Free Brief (Non Appeal) - District Court of Arizona - Arizona

1 Joseph E. Lambert (013923) Joseph E. Lambert, P.C. 2 Mesa Commerce Center 1930 South Alma School Road 3 Suite A-115 Mesa, Arizona 85210 4 (480) 755-0772 [email protected] 5 Robert L. Pickels, Jr. (021574) 6 Office of Yuma County Attorney 250 West Second Street, Suite G 7 Yuma, Arizona 85364 (928) 817-4300 8 [email protected] 9 Attorneys for Defendants 10 11 12 13 14 UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA THOMAS J. LARIOS; Plaintiff, v. No. CV-03-2285 PHX SRB CLOSING ARGUMENTS

RALPH E. OGDEN; YUMA COUNTY 15 SHERIFF'S OFFICE; AND YUMA COUNTY; 16 Defendants. 17 18 Pursuant to the Court's Order of December 14, 2005, Defendants Yuma County 19 ("County") and Yuma County Sheriff's Office ("YCSO") (collectively "Defendants") 20 hereby submit their closing arguments in the trial of this matter. 21 Notwithstanding Plaintiff's continuing efforts to expand the scope of the inquiry, the 22 only substantial issues to be tried by the Court were: (I) whether Plaintiff was a "qualified 23 individual with a disability," as defined by the ADA, and (if the Court found that he was) 24 (II) whether Defendants were responsible for the failure of the interactive process to 25 produce a reasonable accommodation in this case. The Court should find for Defendants 26 on both issues. Plaintiff has not met his burden of proving that he was a qualified 27 individual with a disability or that Defendants were responsible for the failure of the 28 interactive process.
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I.

Plaintiff Was Not a Qualified Individual with a Disability. In order to prevail on a claim of failure to reasonably accommodate, a plaintiff first

must prove he was a "qualified individual with a disability." Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806, 119 S. Ct. 1597, 1603 (1999). Whether a person is disabled under the ADA is "to be interpreted strictly to create a demanding standard for qualifying as disabled . . . ." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 691 (2002). To prove himself a "qualified individual with a disability" entitled to ADA protection, the plaintiff must show that he suffers from a physical or mental impairment that "substantially limits one or more [of his] major life activities." 42 U.S.C. § 12102(2)(A). . . . to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term. Williams, 534 U.S. at 197-98, 122 S. Ct. at 691. Where, as here, the major life activity at issue is that of working,1 the plaintiff must prove that his impairment renders him unable to work in a broad class of jobs. Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2151 (1999); 29 C.F.R. § 1630.2(j)(3)(i). Although Plaintiff's cardiac condition may be lifelong, Plaintiff offered no medical evidence that his condition severely restricts him on a permanent or long-term basis from doing any job except that of Security Control Officer ("SCO"). Indeed, by the time of his own deposition testimony in July 2004, Plaintiff was able to perform all the functions of an SCO assigned to a control box except squatting and climbing the stairs to the control box. Deposition at 23, 25. On cross-examination, Plaintiff confirmed that, at the time of his deposition in July 2004, he was able to perform all the essential functions
1

