Free Statement - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona State Bar No. 6835 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, CIV-04-0429-PHX-MHM Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service, Defendant. Defendant, John E. Potter, pursuant to Fed.R.Civ.P. 56 and L.R. Civ. 56.1, submits the DEFENDANT'S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

16 following Statement of Facts in support of his Motion for Summary Judgment filed herewith. 17 This Statement of Facts ("SOF") is supported by Exhibits A through KK as set forth in the 18 attached Index to Exhibits. 19 20 Background Re: Plaintiff 1. Plaintiff, Alexander Jung, is a Korean-American male born February 1,

21 1965, who served in the United States Army from October 29, 1986 until October 29, 1989. 22 [Plaintiff's Statement of Facts, ¶ 1.] 23 2. During and after the Army, Plaintiff reported problems with his knees and

24 claimed that he suffered a service connected disability for which he sought benefits from the 25 Department of Veterans Affairs (VA) in 1995, but was not awarded any disability benefits until 26 July 13, 2000, when the VA increased his level of service connected disability for each knee 27 28

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1 from 0% to 10%, for a total of 20%. [Ex. A (JUNG.VA 429-32; JUNG.VA 314-17; JUNG.VA 2 261-266).1 ] 3 3. Beginning in 1989, Plaintiff worked for the Postal Service in various part-time

4 positions until he was transferred to Moline, Illinois, as a full-time mail distribution clerk. [Ex. 5 B (1040-43); Ex. C. (1104).] 6 4. On June 5, 1999, Plaintiff mutually traded to the Phoenix Processing and

7 Distribution Center at the Rio Salado Facility on 1441 E. Buckeye Road, still working as a mail 8 distribution clerk. [Ex. C (1104).] 9 5. In the first week of February 2001, Plaintiff bid into a new position as a Manual

10 Distribution Clerk at Phoenix Priority Mail Postal Processing Center (PPMPPC) located at 620 11 N. 47th Ave., Phoenix, AZ 85043. [Ex. D (April 12, 2006 Declaration of Mark Camper (Camper 12 Dec.), ¶ 4; Ex. E (1179).] 13 14 15 16 6. The essential function of that position included: a. b. c. Lifting sacks, boxes, and parcels up to 75 pounds each; Standing for the entire shift, other than breaks and lunch: constant bending, lifting, and twisting in connection with retrieving and

17 sorting mail by zip code. [Ex. D (Camper Dec.), ¶ 5.] 18 19 Previous Actions Regarding Plaintiff's Unscheduled Absences 7. According to Postal Service Operating Instruction No. 6, Unscheduled Absence

20 Notification Procedures, employees may be subject to corrective action when their absence is 21 due to sick leave or other leave that is unscheduled, to the extent that these absences constitute 22 an unacceptable attendance record. [Ex. F (1539)] 23 8. Well before Plaintiff's transfer to PPMPPC, on August 4, 2000, Plaintiff was given

24 an official discussion regarding his failure to maintain regular attendance. [Ex. D (Camper Dec.), 25 ¶ 8; Ex. D-1.] 26 27 The number(s) in parentheses after the Ex. Number refer to the bate number or one of the bate numbers for the documents identified. 28 2
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9.

Shortly before Plaintiff's transfer to the PPMPPC, his supervisor conducted a fact-

2 finding for Plaintiff's failure to maintain regular attendance for excessive absences and lack of 3 documentation to support unscheduled absences. [Ex. D (Camper Dec.), ¶ 9; Ex. D-2.] 4 10. The January 19, 2001 fact-finding resulted in a letter of warning (LOW), which

5 was issued on January 31, 2001. [Ex. D (Camper Dec.), ¶ 10; Ex. D-3.] 6 11. However, after Plaintiff filed a grievance with the American Postal Workers Union

