Free Response in Opposition to Motion - 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. CIV-04-0429-PHX-MHM DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTIONS RE: MITIGATION OF DAMAGES

Defendant, John E. Potter requests that the Court deny Plaintiff's Motions in Limine that the Court preclude evidence or argument regarding Plaintiff's failure to mitigate damages (Doc. # 96) based upon the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff seeks to preclude any evidence about Defendant's affirmative defense of failure to mitigate damages on the basis that Plaintiff has not disclose any evidence or testimony that would support this defense. Plaintiff is wrong. In March 2002, Plaintiff refused to accept a light duty offer claiming it improperly limited him to a maximum of four hours of work per shift. Plaintiff left work and failed to report, resulting in his eventual termination. Plaintiff's refusal to accept that light duty offer is, in itself evidence that he failed to mitigate his damages. Plaintiff could have accepted the offer, then clarified the restriction or field a grievance. Further, the light duty offer, as all light duty offers, was effective for only a limited period of time before Plaintiff had to provide updated work restrictions for another appropriate light duty offer. Under these facts, Plaintiff's failure to accept the offer, and subsequent refusal to report to duty are evidence that Plaintiff did not mitigate his damages.
Case 2:04-cv-00429-MHM Document 108 Filed 03/16/2007 Page 1 of 2

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Defendant should also be able to present other evidence at trial that would concern this

2 defense. Plaintiff has identified and may call witnesses, such as his wife, friends, and former co3 workers, who may provide testify on this issue. The jury can determine that issue in accordance 4 with appropriate jury instructions, and the Court can consider those findings in making its 5 equitable award. See Defendant's Response to Plaintiff's Motion In LImine Re: Collateral 6 source. Defendant is entitled to elicit any relevant evidence on this issue at trial. Plaintiff's 7 motion in limine is without merit. 8 9 10 11 12 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that on March 16, 2007, I electronically transmitted the attached 17 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 18 of Electronic Filing to the following CM/ECF registrants: 19 Rosval A. Patterson 20 777 E. Thomas Rd. Phoenix, AZ 85014 21 s/S. Chynoweth ________________________________ 22 Office of the U.S. Attorney 23 24 25 26 27 28 2
Case 2:04-cv-00429-MHM Document 108 Filed 03/16/2007 Page 2 of 2

Defendant therefore, respectfully requests that the Court deny Plaintiff's Motion In Limine regarding collateral source payments (Doc. #96). Respectfully submitted this 16th day of March, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney