Free Order on Motion for Partial Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 John E. Potter, Postmaster General, 13 Defendant. 14 15 16 On March 29, 2006 Plaintiff filed a Motion for Partial Summary Judgment ("MPSJ") 17 (Dkt. # 57). On April 14, 2006 Defendant filed a Motion for Summary Judgment ("MSJ") 18 (Dkt. #59). Both Motions are fully briefed. The Court has considered all briefing on both 19 Motions and issues the following Order. 20 BACKGROUND 21 Plaintiff Alexander Jung began working for the United States Post Service ("USPS") 22 on or about August 1994. Plaintiff was transferred to the Phoenix Priority Mail Postal 23 Processing center ("PPMPPC") as a Level 5 Distribution Clerk on or about October 2000. 24 Plaintiff was terminated from the USPS on or about August 12, 2002. 25 Plaintiff claims that his knee and back pain are disabling and affect his ability to walk, 26 sit, and stand. [Pl.'s Statement of Facts ("SOF") ¶¶ 1, 7-8.] Plaintiff reports that in December 27 2000, he was diagnosed with Chondromalacia of Patella. [Pl.'s SOF ¶ 6.] On December 5, 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Alexander Jung, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) ) )

No. CV-04-429-PHX-MHM ORDER

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2001, Plaintiff's primary care physician, John Jensen, M.D., completed paperwork for the Department of Labor which listed Plaintiff's knee pain as a disabling condition. [Pl.'s SOF ¶ 14.] Dr. Jensen stated that Plaintiff experiences knee pain due to "prolonged standing in the work environment." [Pl.'s SOF ¶ 14.] In January and May 2001, Dr. Jensen filled out a Family and Medical Leave Act ("FMLA") certificate which listed Plaintiff's condition as "chronic." [Pl.'s SOF ¶ 15.] On March 6, 2001, Veteran's Administration ("VA") doctor, Christopher P. Berry, PT, concurred with Dr. Jensen's assessment of chronic bilateral knee pain and added that Plaintiff is having difficulty with "static standing, kneeling, stairs, [and] bike." [Pl.'s SOF ¶ 16.] Dr. Berry's assessment continues on to state that Plaintiff's condition "improved with [physical therapy] this far." [VA Medical Records Bates Labeled JUNG.VA.00026.] On September 26, 2001, VA doctor, Richard M. Mendlick, M.D., examined Plaintiff and found that Plaintiff "has had rather chronic patello-femoral arthralgia." [Pl.'s SOF ¶ 17.] On November 28, 2001, VA doctor Sumit Dewanjee, M.D., after examining Plaintiff, stated that Plaintiff's "symptoms [are] aggravated by work as a distribution clerk which requires heavy lifting, twisting and prolonged standing." [Pl.'s SOF ¶ 18.] On February 28, 2002, VA doctor, Gregory Herring, M.D., stated that Plaintiff "complains of numbness in [his] knees . . . [he] does a lot of lifting and squatting, which has aggravated the pain" and Plaintiff's "knees occasionally lock up, give away." [Pl.'s SOF ¶ 19.] Dr. Herring also concurred with Dr. Jensen that Plaintiff's Chondromalacia of Patella was chronic. [Pl.'s SOF ¶ 19.] Dr. Herring further concurred with Dr. Mendlick that Plaintiff had patellofemoral arthralgia. [Pl.'s SOF ¶ 19.] On or about March 2002, Christopher Hiller, M.D., opined that Plaintiff's "work of repetitive pushing and pulling has exacerbated his back and knee conditions and [has] increas[ed] the pain." [Pl.'s SOF ¶ 20.] Dr. Hiller further noted that Plaintiff "is unable to do the same kind of work or the work will cause worsening injuries and permanent damage." Id. -2Case 2:04-cv-00429-MHM Document 88 Filed 01/10/2007 Page 2 of 15

