Free Pretrial Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA THOMAS J. LARIOS; No. CV-03-2285-PHX-SRB Plaintiff, v. RALPH E. OGDEN; YUMA COUNTY SHERIFF'S OFFICE; AND YUMA COUNTY; Defendants. Pursuant to the Scheduling Order previously entered, the following is the Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for November 28, 2005, at 10:00 a.m., before Judge Bolton. A. TRIAL COUNSEL FOR THE PARTIES (include mailing address, office JOINT PROPOSED PRETRIAL ORDER

phone, and fax numbers). Plaintiff: Robert M. Cook The Law Offices of Robert M. Cook 1430 East Missouri, Suite 150 Phoenix, Arizona 85014 Voice: 285-0288 Fax: 602-285-0388 [email protected] Robert L. Pickels, Jr. Chief, Civil Division Office of Yuma County Attorney 250 W. Second Street, Suite G Yuma, Arizona 85364 Voice: 928-817-4300 Fax: 928-373-1151 [email protected]

Defendants: Joseph E. Lambert Joseph E. Lambert, P.C. Mesa Commerce Center 1930 S. Alma School Rd. Suite A-115 Mesa, Arizona Voice: 480-755-0772 Fax: 480-755-0034 [email protected]

1 B. 2 Jurisdiction in this case is based on original jurisdiction of civil actions arising 3 under the laws of the United States under Title 28 U.S.C. § 1331. Plaintiff asserts a 4 violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"). 5 C. 6 Plaintiff's Statement: 7 Plaintiff contends the nature of this action is set forth in this Court's Order of July 8 15, 2005, pages 9-11, which provides in pertinent part: "The ADA prohibits employers 9 from discriminating against their employees by not `making reasonable accommodations 10 to the known physical or mental limitations of an otherwise qualified individual with a 11 disability who is an applicant or employee, unless such covered entity can demonstrate 12 that the accommodation would impose an undue hardship on the operation of the 13 business of such covered entity. 42 U.S.C. §12112(b)(5)(A). Although Defendants 14 suggest that Plaintiff is not disabled, they concede that it is not `entirely clear' whether 15 his medical restrictions reach the level of disability protected by the ADA. Defendants 16 contend that Plaintiff is not a `qualified individual' within the meaning of the ADA based 17 on a mistaken reading of the law that would require an individual to be substantially 18 limited in the major activity of working to obtain the protections of the ADA. The 19 "qualified individual" provision requires that an individual with a disability "without or 20 without reasonable accommodation, [be able to] perform the essential functions of the 21 employment position that such individual holds or desires." 42 U.S.C. §12111(8); see 22 23 grounds, 535 U.S. 391, 122 S. Ct. 1516 (2002) (finding that an individual who cannot 24 perform the functions of his current position, but can perform the essential functions of a 25 reassignment position, is a "qualified individual"). While there is some medical opinion 26 evidence that Plaintiff cannot perform the essential functions of the Security Control 27 Officer position, there is no evidence concerning his ability to perform other desired 28
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STATEMENT OF JURISDICTION/VENUE.

NATURE OF ACTION.

also Barnett v U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000), overruled on other

