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 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.

) Case No.: CIV 04-429 PHX MHM ) ) ) ) PLAINTIFF'S MOTION FOR ) PARTIAL SUMMARY JUDGMENT ) ) ) ) )

Alexander Jung (hereinafter referred to as "Alex") submits his Motion for partial summary judgment on Defendants failure to provide a reasonable accommodation and enter the interactive process and on Defendant's affirmative defenses of Legitimate Business Reason and Undue Hardship. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 29th day of March, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff
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MEMORANDUM OF POINTS AND AUTHORTIES I. FACTS:

Alexander Jung (hereinafter referred to as "Alex") is a federal employee. SOF ¶ 1. From 1986 to 1989 Alex was in the U. S. Army Infantry. SOF ¶ 2. During Alex's military career, he suffered knee and lower back injuries. SOF ¶ 3. On December 8, 2000 the Department of Veterans Administration (hereinafter referred to as "VA") determined Alex to be a twenty percent (20%) disabled veteran with a bilateral knee condition which was service connected. SOF ¶¶ 4-5. Alex has been diagnosed with Chondromalacia of patella by Doctor Chris S. Reust. SOF ¶ 6. Alex's knee injury impacted his ability to walk, lift and stand. Alex's knee injury causes weakness, numbness and sharp pains in his knees when walking one mile or less. SOF ¶ 7. Additionally, Alex's knee injury impacted Alex's ability to stand in a prone position for a long period of time, causing numbness and sharp pains throughout Alex's legs. SOF ¶ 8. At this time, Alex had developed a back problem due to a bulge in his lower back L-5 disk which effects movements, lifting and bending. SOF ¶ 9. On or about 2002, Alex was diagnosed with a bulged disk at the VA Hospital in Phoenix, Arizona. SOF ¶ 10. On or about August 1994, Alex began work at the United States Postal Service (hereinafter referred to as "USPS"). SOF ¶ 11. On or about May 2000 Alex transferred to the USPS in Phoenix, Arizona. SOF ¶ 12. Alex worked at the Rio Salado facility (hereinafter referred to as "Rio") and then transferred to the General Mail Facility (hereinafter referred to as "GMF"). SOF ¶ 13. On or about October 2000, Alex

transferred to the Phoenix Priority Mail Postal Processing center (hereinafter referred to as "PPMPPC") as a level 5 distribution clerk. SOF ¶ 14. As a distribution clerk, Alex's duties include separating and distributing mail to post office and carrier routes, knowledge of the distribution scheme, maintaining records of mail, examining balances

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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. SOF ¶¶15-16. Additionally, Alex is qualified for sorting odd sized mail by hand as well as using the small process bundle sorter at the PPMPPC, and therefore met the qualifications of a distribution clerk. SOF ¶¶ 17-18. Alex's bid job hours at the PPMPPC were 3:00 p.m. to 11:30 p.m. SOF ¶ 19. 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. SOF ¶ 20. Mark Camper (hereinafter referred to as "Mr. Camper") was one of Alex's supervisor's when Alex was employed at the PPMPPC. SOF ¶ 21. Humberto Trujillo (hereinafter referred to as "Trujillo") was facility manager when Alex was employed at the PPMPPC. SOF ¶ 22. On or about February 6, 2001, Alex's knee injury was aggravated and he requested a light-duty assignment. Alex received a Doctor's note allowing him to stand for one hour and rest for 15 to 30 minutes. SOF ¶ 23. Alex was approved for light duty with the restrictions allowed by his doctor. SOF ¶ 24. Generally, employees on light duty were put on the `nixie table' in which the employee would repair damaged mail or properly address incorrect mail. SOF ¶ 25. At the time of Alex's request for accommodation, regular employees were assigned to work in nixie mail, leaving less or no work for Alex when he came in to the facility to work. SOF ¶ 26. Alex also observed `casual' employees who were not career employees getting eight hour shifts while Alex was told there was no work for him. SOF ¶ 27. Alex 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. SOF ¶ 28. On or about the end of October, 2001, Alex advised Mr. Camou, one of his supervisors that his knee was hurting and he needed to sit down. Mr. Camou provided

