Free Response to Motion - 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

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FOR THE DISTRICT OF ARIZONA
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Alexander Jung,
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Plaintiff,
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vs. John E. Potter, Postmaster General , Defendant.

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Case No.: CIV 04-429 PHX MHM

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Alexander Jung (hereinafter referred to as "Alex") submits his response to Defendant's Motion for Summary Judgment. Plaintiff evidence will show that Defendants motion for Summary Judgment must be denied because Defendants have failed to offer competent evidence that will support their motion. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 17th day of May, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORTIES I. INTRODUCTION:

This is the incredible tale of an employee who was abruptly kicked out of the United States Post Office ("USPS") while competently performing his job; not because the employer felt he could not perform the job he was doing, but because the employer believed that he did not have a duty to accommodate him! II. DEFENDANT WAS CLEARLY DISABLED UNDER THE REHABILITATION ACT.

The testimony will show that Defendants conduct of kicking Alex out of the building and refusing to accommodate him was in violation of Title I of the ADA and § 504 of the Rehabilitation Act which creates the same rights and obligation. Wong v. Regents of the University of California, 410 F. 3d 1052, 1055 (9th Cir. 2005). Below, Alex will show that based on the depositions, physician statements, and the employers related medical documents that (1) he is disabled under the Act; (2) he is "otherwise qualified" because he can meet the essential eligibility requirements with or without reasonable accommodation; (3) he was dismissed solely because of his disability. See 42 U.S.C. § 12111(8) (Supp. V 1993). Zulke v. The Regents of the University of California,

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166 F.3d 1041 (9th Cir. 1999). Alex suffers from knee and back pain which is disabling. (SOF ¶ 1). Alex's

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Disability prevents him from participating in many everyday activities. (SOF ¶ 2). His disability affects his ability to walk, sit and stand. (SOF ¶ 3). The pain and discomfort that Alex suffers can, at times, be incapacitating. (SOF ¶ 4). Furthermore, Alex must wear a back brace, knee braces and arch supports. Without the extra support, he has very low functionality. (SOF ¶ 5). On December 14, 2000, Alex was diagnosed with Chondromalacia of Patella by Doctor Chris S. Reust. ("Dr. Reust"). (SOF ¶ 6). Alex's knees and back impairment

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substantially limit the major life activity of walking, lifting and standing.1 (SOF ¶¶ 7-8). When determining whether an impairment substantially limits a major life activity, three factors detailed in 29 C.F.R. § 1630.2(j)(2) should be considered. 2 Viewing the evidence in the light most favorable to the Alex, Alex easily meets each of the factors. The testimony will show that Alex suffers from substantial limitation of major life activities. While performing his duties at the USPS, Alex's constant standing, bending to grab, twisting caused his knee and lower back to hurt. (SOF ¶ 9). When Alex's knees begin to bother him it became necessary for him to sit, walk or

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stretch out which usually took fifteen (15) minutes to one (1) hour to relieve the pressure
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in his knees. (SOF ¶ 10).
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At times, when Alex came home from working at the USPS his knees would be swollen and he would be unable to sleep because of the pain. Alex suffered from sleep depravation caused by constantly waking up during the night because of the pain. (SOF ¶ 11). Dr. John Jensen ("Dr. Jensen") was Plaintiff's Primary Care Physician. On September 21, 2000, Dr. Jensen noted that both of Plaintiff's knees were painful and were locking in the mornings. (SOF ¶ 12). Dr. Jensen regularly saw Alex for bilateral knee pain and back pain including May 22, 2001, February 28, 2002, March 18, 2002 and May 22, 2002. (SOF ¶ 13). On December 5, 2001 Dr. Jensen completed paperwork for the Department of Labor in which he listed Alex's knee pain as a disabling condition. (SOF ¶ 14). Dr. Jensen stated that Alex's disability is occurring because of "prolonged standing in the work environment". (SOF ¶ 14).