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positions, and the Court cannot say that no genuine issue of material fact remains concerning Plaintiff's status as a qualified individual with a disability.' "Next, Court turns to whether Defendants satisfied their obligation to attempt to accommodate Plaintiff's continued employment. Once an employee makes known that he needs an accommodation, the employer and employee are required to participate together in an interactive process to decide upon a reasonable accommodation. Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). The interactive process requires: (1) direct communication between the employer and the employee to explore in good faith the possible accommodation; (2) consideration of the employee's request; and (3) offering an accommodation that is reasonable and effective. Id.. (quoting E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 951 (7th Cir. 2001) (en banc)). The employer is only liable for failure to provide a reasonable accommodation "where the employer bears responsibility for the breakdown in the interactive process." Id. (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996). The employer's refusal to provide the specific accommodation requested or preferred by the employee does not translate to responsibility for the breakdown in the interactive process and its resultant ADA liability." Id. "On the evidence now before the Court, issues of material fact remain as to whether Defendants fulfilled their duty to offer reasonable and effective accommodations. It is undisputed that Plaintiff's requests for accommodation for his disability began after his demotion from Warrants Officer to Security Control Officer, while he was on FMLA leave. Plaintiff stated that he first requested accommodation on July 26, 2002 contained in the record as evidence of a request for accommodation in the form of a letter dated October 16, 2002. In that letter Plaintiff requested a meeting with Defendant Ogden to discuss reinstatement of my job as Warrants Officer or any position with the department that would allow me to perform the duties of that position. (DSOF, Ex. 1, Sub-Ex. 6) Defendants responded that no available positions met the Plaintiff's medical restrictions and asked him to meet with the human resource analyst but he failed
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to do so. Plaintiff's subsequent communications with Defendants, which continued after Plaintiff's termination, sought a return to the Warrants Officer position or to a proposed position that would consist of part of the Warrants Officer position. While seeking a particular accommodation, Plaintiff demonstrated that he was willing to continue the interactive process by providing an update concerning his medical restrictions on April 23, 2003. See Velente-Hook v. Eastern Plumas Health Care,368 F.Supp. 2d 1084, 1099 (E.D. Cal 2005) (providing a letter of information about medical restrictions is participation in an interactive process). "Via letter dated April 25, 2003, Defendants informed Plaintiff of two possible positions with YCSO, one available and one unavailable, and a mix of ten County-wide and State positions. Defendants noted that they had `no information as to the availability of these positions nor have I obtained copies of the job descriptions' and referred Plaintiff to Yuma County Human Resources for more information. Defendants asked Plaintiff to notify them by May 13, 2003 if he intended to pursue any of the positions. Although Plaintiff never notified Defendants of his intentions, he pursued one listed position that later proved to be a State job over which Defendants had no control. Of five other positions pursued by Plaintiff, four also were State positions and one position never existed. Eventually, after attempts at mediation, Defendants informed Plaintiff that they were unable to find a position for him despite their best efforts and that they could only offer him a neutral reference. "The Court finds that Genuine issues of material fact remain regarding Defendants' satisfaction of their duty of reasonable accommodation. Evidence exists that Plaintiff participated in the interactive process in good faith by updating Defendants on his medical restrictions. Valente-Hook, 368 F.Supp. 2d at 1099; contra Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996) (finding that failure to provide medical information about disability constituted responsibility for breakdown of interactive process); Rowe v. City & County of San Francisco, 186 F.Supp. 2d 1047, 1053 (N.D. Cal. 2002) (noting that employee who fails to provide necessary medical
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information to employer is responsible for breakdown), continuing to request accommodations, and applying for positions suggested by Defendants, although most of the positions proved to be outside the control of the County. For their part in the interactive process, Defendants had an `affirmative duty to explore further methods of accommodation.' Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001). Defendants are not required to provide the exact accommodation desired by Plaintiff. Zivkovic, 302 F.3d at 10989, especially where it involves a promotion, 29 C.F.R. Pt. 1630, App. § 1630.2 (o), creating a new position, Watkins v. Ameripride Serv., 375 F.3d 821, 829 (9th Cir. 2004); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000), or assigning the employee to an already occupied position, Watkins, 375 F.3d at 829. "Defendants seem to acknowledge that they were not able to accommodate Plaintiff, but the ADA `does not allow employers to avoid reasonable accommodation absent a showing of undue hardship.' Barnett, 228 F.3d at 1113. Defendants have not argued that accommodation of Plaintiff was not possible due to undue hardship as defined by 42 U.S.C. §12112(b)(5)(A), and because this issue has not been raised nor briefed and no evidence has been submitted, the Court cannot make any such determination. Cf. Humphrey, 239 F.3d at 1136 n.14 (declining to address undue hardship argument where it was not raised by the Defendants); see also Morton v. United Parcel Serv., 272 F.3d 1249, 1256 n.7 (9th Cir. 2001) (doubting likelihood of establishing on summary judgment that no reasonable accommodations were possible). There are genuine issues of material fact as to Defendants' good-faith participation in the interactive process and the availability of a reasonable accommodation." Defendants' Statement: This is an employment case wherein the plaintiff claims that the defendants failed to reasonably accommodate his disability, as defined by the ADA, and that, as a result, plaintiff's employment with defendants was terminated in violation of the ADA. The plaintiff seeks recovery of lost wages and benefits, general damages, and recovery of
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attorney's fees and costs. D. JURY/NON-JURY.

No jury trial has been demanded. The parties agree that the matter will be tried to the Court. E. CONTENTIONS OF THE PARTIES.

Plaintiff's Contentions: See (C) above. In summary, Plaintiff contends that: 1. Plaintiff is a qualified individual protected by the ADA. Plaintiff is

substantially limited to one or more major life activities, which include not only working, but also seeing, speaking, learning, performing manual tasks, and other activities. 42 U.S.C. §12112(b)(5)(A). Plaintiff has a physical impairment and a physiological disorder effecting his cardiovascular body system. 19 CFR 1630.2(h)(1). 2. Plaintiff is a qualified individual with a disability who, with or without

reasonable accommodation, is able to perform essential functions of a reassignment position. Qualified individual with disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 CFR 1630.2(m). 3. Plaintiff is qualified and has the ability to perform other desired position.

"The Americans with Disabilities Act outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiff's disability or request for an accommodation - - a motivating factor standard." Head v. Glacier Northwest, 413 F.3d 1053 (9th Cir. 2005). 4. Defendants failed to offer reasonable and effective accommodation and had

an affirmative duty to explore further methods of accommodation. Humphrey v. Mem'l Hosps. Ass'n, 239 F.3D 1128, 1137 (9TH Cir. 2001). "The purpose of the reasonable accommodation requirement of the American with Disabilities Act (ADA), 42 U.S.C.S.
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§12101 et seq., is to guard against the facade of `equal treatment' when particular accommodations are necessary to level the playing field." McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004). 5. Plaintiff participated in the Interactive Process by updating Defendants on

his medical restrictions. Defendants had an "affirmative duty to explore further methods of accommodation." Humphrey v. Mem'l Hosps. Ass'n, 239 F.3D 1128, 1137 (9TH Cir. 2001), defendants did not. "Under appropriate circumstances, `the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.'" id. Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004). 6. Defendants did not participate in good faith in the interactive process.

Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). Id.. (quoting E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 951 (7th Cir. 2001) (en banc)). Id. (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996). 7. An employer should not be allowed to accomplish an adverse employment

action with invidious intent through layoff and rehiring when the same action would be impermissible if done in the course of employment. A court's purview is limited, for whether a new or distinct contractual relationship was formed should not be measured in quantitative terms, like the amount of a potential pay increase, but should instead be determined by whether there exists a meaningful, qualitative change in the contractual relationship. Thus, the inquiry should not be confined to titles but should examine actual changes in responsibility and status. McDonnell Douglas, 411 U.S. 792, 36 L.Ed. 2d 668, 93 S. Ct. 1817 (1973) Defendants' Contentions: 1. Plaintiff's Status as a Qualified Individual with a Disability

In order to prevail on his claim of failure to reasonably accommodate, the 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
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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. Toyota, 534 U.S. at 197-98, 122 S. Ct. at 691.

10 Where, as here, the major life activity at issue is that of working, the plaintiff must 11 prove that his impairment renders him unable to work in a broad class of jobs. Sutton v. 12 United Air Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2151 (1999); 29 C.F.R. § 13 1630.2(j)(3)(i). 14 2. 15 If the plaintiff establishes that the condition for which he sought accommodation 16 was a "disability" protected by the ADA, he then must prove that the defendants violated 17 the ADA by failing to reasonably accommodate that disability. To do this, he must 18 demonstrate the existence of an accommodation that was plausible or reasonable on its 19 face. See Opinion and Order of September 1, 2005 at 2; U.S. Airways, Inc. v. Barnett, 20 535 U.S. 391, 400-02, 122 S. Ct. 1516, 1522-23 (2002). If the plaintiff meets that 21 burden, the defendants then must come forward with evidence that the facially22 reasonable accommodation proposed by the plaintiff would have constituted an undue 23 hardship and therefore was not, in fact, a reasonable accommodation, although it may 24 facially appear to be been reasonable. See Opinion and Order of September 1, 2005 at 2; 25 U.S. Airways, 535 U.S. at 401-02, 122 S. Ct. at 1523. 26 Under Ninth Circuit jurisprudence, a plaintiff may soften his obligation to 27 demonstrate the existence of a facially-reasonable accommodation by proving that his 28
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Sufficiency of Attempts to Reasonably Accommodate the Plaintiff

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inability to do so is attributable to the employer's refusal to engage in the interactive process suggested by EEOC regulations.1 We hold that employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000), overruled by U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002).2 The plaintiff must prove that the defendants bear the responsibility for the failure of the interactive process to identify a reasonable accommodation. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)). "Liability for failure to provide reasonable accommodations ensues only where the employer bears the responsibility for the breakdown." Beck, 75 F.3d at 1137. To determine whether the employer is chargeable with a breakdown in the interactive process, the Court should look to "the concepts of good faith and reasonable effort" in an "attempt to isolate the cause of the breakdown and then assign responsibility" for the failure. Id. at 1135-36. Under Ninth Circuit jurisprudence, if the Court finds that the defendants "failed to engage in the interactive process in good faith" and that a reasonable accommodation would have been possible but for their failure, the defendants face liability for the remedies imposed by the statute. Barnett, 228 F.3d at

"To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. 1630.2(o)(3). "The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate accommodation." EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual (CCH), § 902, No. 915.002 (March 1, 1999), at 5440.

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2 The record should reflect that the defendants believe Ninth Circuit jurisprudence 27 on the interactive process is overruled to the extent it shifts an employee's burden of proving the existence of a facially reasonable accommodation to the employer. See U.S. 28 Airways, 535 U.S. at 401-02, 122 S. Ct. at 1523.

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1116. 3. Plaintiff's Damages

If the plaintiff proves that the defendants were responsible for the failure of the interactive process and that a reasonable accommodation would have been possible but for that failure, he must prove the extent of damages arising from that failure. Under the facts of this case, the plaintiff must establish the wages and benefits he would have received had he been placed in a specific position opening that would have constituted a reasonable accommodation. To recover compensatory damages, the plaintiff must prove that the defendants acted intentionally. Griffin v. Steeltek, Inc., 261 F.3d 1026, 1028 (10th Cir. 2001). To establish compensatory damages for emotional distress, the plaintiff must provide competent evidence of genuine injury stemming from his termination. Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1196 (8th Cir. 2001). 4. Mitigation of Damages

In order to prevail on its defense of failure to mitigate damages, the defendants must show that some or all of the plaintiff's loss of wages and benefits could have been avoided through the exercise of reasonable diligence in finding and maintaining other employment or that the plaintiff's condition effectively removed him from the job market. Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S. Ct. 3057, 3065 (1982); 42 U.S.C. § 12117(a). F. 1. STIPULATIONS AND UNDISPUTED FACTS The parties stipulate and agree that all the exhibits listed in Section M as

Plaintiff's Exhibits or Defendants' Exhibits may be admitted into evidence without further foundation and given such weight as the Court may determine appropriate. 2. The parties stipulate and agree that one attorney for the defendants may

cross examine Plaintiff on issues of liability and another attorney for the defendants may cross examine Plaintiff on issues of damages. .....
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G. 1.