7 (the Union) on May 3, 2001 about the LOW, the parties agreed that it would be removed from 8 Plaintiff's official personnel file on September 1, 2001 if no similar discipline issues occurred 9 in the interim. [Ex. D (Camper Dec.), ¶ 11; Ex. D-4.] 10 12. After Plaintiff had been at the PPMPPC for approximately one year, on January

11 29, 2002, one of Plaintiff's supervisor, Robert L. Dziszuk, carried out a fact-finding for 12 Plaintiff's failure to maintain a regular schedule and failure to report to work as scheduled. [Ex. 13 D (Camper Dec.), ¶ 12; Ex. D-5.] 14 13. After the fact-finding, Plaintiff was issued a seven-day suspension to begin

15 February 23, 2002 until March 1, 2002, as a disciplinary measure for failure to maintain regular 16 attendance. Plaintiff refused to sign the suspension document. [Ex. D (Camper Dec.), ¶ 12, 13; 17 Ex. D-6.] 18 19 Postal Service Light Duty Policies 14. The Postal Service maintains two separate and distinct programs for employees

20 who are unable to perform the essential functions of their position due to a medical condition: 21 "limited" and "light" duty. "Limited" duty applies to employees who suffer on-the-job injuries, 22 and is governed by the Federal Employee Compensation Act (FECA), 5 U.S.C. § 8101, and 23 limited duty is administered by the Department of Labor (DOL), Office of Workers' 24 Compensation (OWCP). 25 15. By contrast, requests for "light" duty positions are governed by applicable

26 collective bargaining agreements. Unlike limited duty, the Postal Service is not obligated to 27 create a position for employees requesting light duty assignments. Light duty work is only 28 3
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1 provided if such work is available. [Ex. G (Article 13 of the Collective Bargaining 2 Agreement/1527-8); See also Ex. D (Camper Dec.), ¶ 15.] 3 16. The light duty program is a creation of the Collective Bargaining Agreement.

4 Most light duty assignments are temporary. Prior to being placed on light duty work, an 5 employee must submit appropriate paperwork and medical documentation that supports the light 6 duty request. The paperwork includes a medical excuse from the Postal Service's medical unit 7 in addition to the excuse from the employee's personal physician. [Ex. G (Article 13).] 8 17. Article 13 states: "any full-time or regular or part-time flexible employee

9 recuperating from a serious illness of injury and temporarily unable to perform the assigned 10 duties may voluntarily submit a written request to the installation heard for temporary 11 assignment to a light duty or other assignment. The request shall be supported by a medical 12 statement from a licensed physician or by a written statement from a licensed chiropractor 13 stating, when possible, the anticipated duration of the convalescence period." [Ex. G (Article 14 13).] 15 18. According to the Postal Service Operating Instructions No. 18, light duty is

16 defined as "medical restrictions due to a non job-related injury or illness." Employees 17 requesting light duty must: 18 · "Initiate the procedure prior to reporting for work." The procedure includes submitting

19 a request in writing to the Health Unit, accompanied by detailed medical evidence from his/her 20 licensed physician/chiropractor. 21 · The Health Unit reviews the medical documentation, provides approval or disapproval

22 for light duty work, and sends to the employee's supervisor the employee's written request along 23 with the expected duration of the light-duty period and the employee's physical imitations. 24 · The immediate supervisor determines if light-duty work is available within the

25 employee's pay location and approved medical limitations and sends that determination to his 26 appropriate supervisor, who will approve or disapprove the request based upon whether or not 27 suitable work is available. 28 4
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· If necessary, a light/restricted duty assignment may have hours that vary from the

2 employee's normal schedule. The employee may be worked fewer than eight hours in a day 3 based upon availability of work. 4 5 6 · The employee may not work outside of his/her limitations. [Ex. H (1535 - 6).] Postal Service Attendance Policies: 19. Portions of the Postal Service Employees Manual include provisions that