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The definition of "major life activities" found in the Rehabilitation Act regulations, 34 C.F.R. § 104. See 29 C.F.R. Pt. 1630, Appendix to Part 1630, § 1630.2(i). The phrase "major life activities" is defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1620.2(9). As stated in the appendix to these regulations, "this list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting." 29 C.F.R. § 1620.2(9). 2 (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

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On January 26, 2001 and May 22, 2001, Dr. Jensen filled out a FMLA Certification in which he listed Alex's condition as chronic. (SOF ¶ 15). He further stated that `Alex's pain in his knees was due to injury and arthritis'. (SOF ¶ 15) Dr. Jensen went on to opine that the "pain and discomfort can at times be incapacitating." (SOF ¶ 15). Dr. Jensen listed the probable duration of the condition to be chronic/lifelong. (SOF ¶ 15). Numerous doctors who have treated Alex agree with Dr. Jensen's assessments. On February 21 and March 6, 2001, Dr. Berry from the Veteran's Administration

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("VA") concurred with Dr. Jensen's assessment of chronic bilateral knee pain and added
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that "Alex is unable to sit for prolonged periods, ride a bike, knee[ling], [or walk] stairs".
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(SOF ¶ 16). Dr. Berry noted Alex described an "achy sensation with [his] knees" and that Alex has "trouble with static standing, kneeling, stairs, and bike[ing]." (SOF ¶ 16) On September 26, 2001, Alex was seen by Dr. Mendlick, a VA doctor. Dr. Mendlick stated that Alex "has had rather chronic patello-femoral arthralgia". (SOF ¶ 17). On November 28, 2001, Dr. Sumit Dewanjee, also a VA doctor, opined that Alex's "symptoms [are] aggravated by work as a distribution clerk which requires heavy lifting, twisting and prolonged standing". (SOF ¶ 18). On February 28, 2002, Dr. Herring, yet another VA doctor, opined that Alex "complains of numbness in knees....does a lot of lifting and squatting, which has aggravated the pain" and Alex's "knees occasionally lock up, give way". (SOF ¶19). Dr. Herring also concurred with Dr. Jensen that Chondromalacia of Patella was a chronic condition for Alex. (SOF ¶19). Dr. Herring further concurred with Dr. Mendlick that Alex had bilateral patellofemoral arthralgia. (SOF ¶19). On or about March 2002, Dr. Christopher Hiller opined that "Alex's work of repetitive pushing and pulling has exacerbated his back and knee conditions and increasing the pain." He further wrote that "Alex is unable to do the same kind of work

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or the work will cause worsening injuries and permanent damage. (SOF ¶ 20).

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Additionally, on July 7, 2005, Dr. Lillian Chang, from the VA opined that Alex is "unable to perform prolonged walking, standing, kneeling, squatting, climbing, running and any other high impact activities". (SOF ¶ 21). She added that Alex's "posture is abnormal and there is a presence of genu varum deformities of both knees". (SOF ¶ 21). Alex recently had an MRI in which he was told he had tears in his knees, making him a candidate for orthopedic surgery, which he is hoping to get soon. (SOF ¶ 22). The testimony and evidence shows that Alex's doctors have restricted his lifting to less than ten (10) pounds as well as restricted the length of time he can walk or sit. On January 7, 2001, Dr. Jensen issued a medical certificate with restrictions precluding Alex from lifting more than ten (10) pounds. (SOF ¶ 23). On February 28, 2002, Dr. Jensen issued a medical certificate precluding Alex from lifting more than ten (10) pounds. (SOF ¶ 24). On March 8, 2002, Dr. Jensen issued another medical certificate precluding Alex from lifting more than ten (10) pounds. (SOF ¶ 25).

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Plaintiff's allegations are consistent with the reports of his treating physicians. Plaintiff testified at deposition under penalty of perjury that his disability impacts his ability to stand in a prone position for a long period of time which will cause numbness in his knees and sharp pains through his legs. (SOF ¶ 26). Alex cannot stand in a prone

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position for longer than fifteen (15) minutes without having to walk or sit. (SOF ¶ 27).
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Additionally, when Alex walks a certain distance he feels weakness and numbness
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in both knees and sharp pain in his knee caps. (SOF ¶ 28).

