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 PRECLUDING THE DEFENDANT FROM ARGUING THAT PROVIDING LIGHT DUTY IS AN ACCOMODATION.

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

MEMORANDUM OF POINTS AND AUTHORITIES
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In deciding the accommodation, both parties have a duty under the ADA to engage in an "informal, interactive process" to determine the appropriate reasonable accommodation. 29 C.F.R. § 1630.9, Appendix (1995) (see Exh. 24). The EEOC's interpretive guidelines provide that:
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[o]nce a qualified individual with a disability has requested provision for reasonable accommodation; the employer must make a reasonable effort to determine the appropriate accommodation . . . through a flexible interactive process that involves both the employer and the [employee] with a disability. Defendant's evidence that Alex's light duty request were routinely accommodated is insufficient as a matter of law. Barnett v. U.S. Air, Inc., 228 F.3d 1105, __ (9th Cir. 2000), citing S. Rep. No. 101-116 at 34 (1989) and H.R. Rep. No. 101-485, pt. 2 at 65 (1990), and 29 C.F.R. 1630.2(b); 29 C.F.R. § 1630.2(o)(3). 1 Defendants never involved Plaintiff in any discussion regarding his disability. Plaintiff's Manager, Humberto Trujillo ("Trujillo") never asked Alex any questions regarding his disability or explored

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whether there were any other ways the USPS could accommodate him. In defiance of the ADA, Trujillo testified that he was not obligated to explore with Alex whether the USPS could reasonably accommodate Alex. Trujillo never bothered to read Handbook EL-307, Reasonable Accommodation, an Interactive Process, which set forth the policies on reasonable accommodation. Instead, Trujillo usurped his duties to the labor department. However, Trujillo never contacted the labor department regarding Alex's disability. On or about April 12, 2002, Trujillo simply kicked Alex out of the PPMPPC and would not allow Alex to return. Defendants attempt to use acceptance of a light duty

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request as an accommodation must be excluded. ..... .....

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The interactive process involves four steps: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. 2

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

CERTIFICATE OF SERVICE
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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

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transmittal of a Notice of Electronic Filing for the following CM/ECF registrants:
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[email protected]

By: s/Stephanie Coulter Stephanie Coulter

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