Free Motion in Limine - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE DEFENDANT'S UNDUE HARDSHIP AFFIRMATIVE DEFENSE

Plaintiff, Alexander Jung, submits this Motion in Limine respectfully requesting
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that this Court preclude any testimony, evidence, argument or instruction from Defendant and move to exclude all reference to an undue hardship as an affirmative defense. This motion is supported by the following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES The defendant has not offered proof of undue hardship. In its answer submitted to Plaintiff on June 4, 2004, Defendant claims Plaintiff's accommodation would have created an undue hardship. Defendants' undue hardship defense is absurd. There is significant countervailing evidence to the defense. In Defendant's response to Plaintiff's
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interrogatories on November 12, 2004, when they were asked to explain their undue hardship defense, their response was as follows: INTERROGATORY NO. 13 Do Defendants contend that any reasonable accommodation otherwise available to eliminate the necessity for Defendant's refusing Plaintiff the right to work on a work restriction could not be accomplished without undue hardship? RESPONSE TO INTERROGATORY NO. 13: Objection, this interrogatory is overbroad in time and assumes facts not in evidence and calls for a legal conclusion. Notwithstanding said objections, Defendant states that it did not refuse Plaintiff "the right to work on a work restriction." Further, at this time, Defendant does not possess sufficient information to determine whether Plaintiff was, or is, physically disabled under the Rehabilitation Act and whether Plaintiff was a qualified disabled individual who could perform the essential functions of his job with reasonable accommodation. Defendant has requested the time for responding be extended until after plaintiffs deposition is taken. As of the drafting of this motion, the Defendants have not responded with any

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undue hardship. Further, Defendants cannot demonstrate that granting Plaintiff's request would have an economic impact on its operations or be disruptive to its operations as required by the ADA. An employer may avoid the requirement to reasonably accommodate an employee by demonstrating that the requested accommodation would pose an undue hardship. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9. The term 'undue hardship' means an action requiring [the employer to undertake a] significant difficulty or expense." 42 U.S.C. §12111(10)(A). See also 29 C.F.R. § 1630.2(p). The "undue hardship" question, focuses on the impact which the accommodation would have, if implemented, on the specific employer in question "at a particular time." See 29 C.F.R. § 1630.15(d) (Appendix: Interpretative Guidelines). Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case-by-case basis. In this case, the accommodation Plaintiff requested was to sit on

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a soft cushion chair for 15-30 minutes after standing for one hour. Defendant has given no proof as to why the requested accommodation would cause an undue hardship on Defendant. INTERROGATORY NO. 16: Do Defendants contend that allowing Plaintiff to sit on a soft cushion chair for fifteen to thirty (15-30) minutes after standing for one (1) hour was not justified in light of the overall financial resources of the United States Post Office. RESPONSE TO INTERROGATORY NO. 16: No. Defendants' undue hardship defense is without merit. The defense is unfounded,

unsupported, and unsubstantiated. The court must grant an order precluding Defendant from claiming Undue Hardship as an affirmative defense.

Dated this 2nd day of March, 2007 s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd of March, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected]

By:

s/Stephanie Coulter Stephanie Coulter

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