Alex stated in his affidavit

that he was unable to walk the equivalent of one city block without his knees locking and becoming numb. (SOF ¶ 29). Alex cannot walk for even a minimal distance; a couple of blocks at the most. (SOF ¶¶ 30). He can only walk for very brief periods of time. (SOF ¶ 31). When Alex's knees lock and become numb, walking becomes nearly impossible and extremely slow. (SOF ¶ 32). At times Alex feels as though he has to take both of his hands and lift up his leg to take one step at a time. (SOF ¶ 33). Sometimes, when Alex is

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in a public place, such as a store, he has felt that he possibly could not make it out of the store safely and would hold on to the wall for support. (SOF ¶ 34). Furthermore, if Alex is required to sit for a long period of time with his legs at a 90o angle his knees get stiff and numb. Because of the stiffness and numbness, he is required to stretch out or walk around. Alex needs to stretch or walk around after sitting 15 to 30 minutes. At times, after sitting for an extended length of time, Alex's knees would buckle. (SOF ¶ 35). Alex is required to shift positions in order to remain seated more than 25 minutes. (SOF ¶ 36). Driving has become difficult for Alex, for instance,

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when he is sitting in his car, he must shift his weight, squirm and change positions
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slightly, so as to minimize the pain. (SOF ¶ 37). He can only drive for two consecutive
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hours because of his need to be able to shift his body to prevent pain. (SOF ¶ 38). Alex was forced to trade in his car with manual transmission for a car with an automatic transmission. (SOF ¶ 39). It became too difficult for him to drive a car with the manual transmission. (SOF ¶ 39). Alex is in constant pain. (SOF ¶ 40). At times, when the pain is so debilitating that Alex can not move, he must rely on someone to take food to him because he can not move his knees. (SOF ¶ 41). It is well-established in the 9th Circuit that a twenty-five (25) pound lifting restriction is not substantially limiting, however a recommendation that Plaintiff is unable to perform prolonged walking, standing, kneeling, squatting, climbing, running and any other high impact activities, with attendant weight restrictions of less than ten (10) pounds, certainly appears to be more restrictive, and thus more substantially limiting. Puckett v. Park Place Entm't, Corp., 2006 U.S. Dist. LEXIS 14778, 13-14 (D. Nev. 2006). Additionally, several courts have held that lifting restrictions, when combined with other limitations, create a genuine issue of material fact with regard to whether a plaintiff is disabled. See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996) (reasonable jury could conclude Plaintiff with multiple sclerosis and fifteen-

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pound lifting restriction was disabled); Haysman v. Food Lion, Inc., 893 F. Supp. 1092,

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1100 (S.D. Ga. 1996) (triable issue regarding disability when Plaintiff, after knee surgery and a laminectomy, was restricted from sitting more than sixty minutes, from standing more than thirty minutes, from walking continuously for more than three minutes, and from lifting more than ten to fifteen pounds); Martin v. Lockheed Martin, 1998 U.S. Dist. LEXIS 4258, *8 (N.D. Cal. 1998) (triable issue raised when Plaintiff had two surgeries for carpal tunnel syndrome, was restricted from sustained hand activity and from lifting items over 10 pounds, and was declared "permanent and stationary"). Additionally, the 9th Circuit as well as other Circuits cases support a finding that Alex is substantially

