2). Battling the grievance backlog (pages 3-4). Excessing will take harsher toll unless we are united prepared (pages 5-6). The Pikespeaker (pages 7-13) Exhibit No. 26. Plaintiff s V Appeals to the MSPB (suspension) dated 1/23/03 (pages 1-13). Plaintiffs 2"6 Appeal to the MSPB (removal) dated 5/25/03 (pages 19). Plaintiffs claim filed with the Department of Labor (pages 1-5). Exhibit No. 27. Plaintiffs Request for Production of Documents (pages 1-17). Plaintiff s motion to compel discovery (pages 1-6). 17

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Exhibit No. 28. Plaintiff s medical information presented to MSPB on appeals (pages 1-2). Plaintiff s modified duty assignment description (pages 3-4). Response to Due Process meeting from Plaintiff (pages 5-7). Plaintiff s medical problems (page 8). Plaintiffs letters on Postal violations (pages 9-10). Letter on Due Process Meeting (pages 11-19). Exhibit No. 29. Photographs of Letters and Flats cages for sorting mail by standing or sitting (pages 1-11). Exhibit No. 30. Plaintiffs exhibits filed with the MSPB Docket No. DE-0752-030183-1-1 (pages 1-72). Exhibit No. 31. Notice to report for Due process meeting and plaintiffs response dated 1/14/03 and 1/27/03 (pages 1-4). Notice of Proposed Placement on Enforced Leave dated 9/11/02 and plaintiff's response dated 10/15/02 (pages 1-12). Letter of Decision Proposed Placement on enforced leave dated 11/4/02 (pages 1-2). Notice of proposed removal dated 3/7/03 (pages 1-5). Letter of Decision Proposed Removal and plaintiffs response (pages 1-10). Exhibit No. 32. Light duty medical information on select employees (pages 1-9). Exhibit No. 33. Plaintiff s debts (pages 1-41). Foreclosure on house (pages 1-3). Bankruptcy statements (pages 1-3). Exhibit No. 34. Plaintiffs job search applications and contacts. Exhibit No. 35. Order from the US Courts of Appeal final decision of plaintiffs' claim 02-N-0379 (CBS). Exhibit No. 36. Any documents endorsed or proffered by Plaintiff. Exhibit No. 37. Any exhibit attached as an exhibit for demonstrative purposes. Exhibit No. 38.. Any document or reading as necessary for impeachment or rebuttal. (2) Defendant's Exhibits 1. 2. 3. Application for Employment The Collective Bargaining Agreement. Employee and Labor Relations Manual 18

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4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.
24.

MOU-APWU re: light duty assignment, and other excerpts 2002 pay dates Pay period printout Letter of 2/20/02 relinquishing Mail Processing Clerk Position. Light Duty Request dated 2/22/02 Letter of 2/19/02 from Roy Pacifico to Mr. Strozier re: relinquishment. Letter of 3/20/02 signed by Velma L. Campbell re: Patient Restrictions Nomination for Reasonable Accommodation Consideration dated 4/12/02. Memo from USPS Health Unit re: Appellant's Permanent restrictions Letter of 6/17/02 re District Reasonable Accommodation Meeting. DRAC information evaluation Form 6/26/02. Letter re: DRAC decision, dated 6/27/02. Letter of 7/3/02 re: option taken to bid on jobs. Notice of Proposed Placement on Enforced Leave dated 9/1//02. Letter of Decision, Proposed Placement on Enforced Leave dated 11/4/02. Flats Case photos a, b, c Job Postings June 2002 - September 17, 2002 2/13/02 Human Resources Information System Light Duty request 2/22/02
Letter of February 18, 2002 relinquishing job awarded Letter to Sara Kelley re: doctor's note.

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25. 26. 27. 28. 29. 30. 31. 32. 33.

Letter to Gary Gilmore dated 3/14/02 re: doctor's note Temporary Assignment Description dated 4/12/02 Modified Job Assignment dated 4/16/02 Job Analysis/Essential Functions Chart - Distribution and Windows Clerk Medical Status Report dated 5/15/02 Letter of June 17, 2002 re: Reasonable Accommodation Worksheet Reasonable Accommodation Worksheet Mail Processing Clerk Position, letter of June 17, 2002 and attachments Letter from Mr. Strozier to Mr. Gilmore re: enforced medical leave dated 10/15/02. Letter of 12/23/02 re: due process meeting Letter of 1/7/03 re: due process meeting Letter of January 14, 2003 re: Notice to Report for Due Process Meeting. Letter to Gary Gilmore from Jimmy Strozier dated 1/14/03 re: rescheduling. Letter of 1/27/03 to Mr. Hiton re: Enforced Leave/Due Process Meeting. Documentation re: questions to be asked at due process meeting. Strozier letter 1/27/03 re: investigative interview Documents regarding January 30, 2003 investigative interview. March 14, 2003 Proposed Notice of Removal. Response to Agency's Proposed Removal Letter dated 3/18/03. Pleadings and Exhibits before the Merit Systems Review Board

34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

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45. 46. 47. 48. 49. 50. 51. 52.

