Free Motion for Partial Summary Judgment - 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 Alexander Jung

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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 UNDISPUTED STATEMENT OF FACTS FOR HIS PARTIAL MOTION FOR SUMMARY JUDGMENT

1.

Alexander Jung ("Alex", "Jung" or "Plaintiff") is a federal employee. (See Plaintiff's Complaint Attached as Exhibit 1; ¶ 4. Also see Defendant's Answer Attached as Exhibit 2; ¶ 4.)

2.

Alex was in the U. S. Army Infantry Unit from 1986 through 1989. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 17, ll. 19 and 20.)

3.

During Plaintiff's military career, he had a knee injury and lower back injury. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 18, ll. 14 through 18.)

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4.

Plaintiff is a 20 percent disabled veteran with a bilateral knee condition, service connected. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 18, ll. 24 through 25.)

5.

Notification from the Disabled Veterans Office of twenty percent (20%) , effective July 13, 2000. (See Notification of Disability from the VA; Exhibit 1 in the Deposition of Alexander Jung Attached as Exhibit 14)

6.

Alex was diagnosed with Chondromalacia of patella by Doctor Chris Reust. (See VA Medical Records Bates Labeled JUNG.VA.00029 through 00031 Attached as Exhibit 4)

7.

Plaintiff's knee injury impacted Plaintiff's ability to walk, causing weakness, numbness and sharp pains in Plaintiff's knees when walking one mile or less. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 126, ll. 10 through 23.)

8.

Plaintiff's knee injury impacted Plaintiff's ability to stand in a prone position for a long period of time, causing numbness and sharp pains through Plaintiffs legs. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 127, ll. 13 through 18.)

9.

Plaintiff had a back problem due to a bulge in his lower back L-5 disk which effects movements, lifting and bending. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 22, ll. 23 through 25.)

10.

Plaintiff was diagnosed with a bulged disk in 2002 at the VA Hospital in Phoenix, Arizona. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 23, ll. 2 through 5.)

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11.

On or about August 1994, Alex began work at the United States Postal Service ("USPS"). (See the Deposition of Alexander Jung Attached as Exhibit 3; pgs. 12 and 13, ll. 25 and 1 through 2.)

12.

On or about 2000, Plaintiff worked for the USPS in Phoenix, Arizona in Maricopa County. (See Plaintiff's Complaint Attached as Exhibit 1; ¶ 7. Also see Defendant's Answer Attached as Exhibit 2; ¶ 7.)

13.

Plaintiff worked at the Rio Salado Facility ("Rio") and then transferred to General Mail Facility ("GMF") where Al Comfort ("Mr. Comfort") was his supervisor. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 39, ll. 22 through 25.)

14.

On or about October 2000, Plaintiff was employed at the Phoenix priority mail postal processing center ("PPMPPC") as a level 5 distribution clerk. (See the deposition of Mark Camper Attached as Exhibit 5; pg. 12, ll. 10 through 21.)

15.

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. (See deposition of Humberto Trujillo Attached as Exhibit 6; pg. 37, ll. 14 through 23. Also see Position Description for Distribution Clerk, Exhibit 1 from the deposition of Humberto Trujillo Attached as Exhibit 7.)

16.

Plaintiff is qualified of sorting and distributing mail to post office and carrier routes. (See the deposition of Mark Camper Attached as Exhibit 5; pg. 13, ll. 17 through 19.)

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17.

Plaintiff is qualified for sorting odd sized mail by hand. (See the deposition of Mark Camper Attached as Exhibit 5; pg. 13, ll. 10 through 12.)

18.

The PPMPPC had one (1) machine in the facility during the time Plaintiff worked there, a small process bundle sorter which Plaintiff was qualified to run. (See the deposition of Mark Camper Attached as Exhibit 5; pg. 14, ll. 14 through 21.)

19.

Plaintiff's bid job hours at the PPMPPC were 3:00 to 11:30 pm. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 143, ll. 24 through 25.)

20.

According to the USPS Collective Bargaining agreement, Article 7, a full time employee has the right to work eight hours a day, forty days a week. (See the deposition of Humberto Trujillo Attached as Exhibit 6; pgs. 40 and 41, ll. 25 and 1 through 17.)

21.

Mark Camper ("Mr. Camper") was one of Plaintiff's supervisor's when Plaintiff was employed at the PPMPPC. (See the deposition of Mark Camper Attached as Exhibit 5; pg. 12, ll. 10 through 12.)