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limited. Lutz v. Glendale Union High Sch., 8 Fed. Appx. 720, 722 (9th Cir. 2001) (triable
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issue regarding disability because Plaintiff's arthritis had a debilitating effect on her
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ability to walk and stand. Plaintiff testified that walking requires her to rest frequently and she can stand for only short periods of time. In addition, according to Plaintiff, she experiences substantial pain when walking, thus causing her to walk much more slowly than the average person). Stephenson v. United Airlines, Inc., 9 Fed. Appx. 760, 763 (9th Cir. 2001) (Holding "we identify Stephenson's arthritic condition as the relevant physical impairment, and "walking" as the major life activity at issue".) EEOC & Keane v. Sears, Roebuck, & Co., 233 F.3d 432, 438-39 (7th Cir. 2000) (holding that factual issues existed with respect to whether an employee was substantially limited in the major life activity of walking where her diabetes-related neuropathy required her to limit her walking). There is, therefore, a triable issue as to whether Alex is "significantly restricted as to the condition, manner, or duration" with which he can walk, stand or lift. 29 C.F.R. §§ 1630.2(j)(1)(i)-(ii); see also Sutton, 527 U.S. at 480; 229 C.F.R. Pt. 1630, App. Alex's impairment is substantially limiting because, as his doctors records reflect, he is significantly restricted in the duration, manner or condition under which he can lift, stand and walk as compared to the average person in the general population's ability to perform that same major life activity. Alex is impaired because can only walk and sit for very

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brief periods of time, standing causes him excruciating pain and his knees lock, and he is restricted to lifting only less than ten (10) pounds. a. Defendants Have Had More Than Two Years of Notices Regarding Alex's Disability Before They Kicked Him Out of the Building. Alex has consistently turned in information regarding is disability to the USPS

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personnel office and Medical Health Unit ("Health Unit"). In Barnett v US Air, Inc, 228
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F3d 1105 (9th Cir 2000), the 9th Circuit held that the ADA imposed a mandatory
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obligation on employers to engage in an interactive process with disabled employees, under certain conditions, "in order to identify and implement appropriate reasonable accommodations." Id at 1111. The obligation to engage in such an interactive process "is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation." Id at 1114. Recognizing that such explicit notice would not always be possible, the 9th Circuit also stated that ... if the company knows of the existence of the employee's disability, the employer must assist in initiating the interactive process." Id. Plaintiff disability was readily discoverable from the information that was retained by the Health Unit which was given to them by Alex and his Doctors. October 29, 2001, Alex submitted a Return to Work Authorization from Dr. Lawrence Shank to the Health Unit. This authorization listed Plaintiff's bilateral knee pain as permanent and restricted Alex to sit on a soft cushion chair. (SOF¶ 42). Defendants were also aware of Alex's condition via request for work restrictions which the Health Unit 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,

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2002 and May 22, 2002. (SOF ¶ 43). Defendant was further aware of Alex's limitations
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through Supervisors Light-Duty Approval Forms dated on February 6, 2001; October 10,
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2001; January 7, 2002 and March 1, 2002. (SOF ¶ 44). Additionally, Plaintiff submitted

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Doctor's Notes to Defendant on March 6, 2001; September 10, 2001; January 2, 2002; February 8, 2002 and February 28, 2002. (SOF ¶ 45). Alex provided the Postal Service Health Unit with paperwork from his doctor(s) explaining his condition. (SOF¶ 46). Once Alex submitted his paperwork to the Health Unit, the Health Unit provided his supervisor with the documentation. (SOF ¶ 47). The supervisor then fills out a Supervisors light duty request form and completes the light duty assignment which Alex receives. (SOF ¶ 47). The key issue is determining the availability to the employer of knowledge of the

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preexisting condition, not necessarily the employers' actual knowledge of it. . . . The
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employee's appearance, medical reports and work experience are relevant, but the critical
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element is what the employer has available ..., should he decide to take notice of it. Dillingham Corp. v. Massey, 505 F.2d 1126, 1128 (9th Cir. 1974). "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., INA v. Director, OWCP, 951 F.2d 1109, 1111 (9th Cir. 1991). There is, therefore, a triable issue based on the overwhelming information regarding Plaintiff's disability held in the Health Unit, which was submitted to Alex's Supervisors. The Defendants failed to take notice of Plaintiff's disability and their knowledge of the condition is imputed. b. Plaintiff's Disability was Permanent. There is no evidence that Alex's impairment was temporary or short term. In fact, on December 5, 2001, Dr. Jensen completed paperwork for the Department of Labor in which he listed Alex's knee pain as a disabling condition. (SOF ¶ 14). On January 26, 2001 and May 22, 2001, Dr. Jensen filled out a FMLA Certification in which he listed Alex's condition as chronic and further stated that `pain in knees due to injury and arthritis. Stating the "pain and discomfort can at times be incapacitating." Dr. Jensen