PLAINTIFF'S CONTENTIONS OF DISPUTED FACT Plaintiff Thomas J. Larios was employed with the Yuma County Sheriff's

Department from April 8, 1995 through May 1, 2002. 1. Plaintiff Thomas J. Larios was called "old man" by many employees of

Defendants, and especially by Anders, who never called Plaintiff Thomas J. Larios by name. 2. Plaintiff Thomas J. Larios suffered a heart attack on November 28, 2001.

He returned to work in approximately one month later. 3. On or about July 8, 2002, Defendant Ogden notified Plaintiff Thomas J.

Larios that he had been demoted from his position as Warrants Officer to the position of Security Control Officer. 4. Plaintiff Thomas J. Larios' demotion was just prior to his approved merit

increase which was effective September 1, 2002. 5. After his November 28, 2001 heart attack, and during his recovery,

Miranda Ball took over Plaintiff Thomas J. Larios' position as Warrants Clerk. 6. When Plaintiff Thomas J. Larios returned to work his assistant Terri Zacker

advised him to "watch his back" because Ball had told her that "she was the new Warrants Supervisor and that she is going to make a lot of changes". Terri Zacker told Ball that Plaintiff Thomas J. Larios was coming back to work and do not make any changes without Plaintiff Thomas J. Larios being there. After this statement to Ball, Ball made it a point to make Zacker look incompetent and to run her work down by going to Ball's Supervisor, Richard Benson, who had been trying for months to get Zacker fired or replaced by Ball. Benson was aware he could not make any moves or changes without removing Plaintiff Thomas J. Larios as Warrants Officer. Ball made statements to the Justice Court clerks that she is now the Warrants person. 7. The Warrants Department and the Yuma County Justice Court work hand-

in-hand with each other. Ball's statement was told to Bonnie Larios by Margo Fasavala, both Justice Court Clerks. Fasavala advised Bonnie be sure Plaintiff Thomas J. Larios is
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careful, as Ball is trying to replace him. 8. While recovering from his heart attack, Plaintiff Thomas J. Larios and

Bonnie Larios visited the Defendant Yuma County Sheriff's Department so Plaintiff Thomas J. Larios could say hello to everybody and thank them for the get well cards they sent Plaintiff Thomas J. Larios while he was gone. During his rounds Plaintiff Thomas J. Larios was stopped by Lt. Penny Anders who stated to Plaintiff Thomas J. Larios that he should go home now and rest. Plaintiff Thomas J. Larios did not think anything about the remark at the time, but looking back now, Plaintiff Thomas J. Larios knows now that Anders was trying to get Plaintiff Thomas J. Larios away from Zacker and Ball. 9. 10. Plaintiff Thomas J. Larios returned to work in mid-January 2002. Upon his return to work Plaintiff Thomas J. Larios observed some of his Plaintiff Thomas J. Larios

co-workers standoffish and attitude changes towards him.

had a conversation with Major Matt Catron. Catron stated to Plaintiff Thomas J. Larios that he should take a downgrade in rank. Plaintiff Thomas J. Larios refused Catron's offer. 11. The Yuma County Sheriff's Department moved Plaintiff Thomas J. Larios'

office from downstairs to upstairs, next to Lt. Reyes and Captain Mitchell's office. The left Plaintiff Thomas J. Larios with 3000+ warrants downstairs in Dispatch. By moving his office upstairs and leaving his warrants downstairs, that meant Plaintiff Thomas J. Larios had to climb 2 flights of stairs. Plaintiff Thomas J. Larios had to go up and down

the stairs at least 4 times or more a day to access his warrant files and teletype messages. 12. Defendant Yuma County Sheriff's Department was aware that Plaintiff

Thomas J. Larios had trouble with his legs after his surgery and that Plaintiff Thomas J. Larios struggled to climb stairs. Gretchen Thomas who was a Supervisor of the Yuma County Sheriff's Department Clerks, acknowledged that she noticed Plaintiff Thomas J. Larios was having trouble climbing the stairs. 13. Several times Richard Benson ("Benson"), Mitchell and Reyes questioned

Plaintiff Thomas J. Larios' work. After Plaintiff Thomas J. Larios proved to them his
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decisions were right and no errors were committed, Benson, Mitchell and Reyes would back off. 14. Plaintiff Thomas J. Larios noticed daily attitudes of Benson, Mitchell and

