Free Response in Opposition to Motion - 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 FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANTS MOTION IN LIMINE Re: TERMINATION CLAIMS

Plaintiff, Alexander Jung, submits this response to Defendants Motion in Limine
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respectfully requesting that this Court deny Defendants motion. This motion is supported by the following Memorandum of Points and Authorities. Dated this 26th day of June, 2007 s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES FACTS: EEO INVESTIGATIVE REPORT · On April 11, 2002, Mr. Jung filed a complaint with the U. S. Postal Service EEO, Case # 1E-851-003-02. On March 5, 2002, management presented Mr. Jung with a statement that stated, "change of work hours from 3:00

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p.m. to 00:01 a.m. and days off from Saturday/Sunday to Monday/Thursday, and only 4 hours and NO GUARANTEE OF HOURS. · Mr. Jung was instructed to sign this statement and that if he did not sign it, he would not be allowed back in the PMPPC facility. Mr. Jung refused to sign on advice of the Union. · On April 10, 2002, Mr. Jung returned to the PMPPC. Mr. Jung informed

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Dave Brown, the union steward, and Bob (last name unknown), a manager, that he was there to work and was willing to sign the letter. · Bob was unable to locate the letter and told Mr. Jung to start working and that he would find the letter so Mr. Jung could sign it. · After working to two hours, Mr. Trujillo approached Mr. Jung and told him that he would not be paid for working that day and that he had to leave. · Mr. Jung was told not to return to the PMPPC until management informed him that they had located the No Guarantee of Hours Letter. (Emphasis added).
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· Mr. Jung and was never suspended. He was told to leave the PMPPC without any explanation. DEFENDANTS NOTIFICATION OF CLAIM 1. Plaintiff Complaint; Filed March 1, 2004 · Defendants have intentionally discriminated against Plaintiff because of his disability in regard to the terms, conditions and privileges of employment. Such discrimination includes, but is not limited to, failure to make reasonable accommodation and placement on disability leave.

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Complaint p. 3, ll, 9-12.
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· Defendants ordered Plaintiff out of the PMPPC facility. Complaint p.4, l, 6. · Humberto Trujillo otherwise adversely affect his status as an employee, because of his disability. Complaint p.5, l, 24-25. · Defendants have intentionally discriminated against Plaintiff because of his disability in regard to the terms, conditions and privileges of employment. Such discrimination includes, but is not limited to, failure to make reasonable accommodation and placement on disability leave. Complaint p.6, ll, 8-11. · Order Defendants to make whole Alexander Jung by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of above, including damages for emotional pain and suffering, including but not limited to anguish, distress, humiliation, embarrassment, anxiety and ordeal, in amounts to be determined at trial. Complaint p.7-8, ll, 24-2. 2. Joint Proposed Case Management Plan; Filed August 30th, 2004
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· Defendants have intentionally discriminated against Plaintiff because of his disability in regard to the terms, conditions and privileges of employment. JPCMP, p. 2, ll, 10-12. · Defendant demanded that Plaintiff sign the change of hour's document and if he did not sign, he would not be allowed back into the PMPPC facility. JPCMP, p. 2, ll, 21-25. · Defendants ordered Plaintiff out of the PMPPC facility. JPCMP, p. 2, ll, 2-3.

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· Defendants have intentionally discriminated against Plaintiff because of his disability in regard to the terms, conditions and privileges of

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employment. JPCMP, p. 3, ll, 19-21. · Such discrimination includes, but is not limited to, failure to make reasonable accommodation and placement on disability leave. JPCMP, p. 3, ll, 21-22. 3. Deposition of Alex Jung; Taken July 26, 2005.
All right. You think you're discriminated

against because you're a veteran? A. Because I'm a disabled 20 percent,

service-connected veteran, yes, I do.