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Alex a chair with a cushion to sit on. SOF ¶ 32. While Alex was sitting on the chair with a cushion, Trujillo told Mr. Camou that since Alex did not have a doctor's note, he could not sit in the chair with a soft cushion. SOF ¶ 33. Alex noticed other employees on light duty who were allowed to sit on a soft cushion chair without having to supply a doctor's note. SOF ¶ 34. Alex also observed regular employees who were not on light duty were sitting on a soft cushion chair. SOF ¶ 35. Alex went to a doctor and obtained a note allowing him to sit on a soft cushion chair. SOF ¶ 36. On October 29, 2001, Alex returned with a Work Authorization from Dr. Lawrence Shank allowing him to use a soft cushion chair while he worked. SOF ¶ 37. Mr. Trujillo refused to accommodate Alex when he requested to be allowed to sit on a cushion chair while working. SOF ¶ 38. On or about March 2002, Mr. Camper was aware of an extension of a light duty approval form which restricted Alex to not lifting over 10 pounds, 4 hours a day, walking 1 ½ hours then sit one hour. SOF ¶¶ 52-53. Mr. Camper interpreted the approval form to mean that Alex could only work for 4 hours a day. SOF ¶ 54. Alex 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. SOF ¶ 55. Alex went to his doctor and explained the situation. Alex's doctor rewrote the documentation to read that Alex could work for eight hours. SOF ¶ 56. Alex gave his eight hour restriction to a supervisor, Ed. When Alex called Mr. Camper to inform him a new light-duty assignment was given to Ed, Mr. Camper told Alex that he would have to sign the original light duty assignment and that he wasn't going to change anything. SOF ¶ 57. Alex was told to sign the paper or leave the building. SOF ¶ 58. Alex refused to sign the statement regarding new hours. SOF ¶ 59. Alex was sent home because he did not sign the job offer and was told by Mark Camper that he would not be allowed back into the building until he signed the job offer.

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SOF ¶ 60. On or about April 10, 2002, Alex arrived at the PPMPPC and worked for four (4) hours. SOF ¶ 61. When Alex arrived for work the next day, Alex found his time card missing. SOF ¶ 60. Alex was told by his union representative to sign the job offer under protest in order to go back to work. SOF ¶ 62. Alex let a supervisor and union

steward know he was there to sign the light duty assignment paper and return to work. After working approximately two (2) hours, Alex was told that the paper could not be located. SOF ¶ 63. Mr. Trujillo noticed Alex was at the facility and asked if Alex signed the paper. Alex explained the paper was unable to be located. Mr. Trujillo then kicked Alex out of the building and informed Alex that he would not be paid for the hours he had worked and he was not allowed back into the building. SOF ¶ 64. Mr. Trujillo admits that he did not enter into the interactive process when making a determination if Alex was disabled or if Alex needed a job accommodation. SOF ¶¶ 39-40. Mr. Trujillo admitted that he also did not enter into the interactive process to determine whether any undue hardship existed in accommodating Alex's disability. SOF ¶ 41. According to Handbook EL-307, A Managers Guide to Reasonable Accommodation, it is the Managers responsibility to process the accommodation request and to provide an accommodation. SOF ¶ 42. In accordance with Handbook EL-307, the Manager is under obligation to involve the employee in an interactive process to determine a reasonable accommodation for a disabled employee. SOF ¶ 43. The reasonable accommodation process is activated when a request for reasonable accommodation is made which can be done orally, in writing, by the employee or a third party. SOF ¶ 44. Any manager or supervisor can easily assess information on how to give a reasonable accommodation to a disabled employee. SOF ¶ 45. .... ....

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Mr. Trujillo refused to follow the policy and did not enter into the interactive process with Alex regarding his disability. SOF ¶ 46. In fact, Mr. Trujillo admitted that he did not read Handbook EL-307, Reasonable Accommodation, an Interactive Process, which set forth the policies on reasonable accommodation and included checklists to be used in testing applicants with disabilities. SOF ¶ 47. Instead of consulting the material regarding Reasonable Accommodation, Mr. Trujillo testified that he consults the labor department with questions he has in dealing with injured or disabled employees. SOF ¶ 48. However, Mr. Trujillo did not contact the labor department regarding Alex disability. SOF ¶ 49. Had Mr. Trujillo or a supervisor accessed the Handbook EL-307, he would have been able to accommodate Alex with his disability by entering into the interactive process. SOF ¶ 50 & 51. On or about August 12, 2002, Alex was terminated for being AWOL. SOF ¶ 65.

II. a.

STANDARD OF REVIEW Summary Judgment Standard. Summary judgment should be granted where "there is no genuine issue as to any

material fact" and "the moving party is entitled to judgment as a matter of law". Fed. R. Civ. P. 56(c). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims [and defenses]." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1996). Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see Citadel Holding v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 317. The party opposing summary judgment "may not rest upon the mere allegations or

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denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88, (1986); Brinson v. Linda Rose Joint Venture. 53 F.3d 1044, 1049 (9th Cir. 1995).

