Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona Bar Number 6835 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John E. Potter, Postmaster General, Defendant. Defendant, John E. Potter, Postmaster General, hereby responds to Plaintiff's Motion for Partial Summary Judgment and Requests that the Court enter an order denying Plaintiff's motion and entering judgment in Defendant's favor on Plaintiff's claims. This response is based upon the following Memorandum of Points and Authorities, Separately Filed Statement of Controverting Facts (CSOF) as well as supporting exhibits, and all matters of record including Defendant's Motion for Summary Judgment (DMSJ) and Separately Filed Statement of Facts (DSOF) filed April 14, 2006. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION: Plaintiff has moved for partial summary judgment, requesting that the Court enter judgment in his favor and against Defendant for the Postal Service's failure to provide a reasonable accommodation and to enter the interactive process, and on "Defendant's affirmative defenses of Legitimate Business Reasons and Undue Hardship" pursuant to the Americans with CIV-04-0429-PHX-MHM DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:04-cv-00429-MHM

Document 69

Filed 05/04/2006

Page 1 of 8

1 Disabilities Act (ADA). [Plaintiff's Motion for Partial Summary Judgment (PPMSJ), p. 1.] As 2 set forth below, Plaintiff has no cause of action under the ADA. 3 Even if Plaintiff had properly characterized his claim under the Rehabilitation Act, his

4 motion should still be denied. While Plaintiff's motion asserts that he is disabled, valid, 5 supportive evidence demonstrates otherwise. Plaintiff motion also seems to claim that he could 6 have performed the essential functions of his position, if only Defendant's employees had 7 engaged in the interactive process, and that he was discriminated against because he was treated 8 differently in his need to use a soft cushioned chair. As discussed below, Plaintiff's motion must 9 be denied because: 10 11 12 · he did not advise the Postal Service that he was disabled under the Rehabilitation Act; · he was not a qualified person with a disability under the Rehabilitation Act; · he did not request an accommodation, other than temporary light duty to the extent that

13 can be considered an accommodation; 14 15 · he did not request or engage in the interactive process regarding any alleged disability; · the Postal Service had a legitimate business reason in the manner in which the "soft

16 cushion chair" and light duty issues were handled. 17 18 [CSOF ¶¶ 11-14, 17.] As a matter of law, and based upon the undisputed material facts, Defendant requests that

19 the Court deny Plaintiff's motion, and enter judgment in Defendant's favor on the disability 20 discrimination claim, as requested by Defendant's Motion for Summary Judgment. 21 II. FACTS: 22 The undisputed facts demonstrate that Plaintiff, while indeed suffering from a long

23 standing physical impairment concerning his knees known as chondromalacia, was not disabled 24 under the Rehabilitation Act. [CSOF ¶ 2.] It is undisputed that Plaintiff's ability to lift, walk 25 and stand were "impacted." But these factual allegations do not a disability prove. In fact, when 26 Plaintiff sought a decision from the Department of Labor (DOL), claiming that his impairment 27 was related to his employment at the Postal Service, he advised DOL that he could do all 28 2
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 2 of 8

1 household chores, yard work, and play golf. [DSOF, ¶ 35].

1/

There is no evidence that

2 Plaintiff advised the Postal Service that he had a disability, or that it knew he had a disability. 3 Instead, Plaintiff only sought temporary light duty, that involved varied restrictions and 4 corresponding duties. [CSOF ¶ 10, 12, 13.] For example, in February 2001, Plaintiff requested 5 and received light duty which did not include a lifting restriction. Plaintiff was medically 6 authorized to return to, and did return to his full duties in March 2001. [CSOF ¶ 9.] Six months 7 later (October 10, 2001), pursuant to Plaintiff's request, he was approved for light duty, this time 8 with restrictions that included a prohibition against lifting a weight greater than ten (10) pounds. 9 [DSOF ¶¶ 25-27.] 2/ The essential functions of Plaintiff's job as a distribution clerk required

10 that he be able to lift up to seventy-five pounds (75) pounds, stand an entire shift, and bend and 11 twist throughout his shift. [CSOF ¶ 7.] Plaintiff could not, as evidenced by his inability to work 12 unless he was placed on appropriate light duty. 13 It is also undisputed that Plaintiff was not able to perform the essential functions of his

14 job, as evidenced by his requests for light duty and their accompanying medical documentation. 15 [DSOF ¶¶ 22-29.] Furthermore, Plaintiff never requested to undergo the interactive process even 16 though in February 2002 he was specifically advised of a number of options, including that he 17 could request permanent light duty, if his condition would permanently interfere with his ability 18 to perform his job. [CSOF ¶ 22.] If Plaintiff had requested permanent light duty, that request 19 would have prompted the accommodation process. [CSOF ¶ 17.] Instead, Plaintiff requested 20 light duty. [Id.] As far as the Postal Service knew, Plaintiff, who had been working full duty 21 just six months earlier, suffered from an impairment that only rendered him temporarily unable 22 to perform the essential functions of his distribution clerk position at PPMPPC. Thus the 23 interactive process was not warranted. [Id; CSOF ¶ 9.] 24 25 26 27
1/ 2/

Of course, DOL denied Plaintiff's claim, which Plaintiff never appealed.

