Free Lodged Proposed Document - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. CIV-04-0429-PHX-MHM PARTIES' JOINT PROPOSED PRETRIAL ORDER UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

13 A. TRIAL COUNSEL FOR THE PARTIES 14 15 16 17 18 19 Plaintiff: Rosval A. Patterson 777 E. Thomas Rd. Phoenix, AZ 85014 Defendant: Suzanne M. Chynoweth 40 North Central Avenue,. #1200 Phoenix, Arizona 85004

20 B. STATEMENT OF JURISDICTION 21 22 Plaintiff: Plaintiff states that jurisdiction of this Court is invoked pursuant to 28 U.S.C.

23 §§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to the 24 Vocational Rehabilitation Act of 1983 ("Rehabilitation Act") and 42 U.S.C. § 2000e-(5) 28 25 U.S.C. §§ 1331 and 1343 and (4) 1332. 26 Defendant: agrees that this Court has jurisdiction over Defendant pursuant to 42 27 U.S.C. § 2000(e)-16(c) and the Rehabilitation Act of 1973 as amended 29 U.S.C. §§ 791, 28 794a. Defendant asserts that any of Plaintiff's claims arising out of or related to his

Case 2:04-cv-00429-MHM

Document 124

Filed 06/01/2007

Page 1 of 36

1 termination, including damages after his termination on September 28, 2002, are barred 2 because they were not timely and properly brought in 1E-851­0003-02 (EEO #1) which is the 3 basis for this lawsuit. Thus Plaintiff failed to exhaust his administrative remedies, a 4 prerequisite to his filing a Title VII claim in this Court. See Vinieratos v. United States, 939 5 F.2d 762 (9th Cir. 1991); Greenlaw v. Garrett; 59 F.3d 994 (9th Cir. 1995). As detailed 6 below, the barred claims include those involving his termination from the Postal Service 7 because that was raised in an informal EEO complaint filed in 1F-851-002-03 which Plaintiff, 8 who was represented, never pursued administratively by a filed formal complaint. 9 C. NATURE OF ACTION 10 11 Plaintiff's Claims: Alexander Jung ("Plaintiff" or "Jung") is a service connected Disabled Veteran, a

12 citizen of the United States and a resident of the State of Arizona. Plaintiff suffers from a 13 disability which renders him substantially limited in a major life activity of walking and 14 lifting. Additionally, Plaintiff has a disability within the meaning of Section 504 of the 15 Rehabilitation Act, because his employer regarded him as having an impairment that prevents 16 him from performing the duties of his position. Furthermore, Plaintiff is a qualified individual 17 with a disability within the meaning of Section 504 of the Rehabilitation Act, because he is 18 otherwise qualified for the position and can perform the essential functions of the job with or 19 without accommodation. On or about December 14, 2000, Dr. Chris Reust diagnosed 20 Plaintiff with Chondromalacia of the Patella, a disabling condition. 21 Plaintiff became an employee of the defendants in 1994. During that time Plaintiff's

22 work performance consistently met performance standards. On approximately February, 2001, 23 Plaintiff was transferred to a new location at Defendant's Priority Mail Postal Processing 24 Center ("PMPPC"). Plaintiff had problems adjusting to the PMPPC location because of his 25 disability. On October 29, 2001, Plaintiff was placed on a permanent work restriction. The 26 restriction required Plaintiff to sit in a soft cushion chair for fifteen to thirty (15-30) minutes 27 after standing for one (1) hour. Humberto Trujillo the PMPPC Manager refused to 28 accommodate Plaintiff and started sending Plaintiff home. On March 5, 2002 Defendants 2
Case 2:04-cv-00429-MHM Document 124 Filed 06/01/2007 Page 2 of 36

1 changed Plaintiff work hours from 3:00p.m. to 00:01a.m.; days off from Saturday/Sunday to 2 Monday/Thursday; and only 4 hours and NO GUARANTEE OF HOURS. Defendant 3 demanded that Plaintiff sign the change of hour's document and if he did not sign, he would 4 not be allowed back into the PMPPC facility. This letter would have changed Plaintiff's hours 5 that he had bid for indefinitely. Plaintiff refused to sign the statement regarding the new 6 hours. Defendants ordered Plaintiff out of the PMPPC facility. 7 Defendant unilaterally determined they would not be able to accommodate Plaintiff at

8 the PMPPC. Defendant unilaterally determined that they would not be able to accommodate 9 Plaintiff at any location within the PMPPC. Defendants did not engage in any discussion with 10 Plaintiff to attempt to problem solve Plaintiff's need for accommodation at the PMPPC. 11 Plaintiff was not offered any alternative arrangements at the PMPPC to accommodate his 12 disability. Plaintiff was not offered any alternative arrangements for any of the positions at the 13 PMPPC. Defendants have intentionally discriminated against Plaintiff because of his 14 disability in regard to the terms, conditions and privileges of employment. Such 15 discrimination includes, but is not limited to, failure to make reasonable accommodation and 16 placement on disability leave. 17 18 Defendant's Claims: This is a discrimination case in which the only remaining claims are Plaintiff's

19 allegations that the Postal Service failed to accommodate his alleged disability and 20 discriminated against him in not finding suitable work from March 15, 2002 through 21 September 28, 2002 at one of the Postal Service facilities known in early 2002 as the Phoenix 22 Priority Mail Postal Processing Center (PPMPPC). In reality, Plaintiff never put the Postal 23 Service on notice that he had a disability and therefore needed a special accommodation so 24 that he could do his job as a manual distribution clerk. Plaintiff cannot establish the necessary 25 elements for a prima facie case regarding disability discrimination for the relevant time 26 periods: 27 (1) Plaintiff did not have a physical impairment substantially limiting one or more 28 major life activities (here lifting, walking, standing); 3
Case 2:04-cv-00429-MHM Document 124 Filed 06/01/2007 Page 3 of 36

1

(2) Plaintiff could not perform the essential functions of his position as a Level 5

2 Manual Distribution Clerk at the PPMPPC, the facility to which he had bid;1/ 3 (3) The Postal Service's actions against Plaintiff, of which Plaintiff complains were

4 not effected, because he was disabled. 5 As set forth below, Defendant also asserts affirmative and other defenses.

6 D. CONTENTIONS OF THE PARTIES 7 8 9 Plaintiff's Contentions: REHABILITATION ACT To make out a prima facie case under the Rehabilitation Act Alex must show that (1)

10 he is disabled under the Act; (2) he is qualified, i.e., he can meet the essential eligibility 11 requirements with or without reasonable accommodation; (3) he was dismissed solely 12 because of his disability; and (4) the United States Postal Service receives federal financial 13 assistance. Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir. 1988), Rehabilitation Act Section 14 504. 15 16 FAILURE TO ACCOMMODATE To state a prime facie case for Failure to Accommodate Alex must prove (1) he has a

17 disability as defined under the Rehabilitation Act; (2) He is qualified for the job; (3) He 18 requested a reasonable accommodation that would not be an undue hardship on his 19 employer; and (4) Such reasonable accommodation was denied. Zukle v. The Regents of the 20 University of California, 166 F.3d 1041 (9th Cir. 1999). 21 22 23 24 Bid. A written request submitted on a PS Form 1717, or PS Form 1717A, or locally designed multi-bid form, which requires only the basic information on PS Form 1717,to the 25 installation head to be assigned to a duty assignment by a full-time employee eligible to bid or a part-time regular employee eligible to bid. In the absence of a standard bid form, a bid 26 submitted in writing will be accepted. When computerized bidding is available to all employees in a facility, telephone and computerized bidding is mandatory. Where telephone bidding is the 27 only alternative form of bidding, bids may be submitted by telephone. 28 4
Case 2:04-cv-00429-MHM Document 124 Filed 06/01/2007 Page 4 of 36
1/

1 2

COMPENSATORY DAMAGES To establish a claim compensatory damages, Plaintiff must show that they suffered from

3 such things as emotional pain, mental anguish and loss of enjoyment of life. 42 U.S.C § 1981 4 (B)(1). 5 Defendant's Contentions: See Section F Below.