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Plaintiff's injuries appear to have persisted. On July 7, 2005, VA doctor, Lillian Chang, M.D., stated that Plaintiff is "unable to perform prolonged walking, standing, kneeling, squatting, climbing, running and any other high impact activities." [Pl.'s SOF ¶ 21.] Dr. Chang also stated that Plaintiff's "posture is abnormal and there is a presence of genu varum deformities of both knees." Id. Plaintiff stated in his deposition that a recent MRI revealed tears in his knees. [Pl.'s SOF ¶ 22.] Plaintiff awaits orthopedic surgery to repair these tears. Id. Plaintiff testified at his deposition that his disability prevents him from standing in a prone position for longer than fifteen minutes. [Pl.'s SOF ¶ 27.] Standing for any longer than fifteen minutes causes numbness in his knees and sharp pains throughout his legs. [Pl.'s SOF ¶ 26.] Plaintiff has also testified that he is unable to walk more than a couple of city blocks. [Pl.'s SOF ¶ 30] Plaintiff further states that walking the equivalent of one city block causes his knees to lock and become numb. [Pl.'s SOF ¶ 29.] Plaintiff provided USPS with Light Duty Approval Forms on four occasions including February 6, 2001, October 10, 2001, January 7, 2002, and March 1, 2002. [Pl.'s SOF ¶ 43.] According to Plaintiff, in October 2001, he alerted his supervisor, Johnny Camou, of pain in his knee and that he needed to sit in a chair intermittently while working. [Pl.'s SOF ¶ 48.] Mr. Camou allowed Plaintiff's request and provided a cushion chair for Plaintiff to sit on. Id. However, manager Humberto Trujillo told Mr. Camou that Plaintiff was not allowed to sit in a soft cushion chair without a doctor's note. [Pl.'s SOF ¶ 49.] On October 29, 2001, Plaintiff obtained a Return to Work Authorization from Dr. Shank which stated that Plaintiff should be allowed to sit in a soft cushion chair while he worked. [Pl.'s SOF ¶ 42.] Mr. Trujillo did not accommodate Plaintiff's request to work while sitting on a soft cushion chair even after Plaintiff submitted Dr. Shank's October 29, 2001 Return to Work Authorization form. In March 2002, Plaintiff was approved for an extension of his light duty assignment which limited him to lifting not more that ten pounds a day, four hours a day, walking one-3Case 2:04-cv-00429-MHM Document 88 Filed 01/10/2007 Page 3 of 15

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and-a-half hours then sitting for one hour [Pl.'s SOF ¶ 59.] Plaintiff's supervisor, Mr. Mark Camper, interpreted Plaintiff's light duty authorization to mean that Plaintiff could only work four hours a day rather than the eight hours Dr. Shank intended to convey by writing his note. Due to confusion caused by the March 2002 note, Plaintiff received a new doctor's note clarifying that Plaintiff could work an eight-hour shift but was limited in what he could do for four of the eight hours. [Pl.'s Motion for Partial Summary Judgment ("MPSJ") SOF ¶ 56.] According to Plaintiff, Mr. Camper told Plaintiff that he would have to sign the original light duty assignment stating that he was limited to working four-hour shifts. [Pl.'s MPSJ SOF ¶ 53.] Plaintiff states that he was sent home because he refused to sign the light duty assignment form which limited him to four-hour shifts. [Pl.'s MPSJ SOF ¶ 57.] Plaintiff was sent home and was not allowed to return until he signed the four-hour shift light duty assignment form. [Pl.'s MPSJ SOF ¶¶ 59, 60.] On or about April 10, 2002, Plaintiff returned to PPMPPC and worked four hours. [Pl.'s MPSJ SOF ¶ 61.] The next day when Plaintiff returned to PPMPPC, his timecard was missing. [Pl.'s MPSJ SOF ¶ 60.] Plaintiff indicated to a supervisor that he wished to sign the light duty assignment form but was informed that the form could not be located. [Pl.'s MPSJ SOF ¶ 63.] Mr. Trujillo told Plaintiff that without having signed the light duty assignment form, Plaintiff must leave the building and he would not be paid for the hours he had worked. [Pl.'s MPSJ SOF ¶ 64.] On or about August 12, 2002, Plaintiff was terminated for being absent without permission. [Pl.'s MPSJ SOF ¶ 65.] The reason for Plaintiff's termination was "failure to maintain regular attendance / failure to report for duty as scheduled / failure to follow absence notification procedures / failure to provide documentation to substantiate an absence, resulting in AWOL." [Pl.'s MPSJ SOF ¶ 65 & Exh. 13 ­ Notice of Removal.] On March 1, 2004, Plaintiff filed a Complaint in this Court against Defendant, the USPS, alleging the following four claims: (1) that Defendant violated Plaintiff's rights under the Americans With Disabilities Act ("ADA"); (2) that Defendant violated Plaintiff's rights -4Case 2:04-cv-00429-MHM Document 88 Filed 01/10/2007 Page 4 of 15