Although the Court observed in its Order of July 15, 2005 that working is not the only major life activity as to which an employee might be substantially limited, see Docket 26 # 44 at 9-10, Plaintiff never claimed he was substantially limited in any other major life activity until he asserted he was limited in "seeing, speaking, learning, performing manual 27 tasks, and other activities" in the Joint Proposed Pretrial Order filed on November 21, 2005, three weeks before trial, see Docket #57. In trial testimony, Plaintiff denied any 28 limitations in learning, and he plainly had no problems reading documents or speaking.
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of the SCO position except climb the "ship's ladder." Since the ship's ladder exists only in the control boxes, which are staffed entirely by SCOs, it could not have affected Plaintiff's ability to perform in a broad class of jobs. Plaintiff also failed to show that he was substantially limited in other major life activities. To be "substantially limited," a plaintiff must establish either that he is unable to perform the activity at all or that he is significantly restricted in performing the activity as compared to the general population. Williams, 534 U.S. at 195-96, 122 S. Ct. at 692. Where an impairment is not substantially limiting on its face, a plaintiff must present evidence comparing his restriction to that of the average person. Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001). A person who can perform the activity moderately below average is not disabled under the ADA. Rossbach v. City of Miami, 371 F.3d 1354, 1358 (11th Cir. 2004); Kelly v. Drexel Univ., 94 F.3d 102, 107 (3rd Cir. 1996). By his own testimony on direct, Plaintiff now is able to perform work that requires standing, moving around, and walking. By his own testimony on cross-examination, in mid-2002 when Plaintiff expressed an interest in the Laundry position (which was never open), he could have pushed the large laundry carts around and delivered laundry, shown the prisoners how to properly weigh laundry, used a sewing machine to mend prisoner uniforms (assuming he was taught how), and "probably" could have used a wrench to connect and disconnect the 55-gallon drums of detergent and other chemicals used in the Laundry operation. By his own testimony on cross-examination, Plaintiff could drive a car to run errands and pick up supplies and equipment; lift up to 20 pounds in supplies and equipment; walk to/from the various court buildings associated with the duties of Warrants Officer; fill out the paperwork and reports associated with various jobs; use the telephone; use a computer and keyboard (as long as speed was not an issue); communicate effectively with prisoners and other people; show prisoners how to properly do landscaping, light construction, paint removal, and similar tasks; supervise prisoners in performing those tasks; train prisoners on the proper use, care, and maintenance of
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tools and equipment; maintain equipment and vehicles; prepare food for his own consumption; clean house and do chores; and care for his own personal hygiene. The notes and letters from Plaintiff's doctor do not establish that Plaintiff was substantially limited in walking. Exhibit 42 (created 7/23/02 and provided YCSO 8/5/02) opines that Plaintiff should not be "running eight hour shifts, either just sitting alone, sitting in a cell or continuously walking in a cell." Exhibit 16 (8/6/02) says Plaintiff was at least temporarily unable to perform work of any kind but does not specifically address walking. Exhibit 44 (8/6/02) suggests, without explanation, that Plaintiff could not get up from his chair and walk to observe detention officers from the Control Box. Exhibit 54, however, the April 2003 update of Exhibit 44's restrictions - from the same doctor, says nothing about any continuing restrictions on walking. Moreover, at trial, Plaintiff testified that he could perform a variety of job duties that involved walking. Plaintiff also was not substantially limited in standing. Although Exhibit 54 restricted Plaintiff from standing more than four hours in April 2003, Plaintiff testified at deposition a year later that he believed he could stand for eight hours. Deposition at 27. At trial, Plaintiff testified that his health was better than it was at the deposition. Plaintiff offered no evidence that the average person could stand for even four hours without experiencing difficulty, and the Court should take judicial notice that four hours is a long time for the average adult to stand without respite. None of the medical documents establish that Plaintiff was substantially limited in climbing stairs. Exhibit 11 (1/7/02) cleared Plaintiff to return to work part time after his cardiac surgery and prohibited lifting, but was silent as to any climbing restrictions. Exhibit 42 (8/5/02) placed Plaintiff on FMLA leave because of "leg problems" and opined that Plaintiff should not be sitting or continuously walking for an eight-hour shift, but was silent as to any climbing restrictions. Likewise, Exhibit 16 (8/6/02) asserted that Plaintiff was unable to perform work of any kind but made no specific restrictions on climbing. Exhibit 44 (8/6/02) says Plaintiff could not climb the "ship's ladder" and Exhibit 54 (4/10/03) says Plaintiff "cannot climb," but plainly in the context of updating
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Exhibit 44's restrictions on climbing the ship's ladder.

2

Ladder-climbing, however, is not

a "major life activity" for the purposes of the ADA, Otting v. J.C. Penney Co., 223 F.3d 704, 710 (8th Cir. 2000), and Plaintiff has presented no evidence that his alleged use of the handrail to assist in climbing regular stairs is substantially different from the manner in which the average adult negotiates stairways. Plaintiff may suffer from a real impairment that "certainly inconvenience[s] his life," but his mobility limitations are not so severe as to meet the high standard set by Williams for sustaining an ADA claim. See Wood v. Crown Redi-Mix, 339 F.3d 682, 685-86 (8th Cir. 2003). II. The Failure of the Interactive Process was Not Attributable to Defendants. Before reviewing the evidence regarding the interactive process, the Court should observe that the assumptions underlying the Ninth Circuit's adoption of the interactive process in Barnett v U.S. Air, Inc. are largely absent from the facts at bar. 228 F.3d 1105 (9th Cir. 2000), overruled by U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002). Yuma County is not a large national or regional employer that plainly was better situated than the individual employee to provide information crucial to the interactive process. Cf. id.; Zivkovic v. Southern California Edison, 302 F.3d 1080 (9th Cir. 2002); Humphrey v. Memorial Hospitals Assoc., 239 F. 3d 1128 (9th Cir. 2001). The testimony demonstrated that Plaintiff was as well situated as Defendants to identify job openings for which he might qualify. Plaintiff himself testified that he knew how to find out what County positions were open at any given time and knew those positions were posted in the Human Resources lobby and listed in the Yuma Daily Sun every week. Indeed, Plaintiff readily admitted he was in a much better position than anyone at YCSO or the County to provide the information that was crucial in this case: whether Plaintiff was interested in any particular job for which he might qualify (other than Warrants Officer).