6 E. STIPULATIONS AND UNCONTESTED FACTS 7 8 9 1. Plaintiff, Alexander Jung, is a Korean-American male born February 1, 1965,

who served in the United States Army from October 29, 1986 until October 29, 1989. 2. Beginning in 1989, Plaintiff worked for the Postal Service in various part-time

10 positions until he was transferred to Moline, Illinois, as a full-time mail distribution clerk. 11 3. On June 5, 1999, Plaintiff mutually traded to the Phoenix Processing and

12 Distribution Center at the Rio Salado Facility on 1441 E. Buckeye Road, still working as a 13 mail distribution clerk, then bid into the GMF facility located at 4949 E. Van Buren, Phoenix, 14 AZ, known as pay location 375. 15 4. On or about January 27, 2001, Plaintiff bid into a new position, Job

16 # 9080153, as a Manual Distribution Clerk at Phoenix Priority Mail Postal Processing Center 17 (PPMPPC) located at 620 N. 47th Ave., Phoenix, AZ 85043. Plaintiff's scheduled days off 18 were Sunday/Monday. 19 5. On or about February 6, 2001 the USPS medical unit received

20 information that Plaintiff has been diagnosed with "bilateral knee pain." Plaintiff provided 21 documentation from his physician(s) to the Medical Unit. The medical unit then advised 22 Plaintiff's supervisors about the restrictions needed for Plaintiff in performing his job, 23 including standing and lifting. Plaintiff was placed on light duty and cleared to return to full 24 duty on March 26, 2001. 25 6. On or about October 29, 2001 Plaintiff completed a CA-2, which stated, 26 "nature of disease or illness" "R & L knee". A copy was provided to Mr. Camper along with a 27 letter written by Mr. Jung. Mr. Camper would have discussed restrictions placed upon 28 Plaintiff by his doctor in connection with making light duty job offers to Plaintiff. 5
Case 2:04-cv-00429-MHM Document 124 Filed 06/01/2007 Page 5 of 36

1

7.

On or about March 5, 2002 Plaintiff was provided with a light duty offer.

2 Plaintiff was advised that if he did not accept the light duty offer, he would not be allowed to 3 work and would not be allowed in the building. 4 5 8. 9. Plaintiff refused to sign the statement regarding the new hours. Effective September 28, 2002 Plaintiff was removed from his employment

6 with the Postal Service. 7 F. CONTESTED ISSUES OF FACT AND LAW 8 9 10 11 Plaintiff's Asserted Factual Issues In Dispute Include: 1. 2. 3. The Postal Service never entered into the interactive process with Plaintiff. The Postal Service never provided Plaintiff with a reasonable accommodation. Whether Plaintiff can prove that he is an "individual with a disability" under

12 the Rehabilitation Act, 29 U.S.C. § 706(8)(B). 13 4. Whether Plaintiff has an impairment that substantially limits ore or more major

14 life activities. 15 16 17 18 19 5. 6. 7. 8. 9. Whether Plaintiff has a record of such impairment. Whether Plaintiff was qualified for the position. Whether Defendant was aware of Plaintiff's physical limitations. Whether Defendants entered into the interactive process. Whether Defendant made a reasonable accommodation for Plaintiff's physical

20 limitations. 21 10. Whether Defendant can demonstrate that the accommodation would impose an

22 undue hardship. 23 24 25 11. Whether Plaintiff was dismissed solely because of this disability.

Defendant's Asserted Factual Issues In Dispute Include: 1. Between October 2001 and March 2002, did Plaintiff have a physical

26 impairment that substantially limited the major life activities of walking and lifting? 27 2. Between October 2001 and March 2002, did Plaintiff's supervisors regard him 28 as having a physical condition that substantially limited the major life activities of walking and 6
Case 2:04-cv-00429-MHM Document 124 Filed 06/01/2007 Page 6 of 36

1 lifting? 2 3. Plaintiff is precluded from claiming that between October 2001 and March

3 2002, he had a record of a physical condition that substantially limited the major life activities 4 of walking and lifting because he did not raise this claim during the administrative process. 5 Nor did he allege this claim in his District Court complaint. 6 4. Is Plaintiff limited to claiming that his impairment substantially limited the

7 major life activities of walking and lifting, per his EEO claim in 1E-851-0003-02 (EEO# 1). 8 9 Background Re: Plaintiff's VA Disability: 5. During the Army, Plaintiff reported sudden and severe onset of knee problems

10 for which he claimed a service connected disability in 1995, when he sought benefits from the 11 Department of Veterans Affairs (VA). 12 6. A service connected disability is different than a "disability" under the

13 Rehabilitation Act, 29 C.F.R. 1630, which requires that the impairment substantially limit the 14 individual's major life activities. 15 7. In 1995, at Plaintiff's request, the VA determined that he his bilateral knee

16 condition, "history consistent with chondromalacia patella," was service connected with a 17 zero percent rating decision. No benefits were awarded.2/ 18 8. In 2000, Plaintiff requested "an increased evaluation for [his] bilateral knee

19 condition, currently 0%" claiming that the condition had worsened. 20 9. The VA, after examination, ultimately determined that Plaintiff's

21 chondromalacia patella in each knee was 10 percent disabling, but that he was entitled to a 10 22 percent evaluation based upon the fact that it was in both knees as "multiple, 23 noncompensable, service-connected disabilities." 24 10. Plaintiff has attempted to convince the VA to increase his service connected

25 disability rating for his knees since 2000. As of March 22, 2005, the VA determined that his 26 27
2/

Chondromalacia patella, also as "Patellofemoral syndrome" or "Anterior 28 is the softening and degeneration of the known(cartilage) underneath the kneecap (patella).knee pain" tissue

Case 2:04-cv-00429-MHM

Document 124

7Filed 06/01/2007

Page 7 of 36

1 chondromalacia patella in each knee had not changed since 2000. 2 3 Background re: Postal Service Employment: 11. Plaintiff never advised the Postal Service that he had knee problems during

4 physical examinations or questionnaires when he applied for various positions. 5 6 mail. 7 13. When Plaintiff bid to PPMPPC, there was a change in Plaintiff's job number 12. When Plaintiff worked at the PPMPPC, its sole function was to handle priority

8 due to restaffing and the Memorandum of Understanding (a contractual agreement with the 9 union), effective February 24, 2001-June 14, 2002, with scheduled days of Saturday/Sunday. 10 14. When Plaintiff worked at the PPMPPC, the Facility Manager was Humberto

11 rujillo. Mr. Trujillo over saw seven supervisors who managed the approximately ninety ( 90) 12 employees. Among the supervisors was Mark Camper, a senior supervisor, whose duties 13 included handling light duty requests. 14 15 16 Pertinent Postal Service Policies and Procedures: Light Duty and Limited Duty: 15. The Postal Service maintains two separate and distinct programs for

17 employees who are unable to perform the essential functions of their position due to a medical 18 condition: "limited" and "light" duty. "Limited" duty applies to employees who suffer on19 the-job injuries, and is governed by the Federal Employee Compensation Act (FECA), 5 20 U.S.C. § 8101, and limited duty is administered by the Department of Labor (DOL), Office of 21 Workers' Compensation (OWCP). 22 16. Requests for "light" duty positions are governed by applicable collective

23 bargaining agreements and the Postal Service is not obligated to create a position for 24 employees requesting light duty assignments. Light duty work is only provided if such work 25 is available. The Postal Service's Employee and Labor Relation Manual Section 355.14 states 26 that light duty provisions of the various CBA between the USPS and the postal unions do not 27 guarantee any employee who is on light duty assignment any number of hours of work per 28 day or per week.

