Free Motion in Limine - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona State Bar No. 6835 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, CIV-04-0429-PHX-MHM Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service, Defendant. Defendant, pursuant to the Court's February 13, 2007 order, hereby requests that the DEFENDANT'S MOTIONS IN LIMINE

16 Court enter an order exclude certain evidence at trial based upon the following Memorandum 17 of Points and Authorities. 18 MEMORANDUM OF POINTS AND AUTHORITIES

19 I. BACKGROUND: 20 This case is scheduled for a jury trial on May 8, 2007 on Plaintiff's Claim that he was

21 discriminated against, in violation of the Rehabilitation Act, between October 2001 and March, 22 2002. According to the Court's January 5, 2007 order (Doc. # 88), in which the parties' 23 summary judgment motions were denied, the jury will be determining the factual issues about: 24 25 (1) whether Plaintiff was disabled under the Rehabilitation Act as of March 2002; (2) whether he was "otherwise qualified" for his position with the Postal Service in March

26 2002, with or without reasonable accommodation; and 27 28 (3) whether he was terminated solely because of his disability.

Case 2:04-cv-00429-MHM

Document 99

Filed 03/02/2007

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1 This motion seeks to exclude 2 categories of evidence: (1) evidence that persons other than the 2 two Postal Service employees who were the two decision-makers regarding the purported 3 discrimination in this case, Humberto Trujillo and Mark Camper, discriminated against him; (2) 4 evidence about Postal Service employees who were on limited duty, including whether they 5 were treated differently than Plaintiff a light duty employee.1 6 II. ANALYSIS: 7 8 9 A. THE COURT SHOULD EXCLUDE EVIDENCE OF DISCRIMINATION BY INDIVIDUALS OTHER THAN CAMPER AND TRUJILLO Only relevant evidence is admissible at trial. Fed. R. Evid. 402. Relevant evidence

10 must have some "tendency to make the existence of any fact that is of consequence to the 11 determination of the action more probably or less probably than it would be without the 12 evidence." Fed. R. Evid. 401. Thus the probative value of other discriminatory acts would 13 depend upon their relevance to the acts at issue in the case, as well as the nature of the 14 discrimination. In Crowe v. Wiltel Communications Systems, 103 F.3d 897 (9th Cir. 1996), the 15 plaintiff alleged discrimination and harassment on the basis of sex. At trial, the district court 16 excluded evidence of discrimination which plaintiff claimed was on the basis of sexual 17 orientation and racial discrimination. On appeal, the Ninth Circuit found that the trial court 18 properly excluded the evidence because it "did not relate directly to any issue at trial." Id. at 19 900. 20 Here, the only issues involve whether Camper and Trujillo discriminated again Plaintiff

21 and failed to accommodate him due to an alleged disability, Plaintiff's chronic knee condition. 22 The alleged discriminatory acts involve acts such as their allegedly changing the terms of 23 Plaintiff's light duty offer, refusing him work, and refusing to allow him to sit in a soft cushion 24 chair. Any evidence of other acts of discrimination should be carefully reviewed to establish that 25 it is similar enough, recent enough and probative enough to warrant submission to the jury. See, 26 e.g., Tennison v. Circus Circus Enterprises, 244 F.3d 684 (9th Cir. 2001). 27 28 Because the parties have not yet lodged their Joint Pre-Trial Statement, it is difficult to anticipate what other evidentiary issues may arise. 2
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B.

THE COURT SHOULD EXCLUDE EVIDENCE ABOUT LIMITED DUTY EMPLOYEES

The Postal Services' policies and procedures regarding light duty and limited duty

4 employees are Distinct and separate. Plaintiff was a light duty employee during the alleged acts 5 of discrimination. The Postal Service maintains two separate and distinct programs for 6 employees who are unable to perform the essential functions of their position due to a medical 7 condition: "limited" and "light" duty. "Limited" duty applies to employees who suffer on-the8 job injuries, is governed by the Federal Employee Compensation Act (FECA), 5 U.S.C. § 8101, 9 and limited duty is administered by the Department of Labor (DOL), Office of Workers' 10 Compensation (OWCP). In this case, DOL agreed with the Postal Service's initial decision that 11 Jung was not entitled to limited duty status because his knee condition was not related to his 12 Postal Service employment. Further, once the DOL makes that decision, the Postal Service is 13 bound by the decision unless the employee takes action, which Jung did not do. 14 It is anticipated that Plaintiff will attempt to introduce evidence that he was treated

15 differently than limited duty employees, such as being sent home early when work was available 16 for other employees, employees who were limited, not light duty employees. The Postal Service 17 has different procedures and obligations regrading limited duty employees. Unless Plaintiff can 18 lay the foundation to establish that Camper and Trujillo were treating other light duty employees 19 differently than him, such evidence would not be relevant, and would be confusing and 20 prejudicial to the jury. [See above discussion regarding relevant and irrelevant evidence; See 21 also, Fed. R. Evid. 403.] 22 III. CONCLUSION 23 Based upon the foregoing, it is respectfully requested that the Court exldue evidence of

24 discrimination by persons other than Trujillo and Camper, and any evidence about how they may 25 have treated limited duty employees. 26 27 28 3
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Respectfully submitted this 2nd day of March, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on March 2, 2007, I electronically transmitted the attached document

9 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 10 Electronic Filing to the following CM/ECF registrants: 11 Rosval A. Patterson 12 777 E. Thomas Rd. Phoenix, AZ 85014 13 14 s/S. Guerin U.S. Attorney's Office 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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