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under the Rehabilitation Act; (3) that Defendant sexually discriminated against Plaintiff; and (4) that Defendant discriminated against Plaintiff on the basis of national origin. On May 18, 2005, the parties filed a Joint Motion to Dismiss the claims of sexual and national origin discrimination. The Court granted the Parties Joint Motion to Dismiss these two of the four claims on May 22, 2006. Thus, at present, Plaintiff's ADA and Rehabilitation claims remain. On March 29, 2006, Plaintiff filed a Motion for Partial Summary Judgment ("MPSJ") addressing Plaintiff's ADA claim. On April 14, 2006, Defendant filed a Motion for Summary Judgment ("MSJ") addressing both Plaintiff's ADA and Rehabilitation Act claims. Both Motions are fully briefed. LEGAL STANDARD Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.1987). Initially, the moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991). The burden then shifts to the non-movant to establish the existence of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with

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'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505. DISCUSSION I. AMERICANS WITH DISABILITIES ACT Plaintiff alleges disability discrimination based on violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. However, the court in Henrickson v. Potter, 327 F.3d 444, 446 (5th Cir. 2003), states as follows: Congress established that USPS is part of the federal government, 39 U.S.C. § 201 (stating "[t]here is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service"), and that the entire federal government is excluded from the coverage of the ADA. 42 U.S.C. § 12111(5)(B) (stating that "[t]he term `employer' does not include the United States [or] a corporation wholly owned by the government of the United States"). Citing Henrickson, Defendant asserts that Plaintiff's claim under the ADA is invalid. Defendant states that the federal government is excluded from the ADA's definition of "employer," and, therefore, federal employees, such as USPS employees, are not covered under the ADA. Defendant asserts that Plaintiff's claim for relief under the ADA cannot go forward. Plaintiff does not address Defendant's assertion that the ADA does not apply to the federal government, including the USPS, in either Plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Summary Judgment nor in Plaintiff's Response to Defendant's Motion for Summary Judgment. The language of Henrickson is clear ­ Plaintiff, as an employee of the USPS, is excluded from coverage under the ADA. Plaintiff does not argue that the law demands any -6Case 2:04-cv-00429-MHM Document 88 Filed 01/10/2007 Page 6 of 15

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other resolution. Therefore, taking the evidence in the light most favorable to Plaintiff, Plaintiff has failed to raise a triable issue of material fact that Defendant is liable to Plaintiff for a violation of the ADA. Therefore, Defendant's Motion for Summary Judgment is granted with regard to Plaintiff's ADA claim. Plaintiff's Motion for Partial Summary Judgment is denied with regard to his ADA claim. The Court now considers the sole remaining claim in this case ­ Plaintiff's claim for relief under the Rehabilitation Act ­ the Court now considers this claim pursuant to Plaintiff's Motion for Partial Summary Judgment, Defendant's Motion for Summary Judgment, and all supporting documents. II. REHABILITATION ACT The standards used to determine whether an act of discrimination violates the Rehabilitation Act are the same standards applied under the ADA. Wong v. Regents of the Univ. of California, 410 F.3d 1052, 1055 n. 2 (9th Cir. 2005). The plaintiff bears the burden of proving that he or she is disabled within the meaning of the Acts. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9th Cir. 2001), later supplemented at 292 F.3d 1045 (9th Cir. 2002). To assert a prima facie case under either the ADA or Rehabilitation Act Plaintiff must show that (1) he is disabled under the Act; (2) he is "otherwise qualified" for his position with the USPS, with or without reasonable accommodation; and (3) he was dismissed solely because of his disability. See Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir. 1988); cf. Willis v. Pacific Maritime Assoc., 162 F.3d 561, 565 (9th Cir. 1998) (stating prima facie elements for ADA employment case). A. WHETHER PLAINTIFF REHABILITATION ACT WAS DISABLED UNDER THE

An individual is disabled under the Rehabilitation Act if he: (a) has a physical or 24 mental impairment substantially limiting one or more major life activity; has record of such 25 impairment, or (c) is regarded as having such impairment. 42 U.S.C. § 12102(2); 29 C.F.R. 26 27 28
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2004). Thus, for the Court to grant summary judgment regarding Plaintiff's Rehabilitation Act claim in favor of Defendant, there must be no genuine issue of material fact regarding whether Plaintiff had an impairment that substantially limited a major life activity, had a record of such an impairment, or was regarded as having such an impairment. Coons, 383 F.3d at 884. 1. PHYSICAL OR MENTAL IMPAIRMENT LIMITING A MAJOR LIFE ACTIVITY