Case 2:04-cv-00429-MHM

Document 124

8Filed 06/01/2007

Page 8 of 36

1

17.

The light duty program is a creation of the Collective Bargaining Agreement.

2 Most light duty assignments are temporary. Prior to being placed on light duty work, an 3 employee must submit appropriate paperwork and medical documentation that supports the 4 light duty request. The paperwork includes a medical excuse from the Postal Service's 5 medical unit in addition to the excuse from the employee's personal physician 6 18. Article 13 of the Agreement Between USPS and the American Postal Workers

7 Union 2001-2002 states: "any full-time or regular or part-time flexible employee recuperating 8 from a serious illness of injury and temporarily unable to perform the assigned duties may 9 voluntarily submit a written request to the installation head for temporary assignment to a 10 light duty or other assignment. The request shall be supported by a medical statement from a 11 licensed physician or by a written statement from a licensed chiropractor stating, when 12 possible, the anticipated duration of the convalescence period." Further Article 13 does not 13 guarantee that an employee's request for light duty will be granted. 14 19. According to the Postal Service Operating Instructions No. 18, light duty is

15 defined as "medical restrictions due to a non job-related injury or illness." Employees 16 requesting light duty must: 17 · "Initiate the procedure prior to reporting for work." The procedure includes

18 submitting a request in writing to the Health Unit, accompanied by detailed medical evidence 19 from his/her licensed physician/chiropractor. 20 · The Health Unit reviews the medical documentation, provides approval or

21 disapproval for light duty work, and sends to the employee's supervisor the employee's 22 written request along with the expected duration of the light-duty period and the employee's 23 physical imitations. 24 · The immediate supervisor determines if light-duty work is available within the

25 employee's pay location and approved medical limitations and sends that determination to his 26 appropriate supervisor, who will approve or disapprove the request based upon whether or not 27 suitable work is available. 28 · If necessary, a light/restricted duty assignment may have hours that vary from the

Case 2:04-cv-00429-MHM

Document 124

9Filed 06/01/2007

Page 9 of 36

1 employee's normal schedule. The employee may be worked fewer than eight hours in a day 2 based upon availability of work. Article 13.3 (c) of the CBA provides that the work schedule 3 and work location shall be that of the light duty assignment and the needs of the service, 4 whether or not the same as the employee's previous duty assignment.3/ 5 6 7 · The employee may not work outside of his/her limitations. Postal Service Attendance Policies: 20. According to Postal Service Operating Instruction No. 6, Unscheduled

8 Absence Notification Procedures, employees may be subject to corrective action when their 9 absence is due to sick leave or other leave that is unscheduled, to the extent that these 10 absences constitute an unacceptable attendance record. 11 21. Portions of the Postal Service Employees Manual include provisions that

12 "employees are required to be regular in attendance," employees failing to report for duty as 13 scheduled will be absent without leave except in actual emergencies which prevents obtaining 14 permission in advance, and that "postal officials will take appropriate disciplinary measures to 15 correct violations." Specifically, ELM 511.41 states, "Unscheduled absences are any absences 16 from work that are not requested and approved in advance. ELM 511.43 states, "Employees 17 are expected to maintain their assigned schedule and must make every effort to avoid 18 unscheduled absences. In addition, employees must provide acceptable evidence for absences 19 when required." ELM 666.51 states, "Employees must obey the instructions of their 20 supervisors. If an employee has reason to question the propriety of a supervisor's order, the 21 individual will nevertheless carry out the order and immediately file a protest in writing to the 22 official in charge of the installation, or appeal through official channels." ELM 666.81 states, 23 "Employees are required to be regular in attendance." ELM 666.82 states, "Employees failing 24 25 Duty Assignment. A set of duties and responsibilities within recognized positions 26 regularly scheduled during specific hours of duty. Light Duty Assignment: An assignment (temporary or permanent) of an employee partially disabled from a non-job-related injury or illness. Light duty assignments are subject to 28 the "Light Duty" provisions of the applicable collective bargaining agreement and must be initiated by the employee in writing. 27
Case 2:04-cv-00429-MHM Document 124
3/

10 Filed 06/01/2007

Page 10 of 36

1 to report for duty on scheduled days including Saturdays, Sundays, and Holidays, will be 2 considered absent without leave except in actual emergencies which prevent obtaining 3 permission in advance. In emergencies, the supervisor or proper official will be notified as 4 soon as the inability to report for duty becomes apparent. Satisfactory evidence of the 5 emergency must be furnished later. An employee who is absent without permission or fails to 6 provide satisfactory evidence that an emergency existed will be placed in a nonpay status for 7 the period of such absence. The absence will be reported to the appropriate authority." 8 22. Arizona Performance Cluster Operating Instruction No. 2 states that

9 employees may be subject to disciplinary action up to and including removal for failure to be 10 regular in attendance, excessive unscheduled absences, tardiness, failure to submit acceptable 11 medical evidence and AWOLs. 12 23. Arizona Performance Cluster Operating Instruction No. 6 states in part,

13 "Employees may be subject to corrective action when their absence is due to sick leave or 14 other leave that is unscheduled; to the extent that these absences constitute an unacceptable 15 attendance record of undependability, or unavailability for work." 16 17 Plaintiff's Discipline for Violating Policies Regarding Attendance: 23. When Plaintiff worked at the GMF, the general job description for a mail

18 distribution clerk was to hand sort and verify all classifications of box mail that are unable to 19 be sorted through automation for distribution to various substations and verify sorted mail in 20 trays to box customers. 21 24. On August 4, 2000, while he was at the GMF, well before Plaintiff's transfer

22 to PPMPPC, Plaintiff was given an official discussion regarding his failure to maintain 23 regular attendance. 24 25. Shortly before Plaintiff's transfer to the PPMPPC, his supervisor conducted

25 a fact-finding for Plaintiff's failure to maintain regular attendance for excessive absences and 26 lack of documentation to support unscheduled absences. 27 26. The January 19, 2001 fact-finding resulted in a letter of warning (LOW), 28 which was issued on January 31, 2001.

Case 2:04-cv-00429-MHM

Document 124

11 Filed 06/01/2007

Page 11 of 36

1

27.

However, after Plaintiff filed a grievance with the American Postal Workers

2 Union (the Union) on May 3, 2001 about the LOW, the parties agreed that it would be 3 removed from Plaintiff's official personnel file on September 1, 2001 if no similar discipline 4 issues occurred in the interim. 5 28. After Plaintiff had been at the PPMPPC for approximately one year, on

6 January 29, 2002, one of Plaintiff's supervisor, Robert L. Dziszuk, carried out a fact-finding 7 for Plaintiff's failure to maintain a regular schedule and failure to report to work as scheduled. 8 29. On or about March 5, 2002, Mark Camper offered Plaintiff a temporary light

9 duty assignment with his hours to begin at 12:01 A.M., (walking for 1 ½ hours sit for 1 hour) 10 with a limitation of 4 hours based upon restrictions received from the Medical Unit. In this 11 temporary light duty offer, Plaintiff could perform the following duties: perform nixie mail, 12 rewrap, set up cell, move MTE, sweep machines, etc. Like all light duty offers, there was no 13 guarantee of hours. 14 30. After the fact-finding, Plaintiff was issued a seven-day suspension to begin

15 February 23, 2002 until March 1, 2002, as a disciplinary measure for failure to maintain 16 regular attendance. Plaintiff refused to sign the suspension document. This was a "paper 17 suspension" in that Plaintiff was able to work during this time frame. 18 19 2002: 20 31. In February, 2001, Plaintiff provided, as part of a temporary light duty request Plaintiff's PPMPPC Temporary light duty Requests February 2001 - February

21 to the Medical Unit, a medical certificate from Dr. Jensen which stated that he had bilateral 22 knee pain and that recommended the following restrictions: stand for one hour then rest for 23 15-30 minutes. 24 32. After Plaintiff's temporary light duty request per Dr. Jensen's restrictions was

