Free Objection - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona Bar Number 6835 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. Defendant, pursuant to the Court's June 13, 2007 order (Doc. #135 ), hereby submits his objections to Plaintiff's Proposed Jury Instructions. Defendant requests that the Court allow him to reserve the right to modify these objections subject to modifications of the Joint Pretrial Order lodged June 1, 2007, rulings on the motions in limine, and the evidence that is presented at trial. Plaintiff's Proposed Jury Instruction No. 1: Defendant objects to this instruction because the purpose of the Rehabilitation Act is not a relevant issue for the jury's consideration. A jury instruction regarding the Act's purpose could improperly influence the jury's deliberations. Plaintiff's Proposed Jury Instruction No. 2: Defendant objects to the inflammatory and inaccurate language proposed in this instruction. Plaintiff was not "kicked out" of the Post Office facility. He was told that he would not be allowed to work if he did not sign the light duty offer. Plaintiff refused the light duty offer. Defendant did not "fail to consider reasonable accommodations." Plaintiff requested certain options, such as leave, and temporary light duty, which were provided to Plaintiff to the extent he complied with applicable policies and procedures, and those were available. Further, implicit in this instruction is the assumption that the managing officials at the Postal Service knew
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CIV-04-0429-PHX-MHM DEFENDANT'S OBJECTIONS TO PLAINTIFF'S PROPOSED JURY INSTRUCTIONS

1 Plaintiff was disabled and/or that he was disabled. Finally, back pay is an equitable remedy 2 which the Court, not the jury decides. 3 Plaintiff's Proposed Jury Instruction No. 3: 4 Defendant has no strenuous objection to this instruction, but prefers the Model Ninth Circuit 5 instruction. 1/ 6 Plaintiff's Proposed Jury Instruction No. 4: 7 Defendant has no strenuous objection to this instruction, but prefers the Model Ninth

8 Circuit instruction. 9 Plaintiff's Proposed Jury Instruction No. 5: 10 Defendant requests the Model Ninth Circuit instruction.

11 Plaintiff's Proposed Jury Instruction No. 6: 12 Defendant does not object this instruction, but prefers the Model Ninth Circuit instruction.

13 Plaintiff's Proposed Jury Instruction No. 7: 14 Defendant objects to this instruction because it is confusing to group the two paragraphs

15 together. Further, the instruction should refer to the "Rehabilitation Act", not the "ADA." 16 Finally, Defendant asserts that these instructions are covered by the Model Ninth Circuit 17 Instructions, including 12.2 and 12.8, which are preferred. 18 Plaintiff's Proposed Jury Instruction No. 8: 19 Defendant objects to this instruction because it fails to state Plaintiff's burden of proof,

20 fails to identify the requested accommodation, and improperly identifies the defendant as "the 21 United States Postal Service" instead of the Postmaster General. Instead of this instruction, 22 Defendant requests that Model Ninth Circuit Instructions, 12.8 be tailored to this case. 23 Plaintiff's Proposed Jury Instruction No. 9: 24 25 one. 26 27 28
When Defendant requests that the Model Ninth Circuit Jury Instruction be given, it is intended that the instruction will refer to the "Rehabilitation Act" instead of the "ADA" and, as appropriate, the instruction be tailored to fit the evidence in this case.
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Defendant requests that Model Ninth Circuit Instructions, 12.6 be given instead of this

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1 Plaintiff's Proposed Jury Instruction No. 10: 2 Defendant requests the Court give Model Ninth Circuit Instruction 12.7 instead of this one.

3 Plaintiff's Proposed Jury Instruction No. 11: 4 Defendant objects to Plaintiff asserting that there was "a record of such an impairment"

5 because this was never raised in the Complaint or the EEO process. Plaintiff has failed to exhaust 6 his administrative remedy as to this claim­it was never investigated that there was a "record of 7 impairment" for Plaintiff's alleged disability. See e.g., Motion in Limine filed June 19, 2007 8 (Doc. # 137), incorporated by this reference. Further, Model Ninth Circuit Instructions, 12.2 is 9 preferable to this proposed instruction. 10 Plaintiff's Proposed Jury Instruction No. 12: 11 Defendant objects to this instruction because Plaintiff cites to outdated cases--the

12 appropriate leading case on this is Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 13 U.S. 184 (2002). Model Ninth Circuit Instruction 12.5 incorporates the appropriate standard from 14 that case, and is preferable to this instruction. 15 Plaintiff's Proposed Jury Instruction No. 13: 16 17 12.2. 18 Plaintiff's Proposed Jury Instruction No. 14: 19 Defendant reserves the right to object to this instruction until after the evidence is heard Defendant objects to this instruction, which is covered by Model Ninth Circuit Instruction,

20 in this case. Some or all of the instruction may not be relevant to this trial. 21 Plaintiff's Proposed Jury Instruction No. 15: 22 Defendant objects to this instruction, which is covered by Model Ninth Circuit Instruction,

23 12.8, and should be tailored according to the evidence adduced at trial. 24 Plaintiff's Proposed Jury Instruction No. 16: 25 Defendant objects to this instruction and requests that the Court give Defendant's

26 Proposed Jury Instruction No. 13. Plaintiff's Proposed Instruction No. 16 is confusing and 27 misleading because it places the onus on the employer to engage in the interactive process, and 28 does not appropriately state the burden for the Plaintiff. For example, this isntruction doe not 3
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1 discuss that the employee's preferences are considered, but do not always control the 2 accommodation. Nor is it clear when the employer is required to perceive the need for an 3 accommodation. From this instruction, the jury is unable to determine what is a "reasonable 4 accommodation." Defendant reserves the right to object further to this instruction after the close 5 of evidence. 6 Plaintiff's Proposed Jury Instruction No. 17: 7 8 12.9. 9 Plaintiff's Proposed Jury Instruction No. 18: 10 Defendant objects to this instruction because it is not relevant, and is confusing and Defendant objects to this instruction, which is covered by Model Ninth Circuit Instruction,

11 misleading. Plaintiff has asserted no claim that the Defendant improperly inquired about his 12 medical status. Defendant further reserves the right to object to this instruction after the evidence 13 is closed. 14 Plaintiff's Proposed Jury Instruction No. 19: 15 Defendant objects to this instruction because it is not properly a matter for the jury. This

16 instruction is prejudicial, improper, and confusing. The court decides equitable remedies, 17 including back pay. The juries only role is to decide compensatory damages. 18 Plaintiff's Proposed Jury Instruction No. 20: 19 Defendant objects to this instruction and requests that the Court give Defendant's

20 Proposed Instruction No. 17. Defendant further reserves the right to identify further objections 21 to this instruction after the close of evidence. 22 Plaintiff's Proposed Jury Instruction No. 21: 23 Defendant has no strenuous objection to this instruction, but prefers the Model Ninth

24 Circuit Instruction on this issue. 25 Plaintiff's Proposed Jury Instruction No. 22: 26 Defendant has no strenuous objection to this instruction, but prefers the Model Ninth

27 Circuit Instruction on this issue. 28 Respectfully submitted this 19th day of June, 2007. 4
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DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on June 19, 2007, I electronically transmitted the attached document 3 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 A. Patterson 5 Rosval Thomas Rd. 777 E. 6 Phoenix, AZ 85014 s/S. Guerin 7 ________________________________ 8 Office of the U.S. Attorney 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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