Free Motion for Summary Judgment - 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, Postmaster General, hereby requests that the Court enter DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

16 summary judgment in his favor and against Plaintiff because there are no genuine issues of 17 material fact and defendant is entitled to judgment as a matter of law. This motion, filed 18 pursuant to Fed. R. Civ. P. 56 and L.R. Civ. 56.1, is supported by the following Memorandum 19 of Points and Authorities and a separately filed Statement of Undisputed Facts. 20 MEMORANDUM OF POINTS AND AUTHORITIES

21 I. INTRODUCTION: 22 Plaintiff, a Korean-American and former employee of the United States Postal Service

23 (the Postal Service, or the Service) brings this action for discrimination on various bases 24 including race, sex, and physical disability (bi-lateral knee pain)under Title VII of the Civil 25 Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq. The Postal Service 26 provided numerous opportunities and accommodations for Plaintiff to work within his 27 restrictions. Each action taken by the Postal Service managerial employees was done in 28 accordance with policies and procedure, not due to any discriminatory motive. The Postmaster

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1 General therefore requests that the Court enter an order awarding summary judgment in his favor 2 pursuant to Fed. R. Civ. P. 56 on the grounds that there are no genuine issues of material fact and 3 he is entitled to judgment as a matter of law. 4 II. FACTS: 5 6 A. PLAINTIFF'S ALLEGATIONS: Plaintiff filed this action on March 8, 2004, which alleges discrimination on the basis of

7 disability under the Americans with Disability Act (the ADA) and the Rehabilitation Act, sex, 8 and national origin.1 [Complaint, ¶¶ 36-43; 44-47; 48-50; 51-53.]

9 Plaintiff seeks injunctive relief, and monetary damages including back pay, front pay, and non10 economic damages including those for emotional pain and suffering. [Complaint, Prayer for 11 Relief.] The basis for plaintiff's allegations of discrimination include: 12 · that he has a disability which renders him substantially limited in a major life

13 activity. [Complaint, ¶ 9.] 14 · that the Postal Service regarded him as having an impairment that prevented him

15 from performing the duties of his position. [Complaint, ¶ 10.] 16 · that he had a left knee patello-femoral [that] was aggravated by work as a

17 distribution clerk, which is the only physical condition mentioned in his complaint. [Complaint, 18 ¶ 31.] 19 · that per his doctor, he could perform his job if he could sit in a soft cushion chair

20 for 15-30 minutes after standing for 1 hour. [Complaint, ¶ 32.] 21 · that in October 2001, he was placed on a permanent restriction that required him

22 to sit on a soft cushion chair for fifteen to thirty minutes after standing for one hour so that he 23 could perform his duties. [Complaint, ¶¶ 17-18.] 24 25
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Federal employees are not covered under the ADA, because the federal government is excluded from the definition of an "employer" under that act. 42 U.S.C. § 12111(5)(B). The ADA 27 therefore is not an appropriate cause of action for discrimination against the federal government, 42 U.S.C. § 12111(5)(B) and will not be further addressed in this motion. See Henrickson v. 28 Potter, 327 F.3d 444, 446 (5th cir. 2003). 2
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· that the manager of the facility (Humberto Trujillo) in which plaintiff worked

2 "refused to accommodate [him] and started sending [him] home." [Complaint, ¶ 19.] 3 · that on March 5, 2002, his work hours were changed to a different shift, with

4 different days off, and "only four hours and NO GUARANTEE OF HOURS." [Complaint, ¶ 5 20.] 6 · that he would not sign the documents reflecting the change in his hours "that he

7 had bid for indefinitely" and he was ordered out of the facility in which he had been working. 8 [Complaint, ¶¶ 21-24.] 9 10 25-28.] 11 12 38.] 13 14 B. FACTS RE: PLAINTIFF'S INJURIES AND EMPLOYMENT: Long before Plaintiff ever worked in a permanent position at the Postal Service, he · that he was not provided with reasonable accommodations. [Complaint, ¶¶ 34· that non-Asians and females were treated differently than him. [Complaint, ¶¶