III. a.

ARGUMENT The ADA Prohibits Disability Discrimination

Under the Americans with Disabilities Act, it is unlawful to discriminate against a qualified individual in the terms and conditions of employment based on that individual's disability. 42 U.S.C. § 12112(a). A determination of whether an individual is qualified is made according to (1) whether the individual meets the necessary prerequisites for the job, such as education, training, experience; and (2) whether the individual can perform the essential job functions with or without reasonable accommodation. Section 12111(8); EEOC, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, app. at 1630.2(m) (1996).1 The term "essential functions," is not defined in the ADA. The term is generally defined in ADA regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") to mean the "fundamental" duties to be performed in the position in question. 29 C.F.R. § 1630.2(n)(1) (1996).2 Essential job functions do not include job
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In enacting the ADA, Congress decided that removing the barriers to employment that individuals with disabilities faced was an important national goal and that it would entail some cooperation from employers and a willingness to rethink the way a job is customarily done or the way a particular work environment should normally operate. See generally, H. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 31 (1990) (underlying premise of Title I of the ADA "is that persons with disabilities should not be excluded from job opportunities unless they are actually unable to do the job"); 29 C.F.R. § 1630, App. at 399 (under ADA, employers must be willing to accommodate qualified individuals with disabilities by adjusting the work environment or the way a job is customarily done).
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Essential functions: (1) In general, the term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position. (2) A job function may be considered essential for any of several reasons, including but not limited to the following:(i) The 7

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functions or duties that are merely "marginal," Id. The regulations also provide illustrations of the reasons that a given function may be found to be fundamental to a particular position and examples of evidence that may be considered in making that finding. Usually no one listed factor will be dispositive, and the regulations themselves state that the evidentiary examples provided are not meant to be exhaustive. Whether a job function is essential is a fact-specific inquiry which takes into account "the actual functioning and circumstances of the particular enterprise involved." See Hall v. United States Postal Service, 857 F.2d 1073, 1079 (6th Cir. 1988). The ADA is clear and unequivocal; the ability to perform the essential functions of the job is the linchpin of the ADA's standard.3 The employer bears the burden of proving that a challenged job criterion is essential. Monett v. Electronic Data Systems Corp. 90 F.3d 1173, 1186 (6th Cir. 1996).

function may be essential because the reason the position exists is to perform that function;(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.(3) Evidence of whether a particular function is essential includes, but is not limited to:(i) The employer's judgment as to which functions are essential;(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;(iii). The amount of time spent on the job performing the function;(iv) The consequences of not requiring the incumbent to perform the function;(v) The terms of a collective bargaining agreement;(vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n).
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In commenting, in particular, on the essential-functions requirement, Congress made clear that the requirement was designed "to assure a match between job criteria and an applicant's actual ability to do the job." H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 31-32, reprinted in 1990 U.S.C.C.A.N. at 454. Congress also expressed concern that, if an employee was required to demonstrate his ability to perform all of the functions of the job, an employer could seize upon non-essential functions as a pretext, thereby screening out individuals who, while limited in some respects, can perform the essence of the job. See, e.g., H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 55, reprinted in 1990 U.S.C.C.A.N. at 337; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 31-33, reprinted in 1990 U.S.C.C.A.N. at 454-56. To avoid this risk, Congress wrote the marginal functions out of the statute, defining "qualified individual" in terms of essential job functions. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 32, reprinted in 1990 U.S.C.C.A.N. at 454 (stating that "the requirement that persons with disabilities not be disqualified because of the inability to perform non-essential or marginal functions of the job" is designed "to eliminate the pervasive bias against employing persons with disabilities"). 8
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In the instant matter, Defendants have admitted that the Alex met and performed the essential functions of a Level 5 distribution clerk. SOF at ¶¶ 15-18. Alex worked for the USPS for over seven years. SOF at ¶¶ 11-14. His continued employment proves his qualification for the job. His termination was not related to job performance. SOF at ¶ 65. On or about December 2000, Alex received a twenty percent (20%) disability rating from the VA. SOF ¶ 5. Alex was also diagnosed with Chondromalacia of patella in both knees by Doctor Chris Reust. SOF ¶ 6. Although Alex's knee and back had advanced to a stage whereby Alex needed to limit the number of hours he stood and lifted, he did not need to be exonerated from any job duty. Alex's knee and back pains did not render him unable to perform any function or duty of his position, essential or otherwise. Further, the fact that Alex continued to work at PPMPPC and performed the functions of his job is proof that he was able to perform the essential job functions of his job. b. Reasonable Accommodation & the Interactive Process.

A reasonable accommodation includes job restructuring, part-time or modified work schedules, and reassignment to a vacant position. 42 U.S.C.S. § 12111(9((B). An employer is not required to make such an accommodation if it can demonstrate that the accommodation would impose an undue hardship on the operation of the business. 42 U.S.C. § 12112(b)(5)(A). The ADA sets out a nonexclusive list of different methods of accommodation encompassed by the term "reasonable accommodation," stating that The term "reasonable accommodation" may include-- . ... (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals with disabilities.

