Free Motion in Limine - 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, John E. Potter, Postmaster General, hereby requests that the Court exclude all argument or evidence that Plaintiff's 28, 2002 removal from the Postal Service was based upon his disability or that he is entitled to damages arising from the termination. Plaintiff tried and failed once before to amend his complaint to include such claims. His renewed attempts on the eve of the trial to expand the scope of this litigation should be precluded. This motion is filed pursuant to the Court's June 13, 2007 order (Doc. #135 ) and more fully set forth in the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION: The remaining claims in this action, filed on March 8, 2004, are those pursuant to the Rehabilitation Act. [Doc. # 88 (dismissing ADA claim); Doc. # 74 (granting request to dismiss sex discrimination, national origin claims).] Plaintiff's claims have involved his acceptance of temporary light duty offers while working at the Defendant's Priority Mail Postal Processing Center ("PMPPC") between approximately October 2001 and March 2002. During that time, Plaintiff claims that the Postal Service failed to accommodate him and discriminated against him on the basis of disability. [Complaint, ¶¶ 9-29, 44-47.] Now, on the eve of trial and via
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CIV-04-0429-PHX-MHM DEFENDANT'S MOTION IN LIMINE Re: TERMINATION CLAIMS

1 assertions in the Joint Pretrial Order (the "PTO"), Plaintiff has attempted to expand the scope of 2 his disability claims to include his termination.
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As set forth below, these claims cannot

3 proceed to trial because they are barred for Plaintiff's failure to exhaust administrative remedies 4 regarding these claims, and because the Court already precluded Plaintiff's attempt to amend his 5 complaint to include such claims. Further, allowing these claims at this late date would prejudice 6 Defendant, such as requiring additional preparation for trial, including exhibits and witnesses. 7 II. FACTS: 8 9 10 A. BACKGROUND RE: MOTION IN LIMINE: Plaintiff alleges disability discrimination because: · he has a disability which renders him substantially limited in a major life activity.

11 [Complaint, ¶ 9.] 12 · the Postal Service regarded him as having an impairment that prevented him from

13 performing the duties of his position. [Complaint, ¶ 10.] 14 · his left knee patello-femoral was aggravated by work as a distribution clerk.

15 [Complaint, ¶ 31.] 16 · his doctor opined that he could perform his job if he could sit in a soft cushion

17 chair for 15-30 minutes after standing for 1 hour. [Complaint, ¶ 32.] 18 · in October 2001, he was placed on a permanent restriction that required him to

19 sit on a soft cushion chair for fifteen to thirty minutes after standing for one hour so that he could 20 perform his duties. [Complaint, ¶¶ 17-18.] 21 · Plaintiff's facility manager (Humberto Trujillo) "refused to accommodate [him]

22 and started sending [him] home." [Complaint, ¶ 19.] 23 · on March 5, 2002, his work hours were changed to a different shift, with different

24 days off, and "only four hours and NO GUARANTEE OF HOURS." [Complaint, ¶ 20.] 25 26 27 28
According to Ninth Circuit law, the Pretrial Order controls the litigation and supercedes the pleadings. DP Aviation v. Smiths, 268 F.3d 829, 842, n. 8 (9th Cir. 2001).
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· Plaintiff would not sign the documents reflecting the change in his hours "that

2 he had bid for indefinitely" and he was ordered out of the facility in which he had been working. 3 [Complaint, ¶¶ 21-24.] 4 5 34-38.] 6 The Complaint in this action never even mentions the words "termination" or "removal," · Plaintiff was not provided with reasonable accommodations. [Complaint, ¶¶

7 which occurred on September 28, 2002, and certainly never alleges that Plaintiff was removed 8 on the basis of his alleged disability. On February 7, 2006, Plaintiff filed a motion for leave to 9 amend his complaint and lodged a proposed amended complaint (Am. Com.) in an effort to 10 expand the scope of the litigation to include claims for retaliation and under the Family Medical 11 Leave Act (FMLA). [Doc. #42.] In sharp contrast to the Complaint that should control this 12 action at trial, Plaintiff's proposed amended complaint included language that: 13 · his "unlawful termination or constructive termination of her (sic) employment

14 violates the laws of the [FMLA]" [Proposed Am. Complaint, ¶ 84]; 15 · "Defendant's unlawful termination of Plaintiff's employment or constructive