It is important to note that Plaintiff was already on light duty, with significant standing, sitting and lifting restrictions, when he requested the "soft cushion chair" permanent 28 "restriction." Thus that request cannot be considered significant as some type of "disability' notification. 3
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 3 of 8

1

Plaintiff's medical restrictions for his light duty job offers demonstrate that he was

2 unable to fulfill his job duties as a manual distribution clerk. The facility to which Plaintiff had 3 bid when he requested light duty, formerly known as the Phoenix Priority Mail Postal Processing 4 Center (PPMPPC), required that he lift seventy-five (75) pounds, stand the entire shift (except 5 lunch and breaks), and engage in bending and twisting to perform his job. [CSOF ¶ 7.] Plaintiff 6 obviously could not perform the essential functions of his position because he was unable to 7 work unless the Postal Service found light duty work within his restrictions. The Postal Service 8 made light duty offers to Plaintiff consistent with and based upon its policies and procedures, 9 and subject to the available work at PPMPPC. [CSOF ¶ 18.] 10 III. ANALYSIS: 11 12 A. PLAINTIFF'S CLAIMS MUST BE DISMISSED UNDER THE ADA. Plaintiff's motion for partial summary judgment is based upon the ADA. Federal

13 employees are not covered under the ADA, because the federal government is excluded from 14 the definition of an "employer" under that act. 42 U.S.C. § 12111(5)(B). The ADA therefore 15 is not an appropriate cause of action for discrimination against the federal government, 42 U.S.C. 16 § 12111(5)(B), and Plaintiff's motion should be denied and these claims dismissed for this 17 reason alone. See Henrickson v. Potter, 327 F.3d 444, 446 (5th Cir. 2003). 18 19 B. PLAINTIFF'S CLAIMS UNDER THE REHABILITATION ACT ARE INVALID To the extent that the Court will consider Plaintiff's motion under the Rehabilitation Act

20 even though Plaintiff's motion failed to address this act, Defendant will address these issues. 21 As discussed in Defendant's Motion for Summary Judgment, Defendant was neither disabled 22 under the Rehabilitation Act nor a qualified individual able to perform the essential functions 23 of his position. [DMSJ, pp. 19-13.] Plaintiff claims that he was disabled because his ability to 24 lift, walk and stand was "impacted." Plaintiff also claims that he was "qualified" because he 25 knew how to do his job, and Defendant has so admitted. [PPMSJ pp. 3, 9.] Plaintiff

26 misinterprets the evidence and its application to the Rehabilitation Act. Under the Rehabilitation 27 Act, "impacted" does not equate to "disabled." The "central inquiry" in determining whether 28 4
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 4 of 8

1 Plaintiff is disabled under the Act is whether he "is unable to perform the variety of tasks central 2 to most people's daily lives, not whether [he] is unable to perform the tasks associated with [his] 3 specific job." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 185 (2002). The Federal 4 Regulations provide further guidance, defining "major life activities" as "caring for oneself, 5 performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 6 29 C.F.R. § 1630.2(I). Here, it is undisputed that in March 2002, Plaintiff could take care of

7 himself, his house, his yard, and even play golf. [DSOF ¶ 35.] Plaintiff has also established that 8 he can work, as evidenced by his employment since he was terminated from the Postal Service. 9 [DSOF ¶ 68.] 10 Plaintiff also claims that he was able to perform the essential functions of his job because

11 he continued to work at PPMPPC with light duty restrictions. According to the Seventh Circuit, 12 an employee is not"otherwise qualified" if he can only perform a light duty assignment. Lewis 13 v. Henderson, 249 F. Supp.2d 958, 969 (N.D. Ill. 2003.) In Plaintiff's case, he could not do 14 his job work unless he was on light duty. [CSOF ¶ 7.] Because Plaintiff's knee condition was 15 unrelated to his employment, there was no guarantee of work within Plaintiff's limitations. 16 [DSOF ¶¶ 14-18; See also Ex. D (Camper Dec.) ¶ 14.] 17 Plaintiff claims that the Postal Service violated the terms of the Rehabilitation Act

18 because Manager Trujillo did not engage in the interactive process. According to the general 19 rule, the employer is required to engage in the interactive process only when the employee 20 requests an accommodation.
3/

Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir.