15 developed a condition involving bi-lateral knee pain. [SOF ¶ 2, 3.] As early as 1995, Plaintiff 16 applied for and received a service connected disability with the Department of Veterans Affairs 17 (the VA)with 0% for each knee, claiming that the physical activity in the military, between 1986 18 and 1989. caused his condition. [SOF ¶ 2.] It was not until 2000, that Plaintiff was awarded 19 10% disability for each knee and therefore finally received some financial benefit. By that time, 20 Plaintiff had transferred to Phoenix, Arizona as a distribution clerk . By February 2001, he was 21 at the Phoenix Priority Mail Postal Processing Center (PPMPPC), working as a manual 22 distribution clerk in a position that required him to lift up to 75 pounds, stand for an entire shift, 23 and bend, lift and twist to perform his job. [SOF ¶¶ 4-5.] However, due to Plaintiff's pre24 existing condition, he could not do the job and requested to be placed on light duty on a number 25 of occasions between February 2001 and March 2002. [SOF ¶¶ 22-29, 41.] 26 The Postal Service maintains two separate and distinct programs for employees who are

27 unable to perform the essential functions of their position due to a medical condition: "limited" 28 and "light" duty. "Limited" duty applies to employees who suffer on-the-job injuries, is 3
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1 governed by the Federal Employee Compensation Act (FECA), 5 U.S.C. § 8101, and limited 2 duty is administered by the Department of Labor (DOL), Office of Workers' Compensation 3 (OWCP). [SOF ¶ 14.] In this case, DOL agreed with the Postal Service's initial decision that 4 Jung was not entitled to limited duty status because his knee condition was not related to his 5 Postal Service employment. [SOF ¶¶ 31, 33-38.] 6 The light duty program is a creation of the Collective Bargaining Agreement. Most light

7 duty assignments are temporary. Prior to being placed on light duty work, an employee must 8 submit appropriate paperwork and medical documentation that supports the light duty request. 9 The paperwork includes a medical excuse from the Postal Service's medical unit in addition to 10 the excuse from the employee's personal physician. [SOF ¶ 16.] 11 In extending light duty offers to plaintiff, the Postal Service had to find work that Plaintiff

12 could perform that was within his restrictions, work that did not impact limited duty employees. 13 During most of the time that Plaintiff was on light duty, he had to be sitting part of his shift, and 14 he could not lift more than 10 pounds. [SOF ¶¶ 26-29.] Consequently, the Postal Service

15 offered Plaintiff later hours so that there would be light duty work accumulated for him to do. 16 [SOF ¶ 28.] 17 After Plaintiff refused the light duty offer on March 5, 2002. He was sent a duty status

18 letter in May 2002, and did provide documentation to receive approved leave without pay for 19 periods through June 22, 2002. [SOF ¶¶ 43-44.] After that, Plaintiff who was married, living, 20 and working in California, failed to comply with Postal Service policies regarding attendance 21 and leave, and failed to respond to his notice of removal. Plaintiff was removed on September 22 28, 2002. [SOF ¶¶ 45, 48-49, 68.] 23 24 C. FACTS RE: EEO COMPLAINT # 1: Plaintiff contacted an EEO counselor on October 11, 2001, and later filed a formal

25 complaint [SOF ¶¶ 50-54.] He alleges that the Postal Service employee who committed 26 discrimination was Humberto Trujillo on the basis of race, sex, physical disability, and hostile 27 environment. [SOF ¶ 55.] Plaintiff claimed that he had a disability since 1996 and that Postal 28 Service failed to accommodate him regarding the soft cushion chair in September 2001. During 4
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1 the investigation, Plaintiff claimed that he was discriminated against in violation of the ADA 2 because his hours were changed and days off changed and only 4 hours of work. He also 3 claimed that his disability was "bi-lateral knee and lower back pain that inhibits him from 4 performing manual tasks, walking and lifting" and from standing for long period of time without 5 a 15-30 minute break. [SOF ¶ 58.] 6 7 D. FACTS RE: EEO COMPLAINT # 2: Plaintiff filed an informal complaint claiming that he was not provided with a soft

8 cushion chair, his work hours were changed on March 5, 002, he was sent home from work on 9 April 10, 2002 and told not to return, and he was removed from the Postal Service on September 10 28, 2002. In a notice dated December 6, 2002, Plaintiff and his attorney were advised to file a 11 formal complaint within 15 days, but never did. [SOF ¶¶ 61-64.] 12 III. ANALYSIS: 13 14 A. SUMMARY JUDGMENT STANDARD: Summary judgment shall be granted when the pleadings, depositions, answers to

