Free Response 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. Defendant, John E. Potter, Postmaster General, hereby responds to and requests that the Court deny Plaintiff's Motion to Preclude Evidence, [Doc. #93] about the essential function of Plaintiff's job as set forth in the following Memorandum of Points and Authorities MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff requests to preclude evidence about the physical requirements of his job when he was extended light duty offers in late 2001 and early 2002. During the briefing on the parties' summary judgment motions, evidence was provided about the essential functions of Plaintiff's job at the time, a Level 5 Distribution Clerk (the Clerk). The submitted evidence included the position description for a Level 5 Distribution Clerk as well as a declaration from Plaintiff's supervisor about the particular physical requirements for Plaintiff's job. Now, Plaintiff seeks to exclude all evidence outside the four corners of the Clerk job description, citing as support 42 U..S. C. § 12111(8) and Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001). Plaintiff's position is unfounded. Neither of his cited authorities limits the scope of evidence that can be offered at trial. While the Clerk job description is evidence, it is not the only permissible CIV-04-0429-PHX-MHM DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTIONS IN LIMINE RE: ESSENTIAL FUNCTION

Case 2:04-cv-00429-MHM

Document 106

Filed 03/16/2007

Page 1 of 2

1 evidence. In Cripe, the Ninth Circuit specifically discussed the conflicting evidence about 2 whether the essential functions of a police officer required that they be able to make forcible 3 arrests. Id. At 887-88. The Ninth Circuit did not limit the evidence to the job description, but 4 considered witnesses' testimony in determining that a factual issue existed. What evidence 5 should be allowed in Plaintiff's case should not be restricted. It is therefore requested that this 6 motion in limine (Doc. #93) be denied. 7 8 9 10 11 12 CERTIFICATE OF SERVICE 13 I hereby certify that on March 16, 2007, I electronically transmitted the attached 14 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 15 of Electronic Filing to the following CM/ECF registrants: 16 Rosval A. Patterson 17 777 E. Thomas Rd. Phoenix, AZ 85014 18 s/S. Guerin ________________________________ 19 Office of the U.S. Attorney 20 21 22 23 24 25 26 27 28 2
Case 2:04-cv-00429-MHM Document 106 Filed 03/16/2007 Page 2 of 2

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