Reyes had changed from being sociable to rude and short after his operation and returning to work. The once cheerful talking to Plaintiff Thomas J. Larios turned now to harsh responses and most of the time, they ignored Plaintiff Thomas J. Larios' greeting such as good morning, etc. 15. On or about May 1, 2002, Plaintiff Thomas J. Larios was in Yuma County

Superior Court, Division II, waiting for two of his fugitives to sign their waives of extradition in order to return them to their demanding states. Plaintiff Thomas J. Larios let Watch Commander Susan Carr know that he would never release any information when a prisoner is to be released and that a fugitive's transport would be taken care of in the time allowed. When a fugitive is ready for pick up, Plaintiff Thomas J. Larios would notify the demanding State that they have 10 working days to pick up their fugitives, never knowing what day or time they will come pick up the fugitives until 24 hours beforehand. (For example, Inmate Joe Ochoa ("Ochoa") is a fugitive from California Department of Corrections who is a regular visitor in Defendants' facility and is also known as a hard core gang member who causes a lot of trouble while in custody. Every day Plaintiff Thomas J. Larios was asked by one or more of the Detention Officers when will Ochoa be picked up and Plaintiff Thomas J. Larios would reply soon. Another

example is a warrant from Texas was faxed to Plaintiff Thomas J. Larios. Two officers were present and waiting for this warrant to arrest a female that was being held for them. Plaintiff Thomas J. Larios took the warrant upstairs where the two officers were waiting. Plaintiff Thomas J. Larios gave them the warrant and told them to go downstairs and give the warrant to the deputies who were waiting. Thinking they were downstairs, Plaintiff Thomas J. Larios went back to his office. Shortly afterwards, Plaintiff Thomas J. Larios

was called downstairs and asked where is the warrant? Plaintiff Thomas J. Larios explained that the two people from Texas were told by Plaintiff Thomas J. Larios to go
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downstairs and give them the warrant.

The two officers from Texas had left with the

warrant. Dispatch had to call Texas and get a copy of the warrant. Plaintiff Thomas J. Larios knew of no policy of giving copies to other personnel. Plaintiff Thomas J. Larios feels Defendant Yuma County Sheriff's Department was blowing this incident up to make a charge against Plaintiff Thomas J. Larios.) 16. Plaintiff Thomas J. Larios was approached by Cpl Jack Nelson ("Nelson") Plaintiff Thomas J. Larios explained that he

who stated Reyes wanted to see him.

would after his fugitives were seen by the Judge. Nelson came back with Reyes who said "Now, Not Later", and that is when Reyes sent Plaintiff's assistant, Zacker, home. Plaintiff Thomas J. Larios went with Nelson to Reyes' office. Reyes, in a hostile voice, ordered Plaintiff Thomas J. Larios to sit down. Reyes stated that he put Zacker on A.I. and sent her home. Reyes continued, stating that "I am doing the same to you, you are on A.I., you are to be escorted out of the building and you are not to talk to anyone". 17. Plaintiff Thomas J. Larios asked three times what the charges were against

him, but Reyes refused to answer his question, and told Plaintiff Thomas J. Larios to be back at 0800 the next day. Nelson escorted Plaintiff Thomas J. Larios out of the building. Plaintiff Thomas J. Larios' anger got the best of him so he stated "take this job and stick it up your ass". Reyes replied, "is that a verbal resignation?" Plaintiff Thomas J. Larios replied, "No, just a comment out of anger". 18. When Plaintiff Thomas J. Larios returned home, Plaintiff Thomas J. Larios

called Reyes to apologize for his remark as Plaintiff Thomas J. Larios stated to Reyes that it just popped out because he was angry. Reyes again told Plaintiff Thomas J. Larios to be back at 0800 tomorrow morning. 19. Reyes told Plaintiff Thomas J. Larios that he was confined to his residence

from 8:00 a.m. until 5:00 pm., and was not to go anywhere without their permission. Plaintiff Thomas J. Larios felt it was home arrest on civil charges. Plaintiff Thomas J. Larios had to call into Defendant Yuma County Sheriff's Department every time he had a doctor's appointment, etc. Plaintiff Thomas J. Larios feels they were violating his civil
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rights.