7 "employees are required to be regular in attendance," employees failing to report for duty as 8 scheduled will be absent without leave except in actual emergencies which prevents obtaining 9 permission in advance, and that "postal officials will take appropriate disciplinary measures to 10 correct violations." [Ex. I (selected portions of ELM 17.1/1537-38).] 11 20. Arizona Performance Cluster Operating Instruction No. 2 states that employees

12 may be subject to disciplinary action up to and including removal for failure to be regular in 13 attendance, excessive unscheduled absences, tardiness, failure to submit acceptable medical 14 evidence and AWOLs. [Ex. J (1541-42).] 15 21. Arizona Performance Cluster Operating Instruction No. 6 states in part,

16 "Employees may be subject to corrective action when their absence is due to sick leave or other 17 leave that is unscheduled; to the extent that these absences constitute an unacceptable attendance 18 record of undependability, or unavailability for work." [Ex. K (1539-40).] 19 Plaintiff's Light Duty Requests (February 2001 - February 2002); Plaintiff's

20 DOL/FECA Claim: 21 22. In February, 2001, Plaintiff provided to the Medical Unit a medical certificate from

22 Dr. Jensen which stated that he had bilateral knee pain and that recommended the following 23 restrictions: stand for one hour then rest for 15-30 minutes. [Ex. D (Camper Dec.), ¶ 14(a); Ex. 24 D-7; D-8; Ex. L (1158-61).] 25 23. After Plaintiff's light duty request per Dr. Jensen's restrictions was approved,

26 Plaintiff was notified that appropriate light duty would be assigned when available, in the 27 28 5
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1 amounts available, including in amounts less than four hours, and advised to provide 2 documentation every thirty days. [Id.] 3 24. On March 6, 2001 Plaintiff was authorized to and returned to regular work duties.

4 [Ex. M (1162).] 5 25. Approximately six months after being back on full duty (September 25, 2001),

6 Plaintiff again requested light duty with restrictions that he sit and stand for certain intervals, and 7 with a lifting limit of fifteen (15) pounds. [Ex. D (Camper Dec.), ¶ 14(b); Ex. D-9 (1167 - 69); 8 Ex. N.] 9 26. Contrary to Postal Service policy regarding light duty requests, Plaintiff did not

10 provide the Medical Unit with an official Medical Certificate until October 10, 2001. [Ex. D 11 (Camper Dec.), ¶ 14b; Ex. O (1170).] 12 27. When Plaintiff did provide the medical certificate, his requested light duty was

13 approved, but consistent with that certificate, he was limited to lifting ten (10) pounds. [Ex. D 14 (Camper Dec.), ¶ 14(b); Ex. D-9; Ex. P (1171-2).] 15 28. To accommodate Plaintiff's light duty restrictions and the only work that he could

16 do, his shift was changed from 3:00 p.m.-11:30 p.m. to 7:55 p.m. - 4:25 a.m. [Id.] 17 29. Between December 2001 and February 2002, Plaintiff requested and received three

18 more light duty requests, all which had restrictions including that he could lift no more than 10 19 pounds. [Ex. D (Camper Dec.), ¶¶ 14(c)-(e); Ex D-10 through D-12; Exs. O, P (1170-2).] 20 30. On or about October 29, 2001, Plaintiff's supervisors, Mark Camper and Plaintiff

21 completed a form called a "CA-2" (the Notice of Occupational Disease and Claim for 22 Compensation seeking compensation under FECA through DOL) about Plaintiff's knee injury 23 to determine if Plaintiff's requested restrictions were due to a work related or non-work related 24 injury. [Ex. D (Camper Dec.), ¶ 15; Ex. D-14.] 25 31. Contrary to Plaintiff's VA and previous medical history, he claimed in the CA-2

26 that his knees were a condition he had since October 16, 2000 and he had never experienced 27 28 6
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1 knee problems before arriving at the GMF pay location 375. [Id; Ex A; Ex. Q (602) (In 1995, 2 Plaintiff sought treatment for "sharp" bilateral knee pain and complained that he "can't run.".] 3 32. On October 29, 2001, L. Shank, M.D. completed a Return to Work Authorization