15 interrogatories, affidavits, and admissions on file demonstrate that there is no disputed issue of 16 material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); 17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). The moving party must establish 18 both the lack of any genuine issue of material fact and its entitlement to judgment. Matsushita 19 Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986). Once the moving party carries 20 its initial burden, the non-moving party must provide evidence setting forth "specific facts 21 showing that there is a genuine issue for trial." Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th 22 Cir. 2001). All evidentiary inferences should be drawn in the light most favorable to the 23 nonmoving party. King County v. Rasmussen, 299 F.3d 1077, 1083 (9th Cir. 2002). 24 In the context of discrimination complaints, "`the mere existence of a prima facie case,

25 based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not 26 preclude summary judgment.'" Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995), 27 cert. denied, 516 U.S. 1171 (1996) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th 28 5
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1 Cir. 1994) ). Summary judgment is still appropriate if defendant can rebut the prima facie case 2 with a non-discriminatory reason. Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990) (citing 3 Reynolds v. Brock, 815 F.2d 571, 575 (9th Cir. 1987)). The party opposing summary judgment 4 "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set 5 forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also 6 Matsushita, 475 U.S. at 585-88; Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th 7 Cir. 1995). Conclusory allegations already contained in the pleadings, which are unsupported 8 by factual evidence, are insufficient to defeat a motion for summary judgment. Lucas 9 Automotive Engineering, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1237 (9th Cir. 10 1998). Similarly, an affidavit which merely recites conclusory allegations will not defeat 11 summary judgment. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990); 12 see also Warren 58 F.3d at 443 (while plaintiff's burden at the summary judgment stage is not 13 overly burdensome, plaintiff cannot, however, merely rely on generalizations). 14 In order to survive summary judgment, plaintiff must produce some evidence to show that

15 the Agency intentionally discriminated against him on the bases alleged or in retaliation for prior 16 activity protected by Title VII. Plaintiff may do so by direct evidence of discrimination or under 17 the now-familiar formula enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 18 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). In addition, the 19 evidence must be sufficient to show that plaintiff's allegations of discrimination are more likely 20 than not to be true. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). 21 22 23 B. BRINGING AND PROVING CLAIMS UNDER TITLE VII: 1. General Requirements and Frame Work Discrimination against employees of the federal government on the basis of race, color,

24 religion, sex or national origin is expressly prohibited by Title VII of the Civil Rights Act of 25 1964, as amended (Title VII or Act), 42 U.S.C. § 2000e-16(a). The Ninth Circuit has held that 26 § 2000e-16(a) also prohibits retaliation against an employee for engaging in protected activities 27 28 6
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1 such as filing informal and formal EEO Complaints. Ray v. Henderson, 217 F.3d 1234, 1240-42 2 (9th Cir 2000). See also 29 C.F.R. § 1614.101 (2002). 3 The Act delegates to the Equal Employment Opportunity Commission (EEOC) authority

4 to enforce the provisions of § 2000e-16(a) and to "issue such rules, regulations, orders and 5 instructions as it deems necessary and appropriate to carry out its responsibilities . . . ." 42 6 U.S.C. § 2000e-16(b). The EEOC has promulgated regulations governing the administrative 7 adjudication of complaints of discrimination submitted by federal employees. 29 C.F.R. Part 8 1614 (2002). Among other things, these regulations require a federal employee who believes 9 he has been discriminated against to initiate contact with an agency EEO Counselor within 45 10 days of the date of the matter, or of the effective date of personnel action, alleged to be 11 discriminatory. 29 C.F.R. § 1614.105 (Pre-complaint processing). 12 The Ninth Circuit has held that compliance with, or exhaustion of, the administrative

13 remedies provided by 29 C.F.R. §§ 1614.105 and 1614.106 is a jurisdictional prerequisite to 14 court action, Sommatino v. United States, 255 F.3d 704, 708-09 (9th Cir. 2001). The Ninth 15 Circuit has further held that the jurisdictional scope of the district court action, "depends upon 16 the scope of both the EEOC charge and the EEOC investigation." (id.) (Citations omitted.)" 17 Therefore, "the district court has jurisdiction over any charges of discrimination that are `like 18 or reasonably related' to the allegations in the EEOC charge, or that fall within the `EEOC 19 investigation which can reasonably be expected to grow out of the charge of discrimination.'" 20 (id.) (Citations omitted.) 21 22 2. Prima Facie Claims for Race and Sex: To prevail on a claim of discrimination on the basis of race, a plaintiff-employee must