16 termination of employment on account of his physical disability." [Proposed Am. Complaint, ¶ 17 85]. The Court denied Plaintiff's motion to amend, stating that "Plaintiff has not demonstrated 18 good cause for the belated motion to file an amended complaint." [Doc. # 61, p. 3, ll. 14-15.] 19 Undaunted by this unsuccessful attempt to amend his complaint to include claims regarding his 20 termination, Plaintiff has most recently interjected such claims into the parties' proposed Joint 21 Pretrial Order (PTO) lodged on June 1, 2007 by claiming: 22 · that the nature of his lawsuit involves discrimination claims, which include but

23 are not limited to, "failure to make reasonable accommodation placement on disability leave." 24 [PTO, p. 3, ll. 15-16.] 25 · that the third element of his prima facie case under the Rehabilitation Act must

26 show that "he was dismissed solely because of his disability." [PTO, p. 4, ll. 11-12]; 27 · one of the asserted factual issues in dispute is "whether Plaintiff was dismissed

28 solely because of this disability." [PTO, p. 6, ¶ 11.] 3
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The PTO included the parties' proposed exhibits in which, Plaintiff identified Exhibit

2 "P-38", a letter from Plaintiff's psychiatrist dated May 25, 2007. This exhibit, which was not 3 disclosed until the day the Joint PTO was due, is a letter presumably drafted and signed by 4 Plaintiff's psychiatrist opining that Mr. Jung's problems were "directly attributable to the fall out 5 of his wrongful termination from the USPS." [See Plaintiff's Seventh Disclosure dated June 1, 6 2007; (Emphasis added.).] 7 Finally, Plaintiff's Proposed Verdict Form includes language that "plaintiff's disability

8 was the determining factor in the defendant's decision to fire the plaintiff." [Doc. # 128, p. 2, ¶ 9 4.] 10 11 B. BACKGROUND RE: PLAINTIFF'S LIGHT DUTY: Plaintiff bid for and began his job as a Manual Distribution Clerk at the PPMPPC in

12 January 2001. In February, 2001, Plaintiff requested and was awarded temporary light duty. On 13 March 6, 2001 Plaintiff's temporary light duty restrictions were lifted and he was authorized to 14 and returned to regular work duties. Approximately six months after Plaintiff's return to full duty 15 (September 25, 2001), he again requested temporary light duty. Between December 2001 and 16 February 2002, Plaintiff requested and received three more temporary light duty requests. 17 On or about March 5, 2002, Supervisor Camper offered Plaintiff a temporary light

18 duty assignment with a limitation of 4 hours based upon restrictions received from the Medical 19 Unit. Plaintiff advised Supervisor Camper that Plaintiff did not have a four hour work restriction. 20 Supervisor Camper understood that the Medical Unit's documentation restricted Plaintiff to four 21 hours of work per shift. Plaintiff refused this offer. 22 After Supervisor Camper received clarification about the 4 hour work limitation, he

23 offered another temporary light duty offer. Plaintiff refused this offer, and subsequently absent 24 without being on approved leave. 25 Plaintiff was sent a duty status letter on May 19, 2002, which included a request that he

26 contact a supervisor and provide documentation in support of his absences. Plaintiff requested 27 and received leave from May 28, 2002 until June 29, 2002, and was advised to report to the 28 PPMPPC on July 1, 2007. Plaintiff never requested to be approved for leave after June 29, 2002, 4
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1 and failed to report to the PPMPPC. Instead, Plaintiff was married on June 15, 2002 in 2 California, where he began working. 3 On July 18, 2002 Plaintiff was sent a letter that he was considered to be AWOL since July

4 1, 2002 and that he was scheduled for a fact-finding regarding these absences on July 23, 2002. 5 Plaintiff did not attend the fact-finding or notify the postal Service that he was unable to attend. 6 On August 21, 2002, Plaintiff was sent a notice of removal, advising that he would be

7 removed effective September 28, 2002, and advised Plaintiff (who was represented by counsel) 8 that he had a right to file a grievance. Plaintiff did not respond to the notice of removal and was 9 removed on September 28, 2002. 10 11 12 C. BACKGROUND RE PLAINTIFF'S EEO CLAIMS:

EEO Complaint No. 1E-851-0003-02 (EEO #1): Nearly one year before Plaintiff's removal, on October 11, 2001, he contacted an EEO

13 counselor and filed an informal complaint of discrimination on the basis of physical disability 14 alleging that his work hours were changed and that he was told to leave work early and take 15 leave. Plaintiff's EEO request for counseling was issued a case number (#1E-851-0003-02) 16 (EEO #1) on November 28, 2001. 17 Plaintiff's formal complaint, filed on January 13, 2002, alleged that the Postal Service