4 in which the only restriction was that Plaintiff sit in a soft cushion chair for bilateral knee pain. 5 [Ex. R (1176).] 6 33. On October 31, 2001, the Postal Service, Injury Compensation Office responded

7 to Plaintiff's request for FECA benefits by sending a letter to Plaintiff and to DOL stating that 8 Plaintiff had failed to meet his burden of establishing through medical documentation that his 9 condition was caused or materially adversely affected by his employment. [Ex. S (1178).] 10 34. On November 14, 2001, DOL advised Plaintiff that his documentation was

11 insufficient to demonstrate any causal relationship between his alleged bilateral knee condition 12 and his employment. DOL also requested further detailed information including all activities 13 (inside and outside of work) all previous orthopedic injuries as well as a comprehensive medical 14 report from a treating physician. [Ex. T (1195-96).] 15 35. On December 10, 2001 Plaintiff sent a letter to DOL advising that his hobbies

16 included golf, walking the dog, and other light sports recommended by the doctor, and that he 17 was capable of doing all household chores, including vacuuming, washing dishes, laundry, 18 making his bed, yard work. Plaintiff did not claim any major life activities were substantially 19 limited. [Ex. U (1346).] 20 36. On January 24, 2002 DOL notified Plaintiff that his request for compensation

21 under FECA was denied because Plaintiff did not provide a diagnosis and did not establish a 22 causal relationship to his employment. [Ex. V (1210).] 23 37. On February 12, 2002 Plaintiff submitted a letter to the Postal Service claiming

24 himself to be the target of harassment by management that has culminated in his seven-day 25 suspension. [Ex. W (jung.usps.137).] 26 38. On February 7, 2002, the Postal Service informed Plaintiff of its notice from DOL

27 that his FECA benefits were denied due to a lack of a causal relationship. Plaintiff was advised 28 7
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1 to return to full duty without restriction or pursue one of the alternative avenues available. [Ex. 2 D (Camper Dec.), ¶ 16; Ex. D-15.] 3 39. Plaintiff did not pursue any alternatives for his alleged injury other than requesting

4 light duty. [Ex. D (Camper Dec.), ¶ 17.] 5 6 Plaintiff's March 2002 Light Duty Refusal and Subsequent AWOL: 40. On February 27, 2002, Plaintiff filed a Non-Occupational Injury, Return to Work

7 Or Request for Light Duty Interview Form, supported by a Medical Certificate from Dr. Jensen. 8 On March 1, 2002, Plaintiff was again authorized for restricted duty. [Ex. D (Camper Dec.) ¶ 9 14(e); Ex. D-12; Ex. X (1226).] 10 41. On March 5, 2002 Plaintiff was offered a light duty assignment, with his shift to

11 begin at 12:01 A.M., (walking for 1 ½ hours sit for 1 hour) with the following duties: perform 12 nixie mail, rewrap, set up cell, move MTE, sweep machines, etc. Like all light duty offers, there 13 was no guarantee of hours. Plaintiff refused this offer. [Ex. D (Camper Dec.) ¶ 14(f).] 14 42. Plaintiff was sent a duty status letter on May 19, 2002 via certified mail, which

15 included a request that he contact a supervisor and provide documentation in support of his 16 absences. [Ex. D. (Camper Dec.), ¶ 20; Ex. D-16.] 17 43. On May 22, 2002 Plaintiff requested FMLA leave, but was denied because

18 Plaintiff did not have the necessary 1250 hours of work during the twelve months preceding his 19 request. This notice also advised he would remain subject to the requirement of supplying 20 medical certification of an injury within fifteen days of an unscheduled absence. [Ex. D 21 (Camper Dec.), ¶ 21; Ex. D-17; Ex. D-18.] 22 44. Plaintiff filed various notifications for absences under sick hours from May 28,

23 2002 until June 29, 2002. On July 1, 2002, Plaintiff requested or notified of absences through 24 July 22, 2002, for absence without leave. [Ex. D (Camper Dec.), ¶ 22.] 25 45. Plaintiff was married on June 15, 2002 in California. [Ex. Y (Plaintiff's Responses

26 to Defendant's Interrogatory, No. 2).] 27 28 8
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46.