21 2001). In February 2002, Plaintiff was advised to request work-related options other than 22 temporary light duty if his impairment were permanent, and to advise his supervisor of Plaintiff's 23 intentions within 10 days. [DSOF ¶ 38; Ex. D, ¶ 16; Ex. D-15.] The record is clear that 24 Plaintiff took no responsive action, other than to make another temporary light duty request. 25 26 27 The exception to this rule is when the employer knows about an employees disability and that the employee is unable to make a request, neither of which is applicable here. Brown 28 v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001). 5
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 5 of 8
3/

1 [CSOF ¶¶ 12, 13, 17.] Plaintiff is therefore precluded from faulting the Postal Service for failing 2 to engage in the interactive process. 3 Even if there were evidence that Plaintiff advised the Postal Service that he was disabled,

4 that it knew Plaintiff was disabled, or that Plaintiff requested an accommodation, the record 5 shows that his requests were routinely accommodated. Plaintiff was provided with appropriate 6 light duty offers subject to the legitimate business needs of the Postal Service. Plaintiff's self7 serving and generalized testimony during his deposition hardly establishes a genuine issue of 8 fact on this point. According to the undisputed evidence, Plaintiff refused the last offer, went 9 on leave, and then went AWOL, resulting in his termination. [DSOF ¶¶ 41-44.] That Plaintiff 10 did not want the particular hours or shifts offered does not establish that the Postal Service 11 violated the Rehabilitation Act. Under that Act, "both sides must participate in [the] good-faith 12 exploration of possible accommodations." Enriching, Inc. v. City of Fountain Valley, 2005 WL 13 2436479, *1 (9th Cir. 2005) (citing Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th 14 Cir.2001)). Failure to do so by the party seeking an accommodation can defeat a claim for 15 discrimination. Allen v. Pacific Bell, 348 F.3d 1113, 1115-16 (9th Cir.2003) (per curiam) 16 (affirming summary judgment where plaintiff refused to participate in interactive process with 17 prospective employer); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th Cir. 1999) 18 (plaintiff's "deafening silence" in response to accommodation options negated interactive 19 process claim); Roberts v. Mega Life and Health Ins. Co., 2005 WL 659026, *4 (N.D. Tex. 20 2005)(citing Loulseged, 178 F.3d at 740)("when the employee intentionally abandons the 21 accommodations dialogue, or abandons it because of her `subjective spin' that taints her 22 perception of the employer's efforts, then the employer is relieved of liability under the ADA). 23 Plaintiff also claims that the Defendant's undue hardship defense is "absurd" because the

24 Postal Service did nothing investigate Plaintiff's disability and engage in the interactive process. 25 It is unclear from Plaintiff's motion what accommodation Plaintiff claims he requested and was 26 denied. Was it to use a soft cushion chair without having to obtain a doctor's note? If so, 27 Plaintiff was already on light duty, and the facts demonstrate that he was treated the same as 28 other employees and within the scope of the Postal Service's policies and procedures. [CSOF 6
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 6 of 8

1 ¶ 12.] Plaintiff has offered no credible evidence that he was treated differently because of a 2 disability (which as stated above, he did not have). Plaintiff never provided the Defendant with 3 an opportunity to analyze the hardship involved in the so-called requested accommodation, 4 because he did not inform the Postal Service of his alleged disability so that it could be 5 investigated. Plaintiff did not request that the Postal Service engage in the interactive process, 6 and he did not advise the Postal Service that he was requesting any other type of 7 accommodation. The Postal Service was prevented from determining whether Plaintiff's request 8 would create an undue hardship. 9 IV. CONCLUSION: 10 Based upon the foregoing, it is respectfully requested that the Court deny Plaintiff's

11 motion, and enter judgment in Defendant's favor on Plaintiff's claims that Defendant failed to 12 provide a reasonable accommodation and to enter the interactive process. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 7 of 8

Respectfully submitted this 3rd day of May 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney

1 2

CERTIFICATE OF SERVICE I hereby certify that on May 3, 2006, I electronically transmitted the attached document

3 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 4 Electronic Filing to the following CM/ECF registrants: 5 Rosval A. Patterson 6 PATTERSON & ASSOCIATES 777 E. Thomas Rd., Suite 221 7 Phoenix, AZ 85014 8 S/ Suzanne M. Chynoweth 9 Office of the U.S. Attorney 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
Case 2:04-cv-00429-MHM Document 69 Filed 05/04/2006 Page 8 of 8