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 RE ACCOMMODATIONS OF OTHER DISABLED EMPLOYEES

Plaintiff hereby moves the court in limine to instruct Defendant and its counsel as
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follows:
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The Defendant is precluded from making any reference or from introducing any
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evidence whatsoever that refers, relates, or concerns the defendant's alleged accommodations of other disabled employees. following Memorandum of Points and Authorities. This motion is supported by the

MEMORANDUM OF POINTS AND AUTHORITIES I. THE EVIDENCE IS IRRELEVANT

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Federal Rules of Evidence, Rule 402 provides that irrelevant evidence is inadmissible. Relevant evidence is defined as "...evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more

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probable or less probable than it would be without the evidence." (Federal Rules of Evidence, Rule 401.) Plaintiff's causes of action are based on his allegation that the Defendant failed to provide reasonable accommodation for his disability, in violation of the Rehabilitation Act. The Rehabilitation Act does not provide an affirmative defense to the defendant based on its assertion that Defendant has provided accommodations to other disabled employees. Nor does the Rehabilitation Act contain any language that allows a defendant, such as the Postal Service, to use evidence of alleged accommodations to different employees to somehow evidence its "good faith" in engaging in the interactive process with the plaintiff. Whether or not other employees have asked for, and received,

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accommodation from Defendant is of no consequence to the determination of whether Defendant acted in accordance with applicable law as to Plaintiff. In fact, any evidence offered by the defendant does not establish that the accommodations purportedly provided complied with applicable law or that the employees allegedly accommodated were satisfied with the conduct of the Postal Service. The comparison of the handling of Plaintiff's request for accommodation to the handling of requests for accommodation from other similarly situated disabled employees is inapposite. Evidence supporting this argument is, therefore, irrelevant. II THE EVIDENCE IS IMPROPER CHARACTER EVIDENCE

Federal Rules of Evidence, Rule 404, provides that "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion..." None of the exceptions to Rule 404 are
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applicable. Defendant seeks the introduction of this evidence so as to attempt to prove that as to the particular instance of Plaintiff's request for accommodation, it must have acted

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reasonably and in good faith because it has accommodated other employees in the past. This is prohibited by Rule 404. Whatever Defendant has or has not done with respect to other employees cannot be used in any manner whatsoever so as to attempt to establish the defendant's conduct in responding to Plaintiff's request for accommodation. III AS AN ALTERNATIVE GROUND FOR EXCLUSION, INTRODUCTION OF THIS EVIDENCE WOULD RESULT IN UNFAIR PREJUDICE TO PLAINTIFF, CONFUSION OF THE ISSUES AND WOULD MISLEAD THE JURY

Federal Rules of Evidence, Rule 403 provides that relevant evidence may be
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excluded if its probative value is substantially outweighed by the danger of "...unfair prejudice, confusion of the issues, or misleading the jury..." Admission of any evidence regarding the Defendant's alleged accommodations of other employees will undoubtedly prejudice and confuse the jury. There is a very real danger that, despite applicable law, the jury will reason that if Defendant accommodated other employees, it must have accommodated Plaintiff. The jury may also feel unwarranted sympathy for the defendant based on the defendant's assertion that it takes the requests of disabled employees "seriously" as evidenced by the alleged other accommodations. The jury risks confusion if faced with a technical legal argument that cautions that the prior alleged accommodations are not in any way related to the claims being advanced in this action. Confusion will also result by virtue of the illogical nature

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of Defendant's argument. In that regard, Defendant contends that the prior record of accommodating employees evidences its good faith in responding to Plaintiff's request for accommodation. Taking Defendant's argument to the extreme, the Defendant could accommodate 99% of its employees, deny accommodation to 1% of its employees on the grounds that it simply did not like or trust these employees, and still claim compliance

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with applicable law based on its record with other employees. There is simply no way to avoid prejudice and confusion if this evidence were admitted.

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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