On July 18, 2002 Plaintiff's supervisor, R. Dziszuk, notified Plaintiff via letter that

2 he was considered to be AWOL since July 1, 2002 and that he was scheduled for a fact-finding 3 regarding these absences on July 23, 2002. This letter was sent certified mail. Plaintiff failed 4 to attend the fact-finding and failed to notify of intent not to attend. [Ex. D (Camper Dec.), ¶ 23; 5 Ex. D-21.] 6 47. On July 30, 2002, Supervisor Camper issued a Proposed Personnel Action of

7 removal, which Manager Trujillo reviewed and approved and on August 12, 2002. [Ex. D 8 (Camper Dec.), ¶ 24; Ex. D-22.] 9 48. On August 21, 2002 a detailed notification was sent to Plaintiff informing him of

10 his removal effective September 28, 2002, and advised Plaintiff (who was represented by 11 counsel) that he had a right to file a grievance. [Ex. D (Camper Dec.), ¶ 25; Ex. D-23.] 12 49. Plaintiff did not respond to the notice of removal and was removed on September

13 28, 2002 for the reasons set forth in the notice of removal. [Ex. D (Camper Dec.), ¶ 26.] 14 Plaintiff's First EEO Claims (EEO # 1) During the Administrative Process ­ EEO

15 #1E-851-0003-02: 16 50. On October 11, 2001, Plaintiff contacted an EEO counselor and filed an informal

17 complaint on the basis of race, sex, physical disability, Hostile Work Environment, and Veterans 18 Status in which the following allegations were identified: 19 a. On September 25, 2001, Plaintiff's work hours were changed from a shift

20 starting at 3:00 pm and ending at 11:30 pm to a shift starting at 7:55 pm and ending at 4:25 am 21 allegedly due to Plaintiff's on the job injury; 22 b. On unspecified dates, Plaintiff was told to leave work early and take leave.

23 [Ex. Z (1359 - 61).] 24 51. The disability was identified as a condition in Plaintiff's right and left knees, and

25 the major life activities affected were lifting and walking. [Id.] 26 52. Plaintiff's EEO request for counseling was issued a case number (#1E-851-0003-

27 02) on November 28, 2001. [Ex. AA (1333-34).] 28 9
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53.

The above allegations on the basis of race, sex, physical disability and hostile

2 environment on the basis of race and sex were the only issues identified for this EEO claim. [Ex. 3 BB (1335).] 4 54. Plaintiff filed a formal complaint on January 13, 2002 on the basis of race, color,

5 national origin, retaliation and disability (but not hostile environment). [Ex. CC (1328-30).] 6 55. Plaintiff's formal EEO complaint alleged that the Agency employee who

7 committed discrimination was Humberto Trujillo and alleges that Plaintiff had a disability that 8 existed since 1996 and that Postal Service failed to accommodate him per his doctor's 9 recommendation in September 2001. [Id.] 10 56. Plaintiff sought as a remedy a return to the shift originally bid for and training for

11 the manager (Trujillo) against whom the discrimination was alleged. [Id.] 12 57. When Plaintiff filed his EEO complaint, he was represented by Attorney Alex

13 Harris, but Notified the EEO that he had changed attorneys to Rosval Patterson on July 17, 14 2002. [Ex. DD (1378).] 15 58. On October 29, 2002, Plaintiff answered the EEO investigator's interrogatories.