22.

Humberto Trujillo ("Mr. Trujillo" or "Junior") was facility manager when Plaintiff was employed at the PPMPPC. (See deposition of Humberto Trujillo Attached as Exhibit 6; pg 25, ll. 8 through 11.)

23.

On or about February 6, 2001, Plaintiff's knee injury was aggravated and he was required to go on light-duty assignment. He received a Doctor's note allowing him to stand for one hour and rest for 15 to 30 minutes. (See deposition of Humberto Trujillo Attached as Exhibit 6, pgs. 61 and 62, ll. 11 through 25 and 1 through 25. Also see Medical Certificate, Exhibit 7 from the deposition of Humberto Trujillo Attached as Exhibit 8.)

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24.

Plaintiff was approved for light duty which restricted him to standing for one hour, then resting for 15 to 30 minutes. (See deposition of Humberto Trujillo Attached as Exhibit 6, pgs. 65, ll. 8 through 21. Also see Supervisor's Light-Duty Approval Form, Exhibit 9 from the deposition of Humberto Trujillo Attached as Exhibit 15.)

25.

Employees on light duty were put on the `nixie table' in which the employee would repair damaged mail or properly address incorrect mail. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 144, ll. 11 through 22.)

26.

At the time of Plaintiff's request for accommodation at PPMPPC, regular employees were assigned to work in nixie mail, leaving less or no work for plaintiff when he came in to the facility to work. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 145, ll. 13 through 21.)

27.

Plaintiff observed `casual' employees who were not career employees getting eight hour shifts while Plaintiff was told there was no work for him. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 140, ll. 22 through 25.)

28.

Plaintiff spoke to his union stewards regarding not being reasonably accommodated as well as having his hours changed and being sent home for lack of work. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 70, ll. 4 through 18.)

29.

Defendant claims that it did not refuse to allow Plaintiff to work on work restriction. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 11; pg. 6, l. 24.)

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30.

Defendants contend that allowing Plaintiff to sit on a soft cushion chair for fifteen to thirty (15-30) minutes after standing for one (1) hour was justified in light of the overall financial resources and size of the USPS. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 16 and 17; pg. 8, ll. 14 through 25.)

31.

Defendants contend that given the functions of the work force of the USPS, Plaintiff's request to sit on a soft cushion chair for fifteen to thirty (15-30) minutes after standing for one (1) hour was justified. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 18; pg. 9, l. 7.)

32.

On or about the end of October, 2001, Plaintiff advised Mr. Camou that his knee was hurting and he needed to sit down. Mr. Camou provided Plaintiff a chair with a cushion to sit on. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 63 and 64, ll. 21 through 23 and 18 through 23.)

33.

While Plaintiff was sitting on the chair with a cushion, Junior told Mr. Camou that since Plaintiff did not have a doctor's note, he could not sit in the chair with a soft cushion. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 65, ll. 17 through 25.)

34.

Other employees on light duty were allowed to sit on a soft cushion chair without having to supply a doctor's note. (See the Deposition of Alexander Jung Attached as Exhibit 3; pgs. 148 and 149, ll. 24 through 25 and 1 through 8.)

35.

Regular employees who were not on light duty were sitting on a soft cushion chair. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 150, ll. 13 through 15.)

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36.

Plaintiff went to a doctor and obtained a note allowing him to sit on a soft cushion chair. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 67, ll. 21 through 22.)

37.

On or about October 29, 2001, Plaintiff received a Return to Work Authorization from Dr. Lawrence Shank allowing him to use a soft cushion chair while he worked. (See deposition of Humberto Trujillo Attached as Exhibit 6, pg. 90, ll. 8 through 21. Also see Return to Work Authorization, Exhibit 18 from the deposition of Humberto Trujillo Attached as Exhibit 10)

38.

Mr. Trujillo refused to accommodate Plaintiff and allow him to use a cushioned chair while working. (See deposition of Humberto Trujillo Attached as Exhibit 6, pg. 91, ll. 20 through 23.)

39.

Mr. Trujillo did not enter into the interactive process in making a determination if Plaintiff was disabled when answering questions in Plaintiff's EEO complaint. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 165, ll. 2 through 4.)

40.