18 employee who committed discrimination was the PPMPPC facility manager, Humberto Trujillo, 19 that Plaintiff had a disability that existed since 1996, and that Postal Service failed to 20 accommodate him per his doctor's recommendation in September 2001. Plaintiff was represented 21 by counsel from January 13, 2002 throughout the administrative process. 22 On October 29, 2002, Plaintiff answered the investigator's interrogatories regarding the

23 claims in EEO #1. Plaintiff's responses included: 24 · that he filed a complaint of discrimination regarding his work hours because in

25 October 2001 Trujillo would not let him use a soft cushion chair and he was not given sufficient 26 work, violating the ADA requirements that the Postal Service enter into a flexible interactive 27 process and make reasonable accommodations; 28 5
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· that he was claiming discrimination in violation of the ADA because his hours

2 were changed and days off changed and only 4 hours of work. On advice of the Union, Plaintiff 3 did not sign the light duty offer; and 4 · that his disability was "bi-lateral knee and lower back pain that inhibited him

5 from performing manual tasks, walking and lifting" and from standing for long period of time 6 without a 15-30 minute break. 7 In EEO #1, Plaintiff did not include any claims about his removal, even though he had

8 been terminated more than a month before he filed his affidavit regarding his claims in that case. 9 10 EEO Complaint No. 1F-851-002-03 (EEO #2): Two days after Plaintiff's removal, he contacted the EEO office with allegations of

11 discrimination. On October 8, 2002, Plaintiff, through his attorney Rosval Patterson, agreed to 12 participate in an alternative dispute process under 29 C.F.R. § 1614.105(f) instead of the 13 counseling process. On the same day, Plaintiff claimed in an informal complaint that he had been 14 discriminated against by Mr. Trujillo on the basis of national origin, sex, physical disability, and 15 retaliation (prior EEO #1) because: 16 · On October 29, 2001 he was not allowed to sit for 15-30 minutes and not

17 provided with a soft cushion chair. 18 19 · On March 5, 2002, his work hours were changed. · On April 10 2002, he was sent home from work and told not to return until

20 otherwise advised. 21 · On September 3, 2002 Plaintiff received a notice of Removal Letter notifying

22 him that he was to be removed from the Postal Service on September 28, 2002 for 23 attendance/absence notification issues. 24 Plaintiff withdrew from the mediation process and was sent a "Notice of Final

25 Interview/Notice of Right to File Individual Complaint" dated December 6, 2002 (the Notice). 26 The Notice reiterated the issues in the informal complaint for E"Eo #2, and specifically advised 27 that the removal issue was different than those in EEO #1, the other issues might be "like or 28 related to the issues in [EEO # 1] which is currently under investigation," about which the Area 6
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1 Manager would make a determination, but that a formal complaint must be filed within 15 2 calendar days of receiving the notice. 3 Plaintiff's counsel received the notice on December 9, 2002 and never filed a formal

4 complaint. Thus the removal claim was never investigated at the administrative level. Nor did 5 Plaintiff allege in his District Court Complaint that his removal was based upon discrimination 6 of any type. 7 III. LEGAL ARGUMENT 8 9 A. PLAINTIFF'S TERMINATION CLAIMS ARE BARRED. In order to properly bring a suit in federal court under the Rehabilitation Act, a federal

10 employee must first exhaust available administrative remedies. Sommatino v. United States, 255 11 F.3d 704 (9th Cir. 2001); Greenlaw v. Garrett, 59 F.3d 994 (9th Cir. 1995); Boyd v. United States 12 Postal Service, 752 F.2d 410 (9th Cir. 1985). A plaintiff's failure to exhaust administrative 13 remedies deprives the court of subject matter jurisdiction. EEOC v. Farmer Bros. Co., 31 F.3d 14 891, 899 (9th Cir. 1994). The Supreme Court has held the failure to bring a timely administrative 15 complaint to the Equal Employment Opportunity Commission is not a jurisdictional prerequisite, 16 but instead is a statutorily-imposed requirement subject to waiver, estoppel and equitable relief. 17 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982). The jurisdictional scope of the 18 plaintiff's court action depends on the scope of the EEOC charge and investigation. EEOC v. 19 Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th 20 Cir. 1990). 21 The exhaustion requirement consists of two elements: "'the jurisdictional' non-waivable