25 approved, Plaintiff was notified that appropriate temporary light duty would be assigned when 26 available, in the amounts available, including in amounts less than eight hours, and was 27 advised to provide documentation every thirty days. 28 33. On March 6, 2001 Plaintiff's temporary light duty restrictions were lifted and

Case 2:04-cv-00429-MHM

Document 124

12 Filed 06/01/2007

Page 12 of 36

1 he was authorized to and returned to regular work duties. 2 34. Approximately six months after being back on full duty (September 25, 2001),

3 Plaintiff again requested temporary light duty with restrictions that he sit and stand for certain 4 intervals, and with a lifting limit of fifteen pounds via a note from Dr. Armstrong. 5 35. However, Dr. Armstrong did not provide a diagnosis and Plaintiff was

6 requested to provide further documentation within a week. Meanwhile, Plaintiff was 7 provided work within the limitations noted by Dr. Armstrong's September 25, 2001 note. 8 36. Plaintiff did not provide the Medical Unit with an official Medical Certificate

9 until October 10, 2001. This certificate limited him to lifting 10 pounds. Plaintiff's 10 temporary light duty, consistent with this certificate, was approved. 11 12 13 37. In response to Plaintiff's temporary light duty request, and to find work within

his restrictions, his hours were changed from 3:00 p.m.-11:30 p.m. to 7:55 p.m. - 4:25 a.m. 38. On October 29, 2001and after Plaintiff had been placed on temporary light

14 duty, Plaintiff sought treatment from L. Shank, M.D. Dr. Shank only saw Plaintiff once but 15 completed a Return to Work Authorization in which the only restriction was that Plaintiff be 16 allowed to sit in a soft cushion chair. 17 39. Between December 2001 and February 2002, Plaintiff requested and received

18 three more temporary light duty requests, all of which had restrictions including that he could 19 lift not more than 10 pounds. 20 40. On December 5, 2001 Plaintiff's own physician advised that Plaintiff could

21 not perform the regular duties of his Manual Distribution Clerk position at PPMPPC. 22 41. In March 2002, the essential functions of Plaintiff's position as a Manual

23 Distribution Clerk at PPMPPC included: 24 25 26 a. b. c. Lifting sacks, boxes, and parcels up to 75 pounds each; Standing for the entire shift, other than allowable breaks and lunch: constant bending, lifting, and twisting in connection with retrieving and

27 sorting mail by zip code. 28

Case 2:04-cv-00429-MHM

Document 124

13 Filed 06/01/2007

Page 13 of 36

1

Plaintiff's Request To DOL To Establish That His Knee Condition Was Work

2 Related: 3 42. On or about October 29, 2001, Plaintiff and his supervisor, Mark Camper

4 completed a form called a "CA-2" (the Notice of Occupational Disease and Claim for 5 Compensation seeking compensation under FECA through DOL) about Plaintiff's knee injury 6 to determine if Plaintiff's requested restrictions were due to a work related or non-work 7 related injury. 8 43. Plaintiff claimed in the CA-2 that his knees were a condition he had since

9 October 16, 2000 and he had never experienced knee problems before arriving at the GMF 10 pay location 375 in October 2000. 11 44. On October 31, 2001, the Postal Service, Injury Compensation Office

12 responded to Plaintiff's request for FECA benefits by sending a letter to Plaintiff and to DOL 13 stating that Plaintiff had failed to meet his burden of establishing through medical 14 documentation that his condition was caused by or materially adversely affected by his 15 employment. 16 45. On November 14, 2001, DOL advised Plaintiff that his documentation was

17 insufficient to demonstrate any causal relationship between his alleged bilateral knee 18 condition and his employment. DOL also requested further detailed information including all 19 activities (inside and outside of work), all previous orthopedic injuries as well as a 20 comprehensive medical report from a treating physician. 21 46. On December 10, 2001 Plaintiff sent a letter to DOL advising that his hobbies

22 included golf, walking the dog, and other light sports recommended by the doctor, and that he 23 was capable of doing all household chores, including vacuuming, washing dishes, laundry, 24 making his bed and yard work. Plaintiff did not claim any major life activities were 25 substantially limited. 26 47. On January 24, 2002 DOL notified Plaintiff that his request for compensation 27 under FECA was denied because Plaintiff did not provide a diagnosis and did not establish a 28 causal relationship to his employment.

Case 2:04-cv-00429-MHM

Document 124

14 Filed 06/01/2007

Page 14 of 36

1

48.

The Postal Service cannot appeal DOL's decision and is governed by that

2 decision. Plaintiff did not appeal DOL's determination. 3 49. On February 7, 2002, the Postal Service informed Plaintiff that it had received

4 DOL's notice that Plaintiff's FECA benefits were denied because there was no causal 5 relationship between the injury and work, and no diagnosis. Based upon the DOL's 6 determination that Plaintiff's condition was not related to his employment, the Postal Service 7 sent him this letter setting forth various options, including that Plaintiff could return to full 8 duty without restrictions or pursue alternative avenues available, specifically advising him 9 that he could "request reasonable accommodation from [his] supervisor and apply for 10 permanent light duty in writing. . . ." 11 50. Plaintiff did not pursue any alternatives for his alleged injury other than

12 requesting additional temporary light duty assignments, which he did on February 27, 2002. 13 He filed a Non-Occupational Injury, Return to Work Or Request for Light Duty Interview 14 Form, supported by a Medical Certificate from Dr. Jensen. On March 1, 2002, Plaintiff was 15 again authorized for temporary light duty. 16 51. On February 12, 2002 Plaintiff submitted a letter to the Postal Service

17 claiming 18 himself to be the target of harassment by management that culminated in his seven-day 19 suspension. 20 52. Plaintiff advised Supervisor Camper that Plaintiff did not have a four hour

21 work restriction. Supervisor Camper understood that the Medical Unit's documentation 22 restricted Plaintiff to four hours of work per shift. Plaintiff refused this offer. 23 53. On March 8, 2002 Plaintiff was offered another temporary light duty offer

24 based upon Dr. Jensen's clarification dated March 8, 2002 and Plaintiff was extended a 25 temporary light duty offer that allowed him to work 8 hours, with similar restrictions to the 26 March 5, 2002 light duty offer, also with no guarantee of hours. Plaintiff refused this offer. 27 Supervisor Camper received clarification of Plaintiff's work restrictions. 28 54. Plaintiff was sent a duty status letter on May 19, 2002 via certified mail to the

Case 2:04-cv-00429-MHM

Document 124

15 Filed 06/01/2007

Page 15 of 36

1 address listed in his personnel records, which included a request that he contact a supervisor 2 and provide documentation in support of his absences. 3 55. On May 22, 2002 Plaintiff requested FMLA leave, but was denied that leave

4 because he did not have the necessary 1250 hours of work during the twelve months 5 preceding his request. This notice also advised he would have to fulfill the requirement of 6 supplying medical certification. 7 56. Plaintiff requested and received annual leave from May 28, 2002 until June

8 29, 2002, and was advised to report to the PPMPPC on July 1, 2007. 9 10 11 57. 58. 59. Plaintiff never requested to be approved for leave after June 29, 2002. Plaintiff was married on June 15, 2002 in California. On July 18, 2002 Plaintiff was sent a letter by certified mail to the address

12 listed in his personnel records that he was considered to be AWOL since July 1, 2002 and 13 that he ws scheduled for a fact-finding regarding these absences on July 23, 2002. 14 15 attend. 16 61. On July 30, 2002 Supervisor Camper issued a Proposed Personnel Action of 60. Plaintiff failed to attend the fact-finding and failed to notify of intent not to

17 removal, which Manager Trujillo reviewed and approved on August 12, 2002. 18 62. On August 21, 2002 a detailed notification was sent to Plaintiff informing him