Defendants explained to Plaintiff Thomas J. Larios that as long as Plaintiff

Thomas J. Larios is still being paid by Defendant Yuma County, they have that right. Plaintiff Thomas J. Larios does not believe this is true. 20. At 0720 Plaintiff Thomas J. Larios entered the Yuma County Sheriff's

Department Admitting Center and looked for his timecard. Plaintiff Thomas J. Larios found his time card to be missing, so Plaintiff Thomas J. Larios went to his office waiting for 0800 in order to see Reyes. Reyes was in his office and noticed that Plaintiff Thomas J. Larios was early. Reyes waited until 0800, and then called Plaintiff Thomas J. Larios into his office, stating to Plaintiff Thomas J. Larios that he ordered Plaintiff Thomas J. Larios 3 times to be there at 0800. Reyes only told Plaintiff Thomas J. Larios 2 times and Reyes did not order Plaintiff Thomas J. Larios to be there. The first time was in Reyes' office and the second time was by phone after Plaintiff Thomas J. Larios called Reyes to apologize for the remark he said to Reyes. At no time did Plaintiff Thomas J. Larios take Reyes' remark as an order. Plaintiff Thomas J. Larios believes that "be here at 0800" means to Plaintiff Thomas J. Larios not to be late, which he was not late. 21. Reyes asked Plaintiff Thomas J. Larios to turn in his identification card and

keys. Reyes then went on to state that Plaintiff Thomas J. Larios has five counts of insubordination. Reyes also informed Plaintiff Thomas J. Larios that he wrote Plaintiff Thomas J. Larios up for showing up to work one-half hour early before his interview, not late, but early. Plaintiff Thomas J. Larios knew at this point that he was being removed as a Warrants Officer. 22. Sgt. Jack Lehr ("Lehr") was Plaintiff Thomas J. Larios' supervisor who

trained Plaintiff Thomas J. Larios on how to process fugitive and to shuffle paperwork. Lehr did not train Plaintiff Thomas J. Larios on warrants, nor does Plaintiff Thomas J. Larios believe that Lehr has any knowledge of entering warrants into the system. Plaintiff Thomas J. Larios training regarding warrants was received from different dispatchers who did all of the entering and cancelling before Plaintiff Thomas J. Larios
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took over the Warrant position. Lehr called Plaintiff Thomas J. Larios at home and stated that he went to Mitchell and Reyes, informing them that Plaintiff Thomas J. Larios had done nothing wrong, and that the original charges that provoked the A.I. had been explained and cleared. There was no comment from Mitchell and Reyes. Lehr went on to say he had received a call from Reyes who was intoxicated and crying. Reyes told Lehr that he did not want to do this, but he was forced to do it. Sgt Lehr was also put on A.I. the next day for an unknown reason. Lehr was never sent home and kept his position as Transport Supervisor. 23. For several weeks, Plaintiff Thomas J. Larios had his A.I. interviews,

which is a normal process. The procedure, is after an interview, the A.I investigator has 3 days for their judgment to be rendered. The only one Plaintiff Thomas J. Larios wishes to comment on is his second interview, which was conducted by Anders. Present was Nora Mejia-Rico who is a Human Resources staff member for for Defendant Yuma County Sheriff's Department, Anders, Plaintiff Thomas J. Larios, and attorney John Minore, who was representing Plaintiff Thomas J. Larios during this time period. Plaintiff Thomas J. Larios found it odd the way this interview was handled. Anders read Plaintiff Thomas J. Larios his charges, including the one charge of showing up early for his interview with Reyes. Anders asked Plaintiff Thomas J. Larios if he had any questions? Plaintiff Thomas J. Larios stated no, and Anders left the room for a few minutes. She returned with her decision all typed up recommending termination. Anders' decision was already made up before Plaintiff Thomas J. Larios' interview. 24. Plaintiff Thomas J. Larios' last A.I. was with Defendant Sheriff Ralph Plaintiff Thomas J. Larios received a letter from Ogden 3 days after

Ogden ("Ogden").

meeting with Ogden which stated he did not think Plaintiff Thomas J. Larios should be terminated, but demoted to Security Control Officer with a lower salary. Catron wanted

this from the beginning. All charges were dropped against Plaintiff Thomas J. Larios except his comment to Reyes. 25. Plaintiff Thomas J. Larios was then called into the Defendant Yuma
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County Sheriff's Office and was met by Capt. Robert Gonzales. Gonzales told Plaintiff Thomas J. Larios that he only had a position open on the night shift and asked Plaintiff Thomas J. Larios if he wanted it. Plaintiff Thomas J. Larios stated to Gonzales that he did need to work so he would do his best, even though Plaintiff Thomas J. Larios was leery of his legs and/or feet, along with standing and climbing steep stairs for long periods. Plaintiff Thomas J. Larios knew that Defendant Yuma County Sheriff's

Department is always short of personnel so they are always hiring. 26. Plaintiff Thomas J. Larios also knew that there were day positions open, Plaintiff Thomas J. Larios

which were never offered to Plaintiff Thomas J. Larios.

knew that Defendant Ogden has filled positions for certain select individuals, to include: Roy Brock after retiring - Charge of Reserves; Matt Catron after retiring Administration. There have been many openings for certain people, yet Plaintiff Thomas J. Larios asked to Ogden to give him the position of Extradition and Shuttle Officer. The response was "No". This position is Port of Transportation which no new position was required. 27. Plaintiff Thomas J. Larios felt he was assigned to night work to assure that

he would not have any contact with previous associates, friends and especially supervisors. Plaintiff Thomas J. Larios reported to his new assignment as Security Control Officer on July 17, 2002 at 1300 hours. Plaintiff Thomas J. Larios was approached by Brenda Cross who was picked by Anders as Plaintiff Thomas J. Larios' Training Officer. Cross was instructed to make notes on Plaintiff Thomas J. Larios' progress, to include what Plaintiff Thomas J. Larios might say regarding his A.I. and his thinking of the A.I. 28. Plaintiff Thomas J. Larios' first day of work was a nightmare. The room

in which he worked was too dark for Plaintiff Thomas J. Larios to read the control panel for door opening or closing. Walking and standing for 8 hours watching inmates for infractions of the rules were very straining on Plaintiff Thomas J. Larios. Thomas J. Larios could not hear the walkie-talkie or intercom clearly.
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Plaintiff