An impairment under the ADA includes any physiological disorder or condition 8 affecting body systems such as the cardiovascular or digestive systems, or any mental or 9 psychological disorder such as emotional or mental illness. 29 C.F.R. § 1630.2(h). A major 10 life activity is defined as "caring for oneself, performing manual tasks, walking, seeing, 11 hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I). This is not an 12 exhaustive list. Other major life activities include, inter alia, sitting, standing, and lifting. 13 Id. 14 The Ninth Circuit has held that an inability to lift more than twenty-five pounds is not 15 16 However, on January 7, 2001 and March 8, 2002, Dr. Jensen issued medical certificates 17 which precluded Plaintiff from lifting more than ten pounds. [Pl.'s SOF ¶¶ 23 & 25.] 18 Plaintiff has provided documentation from numerous doctors from dates before, up 19 to, and after the relevant date of March 2002. Plaintiff has documentation describing the pain 20 in his knees, which limited capacity to lift, stand, kneel, walk stairs, and bike. Furthermore, 21 Plaintiff has provided doctor's reports and light duty assignments forms showing that Plaintiff 22 had been assigned to light duty assignment on at least four occasions during his employment 23 at the PPMPPC of the USPS. 24 Defendant points out that Plaintiff stated that he was able to do all household chores, 25 yard work, and play golf. [Def.'s SOF ¶ 35.] Defendant further states that Plaintiff's 26 physicians determined that Plaintiff was capable of working safely on light duty for an eight27 28
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substantially limiting. Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir. 1997).

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hour shift. [Def.'s SOF ¶ 35.] However, these activities are varied and are not conducted continuously for prolonged periods time. Thus, the Court does not find Defendant's argument that Plaintiff's leisure activities prove that he is not disabled. The record of Plaintiff's doctors reports shows that there is a triable issue as to whether Plaintiff is "significantly restricted as to the condition, manner, or duration" with which he can walk, stand, or lift. 29 C.F.R. §§ 1630(j)(1)(i)-(ii). In fact, Plaintiff has shown that his is unable to walk, stand, kneel, squat, climb, run, or walk stairs for a prolonged period both before and after March 2002. Plaintiff has also shown that he was unable to lift more than ten pounds. These are major life activities. Plaintiff has shown satisfactorily to overcome a motion for summary judgment that he could not perform the activity that an average person in the general population could perform or that he faces significant restrictions in the "condition, manner, or duration under which [he could] perform [the] activity." 29 CFR § 1630.2(j)(i)-(ii). Therefore, the Court finds that a genuine issue of material fact exists as to whether Plaintiff was disabled in March 2002. 2. RECORD OF IMPAIRMENT

"To have a record of an impairment that substantially limits a major life activity means to have 'a history of, or [have] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.'" Coon, 383 F.3d at 886; citing 29 C.F.R. § 1630.2(k). The regulations provide that to prove disability through a "record of impairment," the documentary record must indicate that plaintiff has the same kind of disability that satisfies the definition of "actually disabled," defined as an impairment that substantially limits one or more of an individual's major life activities. 29 C.F.R. § 1630.2(k). "An employer need not have actual knowledge of an employee's preexisting condition. If the condition is readily discoverable from the employee's medical record in the possession of the employer, knowledge of the condition is imputed to the employer." Bunge Corp. v. Director, Office of Workers Compensation, 951 F.2d 1109, 1111 (9th Cir. 1991); citing -9Case 2:04-cv-00429-MHM Document 88 Filed 01/10/2007 Page 9 of 15

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Director, OWCP v. Campbell Indus., 678 F.2d 836, 840, 841 (9th Cir. 1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983), disapproved on other grounds, Director, OWCP v. Cargill, 709 F.2d 616 (9th Cir. 1983) (en banc). Defendant states that Plaintiff cannot establish a medical history of impairment, including impairment while working. Without providing more, Defendant argues that Plaintiff, therefore, has not met this prong of the test. To the contrary, Plaintiff states that he consistently informed the USPS of his disability. Plaintiff states that on October 29, 2001, Plaintiff submitted a Return to Work Authorization signed by Lawrence Shank, M.D., which listed Plaintiff's bilateral knee pain as permanent, and restricted Plaintiff to sit on a soft cushion chair. [Pl.'s SOF ¶ 42.] Other examples of Plaintiff's record of impairment include requests for work restrictions authorized and submitted to Plaintiff's supervisors on July 21, 2001; March 6, 2001; September 25, 2001; October 10, 2001; January 7, 2002; March 1, 2002, and May 22, 2002. [Pl.'s SOF ¶ 43.] Plaintiff also reports having submitted Supervisors Light-Duty Approval Forms on February 6, 2001; October 10, 2001; January 7, 2002; and March 1, 2002. Plaintiff also submitted doctor's notes to Defendants on March 6, 2001; September 10, 2001; January 2, 2002; February 8, 2002; and February 28, 2002. Based on the foregoing, the Court finds that Plaintiff has provided enough evidence of a record of impairment to overcome Defendant's Motion for Summary Judgment. 3. WAS PLAINTIFF REGARDED AS DISABLED