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listed the probable duration of condition to be chronic/lifelong. (SOF ¶ 15). On February

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21 and March 6, 2001, Dr. Berry from the VA concurred with Dr. Jensen's assessment of chronic bilateral knee pain and added "Alex is unable to sit for prolonged periods, ride a bike, knee[ling], [or walk] stairs. (SOF ¶ 16). On February 28, 2002 Dr. Herring concurred with Dr. Jensen that Chondromalacia of Patella as a chronic condition for Alex. (SOF ¶ 19). On or about March 2002, Dr. Christopher Hiller opined that "Alex is unable to do the same kind of work or the work will cause worsening injuries and permanent damage. (SOF ¶ 20) Additionally, on July 7, 2005, Dr. Lillian Chang for the VA opined that Alex is unable to perform prolonged walking, standing, kneeling,

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squatting, climbing, running and any other high impact activities", adding that Alex's
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"posture is abnormal and there is a presence of genu varum deformities of both knees".
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(SOF ¶ 21). c. Plaintiff requested an accommodation.

In October of 2001, it became necessary for Alex to sit on a soft-cushion chair for 15-30 minutes at a time to relieve the pain in his knees and lower back. Alex's supervisor, Johnny Camou ("Camou") was aware of his condition and allowed Alex to sit in a chair with a cushion. The manager, Humberto Trujillo ("Trujillo"), however refused to allow Alex to sit on the chair. Trujillo told Camou that Alex would need a doctor's note in order to sit on a chair with a cushion. (SOF ¶ 48). On October 29, 2001, Alex received a Return to Work Authorization from Dr. Lawrence Shank. This authorization listed Plaintiff's bilateral knee pain as permanent and restricted Alex to sit on a soft cushion chair. (SOF ¶ 42). Trujillo refused to accommodate Plaintiff and allow him to use a cushioned chair while working. (SOF ¶ 49). III. Defendants Have Admitted that Plaintiff was Capable of Performing the Essential Functions of His Job With or Without a Reasonable Accommodation.

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Consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the 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

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primary and one or more secondary distributions of incoming mail by delivery point,
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based on a knowledge of the distribution scheme. 2- Makes primary and one or more
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secondary distribution of outgoing mail for dispatch based on a knowledge of the 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. (SOF ¶ 50). The description lists essential job functions, none of which mentions lifting up to 75 pounds, bending, twisting or standing for 8 hours. Based on this job description, there is at least a genuine issue of material fact that Plaintiff could perform the essential functions of his job by being allowed to sit on a soft cushion chair. Lifting 75 pounds, bending, twisting or standing for 8 hours is not listed as one of the specific "essential job functions" and use of a soft cushion chair does not appear to preclude the job's stated summary purpose or the essential job functions. The conspicuous absence from the list of essential job functions stated by the defendants raises at least a genuine issue of material fact that the activity is not an essential job function, but rather is the sort of duty that could be altered under the ADA. Furthermore, both of Alex's supervisors admitted that Plaintiff was qualified to

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perform the essential job functions of a Level 5 Distribution Clerk. (SOF ¶¶ 50-53).