Letter of June 28, 2003 re: bidding for new position Letter of July 3, 2002 re: bidding Order Summarizing Status Conference dated August 29, 2003. Agency's Prehearing Submissions dated August 25, 2003. Plaintiff's Prehearing Submissions. Amended Merit Systems Protection Board Appeal Form dated 5/25/03. Dismissal of initial appeal without prejudice dated 3/17/03 Second Response In Opposition to Agency's Motion to Dismiss Appellant's Appeal dated 3/9/03 Initial Decision of Merit Systems Appeals Board Transcript of Merit Systems Appeals Board hearing Personnel File of Jimmy L. Strozier. Pleadings, attachments and Orders filed in 02-N-379 (CBS) Response in Opposition to Motion to Dismiss Pursuant to Fed. R. Civ. P. 12 containing admissions of Plaintiff's Failure to Exhaust race, sex and age claims. Motion to Dismiss dated 5/21/02 re: Plaintiff's failure to exhaust in 02-N379 (CBS) and attached declaration of Enrico David. Complaint 02-N-0379 and attachments therein. Jimmy Strozier Discipline File Jimmy Strozier EEO File. Order of Dismissal adopting recommendation of Magistrate dated 3/25/03. Amended Final Judgement dated 11/4/03.

53. 54. 55. 56. 57.

58.

59. 60. 61. 62. 63.

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64. 65. 66. 67.

Any document endorsed or proffered by Plaintiff. Any document attached as an exhibit to a deposition. Any exhibit as necessary for demonstrative purposes. Any document or recording as necessary for impeachment or rebuttal.

Copies of listed exhibits must be provided to opposing counsel and any pro se party no later than five days after the final pretrial conference. The objections contemplated by Federal Rule Civil Procedure 26(a)(3) shall be filled with the clerk and served by hand delivery or facsimile no late than 11 days after the exhibits are provided

8. DISCOVERY Discovery has been completed.

9. SPECIAL ISSUES Pursuant to the Federal Rule of Evidence plaintiff requests that exhibits one through six from case number 02-N-379 be entered as evidence for they are pertinent to the out come of this case. See 5 C.F.R. 1201.61 through 1201.64. The plaintiff request that the court to take into consideration the First, Fifth, and Fourteenth Amendments of the United State Constitution which limits the power of the federal and state governments to discriminate, 29 CFR 1613.261-262, 29 CFR 33.3, 5 U. S. C. S. 7701(c)(1)(B) (1994); Wright, 900 F. 2d at 1544, 5 US, C. S 7513(a), and 5 U. S. C. S 7501. The plaintiff also requests that the court give consideration to Federal Rules of Evidence 14,40L, 402, 403(a)(b), 405(a)(b), 406, 407, 601,602, 607, 608(a)(b)(1)(2), 612, 613, 701,702, 703,

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704, 705, 801(b)(c)(d), 801(1)(a)(b)(c), 801(2)(a)(b)(c)(d)(e), 802, 803(1)(2)(3)(4)(5)(18)(21), 803(c)(5), and 805.

Defendant objects to admission of exhibit one through six unless Mr. Strozier specifically identifies the documents sought to be admitted and lists them as exhibits, and lays foundation for their admission at trial. Additionally, Mr. Strozier provided no expert disclosure of the medical health care providers listed in his expert witness list. As a result, the Defendant's have no notice of the opinions to be offered and would object to their appearance or testimony at trial. In addition, Plaintiff abandoned his claims of sex and race discrimination prior to the MSPB hearing and therefore failed to exhausted these claims and the alleged "age" discrimination claim. Additionally, these claims were previously dismissed for failure to exhaust in 02-N-379 (CBS). He also failed to either exhaust the age claim at the MSPB level or provide the required notice to the EEOC of the age discrimination claim and file the above complaint within the time limits established by the EEOC. As a result, the Court has no jurisdiction to review these claims and they should be dismissed prior to trial. 10. SETTLEMENT Other than the initial settlement conference before Magistrate Shaffer, counsel for the parties and any pro se party have not met in person or by telephone to discuss settlement of the case. It appears from the discussion that there is no possibility of settlement.

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11. OFFER OF JUDGEMENT Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgement) of the Federal Rule of Civil Procedures. Counsel have discussed it with the clients against whom claims are made in this case.

12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleading.

13. TRIAL AND ESTIMATED TRIAL TIME: FURTHER TRIAL PREPARATION PROCEEDINGS

1. The trial is to the jury 2. The trial will be a five day trial 3 The trial will be held in the state of Colorado at the United States District Court for the district of Colorado Alfred A. Array Courthouse 901 19'h St. Denver, Colorado 80294. Counsel and the parties should note that the procedures for setting and conducting trial and for further conferences before trial vary according to the district judge assigned to the case. The judges all have written procedures which can be obtained from the clerk's office

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DATED this __ day of

2005

BY THE COURT:

__________________________ United States Magistrate Judge

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APPROVED: /s/ Jiimmy L. Strozier 1467-Illinois Street Leeds Al 35094 (205) 699-0492 Plaintiff, Pro se

WILLIAM J. LEONE ACTING UNITED STATES ATTORNEY

/s/ Elizabeth A. Weishaupl Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 (303) 454-0100 Fax (303 454-0190 e-mail: [email protected] Attorney for Defendant

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