22 requirement of presentment of the claim . . . (presentment); and (2) the 'waivable' requirement of 23 exhaustion of administrative remedies (exhaustion)." Cassim v. Bowen, 824 F.2d 791, 794 (9th 24 Cir. 1987) (action by doctor challenging suspension from Medicare); Mathews v. Eldridge, 424 25 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (action for Social Security benefit payments). 26 If a plaintiff fails to present a claim to the appropriate administrative agency, the defendant

27 agency may not waive or be estopped from asserting the exhaustion requirement. Macy v. 28 Dalton, 853 F. Supp. 350 (E.D.Cal., 1994). A plaintiff is not entitled to judicial relief for a 7
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1 supposed or threatened injury until the prescribed administrative remedy has been exhausted. 2 Judicial intervention in uncompleted administrative proceedings, absent a statutory mandate, is 3 strongly disfavored. Bakersfield City School Dist. Of Kern County v. Boyer, 610 F.2d 621 (9th 4 Cir. 1979) If a claim was never presented to the federal agency, then the district court is deprived 5 of jurisdiction and equitable considerations cannot remedy the lack of jurisdiction. However, once 6 the claims are presented to the agency, the exhaustion requirements are judicially imposed and 7 subject to equitable considerations. Among the judicially imposed exhaustion requirements 8 recognized by the Ninth Circuit, one is that a claimant cannot abandon her claims before a final 9 decision is reached. Allowing claimants who abandon their claims in front of the administrative 10 agency to proceed in federal court would frustrate the congressional policy favoring 11 administrative resolution of complaints for no discernible reason. Harris v. U.S., 919 F. Supp. 343 12 (S.D.Cal., 1996). 13 Under Federal Rule of Civil Procedure 12(b)(1), a court will dismiss claims over which

14 it lacks proper subject matter jurisdiction. The court lacks subject matter jurisdiction over 15 Plaintiff's removal claim due to his failure to exhaust his administrative remedies. This Court 16 has instructed that full administrative exhaustion is not jurisdictional, but is a condition precedent 17 to filing an action and is subject to equitable relief. Vinieratos v. United States, 939 F. 2d 762 18 (9th Cir. 1991). However, the Court has also taught that "substantial compliance with the 19 presentment of discrimination complaints to an appropriate administrative agency is a 20 jurisdictional prerequisite," Sommatino, 255 F.3d at 708, and "abandonment ... in the

21 administrative process ... precludes judicial review." Id., citing Greenlaw, 59 F.3d at 1000; 22 Tanious v. I.R.S., 915 F.2d 410, 411 (9th Cir. 1990). 23 In Leong v. Potter, 347 F. 3d 1117, (9th Cir. 2003), the district court properly dismissed,

24 under Fed. R. Civ. P. 12(b)(1), a former postal employee's claim under 29 USCS § 794 of 25 Rehabilitation Act, 29 USCS §§ 701 et seq. The district court held that it lacked jurisdiction 26 because the employee did not exhaust his administrative remedies as to that claim. The court 27 found that the employee's disability claim, which was never investigated at the administrative 28 level, differed substantially from race, color, religion, sex, and national origin discrimination 8
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1 claims he presented to Equal Employment Opportunity Commission. The district court did not 2 abuse its discretion in failing to employ doctrine of equitable estoppel or equitable tolling to allow 3 employee's claim. Disability discrimination was not investigated by the EEOC, and such an 4 investigation could not have been reasonably expected to grow out of Leong's charges. Nothing 5 in Leong's affidavit would have led the EEOC to suspect that he was disabled or had been 6 subjected to disability discrimination. 7 Here, Plaintiff has failed to comply with the jurisdictional prerequisite of putting the

8 Agency and the EEOC on notice about his allegations that the Postal Service discriminated 9 against him on the basis of his disability when he was terminated for being AWOL. It is 10 undisputed that Plaintiff did not include any claims about his removal in EEO #1, and that his 11 removal was not investigated. Instead, Plaintiff's claims that he did advance, such as his change 12 in work hours, being told to leave early, and not being allowed to sit in a soft cushion chair were 13 investigated. Even though Plaintiff had been terminated more than a month before his attorney 14 submitted Plaintiff's affidavit in EEO#1, there was no mention of his removal. Nor did Plaintiff 15 seek to amend EEO#1 to include the removal action. Plaintiff's removal claim was, therefore, not 16 investigated by the Agency. 17 In EEO #2, Plaintiff, through his attorney, alleged discrimination by Mr. Trujillo on a