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IV.
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Plaintiff Moves to Strike the Declaration of Mark Camper, a Defendant Must Offer More than Its Say So that the Position Required that the Position Required that He Lift up to 75 Pounds, Bend, Twist and Stand for an 8 Hours Shift is an Essential Function of a Level 5 Distribution Clerk to Obtain Summary Judgment. Defendants' Motion relies almost in is entirety on controverted facts which are

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contained in the declaration of Mark Camper ("Camper"), the Supervisor of Distribution Operations at the Phoenix Priority Mail Postal Processing Center ("PPMPPC"). Plaintiff hereby moves to strike Camper's declaration pursuant to the Supreme Court's ruling in Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000), which limits the evidence courts may consider on a Rule 56 motion. The Reeves court unequivocally stated, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party, which the jury is not required to believe. That is, the court should give credence to the evidence favoring the non-movant as well as evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses. Reeves, 120 S.Ct. 2110, (quoting 9A C. Wright & Miller, Federal Practice and Procedure 2529 (2d Ed. 1995) at 300 (emphasis added)). In other words, if Defendants' evidence comes from an interested witness, it cannot be credited on a Summary Judgment motion. Alternatively, if Defendants' evidence is contradicted or impeached, it cannot be credited. It is clear that Camper is an interested witness. Camper was working under the supervision of Trujillo who made the decision not to reasonably accommodate Alex.

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(SOF ¶ 49).
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Camper testified in his deposition that he had no knowledge whatsoever about
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reasonably accommodating Alex. (SOF ¶54). It is Camper's judgment, decision-making and illegal actions that are at issue in this lawsuit. Thus, his entire declaration must not be credited on this basis alone. In fact, Camper testified that he was not obligated to explore

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with Alex whether there were other methods in which Defendant could reasonably accommodate him "that's the duty of the RAC committee". (SOF ¶ 55). Additionally, as will be discussed in more detail below, Camper's statement in his declaration that "between February 2001 and March 2002, the essential functions of a Level 5 Distribution Clerk at PPMPPC included: 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

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sorting mail by zip code."
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is controverted, by the Distribution Clerk's job descriptions as published by the USPS.
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(SOF¶ 50). Furthermore, Camper did not mention any of these requirements in his deposition. In fact, he testified that Alex was qualified for sorting and distributing mail to post office and carrier routes as well as sorting odd sized mail by hand. (SOF ¶¶ 5152). Camper additionally admitted in his deposition that Alex was qualified to run the small process bundle sorter, the only machine located at the PPMPPC. (SOF¶ 53). Camper's affidavit is also controverted by the deposition testimony of Defendant Trujillo who testified that as a distribution clerk, Plaintiff's duties include separating and distributing mail, knowledge of the distribution scheme, maintaining records of mail, 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 and provide service at public windows. (SOF ¶ 50). Defendant's written Job description for a Level 5 Distribution Clerk does not have the requirements put in Camper's declaration. (SOF ¶ 50). Additionally, in Camper's declaration he mentions an instance that happened prior to his supervisory role with Alex and is therefore hearsay and not admissible. On or about August 2000, Alex was confronted by his supervisors regarding a failure to

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maintain regular attendance. (SOF ¶ 56). On January 19, 2001, Alex was issued a letter

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of warning. Alex filed a grievance with the union and the parties agreed that the letter would be removed from Plaintiff's records on September 1, 2001, if no similar discipline issues occurred in the interim. (SOF ¶ 56). There were no more discipline issues and the letter of warning was taken from Alex's file, therefore it should not be brought up at all. (SOF ¶ 56). Camper's declaration goes on the state that on February 4, 2002, Alex was issued a seven day suspension regarding a failure to maintain a regular schedule and failure to report to work as scheduled. However, Alex maintains he was not suspended and that he

