Free Statement - 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. CHYNOW ETH 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. United States of America, Defendant. Defendant, John E. Potter, Postmaster General, hereby responds to Plaintiff's Statement of Undisputed Facts and submits his Controverting Statement of Facts in support of his Response to Plaintiff's Motion for Partial Summary Judgment and pursuant to Fed. R. Civ P. 56 and Loc. R. Prac. 56.1. Defendant's responses are for purposes of the summary judgment motions and not intended to be binding at any other proceeding. Plaintiff's Facts Which are Undisputed for Purposes of this Motion: 1. 66, 74. Plaintiff's Facts Which are Largely Undisputed for Purposes of this Motion, But Require Clarification: 2. clarification: Plaintiff did not have a knee "injury" while in the military. As detailed in the medical records from the VA, while in the military, Plaintiff was Defendant does not dispute PSOF ¶¶ 3, 7, 8, 23, subject to the following Defendant does not dispute PSOF ¶¶ 1, 2, 4, 5, 13, 15, 18, 19, 21, 22, 29, 52-54, CIV-04-0429-PHX-MHM DEFENDANT'S CONTROVERTING STATEMENT OF FACTS IN RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:04-cv-00429-MHM

Document 68

Filed 05/03/2006

Page 1 of 7

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 3.

diagnosed with a knee condition or disease, unrelated to any injury, known as chondromalacia, apparently caused in part from the physical rigors of the Army as set forth in Ex. 1 (VA Medical Records Dated May 1987), 550 1/ (chronic pain in both knees; "provisional diagnosis chronic PFJS" (patellofemoral joint syndrome)); 551 (diagnoses: "chronic chondromalacia patella"); 552 (excused from running and marching for 2 weeks), 547 (Plaintiff advised that he had a "knee disease")]. Defendant does not dispute PSOF ¶ 6, except to clarify that Plaintiff was

diagnosed with chondromalacia long before Dr. Reust's diagnosis in December, 2000. Furthermore, according to Dr. Reust's own record, Plaintiff provided information during his history that he had chondromalacia patella. [See ¶ 2 above.] 4. Defendant does not dispute PSOF ¶ 11, except that Plaintiff began working for the

Postal Service in a part time capacity in 1989, not 1994. [Defendant's Statement of Facts in Support of Summary Judgment Motion filed April 14, 2006 (DSOF) ¶ 3.] 5. Defendant does not dispute PSOF ¶ 12, except that Plaintiff began working for the

Postal Service in Phoenix in 1999 (not 2000). [DSOF ¶ 4.] 6. Defendant does not dispute PSOF ¶ 14, except that Plaintiff began working at the

Phoenix Priority Mail Postal Processing Center (PPMPPC) in February 2001 (not October 2000). [DSOF ¶ 5; Complaint ¶ 15.] 7. PSOF ¶¶ 16 and 17: Plaintiff may know how to sort and distribute mail and have

held a position requiring those functions, but could not perform the essential functions of his position as a Level 5 manual distribution clerk. It is undisputed that Plaintiff could not handle the physical requirements of (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

This number reflects one of the bate numbers at the lower right of the documents attached as exhibits. 2 Case 2:04-cv-00429-MHM Document 68 Filed 05/03/2006 Page 2 of 7

1/

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

twisting in connection with retrieving and sorting mail by zip code. [DSOF ¶¶ 6, 22-34, 38, 40, 41.] 8. PSOF ¶ 20: the Postal Service policies, procedures, and the Collective Bargaining

Agreement control the light duty program for full time employees who cannot perform the essential functions of their position. [DSOF ¶¶ 14-18.] 9. PSOF ¶ 24: the only light duty request made and approved based upon Plaintiff's

medical documentation with restrictions that Plaintiff stand for one hour then rest for 15-30 minutes, and for which there was no lifting restriction, was the one in February 2001. Plaintiff received medical authorization to return to full duty on March 6, 2001. [DSOF ¶¶ 22-29; 40-41; Ex. D-13.] 10. PSOF ¶ 25: a light duty employee is assigned work based upon the availability of

work and that employee's particular restrictions. The "nixie table" was only one type of work available to light duty employees, depending upon the relevant circumstances. [DSOF ¶¶ 14-18; See e.g. D-9 (to Camper Declaration) ("Job Duties: nixie/rewrap set up cells hang . . . move MTE."); Ex. D-10 ("Job Duties: nixie/rewrap working cells as tolerated").] Plaintiff's Fact Which Are Not Genuine Issues of Material Fact or Relevant to Plaintiffs's Motion: 11. Defendant objects to PSOF ¶¶ 9, 10. Plaintiff provides no confirmation or