18 variety of basis including physical disability. It is undisputed that Plaintiff sought counseling on 19 the removal. However, seeking counseling is insufficient to satisfy the exhaustion of remedies 20 requirement at the administrative level. It is also undisputed that Plaintiff was familiar with the 21 EEO procedure for filing administrative complaints. Further, after Plaintiff withdrew from the 22 mediation process, he was specifically advised that the removal issue was different than those in 23 EEO#1, which was in the process of being investigated. Plaintiff was told that a formal 24 complaint must be filed within 15 calendar days of receiving the notice. 25 Plaintiff had both actual and constructive notice of the fact that the removal was not like

26 or related to his other issues. It is at this point where Plaintiff completely abandoned the 27 administrative process regarding his removal. 28 9
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It is undisputed that Plaintiff's counsel received the notice on December 9, 2002. and that

2 Plaintiff and his attorney were advised that a formal complaint must be field within 15 days of 3 receipt of that notice, or it would be deemed untimely. It is undisputed that Plaintiff never filed 4 a formal EEO complaint and the removal claim was never investigated at the administrative level. 5 Plaintiff's removal claim should not be allowed to proceed at this late date in federal court.

6 The Supreme Courts' pronouncement in National Railroad Passenger Corp. v. Morgan, 536 U.S. 7 101, 122 S.Ct. 2061, 153 L.Ed.2d 106, (2002), effected fundamental changes to the doctrine 8 allowing administratively unexhausted claims in a Title VII action. Under Morgan, each discrete 9 incident of discrimination constitutes its own "unlawful employment practice" for which 10 administrative remedies must be exhausted. Id. At 110-113. "Discrete acts such as termination, 11 failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of 12 discrimination and each retaliatory adverse employment decision constitutes separate actionable 13 `unlawful employment practices'." Id. at 114. 14 In Morgan, the rule applied to bar plaintiff from suing on claims for which no

15 administrative remedy had been sought when those incidents occurred more than 300 days prior 16 to the filing of the EEO complaint. Had Plaintiff raised the removal issue previously, the EEOC 17 may have been put on notice and had an opportunity to investigate this claim. However, he failed 18 to do so. As such, the Agency is prejudiced should he be allowed to litigate his claim for the first 19 time in federal district court. 20 Plaintiff cannot argue that he is subject to equitable tolling as to his removal claim.

21 Equitable tolling focuses on a plaintiff's excusable ignorance and lack of prejudice to the 22 defendant. Santa Maria v. Pacific Bell, 202 F.3d at 1176 (9th Cir. 2000). The doctrine of equitable 23 tolling "has been consistently applied to excuse a claimant's failure to comply with the time 24 limitations where she had neither actual nor constructive notice of the filing period." Leorna v. 25 U.S. Dept. Of State, 105 F.3d 548 (9th Cir. 1997). "If a reasonable plaintiff would not have known 26 of the existence of a possible claim within the limitations period, then equitable tolling will serve 27 to extend the statute of limitations . . . until the plaintiff can gather what information he needs." 28 Santa Maria v. Pacific Bell, 202 F.3d at 1178. "The time period for filing a complaint of 10
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1 discrimination begins to run when the facts that would support a charge of discrimination would 2 have been apparent to a similarly situated person with a reasonably prudent regard for his rights." 3 Boyd at 414. 4 However, "once a claimant retains counsel, tolling ceases because she has gained the

5 means of knowledge of her rights and can be charged with constructive knowledge of the law's 6 requirements." Leorna at 551 (internal citations omitted). Here, Plaintiff at all times was 7 represented by legal counsel. Plaintiff was initially represented by attorney Alex Harris, but later, 8 substituted attorney Rosval Patterson as his representative. 9 B. PLAINTIFF'S TERMINATION CLAIMS WERE ALREADY PRECLUDED WHEN

10 THE COURT DENIED HIS MOTION TO AMEND. 11 Plaintiff previously tried and failed to include claims in this action that arose from his

12 termination. In sharp contrast to the Complaint that has controlled this action until the PTO was 13 submitted to the Court on June 1, 2007, the proposed amended complaint alleged that Plaintiff's 14 termination was based upon his disability, and sought to include claims under the Family Medical 15 Leave Act and for retaliation. On April 13, 2006, the Court found that "Plaintiff [had] not 16 demonstrated good cause for the belated motion to file an amended complaint." [Doc. # 62, p. 3 17 ll. 14-15.] 18 IV. CONCLUSION: 19 Based upon the foregoing, it is hereby requested that the Court enter an order precluding

20 any argument or evidence that Plaintiff's removal was the result of disability discrimination. 21 22 23 24 25 26 27 28 11
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Respectfully submitted this 19th day of June, 2007. 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 12
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