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worked twelve hours between February 23 and March 1, the supposed suspension. (SOF
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¶ 57). Camper's statements are controverted also by the deposition of Trujillo which
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state that of the 55.86 hours that Alex failed to work, 52 hours were approved by Plaintiff's supervisor. (SOF ¶ 58). Plaintiff's absence from November 11, 2001 through November 17, 2001 was approved. (SOF ¶ 58). Plaintiff's absence from December 21, 2001 through December 22, 2001 was approved. (SOF ¶ 58). Plaintiff's absence for January 10, 2002 was approved. (SOF ¶ 58). In Camper's declaration he admits offering Alex Light Duty on March 4 or 5, 2002. The actual dates are in dispute due to the fact there were more than one (1) light duty assignment. What Camper neglects to address in his declaration is that there were three (3) light duty assignments of which Alex only saw one. (SOF ¶ 59). The copy submitted by Defendant states 8 hours of lifting and is signed on March 5, 2002 by Mark Camper. (SOF ¶ 59). This document was submitted to the EEO on in an attempt to show that Defendant did not discriminate against Alex. (SOF ¶ 59). Defendant attempted to show that Alex was given 8 hours of work and not 4. (SOF ¶ 59). It is Alex's positions that the 8 hour document alone is proof of Defendants discrimination. (SOF ¶ 59). The bases for this argument is supported by the Defendant's generation of two (2) previous a light duty assignments. (SOF ¶ 59). The first light duty assignment stated 4 hours of

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lifting and was signed on March 4, 2002 by Mark Camper. (SOF ¶ 59). The second light

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duty assignment for Plaintiff was sent to the Union Office which stated 4 hours of lifting and was unsigned. (SOF ¶ 59). Plaintiff never saw the light duty assignment stating 8 hours of lifting, which Defendant attempts to present as evidence in this motion. (SOF ¶ 59). Furthermore, the testimony in Mr. Camper's deposition reflects that it is not the supervisor's responsibility to put employees on Light Duty, but the facility manager's responsibility. (SOF ¶ 60). It is also the facility manager who determines hours given to employees on light duty. (SOF ¶ 60). Therefore, Mr. Camper cannot attest to the information regarding light duty.

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Additionally, Plaintiff disputes that he was notified that light duty request would be
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assigned when available in the amount available, including amounts less that 4 hours.
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(SOF ¶ 61). V. Reasonable Accommodation & the Interactive Process. A reasonable accommodation includes job restructuring, part-time or modified work schedules, and reassignment to a vacant position and other similar accommodations. 42 U.S.C.S. § 12111(9((B). 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: [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. Moreover, the "interactive process" is not a formalistic process. Rather, an employee or his representative need only provide the employer with enough information that, "under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3rd Cir. 1999).

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Defendants do not deny that they failed to engage in the interactive process with Alex. (SOF at ¶¶ 62-74). Had Defendants made an attempt to discuss the matter with Alex, they would have learned that he would be flexible in his request. (SOF at ¶ 75). Alex could have been sent to another location in the USPS where could have sat in a cushioned seat. (SOF at ¶ 76). Alex could have also discussed the matter with his doctor to determine the scope of his limitations. (SOF at ¶ 77). Consistent with the purpose of the interactive process, perhaps Alex and Defendant working together could have developed a solution. (SOF at ¶ 78). Termination was not an appropriate action under the

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ADA when the alleged misconduct was a direct result of the employer's failure to allow a
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reasonable accommodation. Lutz v. Glendale Union High Sch., 2005 U.S. Dist. LEXIS
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32617 (D. Ariz. 2005) Plaintiff should be granted partial summary judgment on his failure to reasonably accommodate claim as there are no disputed material facts on this issue. VI. CONCLUSION

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Plaintiff claim for Sex and National Origin Discrimination have been dismissed by
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stipulation of the parties. There are ample facts in this case to go to a jury on the issue of whether Defendant discriminated against Alex because he suffered from Chondromalacia of Patella. Defendant not only refused Alex's request for reasonable accommodation, Defendant kicked him out of the building because of his disability. This is not simply a case of a failure to reasonably accommodate a man with severe back and knee pain; this is much worse. Defendants' conduct is indefensible. Plaintiff requests that the Court deny Defendants' Motion for Summary Judgment in its entirety and grant Plaintiff's Partial Summary Judgment on Defendants failure to reasonably accommodate claim.

Dated this 17th day of May, 2006.

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s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Alex

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CERTIFICATE OF SERVICE I hereby certify that on the 17th of May, 2005, 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: Suzanne M. Chynoweth Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408

s/Stephanie Coulter

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