corroboration from medical records for his assertion that he was diagnosed with a bulging disc in 2002. However, it appears that Plaintiff is referring to a VA record dated March 7, 2002. Plaintiff never conveyed that information to the Postal Service. Even if he had, any diagnosis after March 5, 2002, the date Plaintiff refused his last light duty offer, is not relevant to this motion. Furthermore, Plaintiff has had back complaints since he was in the military, with many different and conflicting diagnoses, none of which establish a disability under the law. [Ex. 2 (selected medical records) 566 (5/14/87: pain from "weight lifting accident"); 6512 (2/6/02: under "care for lumbrosacral and right sacroiliac strain sprain"); 779-83 (2/6/02: "essentially normal lumbar spine") 779 (3/7/02: At L4-5 Level, "small central and right paramedian

3 Case 2:04-cv-00429-MHM Document 68 Filed 05/03/2006 Page 3 of 7

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

subligamentous disc protrusion" that does "not cause any appreciable displacement of the adjacent right L-5 nerve root").] 12. PSOF ¶¶ 30-31: The issue of whether Plaintiff's request to use a soft cushion chair

is justified in light of the Postal Service's size, work force, and financial resources is not relevant Plaintiff is not disabled within the meaning of the Rehabilitation Act, and did not make a request for an accommodation, and did not engage in the interactive progress. Plaintiff never advised his supervisor or the Manager of the PPMPPC, Humberto Trujillo, that Plaintiff was disabled. [Ex. 3 (Selected portions of Trujillo's deposition), 157:3-25; 162:1-4; 163:4-24. 2/ ] Supervisor Camper was only aware of Plaintiff's restrictions for his light duty requests not an alleged disability. Plaintiff did not make any requests for accommodation from which his supervisors could have known that he was claiming a disability that warranted investigation under the Rehabilitation Act. In fact, the Postal Service specifically advised Plaintiff in early February, 2002 that he could request light duty if he believed his impairment was temporary, or if his impairment were permanent, he could request an accommodation from his supervisor, or request permanent light duty in writing. The only request that Plaintiff made between the time he received this specific advice, and March 5, 2002 when he refused the light duty offer, was temporary light duty. [DSOF ¶¶ 15-17.] As a matter of law, Plaintiff was not disabled under the Rehabilitation Act and was not a qualified individual able to perform the essential functions of his position. [Plaintiff's Motion for Summary Judgment, pp. 10-13.] Further, the soft cushion chair request (October 29, 2001) was made after Plaintiff requested and received the first light duty offer since he had been back to full duty for six months after a one month light duty. This October light duty offer included lifting restrictions of 10 pounds. [DSOF ¶¶ 25-27.] 13. PSOF ¶¶ 32-38: Even if Plaintiff were not allowed to use a soft cushion chair

without having to supply a doctor's note, the real issue is whether Plaintiff is disabled under the Rehabilitation Act. Thus these allegations do not create genuine issues of material fact.

In referring to deposition excepts, please note that the number before the colon refers to the page, the number(s) after the colon refer to the line(s). 4 Case 2:04-cv-00429-MHM Document 68 Filed 05/03/2006 Page 4 of 7

2/

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

Furthermore, Plaintiff's deposition testimony is self-serving and disputed by Humberto Trujillo, who testified that he would have treated all light duty and regular employees the same way, required them to get a doctor's note. Further, Plaintiff could have brought in his own cushion but apparently did not. [Ex. 3 (Trujillo dp.), 90:8 - 93:22; See also ¶ 12, above.] 14. PSOF ¶¶ 39-51: Defendant disputes that these facts are relevant, even if they are

true, because Plaintiff was not disabled with the meaning of the Rehabilitation Act. [See ¶¶ 12,13 above.] Furthermore, Plaintiff himself admits that he did nothing to engage in the interactive process. [Ex. 4 (Selected Portions from Plaintiff's deposition), 236:22-237:2.] 15. PSOF ¶¶ 58, 59: Defendant admits that Plaintiff was told that he was not allowed

