Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANTS MOTION IN LIMINE TO EXCLUDE EVIDENCE.

Plaintiff, Alexander Jung, submits this response to Defendants Motion in Limine
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respectfully requesting that this Court deny Defendants motion. This motion is supported by the following Memorandum of Points and Authorities. Dated this 16th day of March, 2007 s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES

The court must include all evidence under Fed. R. Evid. 402 related to Plaintiff's burden of making out and his prime facie case. To limit the evidence to Humberto Trujillo or Mark Camper's actions prevents the plaintiff from showing other sections of the United States Postal Service (USPS) which have failed to engage in the interactive process with Alex.

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Alex has consistently turned in information regarding is disability to the USPS personnel office and Medical Health Unit ("Health Unit"). In Barnett v US Air, Inc, 228 F3d 1105 (9th Cir 2000), the 9th Circuit held that the ADA imposed a mandatory obligation on employers to engage in an interactive process with disabled employees, under certain conditions, "in order to identify and implement appropriate reasonable accommodations." Id at 1111. The obligation to engage in such an interactive process "is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation." Id at 1114. Recognizing that such explicit

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notice would not always be possible, the 9th Circuit also stated that ... if the company knows of the existence of the employee's disability, the employer must assist in initiating the interactive process." Id. Clearly under Barnett, Alex will be able to show that the

Health Unit failed to engage in the interactive process independent of Trujillo or Camper's actions. Both Trujillo and Camper testified that they were not obligated to explore with Alex whether there were other methods in which Defendant could reasonably accommodate him. Additionally, they testified that "it's the duty of the Reasonable Accommodations Committee (RAC committee)". Therefore based on Trujillo and

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Camper testimony the RAC committee is another section of the USPS which failed to engage in the interactive process independent of Trujillo or Camper's actions. Another reason why Defendant's motion must be denied is because it places an additional element in "Discrimination" which is not necessary to be proven to make out a

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prima facie case under the Rehabilitation Act or for Failure to Accommodate. To make out a prima facie case under the Rehabilitation Act Alex must show that (1) he is disabled under the Act; (2) he is qualified, i.e., he can meet the essential eligibility requirements

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with or without reasonable accommodation; (3) he was dismissed solely because of his disability; and (4) the United States Postal Service receives federal financial assistance. Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir. 1988). To state a prime facie case for Failure to Accommodate Alex must prove (1) he has a disability as defined under the Rehabilitation Act; (2) He is qualified for the job; (3) He requested a reasonable accommodation that would not be an undue hardship on his employer; and (4) Such reasonable accommodation was denied. Zukle v. The Regents of the University of California, 166 F.3d 1041 (9th Cir. 1999). Alex does not need to prove that Trujillo or

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Camper discriminated against him. Finally, Defendants are attempting to do what the federal statute prevents Plaintiff from doing, which is suing a federal employee in there individual capacity. 28 U.S.C. § 1443. The Federal Government has responsibility under the Doctrine of Respondent Superior for the action of their individual employees. Therefore, any activities conducted by Postal employees related to Alex's prime facie case makes the USPS responsible and are relevant and admissible under Fed. R. Evid. 402. Defendant's motion must be denied.

Dated this 16th day of March, 2007 s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 16th of March, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected]

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A copy of this document was provided by mailed to: The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:

s/Stephanie Coulter Stephanie Coulter

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