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. CIV-04-0429-PHX-MHM

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTIONS IN LIMINE RE: LIGHT DUTY IS AN John Potter, Postmaster General, U.S. Postal ACCOMMODATION Service Defendant. Defendant, John E. Potter hereby responds to and requests that the Court deny Plaintiff's Motion in Limine [Doc. #95] requesting that the Court preclude any testimony, evidence, argument, or instruction that providing light duty is an accommodation as set forth in the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's motion seeks to exclude evidence that granting his light duty requests is insufficient as a matter of law to determine the appropriate reasonable accommodation via the interactive process under 29 C.F.R. § 1630.9. Plaintiff is elevating form over substance by trying to limit what to call the Postal Service's decision to extend light duty offers to Plaintiff. In 2001 and 2002, the Postal Service responded to Plaintiff's request to be placed on light duty due to certain physical limitations. The Court has already ruled that the jury should hear the evidence and decide whether Plaintiff was disabled and discriminated against under the Rehabilitation At trial, Plaintiff must establish that he was disabled under the Rehabilitation Act, he was "otherwise qualified" for his position as a level 5 distribution clerk with the Postal Service with or without reasonable accommodation, and he was dismissed solely because of his disability. [Court's Order, [Doc. #88, p. 7.] If Plaintiff proves that he was disabled under the Rehabilitation
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1 Act because he had an impairment limiting a major life activity or had a record of an impairment 2 that substantially limited a major life activity, then the fact finder must determine whether the 3 Postal Service reasonably accommodated his disability. However, if Plaintiff was "regarded" as 4 disabled, the Postal Service would have no duty to accommodate since "to require 5 accommodation for those not truly disabled would compel employers to waste resources 6 unnecessarily. . . ." Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1233 (9th cir. 2003). If 7 Plaintiff proved that he was disabled under the first two definitions, then he would have the initial 8 burden of producing evidence that a reasonable accommodation was possible. Kim v. Potter, 9 ----F.Supp.2d ----, 2007 WL 294221, p. 12 (D. Hawai'i.). 10 It is Defendant's position that in 2001 and 2002 Plaintiff was not disabled under the

11 Rehabilitation Act, and that he never advised his supervisors that he was disabled. However, it 12 is also Defendant's position that the Postal Service did accommodate Plaintiff to the extent 13 Plaintiff made known his need for different duties due to a physical impairment . An employer 14 which does not believe or know that an employee is disabled, is not precluded from granting an 15 accommodation request. 16 Plaintiff went through the process to identify whether his impairment was work related.

17 Based upon the evidence that Plaintiff submitted to the Department of Labor (DOL), it 18 determined that Plaintiff's knee condition was not work related and so advised the Postal Service. 19 Plaintiff did not appeal that decision, which likewise bound the Postal Service. DOL specifically 20 advised Plaintiff in February 2002: 21 · that Plaintiff could apply for temporary light duty if he believed that his disability was

22 temporary 23 24 · he could request a reasonable accommodation from his supervisor · he could apply for permanent light duty in writing if he believed that his impairment

25 would permanently prevent him from performing the full duties of his position; 26 · he could apply for disability if he anticipated that the impairment would last more than

27 twelve months. Plaintiff was further advised to tell his supervisor what he wanted to do. Plaintiff 28 submitted a light duty request, and a light duty offer was made. 2
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[See letter attached; See also Ex. D to Def. SOF at Doc. # 60 (Camper's Declaration), ¶¶ 15-

2 17.] 3 Plaintiff applied for light duty, and nothing more. Whether and to what extent the Postal

4 Service was obligated to do something beyond extend the light duty offers that are the subject of 5 this case is a matter for the jury to decide. It is therefore requested that the Court deny Plaintiff's 6 Motion In Limine Precluding any reference that "light duty" was an accommodation. 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 3
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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