19 of his removal effective September 28, 2002, and advised Plaintiff (who was represented by 20 counsel) that he had a right to file a grievance. 21 63. Plaintiff did not respond to the notice of removal and was removed on

22 September 28, 2002 for the reasons set forth in the notice of removal. 23 24 64 65. Plaintiff's Removal was effective on September 28, 2002. Plaintiff did not notify the Postal Service that he had moved to California, and

25 he did not file a change of address with the Postal Service until April 2003. 26 EEO CLAIMS: 27 28 EEO #1[1E-851-0003-02] 66. On October 11, 2001, Plaintiff contacted an EEO counselor and filed an

Case 2:04-cv-00429-MHM

Document 124

16 Filed 06/01/2007

Page 16 of 36

1 informal complaint including on the basis of physical disability, in which the following 2 allegations were identified: 3 a. On September 25, 2001 Plaintiff's work hours were changed from a shift

4 starting at 3:00 pm and ending at 11:30 pm to a shift starting at 7:55 pm and ending at 4:25 5 am allegedly due to Plaintiff's on the job injury; 6 7 leave. 8 67. The disability was identified as a condition in Plaintiff's right and left knees, a b. On unspecified dates, Plaintiff was told to leave work early and take

9 physical impairment which affected manual major life activities, lifting and walking. 10 68. Plaintiff's EEO request for counseling was issued a case number (#1E-851-

11 0003-02) on November 28, 2001. 12 69. The above allegations on the basis of physical disability were the only issues

13 identified for this EEO claim. 14 15 70. 71. Plaintiff filed a formal complaint on January 13, 2001. Plaintiff's formal EEO complaint alleged that the Agency employee who

16 committed discrimination was Humberto Trujillo, that Plaintiff had a disability that existed 17 since 1996, and that Postal Service failed to accommodate him per his doctor's 18 recommendation in September 2001. 19 72. Plaintiff sought as a remedy a return to the shift originally bid for and training

20 for the manager (Trujillo) against whom the discrimination was alleged. 21 73. When Plaintiff filed his EEO complaint (1/13/01), he was represented by

22 Attorney Alex Harris, but Notified the EEO that he had changed attorneys to Rosval Patterson 23 on July 17, 2002. 24 74. On October 29, 2002, Plaintiff answered the EEO investigator's

25 interrogatories. 26 27 His responses included: · that he filed a complaint of discrimination regarding his work hours because

28 in October 2001 Trujillo would not let him use a soft cushion chair and he was not given

Case 2:04-cv-00429-MHM

Document 124

17 Filed 06/01/2007

Page 17 of 36

1 sufficient work, violating the ADA requirements that the Postal Service enter into a flexible 2 interactive process and make reasonable accommodations; 3 · that he was claiming discrimination in violation of the ADA because his

4 hours were changed and days off changed and only 4 hours of work. On advice of the Union, 5 Plaintiff did not sign the temporary light duty offer; and 6 · that his disability was "bi-lateral knee and lower back pain that inhibited him

7 from performing manual tasks, walking and lifting" and from standing for long period of time 8 without a 15-30 minute break. 9 75. In EEO #1, Plaintiff did not include any claims about his removal, even

10 though he had been terminated more than a month before he filed his affidavit regarding his 11 claims in that case. 12 EEO #2 [1F-851-002-03] 13 76. On September 30, 2002, Plaintiff contacted the EEO office with allegations of

14 discrimination. 15 77. On October 8, 2002, Plaintiff, through his attorney Rosval Patterson, agreed to

16 participate in an alternative dispute process under 29 C.F.R. § 1614.105(f) instead of the 17 counseling process. 18 78. Also on October 8, 2002, Plaintiff claimed discrimination by Mr. Trujillo on

19 the basis of national origin, sex, physical disability, and retaliation (prior EEO: 1E 851-00320 02/EEO #1) because: 21 · On October 29, 2001 he was not allowed to sit for 15-30 minutes and not

22 provided with a soft cushion chair. 23 24 · 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

25 otherwise advised. 26 · On September 3, 2002 Plaintiff received a notice of Removal Letter 27 notifying him that he was to be removed from the Postal Service on September 28, 2002. 28 79. Plaintiff withdrew from the mediation process and was sent a "Notice of Final

Case 2:04-cv-00429-MHM

Document 124

18 Filed 06/01/2007

Page 18 of 36

1 Interview/Notice of Right to File Individual Complaint" dated December 6, 2002 (the Notice). 2 80. The Notice reiterated the issues in Plaintiff's EEO complaint and specifically

3 advised that the removal issue was different than those in his previous EEO, the other issues 4 might be "like or related to the issues in [EEO # 1] which is currently under investigation," 5 about which the Area Manager would make a determination, but that a formal complaint must 6 be filed within 15 calendar days of receiving the notice, or it would be deemed untimely. 7 81. Plaintiff's counsel received the notice on December 9, 2002 and never filed a

8 formal complaint. 9 82. Plaintiff never filed a formal EEO complaint.

10 Defendant's Asserted Legal Issues: 11 1. This action is governed by the Rehabilitation Act 29 U.S.C. § 701 et seq., and

12 as applicable via the Rehabilitation Act, the Title VII of the Civil Rights Act of 1964, as 13 amended ("Title VII"), 42 U.S.C. § 2000e-16. 14 2. Title VII makes it unlawful for an employer "to discriminate against any

15 individual with respect to his compensation, terms, conditions, or privileges of employment, 16 because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e17 2(a)(1). 18 3. The Rehabilitation Act makes it unlawful for government agencies to

19 discriminate against a qualified employee with a disability, because of that disability. 20 Reynolds v. Brock, 815 F.2d 571, 573 (9th Cir. 1987); 29 U.S.C. § 794; 42 U.S.C. § 21 12112(a);. 42 U.S.C. § 12117(b) (The ADA's standards are used to determine liability in 22 Rehabilitation Act cases). 23 4. The Rehabilitation Act requires employers in some circumstances to

24 reasonably accommodate employees' known physical or mental disabilities. Willis v. Pacific 25 Maritime Assoc., 236 F.3d 1160, 1164 (9th Cir. 2001); Sharpe v. American Tel. & Tel. Co., 66 26 F.3d 1045, 1049-1050 (9th Cir. 1995); 29 C.F.R. § 1630.9(a); § 1614.203(b) (specifying that 27 ADA standards are to be used to determine whether section 501 of the Rehabilitation Act has 28 been violated).

Case 2:04-cv-00429-MHM

Document 124

19 Filed 06/01/2007

Page 19 of 36

1

5.

In order to prevail on a Rehabilitation Act discrimination claim, a Plaintiff

2 must establish that at the time in issue (1) he was "disabled" within the meaning of the 3 Rehabilitation Act; (2) he was qualified for the position at issue; and (3) he was terminated or 4 otherwise discriminated against because of the disability. Reynolds v. Brock, 815 F.2d at 574; 5 Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1353 (9th Cir. 1996); Kennedy v. Applause, 6 Inc., 90 F.3d 1477, 1481 (9th Cir. 1996); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 7 (9th Cir. 1999). 8 6. In order to show that he is disabled for purposes of the Rehabilitation Act, a

9 Plaintiff must show that he has a physical or mental impairment that substantially limits one 10 or more major life activities, or is regarded by the employer as having such an effect. 29 11 C.F.R. §§ 1614.203(a)(1), 1630.2(g); School Board of Nassau County v. Arline, 480 U.S. 273, 12 280 & n.5 (1987). 13 7. An individual's major life activities are substantially limited when he is unable

14 to perform the activities or is significantly restricted in performing the activities as compared 15 to an average person. Coons v. Secretary of U.S. Dept. of Treasury, 383 F.3d 879, 885 (9th 16 Cir. 2004). 17 8. In order to show that at the time in issue he was disabled for purposes of the