Plaintiff Thomas

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J. Larios was instructed by Cross that the most important duty was keeping an eye on the Detention Officer to make sure he is not in harm's way. Plaintiff Thomas J. Larios was told that he must stand and walk to see any activity, as if he sits, Plaintiff Thomas J. Larios would see nothing. Plaintiff Thomas J. Larios experienced extreme pain in his legs and feet after a few hours. This was the routine of Plaintiff Thomas J. Larios on a

daily basis. Plaintiff Thomas J. Larios could not see the control panel because it was too dark, nor could Plaintiff Thomas J. Larios hear the radio or intercom. Plaintiff Thomas J. Larios could not hear the Detention Officers calling for doors opening or closing. 29. Plaintiff Thomas J. Larios told Cross that he needed more light on the Anders had a light installed to light up the control

control panel. Cross told Anders.

panel. The light was bright and would light up the control tower, but now the inmates could see into the tower and see all of Plaintiff Thomas J. Larios' movements, to include knowing who and what you are watching. This light turned out to be a hazzard for

Defendant Yuma County Sheriff's Department. Plaintiff Thomas J. Larios was assigned to Amber 2-3, which means Plaintiff Thomas J. Larios was to watch 2 cell blocks. With the bright light that Anders had installed, the inmates can see what side Plaintiff Thomas J. Larios was on, leaving the other side free for inmates to do infractions. Plaintiff

Thomas J. Larios was given one or no breaks during an 8-hour shift, and Plaintiff Thomas J. Larios was always standing, even when eating lunch. Plaintiff Thomas J. Larios' eyes, feet and legs, along with his hearing, was a disadvantage for him to properly watch the Detention Officer from getting hurt by inmates. Larios suffered from pure exhaustion after each shift. 30. On or about July 26, 2002, Anders called Plaintiff Thomas J. Larios into Anders has never Plaintiff Thomas J.

her office and shut the door so no one could hear their conversation.

been polite or even nice to Plaintiff Thomas J. Larios before, but this time, Anders was trying to be a friend and kept calling Plaintiff Thomas J. Larios by his name, instead of "old man". Anders stated to Plaintiff Thomas J. Larios to keep his mouth shut and not talk about his A.I. or that Plaintiff Thomas J. Larios could be and/or will be written up on
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it.

Anders also stated she was watching out for Plaintiff Thomas J. Larios and that she

cares about his well being. Anders has never been this civil to Plaintiff Thomas J. Larios in 7 ½ years. Plaintiff Thomas J. Larios knew something was up, just like Caron's meeting with Plaintiff Thomas J. Larios. Anders told Plaintiff Thomas J. Larios he should take a medical retirement and she would show Plaintiff Thomas J. Larios how to get this retirement. Anders proceeded to inform Plaintiff Thomas J. Larios by taking a medical retirement, "they don't fire you or cause any lawsuit". Plaintiff Thomas J. Larios asked Anders why she just didn't transfer him to another position like Visitation Duty - Laundry, etc. Anders stated that Plaintiff Thomas J. Larios could not handle it because it gets too busy. Anders also stated there was no positions open. Anders was again trying to get Plaintiff Thomas J. Larios to retire medically. Plaintiff Thomas J. Larios said he would think about it. With that, Anders put up 2 thumbs and said this conversation never existed, and if they ask her, she would flat deny it ever happened because she could get in to trouble. 31. In July 2002, Plaintiff Thomas J. Larios requested Family Emergency leave

due to his legs not working properly to perform long-standing and walking along with painful climbing of steep stairs. Permission was granted to Plaintiff Thomas J. Larios by Defendant Yuma County Sheriff's Department. Plaintiff Thomas J. Larios had to use up all of his vacation and sick time up for receiving hours from the Family Emergency Leave Act (F.E.L.A.), which Plaintiff Thomas J. Larios was given a total of approximately 600 hours. 32. On or about November 1, 2002, Plaintiff Thomas J. Larios met with Nora