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42 U.S.C. § 1211(9). The regulations provide a nonexclusive list of accommodations as examples of accommodation that an employer may be mandated to provide: (ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or (iii) Modifications that enable an . . . employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. 1630.2(o)(ii). Once an employee requests an accommodation, the ADA requires the employer and the employee to engage in an "informal, interactive process" to "identify the precise limitations resulting from the disability and potential accommodations that could overcome those limitations." Barnett v. U.S. Air, Inc., 228 F.3d 1105, __ (9th Cir. 2000), citing S. Rep. No. 101-116 at 34 (1989) and H.R. Rep. No. 101-485, pt. 2 at 65 (1990), and 29 C.F.R. 1630.2(b); 29 C.F.R. § 1630.2(o)(3). Defendants never attempted to engage in the interactive process and reasonably accommodate Alex. SOF at ¶¶ 39-41. Trujillo did not ask Alex any questions regarding how his disability affected his job or explore whether there were any other ways the Postal Service could accommodate Alex. SOF at ¶¶ 70-72. In defiance of the ADA, Trujillo testified that he was not obligated to explore with Alex whether there were other methods in which USPS could reasonably accommodate Alex. SOF at ¶¶ 39-51 and 7172. Trujillo never even bothered to read Handbook EL-307, Reasonable Accommodation, an Interactive Process, which set forth the policies on reasonable accommodation and included checklists to be used in testing applicants with disabilities. SOF at ¶ 47.

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Instead, Trujillo would consult the labor department questions he had in dealing with injured or disabled employees. However, Trujillo never contacts the labor department regarding Alex's disability. SOF at ¶¶ 48-49. Trujillo did not explain to Alex why he thought it would be unfair to grant Alex's request. Trujillo simply kicked Alex out of the PPMPPC and would not allow Alex to return. SOF at ¶ 64. 4 d. Undue Hardship

An employer may avoid the requirement to reasonably accommodate an employee by demonstrating that the requested accommodation would pose an undue hardship. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9. Undue hardship is an affirmative defense to which the Defendants bear the burden of proof. The term 'undue hardship' means an action requiring [the employer to undertake a] significant difficulty or expense." 42 U.S.C. §12111(10)(A). See also 29 C.F.R. § 1630.2(p). Determination of whether an accommodation would cause an employer an "undue hardship" is made by consideration of a number of statutory and regulatory factors, including: (i) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and
The interactive process involves four steps: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. 11
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deductions, and/or outside funding;

(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;

(iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;

(iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and

(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business. Id. See also 42 U.S.C. § 12111(10)(B). The "undue hardship" question, focuses on the impact which the accommodation would have, if implemented, on the specific employer in question "at a particular time." See 29 C.F.R. § 1630.15(d) (Appendix: Interpretative Guidelines). Whether a particular

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accommodation will impose an undue hardship for a particular employer is determined on a case-by-case basis. The fairness of a requested accommodation is not a basis for the undue hardship defense. In Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001) the court rejected the Defendant's argument that varying the terms of its transfer policy for disabled employees might generate resentment on the part of employees and undermine morale. The Court noted that: [R]esentment by other employees who are concerned about "special treatment" for disabled co-workers is not a factor that may be considered in an undue hardship analysis. Id. at 893; see also Schmidt v. Safeway Inc. 864 F. Supp. 991, 997 (D. Ariz. 1994) (whether a proposed program would undermine Defendants program "is not the sort of hardship the ADA envisions"). Defendants' undue hardship defense is absurd and a pretext for unlawful discrimination. There is significant countervailing evidence to the defense. On November 12, 2004, Defendants response when they were asked to explain their undue hardship defense was as follows:

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As of the drafting of this motion, the Defendants have not responded with any undue hardship. To allow them to develop an undue hardship in their response to this motion would be in violation of the Rule 16 Scheduling Order and would be clearly pretextual. Similarly, Defendant rejected Alex's request for reasonable accommodation without conducting any investigation into his disability.

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SOF ¶¶ 67-70. Further, Defendants cannot demonstrate that granting Alex's request would have an economic impact on its operations or be disruptive to its operations as required by the ADA.

SOF ¶ 30. Further, Defendants cannot demonstrate a legitimate business reason for refusing Alex's request as required by the ADA.

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SOF ¶¶ 30-31. It is clear that Defendants unwillingness to accommodate Alex is based on nothing more than their unwillingness to comply with the ADA.

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IV.

CONCLUSION The Court must enter judgment for Defendants failure to enter the interactive

process.

Defendants' undue hardship defense is without merit.

The defense is

unfounded, unsupported, and unsubstantiated.

All facts supporting this motion are

undisputed. Alex respectfully requests that the court grant a partial summary judgment for the Plaintiff on Defendants failure to provide a reasonable accommodation and enter the interactive process and Defendants' legitimate business reason and undue hardship defense. 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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