Under the ADA, an employee is regarded as having a disabling impairment if he: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) does not have an impairment but is treated as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l).

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Defendant argues that the USPS did not regard Plaintiff as disabled. Defendant states that it knew that Plaintiff could not perform the essential duties of a distribution clerk but that the USPS did not regard or treat Plaintiff has having a substantially limiting impairment. Plaintiff states that in October 2001, he requested a soft-cushion chair to sit in for fifteen to thirty minute intervals to relieve the pain in his knees and lower back. Plaintiff states that his supervisor, Johnny Camou, was aware of Plaintiff's condition and allowed Plaintiff to sit in the cushioned chair. Plaintiff also states that his October 29, 2001 Return to Work Authorization from Dr. Shank listed Plaintiff's bilateral knee pain as permanent, and restricted Plaintiff to sitting on a soft-cushion chair. [Pl.'s SOF ¶ 42.] With the evidence presented, Defendant should have been on notice and should have regarded Plaintiff as having a disability. Therefore, the Court finds that Plaintiff has met this prong sufficiently to overcome Defendant's Motion for Summary Judgment. B. WHETHER PLAINTIFF WAS "OTHERWISE QUALIFIED" FOR HIS POSITION WITH THE USPS

Federal Regulations state that an individual with a disability "means an individual 15 with a disability who satisfies the requisite skill, experience, education and other job-related 16 requirements of the employment position such individual holds or desires, and who, with or 17 without reasonable accommodation, can perform the essential function of such position." 29 18 C.F.R. § 1630.2(m). The essential function of a position is defined as "the fundamental job 19 duties of the employment position the individual with a disability holds or desires." 29 20 C.F.R. § 1630.2(n). 21 Defendant claims that in a Level 5 Distribution Clerk position, Plaintiff was required 22 to lift seventy pounds, bend, twist, and stand for an eight-hour shift. Defendant asserts that 23 Plaintiff's medical documentation to work outside of these essential functions demonstrates 24 that Plaintiff cannot perform the necessary work to be a distribution clerk. 25 According to the Level 5 Distribution Clerk description created by the USPS, 26 Plaintiff's job required Plaintiff to "[s]eparate mail in a post office, terminal, airport mail 27 28
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facility or other postal facility in accordance with established schemes, including incoming or outgoing mail or both." Plaintiff's duties and responsibilities included the following: [m]akes primary and one or more secondary distributions of incoming mail by delivery point, . . . based on a knowledge of the distribution scheme[;] . . . [m]akes primary and one or more secondary distributions of outgoing mail for dispatch . . . based on a knowledge of the distribution scheme[;] . . . and 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 cancelling machines; record and bill mail . . . requiring special service; and provide service at public windows. USPS Level 5 Distribution Clerk Job Description. Plaintiff asserts, and the Court agrees, that the job description for the Level 5 Distribution Clerk lists essential job functions and that nowhere in the description does it state that the position requires lifting up to seventy pounds, bending, twisting, or standing for eight hours. Plaintiff further asserts that allowing Plaintiff to use a soft-cushion chair periodically does not appear to preclude the job's stated summary purpose or the essential job functions. The Court finds that there is a genuine issue of material fact as to whether Plaintiff could perform the essential functions of his job while being allowed to sit on a softcushion chair. C. WHETHER PLAINTIFF WAS DISMISSED SOLELY BECAUSE OF HIS DISABILITY

Plaintiff claims that Defendant dismissed him from his position as a Level 5 Distribution Clerk due to his disability. Defendant asserts that there is no direct evidence that the USPS's actions were based on Plaintiff's alleged disability. Defendant further asserts that the USPS disclaims any reliance on Plaintiff's alleged disability in making their decision to terminate Plaintiff's employment. Though neither party assertively argues this prong of the test, applicable facts exist to prevent the Court from granting summary judgment with regard to this prong.