18 Rehabilitation Act, a Plaintiff must provide requested medical information establishing the 19 nature and extent of his alleged disability, before termination. Kalekiristos v. CTF Hotel 20 Management Corp., 958 F. Supp. 641, 657 (D.D.C. 1997)(person alleging protected disability 21 has burden of establishing same with medical evidence during employment, not after 22 termination). 23 9. Any administrative decision by the Veterans' Administration that Plaintiff

24 suffered a service connected disability regarding his knee condition does not mean that 25 Plaintiff is disabled under the Rehabilitation Act. Howell v. Sam's Club # 8160/WAL- MART, 26 959 F.Supp. 260, 267 (E.D. Pa 1997). 27 10. To demonstrate that he was a qualified person, a Plaintiff must show that at 28 the time in question he could perform the essential functions of the position in question, with

Case 2:04-cv-00429-MHM

Document 124

20 Filed 06/01/2007

Page 20 of 36

1 or without accommodation. 42 U.S.C. § 12111(8); See also Gantt v. Wilson Sporting Goods 2 Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (Plaintiff was not otherwise qualified because he 3 could not work for more than a year); Weigel v. Target Stores, 122 F.3d 461, 465-68 (7th Cir. 4 1997) (employee's statements that he was unable to work for extended period demonstrated 5 he was not a qualified individual with a disability). 6 11. Plaintiff must prove that he could perform the essential functions of the

7 position in question, with or without accommodation. Carr v. Reno, 23 F.3d 525, 530 (D.C. 8 Cir. 1994) ("an essential function of any government job is an ability to appear for 9 work . . ."); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) 10 (Plaintiff was not otherwise qualified because he could not work for more than a year); Weigel 11 v. Target Stores, 122 F.3d 461, 465-68 (7th Cir. 1997) (employee's statements that he was 12 unable to work for extended period was evidence he was not a qualified individual with a 13 disability). 14 12. A job function may be considered essential for any of several reasons,

15 including that "[t]he function may be essential because the reason the position exists is to 16 perform that function." 29 C.F.R. § 1630.2 (n)(1). 17 13. Evidence of whether a particular function is essential includes "the employer's

18 judgment as to which functions are essential" and "the amount of time spent on the job 19 performing the function." 29 C.F.R. § 1630.2 (3)(I), (iii). 20 14. In order to establish that he was discriminated against because of the

21 disability, a Plaintiff must show that management took adverse employment actions against 22 him because of a protected personal characteristic. Vasquez v. County of Los Angeles, 349 23 F.3d 634, 646 (9th Cir. 2003). This means establishing that he was treated differently from 24 similarly situated employees outside of his protected class. Biolchini v. General Elec. Co., 25 167 F.3d 1151, 1154 (7th Cir. 1999). 26 15. In order to recover for a failure to accommodate, a Plaintiff must demonstrate 27 that at the time in question (1) he was a qualified disabled person within the meaning of the 28 Rehabilitation Act; (2) the employer knew of the disability; and (3) the Plaintiff sought, but

Case 2:04-cv-00429-MHM

Document 124

21 Filed 06/01/2007

Page 21 of 36

1 was denied, reasonable accommodation for the disability. See Willis v. Pacific Maritime 2 Ass'n., 244 F.3d 675, 680 (9th Cir. 2001). 3 16. As a prerequisite to a failure-to-accommodate claim, an employee must not

4 only request accommodation but also fully and in good faith engage in the interactive process 5 to fashion an appropriate accommodation. 29 C.F.R. §§ 1630, 1630.2(o)(3), app. 1630.9; 6 Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996); Loulseged v. 7 Akzo Nobel Inc., 178 F.3d 731, 735-36 (5th Cir. 1999). "This process should identify the 8 precise limitations resulting from the disability and potential reasonable accommodations that 9 could overcome those limitations." 29 C.F.R. § 1630.2(o)(3). 10 17. Neither the employer nor the employee may disrupt the interactive process.

11 Humphrey v. Memorial Hosp. Ass'n, 239 F.3d 1128, 1137-38 (9th Cir. 2001). 12 18. An employee who unreasonably fails to provide medical information

13 requested by the employer to support a requested accommodation is responsible for the failure 14 of the interactive process and relieves the employer of its duty to engage further in that 15 process. Allen v. Pacific Bell, 348 F.3d 1113, 1115 (9th Cir. 2003); Beck v. Univ. of Wisc. Bd. 16 of Regents, 75 F.3d 1130, 1136-37 (7th Cir. 1996)(Plaintiff failed to provide information 17 requested by defendant in order to accommodate her disability); Gerdes v. Swift-Eckrich Inc., 18 949 F. Supp. 1386, 1404-1406 (N.D. Iowa 1996), aff'd, 125 F.3d 634 (8th Cir. 1997) 19 (Plaintiff's failure to respond to requests for updated medical information rendered employer 20 unable to assess accommodations Plaintiff may need upon return to work); Steffes v. Stepan 21 Co., 144 F.3d 1070 (7th Cir. 1998) (Plaintiff unreasonably failed to keep employer advised of 22 status and nature of her condition). 23 19. If the interactive process fails, the employer bears liability only if it was

24 responsible for the process' breakdown. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 25 (9th Cir. 2002). See also Loulseged, 178 F.3d at 734-36 (employer cannot be held liable 26 when breakdown of the interactive process is traceable to the employee). 27 20. The Rehabilitation Act does not require an employer to give a disabled 28 employee indefinite leave. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995); Rogers v. Int'l

Case 2:04-cv-00429-MHM

Document 124

22 Filed 06/01/2007

Page 22 of 36

1 Marine Terminals Inc., 87 F.3d 755, 759 (5th Cir. 1996); Nowak v. St. Rita Sch., 142 F.3d 2 999, 1004 (7th Cir. 1998); Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 9 (2d Cir. 3 1999). See Ferry v. Roosevelt Bank, 883 F. Supp. 435, 441-42 (E.D. Mo. 1995) (employer

4 accommodated by allowing leave of absence to obtain treatment). 5 21. An employee who seeks relief through the EEO process (rather than through

6 the CSRA) "must initiate contact with a Counselor within 45 days of the date" of the alleged 7 discriminatory act or event. 29 C.F.R. § 1614.105(a)(1); Sommatino v. United States, 255 8 F.3d 704, 708 (9th Cir. 2001). The duty to seek counseling is triggered "when the facts that 9 would support a charge of discrimination would have been apparent to a similarly situated 10 person with a reasonably prudent regard for his rights." Boyd v. United States Postal Service, 11 752 F. 2d 410, 414 (9th Cir. 1985) (citation omitted). 12 22. Plaintiff did not contact an EEO counselor within 45 days of some of the

13 alleged discriminatory acts in EEO # 2, which included his termination, and did not file a 14 formal EEO complaint with in 15 days of the Notice (or ever). Thus Plaintiff did not exhaust 15 his administrative remedies regarding his removal or any other alleged incidents of 16 discrimination or failure to accommodate other than those identified in EEO #1 and is 17 prohibited from seeking damages for any other claims. Sloan v. West, 140 F.3d 1255, 1259; 18 Cruz v. Department of the Navy, 934 F.2d 1240, 1243; 5 U.S.C. § 7512(1)-(5). 19 23. Because Plaintiff failed to exhaust his administrative remedies regarding any

20 alleged incident of discrimination or failure to accommodate regarding his removal and the 21 other allegations in EEO # 2, this Court lacks jurisdiction over such other alleged violations. 22 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05, 108-14 (2002); Paegle v. 23 Department of Interior, 813 F.Supp. 61, 66 (D.D.C. 1993). 24 24. In order to prevail in this action, Plaintiff must establish that the complained

25 of events concerning his temporary light duty requests would not have occurred but for 26 unlawful discrimination. Price Waterhouse v. Hopkins, 490 U.S.228, 109 (U.S. Dist. 27 Col.,1989). McNutt v. Board of Trustees of University of Illinois, 141 F.3d 706, 708-09 (7th 28 Cir. 1998); Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir. 2001); Matima v.