23 first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 24 U.S. 792, 802-05 (1972); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 252-54 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). As stated in 26 Burdine: "In McDonnell Douglas Corp. . . . we set forth the basic allocation of burdens and 27 order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the 28 plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of 7
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1 discrimination." 450 U.S. at 252-54 (footnote omitted). A plaintiff-employee may establish a 2 prima facie case of discrimination circumstantially by showing that: (1) he belongs to a protected 3 class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; 4 and (4) similarly situated individuals outside his protected class were treated more favorably. 5 McDonnell Douglas, 411 U.S. at 802; Chuang v. University of California Davis, 225 F.3d 1115, 6 1123 (9th Cir. 2000) (citing McDonnell). 7 A plaintiff may also establish a prima facie case of discrimination on the basis of race

8 directly by "provid[ing] evidence suggesting that the `employment decision was based on a 9 discriminatory criterion illegal under the [Civil Rights] Act.' " Cordova v. State Farm Insurance 10 Companies, 124 F.3d 1145, 1148-49 (9th Cir. 1997) (citing International Brotherhood of 11 Teamsters v. United States, 431 U.S. 324, 358 (1977)); Lyons v. England, 307 F.3d 1092, 1112, 12 1118 (9th Cir. 2002); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). 13 If the plaintiff-employee establishes a prima facie case of discrimination, a presumption

14 of discrimination arises which the defendant-employer must rebut by "articulat[ing] some 15 legitimate, nondiscriminatory reason for the employee's rejection." Burdine, 450 U.S. at 253; 16 McDonnell Douglas, 411 U.S. at 802-03; St. Mary's Honor Center, 509 U.S. at 506-07. As 17 more fully explained by the Supreme Court: 18 19 20 21 22 23 The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted and the factual inquiry proceeds to a new level of specificity. . . . .

24 Burdine, 450 U.S. at 254-55 (citation and footnotes omitted); see also Chuang, 225 F.3d at 112325 24 (where it is stated that, if plaintiff satisfies the McDonnell Douglas test, "[t]he burden of 26 production, but not persuasion, then shifts to the employer to articulate some legitimate, non27 discriminatory reason for the challenged action."); Ray, 217 F.3d at 1240. 28 8
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If the defendant-employer satisfies its burden, the burden shifts back to the plaintiff-

2 employee: 3 4 5 6 7 8 9 [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. . . . The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.

10 Burdine, 450 U.S. at 253, 256 (citations omitted); McDonnell Douglas, 411 U.S. at 804-05; St. 11 Mary's Honor Center, 509 U.S. at 507-08. 12 13 14 15 16 As further stated by the Ninth Circuit: We have stated that a plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is "unworthy of credence" because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer. [Citation omitted.] These two approaches are not exclusive; a combination of the two kinds of evidence may in some cases serve to establish pretext so as to make summary judgment improper. . . .

17 Chuang, 225 F.3d at 1124, 1126-27; see also Ray, 217 F.3d at 1240. 18 19 20 21 22 23 24 25 26 27 28 Thus, the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment. Indeed, in Lindhal v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991), we specifically held "a plaintiff cannot defeat summary judgment simply by making out a prima facie case." "[The plaintiff] must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir 1986). In response to the defendant's offer of nondiscriminatory reasons, the plaintiff must produce "specific, substantial evidence of pretext," Steckl v. Motorola, Inc., 703 F.2d 392, 9
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For summary judgment in discrimination cases, the Ninth Circuit has stated: The question before us is whether, after these steps have been taken [i.e., the basic allocation of burdens and order of presentation of proof outlined in McDonnell Douglas], a summary judgment for the defendant employer can be sustained. We are convinced that, as in any other summary judgment situation, the question can only be answered in each case by a review of the actual evidence offered by each party, to see whether a genuine issue of material fact has been presented for trial. If a rational trier of fact could, on all the evidence, find that the employer's action was taken for impermissibly discriminatory reasons, summary judgment for the defense is inappropriate. . . . . . .