in the building unless he signed the job offer, but disputes Plaintiff's characterization of the events. [DSOF Ex. D ¶¶ 14(f), 19, 20; Ex 5 (Selected Portions from Mark Camper's Deposition), 52:22 -53:7.] 16. PSOF ¶ 65: Defendant disputes this fact to the extent that it claims that attendance

is not related to job performance­employees are required to be regular in attendance as part of their job. [DSOF ¶¶ 19-21.] 17. PSOF ¶¶ 67-70: Defendant was not obligated to perform any investigation

because Plaintiff did not claim to be disabled, was not disabled as a matter, of law, and did not request any accommodations for being disabled. [See ¶¶ 12, 13 above.] Plaintiff only requested temporary light duty. Had Plaintiff made a permanent light duty request, which he did not, that request would have gone to the committee regarding reasonable accommodations known as the "RAC." [Ex. 5 (Camper Dp.), 16:14-18; See also ¶ 12 above.] Plaintiff's Facts Which are Disputed: 18. PSOF ¶¶ 26 and 27: Defendant disputes that Plaintiff advised his supervisors or

any appropriate Postal Service employees that Plaintiff had a disability. According to Plaintiff's own testimony, noone at the Postal Service "spoke to [Plaintiff] about [his] injury. [Ex 4 (Plaintiff's dp.), 232:4-11.] Plaintiff's self-serving conclusory statement that other employees were treated more favorably, also lacks foundation. Plaintiff did not know why the employees were on light duty, if in fact they were. Plaintiff did not know the needs of the PPMPPC 5 Case 2:04-cv-00429-MHM Document 68 Filed 05/03/2006 Page 5 of 7

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

regarding available work for its regular and light duty employees. [Ex. 3 (Trujillo dp.), 142:2 146:9.] Additionally, Plaintiff's Supervisor, Mark Camper, did not take any adverse

disciplinary actions against Plaintiff for any improper reasons. [Ex. 4 (Plaintiff's Dp.), 78:17 80:10; DSOF ¶ 40-49, Ex. D (Camper Dec.), ¶¶ 27-28.] 19. PSOF ¶ 28: This is a conclusory, unsupported, and uncorroborated statement, and

is hearsay, and inadmissable under Fed. R. Evid. 802. Furthermore, even if Plaintiff claimed to the union stewards that he was not being "reasonably accommodated," he never advised the Postal Service that he was disabled. In fact, he was not disabled, and was not entitled to the accommodation process. [See ¶¶ 12, 17, 18 above.] 20. PSOF ¶ 55-57: These allegations are not relevant to this motion because Plaintiff

was not disabled as a matter of law. [See ¶¶ 12, 17, 18 above.] Furthermore, according to Mark Camper, Plaintiff never indicated that the restrictions in any of his job offers were inaccurate. [Ex. 5 (Camper Dp.), 65:7-11.] 21. PSOF ¶ 60-64: Defendant objects to these allegation because they are vague,

conclusory, and lack specificity. Furthermore, PPMPPC Manager Trujillo testified that he did not order Jung to leave the building. [Ex. 3 (Trujillo dp.), 126:12-15.] According to Supervisor Camper, Plaintiff was AWOL after March 12, 2002, and so advised in a letter dated May 19, 2002. Plaintiff responded by requesting and receiving leave, not by documenting details consistent with these allegations. [DSOF Ex. D (Camper Dec.), ¶¶ 19-22; and Exs. D-16, D-17, D-18, D-19.] 22. PSOF ¶ 71-73: Defendant disputes that Plaintiff requested accommodation on the

basis of being disabled. After the Department of Labor refused Plaintiff's claim that his condition was related to his employment, the Postal Service advised Plaintiff that he could request other options, including those available for an impairment that would permanently prevent him from performing the full duties of his position. Plaintiff made no requests after this notification, other than to request light duty. [DSOF Ex. D (Camper Dec.), ¶¶ 16, 17; Ex. D15.] // 6 Case 2:04-cv-00429-MHM Document 68 Filed 05/03/2006 Page 6 of 7

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

Respectfully submitted this 3 rd day of May 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on May 3, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Rosval A. Patterson PATTERSON & ASSOCIATES 777 E. Thomas Rd., Suite 221 Phoenix, AZ 85014 S/ LaRee Zickefoose Office of the U.S. Attorney

7 Case 2:04-cv-00429-MHM Document 68 Filed 05/03/2006 Page 7 of 7