Mr. Trujillo did not enter into the interactive process in determining if Plaintiff needed a job accommodation when answering affidavit in Plaintiff's EEO complaint. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 165, ll. 5 through 13.)

41.

Mr. Trujillo did not enter into the interactive process to determine any undue hardship in accommodating the Plaintiff's disability and if Plaintiff's request for accommodation would be in violation of any regulation or bargaining contract when answering the Plaintiff's EEO affidavit. (See the deposition of

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Humberto Trujillo Attached as Exhibit 6; pgs. 165 and 166, ll. 14 through 25 and l. 1.) 42. According to the Managers Guide to Reasonable Accommodation, it is the Managers responsibility to process the accommodation request and provide accommodation. (See Managers Guide to Reasonable Accommodation, pg 3, Exhibit 3 of the deposition of Humberto Trujillo Attached as Exhibit 11.) 43. The Manager is under obligation to involve the employee in an interactive process to determine a reasonable accommodation for a disabled employee. (See Managers Guide to Reasonable Accommodation, pg 3, Exhibit 3 of the deposition of Humberto Trujillo Attached as Exhibit 11.) 44. The reasonable accommodation process is activated when a request for reasonable accommodation is made and can be done orally, in writing, by the employee or a third party. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 54, ll. 18 through 25. Also see Handbook EL307, Reasonable Accommodation, an Interactive Process, Exhibit 6 in Humberto Trujillo's deposition Attached as Exhibit 12.) 45. All material regarding Reasonable Accommodation are easily accessed throughout the Postal Service where any manager or supervisor can get information on how to accommodate a disabled employee. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 57, ll. 10 through 19.) 46. Mr. Trujillo did not enter into the interactive process with Plaintiff regarding Plaintiff's disability. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 48, ll. 7 through 23.)

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47.

Mr. Trujillo did not read the Handbook EL-307, Reasonable Accommodation, an Interactive Process, which set forth the policies on reasonable accommodation including checklists to be used in testing applicants with disabilities. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg.57, ll. 5 through 9. Also see Handbook EL-307, Reasonable Accommodation, an Interactive Process, Exhibit 6 in Humberto Trujillo's deposition Attached as Exhibit 12.)

48.

Instead of consulting the material regarding Reasonable Accommodation, Mr. Trujillo asks the labor department regarding any questions he has in dealing with injured or disabled employees. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pgs. 58, l. 2.)

49.

Mr. Trujillo did not contact labor regarding Plaintiff in the years 2000 through 2003. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg.58, ll. 3 through 6.)

50.

Had Mr. Trujillo or a supervisor accessed the Handbook EL-307, Reasonable Accommodation, an Interactive Process, they would have been able to determine if Plaintiff had a disability as well as determine what is reasonable for an accommodation. (See Handbook EL-307, Reasonable Accommodation, an Interactive Process, Exhibit 6 in Humberto Trujillo's deposition Attached as Exhibit 12.)

51.

Had Mr. Trujillo or a supervisor accessed the Handbook EL-307, Reasonable Accommodation, an Interactive Process, they would have specific information regarding the interactive process, the starting place in the reasonable accommodation process. (See Handbook EL-307, Reasonable

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Accommodation, an Interactive Process, Exhibit 6 in Humberto Trujillo's deposition Attached as Exhibit 12.) 52. Mr. Camper was aware of an extension of a light duty approval form which restricted Plaintiff to not lifting over 10 pounds, 4 hours a day, walking 1 ½ hours then sit one hour. (See the deposition of Mark Camper Attached as Exhibit 5; pgs. 21, 22 and 23, ll. 24 through 25 and 1 through 25 and 1 through 7.) 53. On or about March 2002 Plaintiff was given a light duty job offer by Mr. Camper which provided for 4 hours a day and no guarantee of hours. Plaintiff was told to sign the paper or leave the building. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 174, ll. 8 through 20.) 54. Mr. Camper interpreted the approval form to mean that Plaintiff could only work for 4 hours a day. (See the deposition of Mark Camper Attached as Exhibit 5; pg. 23, ll. 10 through 23.) 55. Plaintiff explained to Mr. Camper, in front of his union steward that his eight hours a day means 4 hours of lifting, 1 hour of sitting and 1 ½ hours of walking. When lunch and breaks are included, it would equal an eight hour day. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 184, ll. 3 through 7.) 56. Plaintiff went to his doctor and explained the situation. Plaintiff's doctor redid the documentation to read that Plaintiff could work for eight hours. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 189, ll. 18 through 22.) 57. Plaintiff gave his eight hour restriction to a supervisor, Ed. When Plaintiff called Mr. Camper to inform him a new light-duty assignment to Ed, Mr.