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393 (9th Cir. 1983). In other words, the plaintiff "must tender a genuine issue of material fact as to pretext in order to avoid summary judgment. Id. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889, 890 (9th Cir. 1994); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280-82, 1295 (9th Cir. 2000); FDIC v. Henderson, 940 F.2d 465, 473 n.16, 474 (9th Cir. 1991); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986); Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1458-59 (9th Cir. 1985). Here, the Postmaster General has established that the Postal Service's actions concerning

7 Plaintiff's light duty requests were based upon its policies and procedures. At best, Plaintiff's 8 claims in this action, even if true, are not and cannot be linked to plaintiff's race pr sex. 9 C. BRINGING AND PROVING CLAIMS UNDER THE REHABILITATION ACT: 10 To establish a prima facie case under the Rehabilitation Act, Plaintiff must prove that: (1) 11 he is disabled within the meaning of the Act; (2) he is a qualified individual able to perform the 12 essential functions of his job, either with or without reasonable accommodations; and (3) the 13 Postal Service acted adversely against him solely because of his disability. Zukle v. Regents of 14 Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999); Wong v. Regents of University of California, 15 192 F.3d 807, 816 (9th Cir. 1999). Plaintiff cannot satisfy any of these factors, each warranting 16 a decision favoring the Postmaster General. Further negating Plaintiff's claim, Plaintiff was 17 terminated for legitimate, nondiscriminatory reasons after he violated attendance and leave 18 policies. 19 1. 20 An individual is disabled under the Rehabilitation Act if he: (a) has a physical or mental 21 impairment substantially limiting one or more major life activity; (b) has record of such 22 impairment, or (c) is regarded as having such impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 23 1630.2(g); Coons v. Secretary of the U.S. Dept. of the Treasury, 383 F.3d 879, 884 (9th Cir. 24 25 26 27 28 10
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Plaintiff Was Not Disabled Under the Rehabilitation Act.

1 2004).2

Plaintiff fails to address these factors and cannot establish a prima facie case in light

2 of the undisputed factual record. 3 3 4 a. Plaintiff's Condition Failed to Limit His Major Life Activities The primary inquiry in determining whether Plaintiff is disabled under the Rehabilitation

5 Act is whether he "is unable to perform the variety of tasks central to most people's daily lives, 6 not whether [he] is unable to perform the tasks associated with [his] specific job." Toyota Motor 7 Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 185 (2002). The Federal Regulations further this 8 objective, defining "major life activities" as "caring for oneself, performing manual tasks, 9 walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I). 10 Here, plaintiff claims to be substantially limited in the major life activities of lifting and walking. 11 [SOF ¶ 51.] However, there is insufficient evidence that plaintiff's restrictions were permanent 12 in March 2002. Even if there were, for purposes of summary judgment, Plaintiff's lifting 13 restriction is not a per se disability. In Thompson v. Holy Family Hospital, 121 F.3d 537 (9th 14 Cir. 1997), the Ninth Circuit held that an employee whose lifting restrictions include that she 15 could not lift more than 25 pounds on a continuous basis was not substantially limiting and 16 therefore did not render her disabled for purposes of the ADA. According to the Third Circuit, 17 a ten pound restriction to be insufficient. See Marinelli v. City of Erie, 216 F.3d. 354 (4th 18 Cir.2002). Nor does Plaintiff's inability to walk more than a mile constitutes a substantial 19 limitation in his ability to walk. Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999). 20 Plaintiff was not substantially limited in his major life activities. He advised the DOL that

21 he could do all household chores, yard work, and play golf. [SOF ¶ 35.] Plaintiff's own 22 physicians determined that Plaintiff was capable of working safely on light duty for an eight-hour 23 shift. [See ie., SOF ¶ 27.] In fact, part of plaintiff's complaint in this action is that he was not 24

The standards under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (ADA), apply equally to this Court's determination under the Rehabilitation Act. See 29 26 U.S.C.§ 791(g); McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000).
25 Of note, Plaintiff's military classification, as having partially disabled knees, does not establish disability under the Act. See Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10 Cir. 28 1994)(disability rating). 27 11
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1 given enough hours of work and was sent home before he worked a full shift. Under these facts, 2 plaintiff can hardly be considered disabled for purposes of the Rehabilitation Act. 3 4 b. Plaintiff Had No Record of Impairment. To have a record of an impairment, Plaintiff must establish "a history of, or [have] been