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First, Plaintiff was medically authorized for light duty on a number of occasions during his time at PPMPPC. To specify a couple instances, Plaintiff provided his USPS supervisors with Light Duty Approval Forms on February 6, 2001, and October 10, 2001. Plaintiff alleges that in October 2001 he alerted his supervisor, Johnny Camou, of pain in his knee and his need to sit in a chair intermittently while working. Mr. Camou allowed Plaintiff's request and provided a cushion chair for Plaintiff to sit on. However, Mr. Trujillo, told Mr. Camou that Plaintiff was not allowed to sit in a soft cushion chair without a doctor's note. Even after Plaintiff obtained authorization from Dr. Shank stating that Plaintiff should be allowed to sit on a soft cushion chair, Mr. Trujillo did not accommodate Plaintiff's request. Further, in March 2002, Plaintiff was approved for an extension of his light duty assignment which limited him to lifting to not more than ten pounds a day, four hours a day, walking one-and-a-half hours then sitting for one hour. Plaintiff's supervisor, Mr. Mark Camper, interpreted Plaintiff's light duty authorization to mean that Plaintiff could only work four hours a day rather than the eight hours the doctor intended the note to authorize. Plaintiff received a new doctor's note clarifying that Plaintiff could work an eight-hour shift but was limited in what he could do for four of the eight hours. According to Plaintiff, despite the revised doctor's note, Mr. Camper told Plaintiff that he would have to sign the original light duty assignment which stated that Plaintiff was limited to working only fourhour shifts. Plaintiff states that he was sent home because he refused to sign the light duty assignment form and was not allowed to return until he signed the four-hour shift light duty assignment form. Plaintiff indicates that on or about April 10, 2002 he returned to PPMPPC and worked for four hours. When Plaintiff returned the next day, his timecard was missing. Plaintiff indicated to a supervisor that he wished to sign the light duty assignment form but was told that the form could not be located. Mr. Trujillo told Plaintiff that without having signed the light duty assignment form, Plaintiff must leave the building and he would not be paid for

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the hours he had worked. On or about August 12, 2002, Plaintiff was terminated for being absent without permission. Under the facts presented in Plaintiff's Motion for Partial Summary Judgment; Defendant's Response; Plaintiff's Reply; Defendant's Motion for Summary Judgment; Plaintiff's Response; and Defendant's Reply, the Court finds that a genuine issue of material fact exists as to whether Plaintiff was dismissed due to his disability, thereby preventing summary judgment on this issue. IV. STATEMENT OF MARK CAMPER Plaintiff requests that the Court strike the declaration of Mark Camper pursuant to Reeves v. Sanderson Plumbing Products, Inc., 520 U.S. 133 (2000). Plaintiff argues that Mr. Camper is an interested witness and because Plaintiff disputes facts Mr. Camper presents and states that Mr. Camper has no personal knowledge about reasonably accommodating Plaintiff. Defendant states that Plaintiff's request is improper, that Plaintiff has misread Reeves, and that Plaintiff's argument about which Mr. Camper is testifying "without personal knowledge" is inapplicable to the present summary judgment motions. Reeves v. Sanderson Plumbing, 520 U.S. 133, 150, states that when entertaining a summary judgment motion, a court should review the entire record. The Reeves decision further states that a court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh the evidence. Id. Though Plaintiff requests the Court strike Mr. Camper's declaration, it appears that Plaintiff refers to Mr. Camper's declaration on numerous occasions in Plaintiff's own statement of facts. The Court is not persuaded by Plaintiff's argument that Mr. Camper's declaration should be stuck because Mr. Camper is an interested witness. Furthermore, merely disputing facts in a declaration is not grounds to strike the declaration. With this in mind, the Court has considered the entire record and has drawn all reasonable inferences in favor of the nonmoving party. Here, as the Court considers Defendant's Motion for - 14 Document 88 Filed 01/10/2007 Page 14 of 15

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Summary Judgment, Plaintiff is the nonmoving party.1 The Court does not find it necessary to strike Mr. Camper's declaration at this time. Accordingly, IT IS ORDERED that Plaintiff's Motion for Partial Summary Judgment (Dkt. # 57) is denied. IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Dkt. #59) is denied. IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Mark Camper's declaration is denied. DATED this 5th day of January, 2007.

Plaintiff's Motion for Partial Summary Judgment did not address Plaintiff's rehabilitation act claim. - 15 Document 88 Filed 01/10/2007 Page 15 of 15

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