Plaintiff provided Exh. 54 on April 23, 2003 after his attorney was reminded that he had promised such an update during the March 18, 2003 mediation so that Defendants 28 could look for jobs he might be able to fill. Exh. 60 ¶ 39.
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This is not a case like Barnett and its progeny in which the employee did not have access to the information that was critical in identifying a reasonable accommodation. Even putting that distinction aside, however, the evidence is clear that the interactive process broke down at the stage of trying to determine which - of the limited positions for which Plaintiff might have qualified - he might have been interested in pursuing. The Seventh Circuit case cited and quoted by Barnett recognized that an employer looking for a transfer position may not know enough about the employee's needs or desires to suggest an appropriate accommodation. Beck v. Univ. of Wisconsin, 75 F.3d 1130, 1135-36 (7th Cir. 1996). The same EEOC regulations that discuss the interactive process suggest that an employer first ask the employee about his qualifications and interest, and preclude an employer from forcing an employee to accept a transfer he does not want. Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, October 17, 2002 ("Enforcement Guidance") ¶¶ 11, 28. The evidence demonstrates that Mr. Larios did not wish to perform the essential functions of an SCO and could not have done so with or without reasonable accommodation. Dr. Gogte completely ruled out eight of the ten essential functions and restricted the remaining two. Exh. 44. Although Plaintiff now suggests he could have performed the duties of the Visitation assignment, he admitted at deposition that he had not worked Visitation since 1995, that the duties might have changed, and that he could type no faster than 5-10 wpm. Deposition at 32, 48. Lt. Anders (now retired) and Lt. Reyes testified that use of the computer keyboard was a huge part of the Visitation assignment, that there were no open assignments in July 2002, and that the assignment could not be performed by a person limited to 5-10 wpm. Lt. Anders also testified that, although Plaintiff may have asked about assignment to Visitation in July 2002, his concern was to be on the same shift as his wife and nothing was said to indicate Plaintiff was seeking accommodation of a disability. Indeed, SCO Cross' very complete notes of Plaintiff's training document his
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problem with the low light level - and a change in lighting to correct that problem; his problem with hearing and deciphering intercom communications - and changes to accommodate that problem; and several other issues and concerns raised by Plaintiff. Notably absent from Plaintiff's concerns was any reference to his alleged difficulty with the "ship's ladder" - the only essential function with which Plaintiff ultimately had long term or permanent difficulty (Deposition at 23) - or any request for "accommodation" other than for the low light and hearing issues. Exh. 41. It is clear from Veda Bishop's testimony and report that there were very few position openings within the control of Defendants for which Plaintiff may have qualified in the sixteen months following the beginning of his FMLA leave. Ms. Bishop's unrefuted testimony also established that Plaintiff never applied for any of those openings or for any of the twelve possibilities identified in Sheriff Ogden's letter of April 25, 2003.3 See Exh. 22. Plaintiff himself admitted that he did not ask for the job descriptions offered in Exhibit 22, get back to Sheriff Ogden about positions in which he might be interested, or talk with anyone at YCSO or County Human Resources about any of the positions identified in Exhibit 22. Plaintiff likewise did not consult with YCSO's Human Resources representative about his options, as instructed in Sheriff Ogden's letter of October 21, 2002. Exh. 18. Ms. Mejia-Rico testified from contemporaneous notes that she had calendared the exhaustion of Plaintiff's FMLA leave; exchanged voicemail messages with Plaintiff on October 31, 2002 about the exhaustion of that leave; prepared Exhibit 48 for service on Plaintiff on November 18, 2002; received Exhibit 49 from Plaintiff on November 20, 2002; made telephone arrangements with Plaintiff on November 20 and 21 for him to accept service of Exhibit 50; and actually served Exhibit 50 on Plaintiff on November 22, 2002. The November 22, 2002 meeting was the only face-to-face contact between

