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 THERE MORE ESSENTIAL FUNCTIONS THAN THOSE LISTED ON THE JOB DESCRIPTION.

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 Essential Functions of a Level 5 Distribution Clerk requiring the lifting sacks, boxes, and parcels up to 75 pounds each; standing for the entire shift, other than breaks and lunch; constant bending, lifting, and twisting in connection with retrieving and sorting mail by zip code or any other requirements that are not found on the Job description. This motion is supported by the following

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Memorandum of Points and Authorities. ..... ..... .....

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MEMORANDUM OF POINTS AND AUTHORITIES

The Defendants evidence does not meet the necessary burden of proof that the
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essential functions of a Level 5 Distribution Clerk require: a. Lifting sacks, boxes, and parcels up to 75 pounds each; b. Standing for the entire shift, other than breaks and lunch; c. Constant bending, lifting, and twisting in connection with retrieving and sorting mail by zip code. and are controverted, by the Distribution Clerk's job descriptions as published by the USPS. The Defendant must provide competent evidence to support their claim that a job function is essential. Defendant's evidence is "unpersuasive." Cripe, 261 F.3d at 888.

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If an employer has prepared a written description before advertising or
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interviewing applicants for the job, this description shall be considered evidence of the
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essential functions of the job. 42 U.S.C. § 12111(8). Defendant has a written job description for Level 5 Distribution Clerks. This description describes the Functional Purpose as: "Separates mail in post office, terminal, airport mail facility or other postal facility in accordance with established schemes, including incoming or outgoing mail or both. The description then lists duties and responsibilities which include: 1 ­ Makes primary and one or more secondary distributions of incoming mail by delivery point, based on knowledge of the distribution scheme. 2- Makes primary and one or more secondary distribution of outgoing mail for dispatch based on a knowledge of the

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distribution scheme. 3 ­ In addition, may perform any of the following duties: maintain records of mails; examine balances in advance deposit accounts; face and cancel mail; tie mail and insert facing slips; open and dump pouches and sacks; operate canceling machines; record and bill mail requiring special services; and provide service at public windows. Defendant's written Job description for a Level 5 Distribution Clerk does not have the essential function requirements stated by Defendants and must be excluded.

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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

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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

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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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