Case 2:04-cv-00429-MHM

Document 124

23 Filed 06/01/2007

Page 23 of 36

1 Celli, 228 F.3d 68, 81 (2d Cir. 2000); Woodson v. Scott Paper Co., 109 F.3d 913, 933-35 (3rd 2 Cir. 1997); Tanca v. Nordberg, 98 F.3d 680, 784 (1st Cir. 1996); Norbeck v. Basin Electric 3 Power Cooperative, 215 F.3d 848, 852 (8th Cir. 2000). But see Head v. Glacier Northwest, 4 Inc., 413 F.3d 1053, 1066 (9th Cir. 2005)(Holding that an ADA Plaintiff may be entitled to a 5 mixed-motive instruction under circumstances where other types of discrimination Plaintiffs 6 would be so entitled). 7 25. All of Defendant's actions with respect to Plaintiff were undertaken for

8 legitimate reasons and were not based on unlawful discrimination on the basis of disability. 9 26. Plaintiff cannot demonstrate that the reasons given for Defendant's actions

10 were a pretext for disability discrimination. 11 27. Plaintiff cannot demonstrate that Defendant treated him differently from

12 similarly situated individuals. 13 28. Defendant fully and in good faith engaged in the interactive process to fashion

14 an appropriate accommodation to the extent it was requested by Plaintiff. 15 28. Plaintiff failed to fully and in good faith engage in the interactive process to

16 fashion an appropriate accommodation. 17 29. Defendant satisfied his duty, if any, to reasonably accommodate any disability

18 of Plaintiff's, to the extent he had one. 19 30. Plaintiff is barred from claims for damages involving the new claim in EEO

20 #2, his removal. 21 31. Plaintiff's damages, if any, are limited to the date he began working in

22 California, July 2002 or at the latest, before the date of his removal, September 28, 2002: 23 24 · · All future damages, if any, must be reduced to present value. To the extent Plaintiff is seeking future damages, such damages are

25 speculative and do not constitute compensable damages. 26 27 action. 28 · Any damages alleged by Plaintiff were not caused by any unlawful · Plaintiff cannot demonstrate that he is entitled to any damages in this

Case 2:04-cv-00429-MHM

Document 124

24 Filed 06/01/2007

Page 24 of 36

1 discrimination or retaliation by Defendant. 2 32. Although an agency that has approved an employee's absences is barred in

3 some circumstances from removing the employee or taking other adverse action based on 4 those absences, that rule does not apply where the removal or other action was based on the 5 employee's physical inability to perform the functions of his job, as distinguished from his 6 use of approved absences. Jones v. Dept of Transportation, 295 F.3d 1298, 1308 (Fed. Cir. 7 2002). 8 33. To the extent that any of these contentions of law may be deemed to be

9 contentions of fact, it is respectfully requested that they be included in the Factual Section 10 above. 11 G. LIST OF WITNESSES. 12 13 14 15 Plaintiff's Witnesses: Alexander Jung 1660 Brigden Road Pasadena CA, 91104 Alex is the Plaintiff in this matter and will testify as to the discrimination suffered from

16 Defendant. 17 18 19 20 Alex will be called at trial. Christina Jung 1660 Brigden Road Pasadena CA, 91104 Mrs. Jung is Plaintiff's wife and will testify to the discrimination suffered by Plaintiff

21 from Defendant. Mrs. Jung will also testify to the emotional trauma suffered by Plaintiff as a 22 result of Defendant's discrimination. 23 24 25 26 Mrs. Jung will be called at trial John Jensen M.D. 1440 S. Country Club #30 Mesa, AZ 85210 Dr. Jensen was Plaintiff's primary care physician and will testify to light duty and

27 accommodations required for Plaintiff. Dr. Jensen will testify to Plaintiff's condition and 28 disability.

Case 2:04-cv-00429-MHM

Document 124

25 Filed 06/01/2007

Page 25 of 36

1 2 3 4

Dr. Jensen will be called at trial. Melie Southerland (Union) 8133 West Glenn Drive Glendale, AZ 85303 Mr. Southerland is a Steward at PMPPC and co-worker. Mr. Southerland will testify

5 that Plaintiff suffered discrimination from Defendant. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Southerland may be called at trial. Christopher S. Hiler M.D. 4524 N. Maryvale Pkwy #220 Phoenix, AZ. 85031 Dr. Hiler treated Plaintiff and will testify that Plaintiff was disabled and required accommodations for his disability. Dr. Hiler may be called at trial. Jamal Kennedy 21884 N. Backus Dr. Maricopa, AZ 85239 Mr. Kennedy was Plaintiff's roommate and co-worker at the General Mail Facility and will testify that Plaintiff was disabled while working at the facility, before being transferred to PMPPC. Mr. Kennedy may be called at trial. Colleen MacGuire 4949 E. Van Buren Phoenix, AZ 85026 Ms. MacGuire called Mark Camper on March 5, 2002 at 8:00 p.m. to fax over the light duty assignment to union office at GMF. She also told Mr. Camper that he could not force Plaintiff to sign the paper. Ms. MacGuire may be called at trial. Sandra Halma 3741 E, Atlanta Ave Phoenix, AZ 85040 Ms. Halma will testify regarding the Union policies and procedures. Ms. Halma may be called at trial. Angelita Martinez
Case 2:04-cv-00429-MHM Document 124

26 Filed 06/01/2007

Page 26 of 36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4949 E. Van Buren Phoenix, AZ 85026 Ms. Martinez will testify to postal service qualifications for light duty. Ms. Martinez may be called at trial Ernestina Mendez 4949 E. Van Buren Phoenix, AZ 85026 Ms Mendez will testify to postal service qualifications for light duty. Ms. Mendez may be called at trial Jerry Romero 620 n. 47th Avenue Phoenix, AZ 85043 Mr. Romero was a co-worker of Plaintiff at the PMPPC. Mr. Romero was present when Plaintiff was told to bring in Doctor's note. Mr. Romero may be called at trial. Sumit Dewanjee, M.D. VA Medical Center Phoenix, AZ 85013 Dr. Dewanjee treated Plaintiff at the VA Medical Center in Phoenix and will testify that Plaintiff was disabled and required accommodations for his disability. Dr. Dewanjee may be called at trial. John Chirinos 4949 E. Van Buren Phoenix, AZ 85026 Mr. Chirinos was a Shop Steward at GMF while Plaintiff was working there. Mr. Chirinos was the shop steward spoke with Plaintiff on the telephone and told Plaintiff to sign the Light Duty paper. On April 8, 2002, when Plaintiff explained the situation to Mr. Chirinos, Mr. Chirinos advised Plaintiff to sign the paper but write the word "protest" on the form. Mr. Chirinos advised Plaintiff and by signing and writing "Protest", Plaintiff would be able to work but was not in agreement with the letter. Additionally, Mr. Chirinos stated to Plaintiff that he would receive all the lost wages. Furthermore, Mr. Chirinos had other workers with similar situations as Plaintiff. Mr. Chirinos may be called at trial.
Case 2:04-cv-00429-MHM Document 124

27 Filed 06/01/2007

Page 27 of 36

1 2 3

Roy D. Garcia #9126848 4949 E. Van Buren Phoenix, AZ 85026 Mr. Garcia told Plaintiff that he couldn't work if he didn't sign the paper. Mr. Garcia

4 was a regular employee, as opposed to a supervisor and a co-worker of Plaintiff. 5 6 7 8 9 10 11 12 13 Mr. Garcia may be called at trial. Regina M Diaz 4949 E. Van Buren Phoenix, AZ 85026 Ms. Diaz was put on Nixie until Plaintiff came in. Ms. Diaz was not on light duty. Ms. Diaz may be called at trial. Ed Baker West Valley Logistical Distrib. Control 620 N. 47th Ave Phoenix, AZ 85043 Mr. Baker was a supervisor of Plaintiff's. Plaintiff gave Mr. Baker the light duty paper