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And what specific instances would lead you to

believe that that's true? When I clearly see that other people on light

duty getting a full eight hours and yet I was told to leave, kicked out of the building because there was no

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job for me. Page 141

ARGUMENT: I. Plaintiff has exhausted his administrative remedies.

The jurisdictional scope of the court action depends upon the scope of both the EEOC charge and the EEOC investigation. EEOC v. Farmer Bros. Co., 31 F.3d at 899. The Court has subject matter jurisdiction over all claims that were within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charges of discrimination. Id. The EEOC charge is to be construed with the utmost liberality. Id. Alex's theory has always been that the Postal Service has forced him out of building because of his disability. The "statement" which change his work hours from 3:00 p.m. to 00:01 a.m. and days off from Saturday/Sunday to Monday/Thursday, and only 4 hours and NO GUARANTEE OF HOURS´ was based on his disability as was nforming Alex not to return to the PMPPC until management informed him that they had located the No Guarantee of Hours Letter. The inability to re-enter the building adversely affect his status as an employee, because of his disability. The decision to ban him from the building is clearly related to his failure to accommodate claim. The EEO would have had to investigate the date he was not allowed back into the building up and until the date he is allowed back into the building. The removal from the building and thus not allowing Alex to work was an integral part of the United States Postal Service's discriminatory scheme, it was reasonably related to Alex's charge of discrimination. Not only did the EEO charge provide adequate notice to USPS of Alex's discriminatory claim that he was not allowed back into the building, or termination claim, but also in order to evaluate (or even to understand) Alex's theory of the case, it would be

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necessary for the EEO to investigate the circumstances of Alex's termination. Accordingly, the district court has the right to exercise jurisdiction over Alex's termination claim. II. Defendants have been placed on notice of a termination claim.

A complaint in federal court must satisfy only the minimal notice requirements of Fed.R.Civ.P. 8(a)(2). That is, it need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Potter v. Jones, 319 F.3d 483, 494 (9th Cir.2003). Notice pleading requires a plaintiff to provide only the bare outlines of his or her claim. "Except when specific pleading is required ... evidentiary facts need not be set forth in the complaint ... [f]ederal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims ... [t]hus, to the extent that a complaint lacks detail that the defendants believe they need to investigate the claims and prepare their defense strategy, they can obtain such detail readily through interrogatories or early depositions." Bautista v. Los Angeles County, 216 F.3d 837, 843 (2000). While the Complaint fails to expressly use the words "Termination", defense counsel can hardly claim surprise or lack of notice that Plaintiff is pursuing a termination claim in this lawsuit against Defendant in light of the above-quoted language in Plaintiff's EEOC Charge, Plaintiff's deposition and defense counsel's express acknowledgment in the parties' Rule 26(f) Joint Proposed Case Management Plan. Plaintiff presented explicit allegations of forced removal from the USPS to the EEO and described adverse employment actions he allegedly sustained in the Rule 26(f) Joint Proposed Case Management Plan and in his deposition. Because of express Ninth Circuit authority requiring the liberal construction of EEO charges when determining whether Plaintiff's claims are reasonably related to those EEO charges, Yamaguchi, 109 F.3d at 1480, the Court is compelled to conclude that Plaintiff's allegations in his Complaint, Rule 26(f)

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Joint Proposed Case Management Plan and in his deposition, are "reasonably related" to Plaintiff's allegations of unlawful discrimination based on his removal from the United State Post Office on the basis of his disability. If Defendants desired more specificity of exactly how they are alleged to have violated the Rehabilitation Act prior to the Final Pretrial order they should have timely implemented interrogatories pursuant to Rule 33, Fed.R.CIV.P., requesting those details.

CONCLUSION: Defendant's motion must be denied. Plaintiff has exhausted his administrative remedies and provided Defendants with adequate notice of a termination claim based on discrimination.

Dated this 26th day of June, 2007 s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 26th of June, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] A copy of this document was provided by mailed to: The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:

s/Stephanie Coulter Stephanie Coulter

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