16 His responses included: 17 · that he filed a complaint of discrimination regarding his work hours because

18 in October 2001 Trujillo would not let him use a soft cushion chair and he was not given 19 sufficient work, violating the ADA requirements that the Postal Service enter into a flexible 20 interactive process and make reasonable accommodations. [Ex. EE (1395-1400 (Jung Aff.), No 21 1).] 22 · that he was claiming discrimination in violation of the ADA because his

23 hours were changed and days off changed and only 4 hours of work. On the Union's advice of 24 the Union, Plaintiff did not sign the light duty offer. [Id. (Response to Nos. 2, 3).] 25 · that his disability was "bi-lateral knee and lower back pain that inhibit him

26 from performing manual tasks, walking and lifting" and from standing for long period of time 27 without a 15-30 minute break. [Id. (Response to No. 25).] 28 10
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59.

In EEO #1, Plaintiff did not include any claims about his removal, even though he

2 had been terminated more than a month before he filed this affidavit. [See SOF No. 58 above.] 3 60. EEO sent Plaintiff and Patterson a memo on October 23, 2002 advising them that

4 a mediation conference had been scheduled for November 21, 2002. [Ex. FF (1280-81).] 5 Plaintiff's Second EEO Claims (EEO # 2) During the Administrative Process ­ EEO

6 #1F-851-0002-03: 7 61. On September 30, 2002, Plaintiff contacted the EEO office about the following

8 allegations of discrimination by Mr. Trujillo on the basis of national origin, sex, physical 9 disability, and retaliation (prior EEO 1E 851-003-02): 10 · On October 29, 2001, he was not allowed to sit for 15-30 minutes and not

11 provided with a soft cushion chair. 12 13 · · On March 5, 2002, his work hours were changed. On April 10 2002, he was sent home from work and told not to return until

14 otherwise advised. 15 · On September 28, 2002, he was removed from the Postal Service. [Ex. GG

16 (Jung.PSEEO. 2 - 6).] 17 62. On October 8, 2002, Patterson, on Plaintiff's behalf, submitted a letter to the EEO

18 Dispute Resolution detailing Plaintiff's recount of the events leading up to his filing for pre19 complaint counseling. [Id.] 20 63. Plaintiff and attorney Patterson were advised that a formal complaint must be filed

21 within 15 days of receipt of the notice dated December 6, 2002, or it would be deemed 22 untimely.[Id.] 23 24 25 64. Plaintiff never filed a formal EEO complaint.

Union Activity re March 5, 2002 Light Duty Offer 65. On November 15, 2002, the Union and Postal Service management met to attempt

26 and find a light duty assignment for Plaintiff but none was available within Plaintiff's 27 restrictions. [Ex. HH (1237).] 28 11
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66.

On November 22, 2002, the Union filed a grievance appeal to the denial of light

2 duty. [Ex. II (1288).] 3 67. On March 23, 2003, a decision was issued in favor of the Postal Service regarding

4 the Union's grievance. The Union appealed this decision on April 18, 2003 and the appeal was 5 forwarded to Joe M. Harris at the Postal Service Pacific Labor Relations Processing Center in 6 Long Beach CA. [Ex. JJ (JUNG.LAB 1 - 2).] 7 8 9 Plaintiff's Post Postal Service Employment: 68. Since March 2002, Plaintiff's employment has included: · working at World Wide Electronic Solutions in Tustin, CA from July 2002

10 to November 2002; 11 · working as Owner/Manager at Bento Teriyaki and Rolls in Mission Viejo,

12 CA. from November 2003 until December 2004; 13 · working for HMS Host Corporation from March 2005 to present in

14 Operations Management. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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[Ex. KK (Plaintiff's Response to Interrogatory No. 3).] Respectfully submitted this 14th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney

1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 14, 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 6 777 E. Thomas Rd. Phoenix, AZ 85014 7 8 s/LaRee Zickefoose U.S. Attorney's Office 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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