14 on March 11, 2002. Mr. Baker told Plaintiff he couldn't work if he didn't sign the paper. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Baker may be called at trial. DEFENSE WITNESSES: 1. WITNESSES WHO SHALL BE CALLED AT TRIAL. Mark Camper Supervisor, Distribution Operations West Valley Logistical Distribution Center 620 N. 47th Avenue Phoenix, AZ 85043 Mr. Camper is a Postal Service employee and was one of Plaintiff's supervisors. Mr. Camper is a fact witness who will testify about Plaintiff's employment at the PPMPPC, Postal Service policies and procedures including the light duty program, information that Mr. Camper had while supervising Plaintiff about any alleged impairments or restrictions, Plaintiff's light duty requests and offers, events after Plaintiff failed to return to work, and Plaintiff's termination. Bob Hemphill Labor Relations Specialist United States Postal Service
Case 2:04-cv-00429-MHM Document 124

28 Filed 06/01/2007

Page 28 of 36

1 2 3 4 5 6 7 8 9

4949 E. Van Buren Phoenix, AZ 85026-9401 Mr. Hemphill Subject is a Postal Service employee who will testify about Postal Service policies and procedures concerning issues relevant to this case such as light duty, limited duty, the significance of the Department of Labor decision about Plaintiff's CA-2 request, the termination and removal of Mr. Jung, and paperwork relevant to his termination. Kim Loiselle Occupation Health Nurse Admin. 4949 E. Van Buren, Rm. 177A Phoenix, AZ 85026 Ms. Loiselle may testify about the procedure for light duty and other

10 accommodations, as well as the paper flow from supervisor to the Medical Unit, what 11 information was provided to the supervisors in Plaintiff's case, what medical and other 12 information that Plaintiff was requested to provide and did provid, the Medical Unit's role in 13 the Reasonable Accommodation Process, Policies and Procedures relevant to Light Duty 14 requests. 15 16 17 18 Humberto Trujillo Supervisor, Distribution Operations West Valley Logistical Distribution Center 620 N. 47th Avenue Phoenix, AZ 85043 Mr. Trujillo is a Postal Service employee who was the plant manager during the

19 time that Plaintiff worked at PPMPPC. Mr. Trujillo is a fact witness who will testify about 20 Plaintiff's employment at the PPMPPC, applicable Postal Service policies and procedures, 21 and other information within Mr. Trujillo's personal knowledge while he was managing the 22 facility, and as they concern Plaintiff's alleged physical impairments or restrictions, Plaintiff's 23 light duty requests and offers, events after Plaintiff failed to return to work, and Plaintiff's 24 termination. 25 26 2. WITNESSES WHO MAY BE CALLED AT TRIAL. Custodian of Records for the Postal Service, the Department of Veterans

27 Administration, the Internal Revenue Service, and any medical providers or other providers of 28 records as necessary to establish foundation for records and identify which records are or are

Case 2:04-cv-00429-MHM

Document 124

29 Filed 06/01/2007

Page 29 of 36

1 not in the relevant files. [Plaintiff objects to each of these witnesses under FRCP 26.1.] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Dr. Dennis Armstrong 6553 E. Baywood Ave. Ste 101B Mesa AZ 85206 (480) 969-3531 Dr. Armstrong treated Plaintiff in September and October 2001, and will testify to issues concerning Plaintiff's treatment and diagnosis, including Plaintiff's statements concerning his condition and employment. Ed Baker Supervisor, Distribution Operations West Valley Logistical Distribution Center 620 N. 47th Avenue Phoenix, AZ 85043 Mr. Baker is a Postal Service employee who supervised Plaintiff during some of the time he worked for the Postal Service at PPMPPC. He may be called to testify about issues concerning Plaintiff's duties at work, his alleged physical impairments, requests for accommodation and leave, Plaintiff's claims of discrimination and policies and procedures relevant to the issues in this case. Regina Beckham Labor Relations Specialist 4949 E. Van Buren, Rm. 246 Phoenix, AZ 85026 Ms. Beckham is a Postal Service employee who may be called to testify about

20 issues relevant to this case including Plaintiff's grievance concerning his light duty request(s), 21 the process and any statements Plaintiff made during the grievances relevant to this case. 22 23 24 25 26 27 28 Beverly Chandler Human Resource Associate/Labor Relations 4949 E. Van Buren, Rm. 245 Phoenix, AZ 85026 Ms. Chandler is a Postal Service employee who may be called to testify about issues relevant to this case including policies and procedures relevant Plaintiff's claims including the light duty offers and Plaintiff's eventual removal as well as Plaintiff's grievances related to the light duty offer(s). Charles Davis
Case 2:04-cv-00429-MHM Document 124

30 Filed 06/01/2007

Page 30 of 36

1 2 3 4

Retired District Manager c/o Suzanne Chynoweth U.S. Attorney's Office 40 N. Central Avenue, #1200 Phoenix, Arizona 85004 Mr. Davis is a former Postal Service employee who may be called to testify about

5 issues relevant to this case including policies and procedures relevant Plaintiff's claims 6 including the light duty offers and Plaintiff's eventual removal as well as Plaintiff's 7 grievances related to the light duty offer(s). 8 9 10 11 Robert Dziszuk Supervisor, Distribution Operations West Valley Logistical Distribution Center 620 N. 47th Avenue Phoenix, AZ 85043-2814 Mr. Dziszuk is a Postal Service employee who supervised Plaintiff during some of

12 the time he worked for the Postal Service at PPMPPC. He may be called to testify about 13 issues concerning Plaintiff's duties at work, his alleged physical impairments, requests for 14 accommodation and leave, Plaintiff's claims of discrimination and policies and procedures 15 relevant to the issues in this case. 16 17 18 19 Roy Garcia c/o Suzanne Chynoweth U.S. Attorney's Office 40 N. Central Avenue, #1200 Phoenix, Arizona 85004 Mr. Garcia is a former Postal Service employee who supervised Plaintiff during

20 some of the time he worked for the Postal Service at PPMPPC. He may be called to testify 21 about issues concerning Plaintiff's duties at work, his alleged physical impairments, requests 22 for accommodation and leave, Plaintiff's claims of discrimination and policies and procedures 23 relevant to the issues in this case. 24 25 26 27 28 Alexander Jung c/o Rosval Patterson Mr. Jung is the Plaintiff in this action and may be called to testify about his alleged disability, the Postal Service's failure to accommodate his alleged disability, whether he was qualified for the job, and his allegations of discrimination and damages in this case. Dr. Michael Lee
Case 2:04-cv-00429-MHM Document 124

31 Filed 06/01/2007

Page 31 of 36

1 2 3

2222 E. Highland Ave., Ste 425 Phoenix, AZ 85016 (620) 667-6640 Dr. Lee treated Plaintiff in late 2000 and Dr. Lee may be called to testify

4 concerning his treatment and diagnosis of Plaintiff, and Plaintiff's statements about his knee 5 condition and his employment, including that he moved to Phoenix, AZ because the warm 6 weather would help his knee problems. 7 8 9 10 11 12 13 14 15 Colleen McGuire Clerk, Phoenix P&DC, P/L-415 4949 E. Van Buren Phoenix, AZ 85026 Ms. McGuire may testify about Plaintiff's grievance regarding light duty and leave issues and statements he made about the circumstances of those grievances. She may also testify about the work requirements for a distribution clerk at the PPMPPC. Dr. Lawrence P. Shank 13555 W. McDowell Rd #302 Goodyear, AZ 85338-2604 (623) 882-1292 Dr. Shank treated Plaintiff in October 2001, and will testify to issues concerning

16 Plaintiff's treatment and diagnosis, including Plaintiff's statements concerning his condition 17 and employment. 18 19 20 21 22 23 24 25 26 27 28 Any witness listed by Plaintiff' Impeachment Witnes