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Camper told Plaintiff that he would have to sign it, he wasn't going to change anything. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 189 and 190, ll. 23 through 25 and 1 through 2.) 58. Plaintiff was told to leave the building. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 141, ll.19 through 22) 59. Plaintiff refused to sign the statement regarding new hours. (See Plaintiff's Complaint Attached as Exhibit 1; ¶ 23. Also see Defendant's Answer Attached as Exhibit 2; ¶ 23.) 60. Plaintiff went into work and found his time card missing. He was sent home because he did not sign the job offer. He was told by Mark Camper that he would not be allowed back into the building until he signed the job offer. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 176 and 177, ll. 12 through 25 and 1 through 4.) 61. On or about April 10, 2002, Plaintiff arrived at the PPMPPC and worked for four (4) hours. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 176, ll. 11 through 12.) 62. Plaintiff was told by his union representative to sign the job offer under protest in order to go back to work. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 177, ll. 5 through 7.) 63. Plaintiff came into work and let a supervisor and union steward know he was there to work and sign the light duty assignment paper. After approximately two (2) hours, Plaintiff was told that the paper could not be located. (See the deposition of Alexander Jung Attached as Exhibit 3; pg. 177, ll. 8 through 12.)

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64.

Mr. Trujillo noticed Plaintiff was at the facility and asked of Plaintiff signed the paper. Plaintiff explained the paper was unable to be located. Mr. Trujillo kicked Plaintiff out of the building and informed him he would not be getting paid for the hours he had worked that day and told Plaintiff he was not allowed back into the building. (See the deposition of Alexander Jung Attached as Exhibit 3; pgs. 177 and 178, ll. 21 through 25 and 1 through 5.)

65.

On or about August 12, 2002, Alex received a Notice of Termination stating he was to be terminated for being AWOL on or about September 28, 2002. His termination was not based on poor job performance, but instead, based on failure to maintain attendance; failure to report for duty; failure to follow absence notification procedures and failure to provide documentation to substantiate an absence. (See Notice of Removal, Bates Labeled JUNG.PSDC.00002 through 00004 Attached as Exhibit 13)

66.

Defendant contends that plaintiff suffers from physical impairment during certain times in 2001 and 2002. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 1, pg. 3, ll. 5 through 7.)

67.

No investigation has been conducted by Defendant to determine whether Plaintiff's bilateral knee pain substantially impairs a major life activity. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 4; pg. 4, ll. 4 through 5.)

68.

No investigation has been conducted to determine whether Plaintiff's bilateral knee pain is insufficiently severe to substantially limit a major life activity. (See Defendant's Response to Plaintiff's First Set of Interrogatories

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Attached as Exhibit 9; Response to Interrogatory No. 6; pg. 4, ll. 22 through 24.) 69. Defendant has not conducted any investigation to determine whether bilateral knee pain is of sufficient duration to substantially limit a major life activity. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 8; pg. 5, ll. 19 through 20.) 70. Defendant has not conducted any investigation to determine whether Plaintiff's bilateral knee pain is permanent enough to constitute a substantial limitation upon major life activity. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 10; pg. 6, ll. 7 through 9.) 71. Mr. Trujillo did not speak to Plaintiff regarding Plaintiff's requests for accommodations. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 49, ll. 20 through 22.) 72. Mr. Trujillo did not consult the human resource department regarding Plaintiffs requests for accommodations. (See the deposition of Humberto Trujillo Attached as Exhibit 6, pg. 49 and 50, ll. 23 through 25 and 1 through 7.) 73. Mr. Trujillo terminated Plaintiff without pulling Plaintiff's file or other research. (See the deposition of Humberto Trujillo Attached as Exhibit 6; pg. 53, ll. 5 through 10.) 74. Defendants allege it did not refuse Plaintiff the right to work on a work restriction. (See Defendant's Response to Plaintiff's First Set of Interrogatories Attached as Exhibit 9; Response to Interrogatory No. 13; pg. 7, ll. 20 through 26.)

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Dated this 29th day of March, 2006.

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 29th of March, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and

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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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