5 misclassified as having, a mental or physical impairment that substantially limits one or more 6 major life activities." 29 C.F.R. § 1630.2(k); Coons, 383 F.3d at 886. Plaintiff cannot establish 7 a history of impairment, including impairment while "working." To the contrary, Plaintiff's 8 medical condition before and after his employment with the Postal Service did not preclude his 9 employment/ [SOF ¶¶ 29, 40, 70.] There was no record of impairment. 10 11 c. The Postal Service Never Regarded Plaintiff as Disabled. Under the Act, an employee is regarded as disabled if he: (1) has a physical or mental

12 impairment that does not substantially limit major life activities but is treated as having such 13 limitations; (2) has an impairment substantially limiting major life activities only as a result of 14 the attitudes of others toward such impairment; or (3) does not have an impairment but is treated 15 as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l). Even though the Postal 16 Service knew that Plaintiff could not perform the essential duties of a distribution clerk, the Postal 17 Service never regarded or treated Plaintiff as having an impairment that substantially limited 18 major life activities. Plaintiff was not regarded as disabled. See Thompson v. Holy Family 19 Hospital 121 F. 3d 537, 540 (9th Cir. 1997) (plaintiff not regarded as disabled since she could 20 perform a broad class of jobs outside of her present position); Wooten v. Farmland Foods , 58 21 F.3d 382, 386 (8th Cir 1995) (employer's decision to terminate employee based upon physical 22 restrictions imposed by her doctor did not indicate that the employer regarded her as having a 23 substantially limiting impairment). 24 While hampered, there is no evidence indicating that Plaintiff was unable to perform the

25 activities of daily living which an average person in the general population could perform, nor 26 can Plaintiff establish that his disability precluded him from a wide array of work functions. He 27 had no record of an extensive disability, and there is no evidence that the Postal Service ever 28 12
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1 regarded him as disabled under the Rehabilitation Act's broad definition. Plaintiff was not 2 disabled under the Act, and cannot establish a prima facie case. 3 4 5 2. Plaintiff is Not a Qualified Individual Able to Perform the Essential Functions of His Position. Under the Federal Regulations, a qualified individual with a disability "means an

6 individual with a disability who satisfies the requisite skill, experience, education and other job7 related requirements of the employment position such individual holds or desires, and who, with 8 or without reasonable accommodation, can perform the essential functions of such position." 29 9 C.F.R. § 1630.2 (m)(emphasis added). The essential functions of a position are defined as "the 10 fundamental job duties of the employment position the individual with a disability holds or 11 desires." 29 C.F.R. § 1630.2 (n). In Plaintiff's position at the PPMPPC (which he bid into), the 12 essential functions of that position required that he move mail, sacks and parcels. Plaintiff, in 13 that position, must be able to lift up to 70 pounds, to bend, to twist, and to stand for an 8 hour 14 shift. [SOF ¶ 6.] That Plaintiff submitted medical documentation to work outside of these 15 essential functions demonstrates that he cannot perform the necessary work to be a distribution 16 clerk. Furthermore, under union agreement, Plaintiff cannot be assigned to another craft. See 17 Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985) (employer cannot be 18 required to accommodate handicapped employee by usurping legitimate rights of other employees 19 under a collective bargaining agreement); Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 20 1987)(addressing Postal Service's inability to reassign due to collective bargaining agreement) 21 ("The case law is clear that, if a handicapped employee cannot do his job, he can be fired, and the 22 employer is not required to assign him to alternative employment."). Thus, Plaintiff's assertion 23 that he was qualified under the Rehabilitation Act is wrong. It is undisputed that in March 2002, 24 he could not perform the essential duties of a Level 5 Distribution Clerk at PPPMPPC. 25 26 IV. CONCLUSION: The material facts are undisputed. Plaintiff has not made a prima facie case of

27 discrimination under Title VII or the Rehabilitation Act. The Postmaster General therefore 28 13
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1 respectfully requests this Court to enter judgment in his favor and against Plaintiff. 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on April 14, 2006, I electronically transmitted the attached document PAUL K. CHARLTON United States Attorney District of Arizona s/Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney Respectfully submitted this 14th day of April, 2006.

11 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 12 Filing to the following CM/ECF registrants: 13 Rosval A. Patterson 14 777 E. Thomas Rd. Phoenix, AZ 85014 15 16 s/LaRee Zickefoose U.S. Attorney's Office 17 18 19 20 21 22 23 24 25 26 27 28 14
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