Although Plaintiff had applied for a Superior Court Bailiff position in October 2002, he did not tell anyone at YCSO at the time and he did not reapply for the position 28 after it was identified as a possibility in Sheriff Ogden's April 25 letter.
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Plaintiff and Ms. Mejia-Rico in that series of contacts. On cross-examination, Plaintiff agreed that the above contacts were his only contacts with Ms. Mejia-Rico between October 31 and November 22, 2002, but he still insists that Ms. Mejia-Rico at some point told him he could "either quit or be fired." Ms. Mejia-Rico testified that she never made any such statement to Plaintiff and that he never inquired regarding his options. Even if, however, Ms. Mejia-Rico said something Plaintiff interpreted as conveying a choice to "quit or be fired," by Plaintiff's own testimony, it would have had to have been in the context of serving Plaintiff's notices of dismissal and hearing (Exhs. 48, 50) - a full month after Plaintiff had been instructed to consult with Ms. Mejia-Rico about his options. In that context, particularly given Plaintiff's insistence on reinstatement to Warrants Officer (Exh. 49 at 3), Plaintiff's immediate choices were to quit or be terminated. Reinstatement to Warrants Officer was not an option. To some extent, the interactive process failed because Plaintiff was not qualified for very many positions that were within the County's control, but the primary reason for the failure was Plaintiff's response to every attempt to nail down a job in which he might be interested by (1) not responding at all, (2) reiterating his unrelenting desire for reinstatement to Warrants Officer or (3) on one occasion eleven months after his first request for accommodation, notifying Defendants of his application for three State jobs that were beyond the control of Defendants. Exh. 68. Exhibit 68, the unchallenged time line of the Interactive Process Between the Parties, shows who participated in good faith in the interactive process and who did not, and points the Court to the other exhibits that reflect those interactions. Interactions initiated by Plaintiff appear in the left column of Exhibit 68. Interactions initiated by Defendants appear in the right column. Interactions that were bilaterally initiated appear on both sides. Without exception, the left-column interactions were promptly answered by Defendants, even though the answer may have been: ". . . there are no positions that meet
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your needs as expressed in your letter." E.g., Exh. 18. With only one exception Plaintiff's counsel's voicemail message of 8-11-03, the interactions initiated by Plaintiff were fixated on Plaintiff's restoration to Warrants Officer or a bifurcated version of that position. There is no reason to believe Plaintiff would have pursued any other approach if his attorney had called back after his initial call of 8-11-03 was returned. Exh 68. Without exception, Plaintiff either did not respond to the right-column interactions initiated by Defendants or responded with a request for Plaintiff's reinstatement to Warrants Officer or a bifurcated version thereof. Exh. 68. The record shows that, unlike the employer in Barnett, Defendants never ignored a single suggestion for reasonable accommodation. The problem was, Plaintiff made only one suggestion over and over again: "reinstate me to Warrants Officer." Plaintiff made that request and only that request in his initial request for accommodation on October 16, 2002. Exh. 17. Plaintiff made that request and only that request in his attorney's letter of November 1, 2002 asserting that Plaintiff was constructively terminated as of Sheriff Ogden's October 21, 2002 response. Exh. 18. Plaintiff made that request and only that request in his November 19, 2002 response to notice of his impending termination. Exh. 49 at 3. Plaintiff made that request and only that request in his hearing of November 27, 2002 with Sheriff Ogden. Exh. 19 at 2. Plaintiff made that request and only that request in the questionnaire he submitted to the EEOC on December 5, 2002. Exh. 51 ¶ 18. Plaintiff made that request and only that request in the EEOC-sponsored mediation on March 18, 2003.4 Plaintiff made that request and only that request in his attorney's May 13, 2003 conference call with attorneys for Defendants. Exh. 60 ¶ 40 and exh. 13 thereto. Plaintiff made that request and only that request in the initial Complaint he filed on December 31, 2003 in Yuma County Superior Court. Exh. 6 at 3. Plaintiff made that request and only that request in the Verified Amended Complaint he filed with this Court on March 26, 2004. Docket #11 at 4. Even though the Court long since ruled that

4 Plaintiff agreed on cross-examination that his desire to return to Warrants Officer 28 was the central focus of that mediation.

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reinstatement to Warrants Officer would not have been a reasonable accommodation, that request remains Item 1 in Plaintiff's prayer for relief. Plaintiff even repeated that request in his Opening Statement to this Court. III. Conclusion. On the evidence before it, the Court should find that Plaintiff has not carried his burden of proving himself a "qualified individual with a disability," as defined by the ADA. Even if the Court finds that Plaintiff was a qualified individual with a disability, however, the evidence shows that there were no suitable openings into which Plaintiff might have been transferred as a reasonable accommodation and that Plaintiff did nothing to pursue any of the possibilities suggested by Defendants. Finally, the evidence is clear that Plaintiff, not Defendants, bears the ultimate responsibility for the failure of the interactive process to produce a reasonable accommodation. By his insistence on reinstatement to Warrants Officer and his unresponsiveness to Defendants' efforts to identify a position within his interest and qualifications, Plaintiff undermined the interactive process and any chance it may have had of identifying a suitable position. RESPECTFULLY SUBMITTED this 4th day of January 4, 2006. JOSEPH E. LAMBERT, P.C. Joseph E. Lambert OFFICE OF YUMA COUNTY ATTORNEY Robert L. Pickels, Jr. Attorneys for Defendants /s/ Joseph E. Lambert COPY OF THE FOREGOING emailed this 4th day of January, 2006, to: Robert M. Cook The Law Offices of Robert M. Cook Missouri Commons, Suite 150 1430 East Missouri Phoenix, Arizona 85014 [email protected] Attorney for Plaintiff /s/ Joseph E. Lambert
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