from the Yuma County Sheriff's Department Human Resources per the request of Defendant Ogden to discuss Plaintiff Thomas J. Larios' options. During Plaintiff Thomas J. Larios' conversations with Nora, Nora never looked up at Plaintiff Thomas J. Larios while she was talking. Nora proceeded to look on a pad, never making eye contact with Plaintiff Thomas J. Larios. Nora explained to Plaintiff Thomas J. Larios that his option was to either quit or be fired due to no positions open. Plaintiff Thomas
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J. Larios explained that he did nothing wrong, and Plaintiff Thomas J. Larios told Nora that he will not quit as he wants his job back. Nora stated to Plaintiff Thomas J. Larios that they will then have to terminate him. Nora further stated that Plaintiff Thomas J. Larios' old position as Warrant Officer was filled now by Miranda Ball on May 1, 2002. Also Plaintiff Thomas J. Larios is aware that Ball is the same person that was sexually harassed by Reyes according to Ball one working day while Plaintiff Thomas J. Larios was in the Dispatch Room when Plaintiff Thomas J. Larios was still the Warrants Officer. 33. On or about November 27, 2002 at approximately 1000, Plaintiff Thomas

J. Larios met with Defendant Ogden and his panel consisting of Nora, Catron, Sherry Zimmerman ("Zimmerman") who was a paralegal for Defendant Yuma County Sheriff's Department, and Yuma County Legal Counsel. Ogden stated Plaintiff Thomas J. Larios did not return to work after his F.E.L.A. was up. Catron stated that Plaintiff Thomas J. Larios had used up all of his sick-vacation time, but Plaintiff Thomas J. Larios' doctor will not release Plaintiff Thomas J. Larios to his present job for medical reasons. Plaintiff Thomas J. Larios was then asked by Ogden if he had anything to say. Plaintiff Thomas J. Larios' reply was that he did nothing wrong and that he has been a very loyal employee for 7 ½ years. Plaintiff Thomas J. Larios stated to Ogden that he can do the warrants job because he has the freedom of his movements. Plaintiff Thomas J. Larios

also stated that his doctor will release him for that position, but not in a controlled environment where Plaintiff Thomas J. Larios has to stand for hours and have no control of his legs. Defendant Ogden stated he will have an answer for Plaintiff Thomas J.

Larios in 3 days. 34. Effective November 29, 2002, Plaintiff Thomas J. Larios was terminated as

a Security Control Officer because of the advanced age of Plaintiff Thomas J. Larios, and which Plaintiff Thomas J. Larios could not physically perform due to his physical condition of muscle weakness and possible nerve damage. 35. On or about December 2, 2002, a Deputy from Defendant Yuma County
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Sheriff's Department arrived at Plaintiff Thomas J. Larios' residence and handed him termination papers from Ogden. 36. Defendant Ogden and Defendant Yuma County Sheriff's Department knew

of Plaintiff Thomas J. Larios' weakness of his legs due to his heart operation, and they knew Plaintiff Thomas J. Larios could not walk up and down stairs or stand for long periods of time without losing his balance. Plaintiff Thomas J. Larios was transferred to a position that he could not perform without difficulties. Plaintiff Thomas J. Larios feels this was a conspiracy to make him quit or get fired after his heart attack. The underlying basis for Plaintiff Thomas J. Larios' complaint is age discrimination and wrongful termination due to a younger, inexperienced person taking over his position as Warrants Officer, and Defendant Yuma County Sheriff's Department was not accommodating to Plaintiff Thomas J. Larios' physical condition when they would not change positions with him because Plaintiff Thomas J. Larios could not do security control. H. 1. DEFENDANTS' CONTENTIONS OF DISPUTED FACT From approximately April 1995 to July 2002, defendant Yuma County Sheriff's Office ("YCSO") retained the plaintiff in a Detention Officer position assigned as "Warrants Officer," even though he had proven physically unable to complete the job requirements for a Detention Officer position. 2. The plaintiff was considered an asset to the Warrants Unit during most of his time in the Warrants Unit, but he was disciplined for several incidents involving shortness of temper and poor judgment between 1999 and 2002. 3. In 1999, the plaintiff was given a written reprimand for disclosing to an arrested subject that her brother had been involved in providing information that led to her arrest on a warrant. 4. In October 2001, the plaintiff was given a Letter of Understanding for sending a superior an email message that was viewed as rude and disrespectful by the plaintiff's superiors.
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5.

On or about May 1, 2002, the plaintiff was called into the office of Lt. David Reyes, his superior, regarding a situation in which a warrant situation had not been properly handled. During the brief conversation that ensued, the plaintiff told Lt. Reyes words to the effect of: "If this is about the email you sent this place can shove this job up its ass."

6.

During the subsequent administrative investigation requested by Lt. Reyes, YCSO was informed that the plaintiff had told an assistant not to follow a new warrants logging procedure their supervisor had implemented during his absence because it was a "waste of time."

7.

On or about June 11, 2002, the plaintiff received written notice that his employment with YCSO would be terminated unless he requested a rebuttal hearing. On or about June 20, 2002, the hearing officer in the rebuttal hearing concurred that the plaintiff's employment should be terminated. On or about July 5, 2002, Sheriff Ogden conducted a final hearing of the allegations against the plaintiff and decided to demote the plaintiff from Detention Officer (Warrants Officer) to Security Control Officer ("SCO") instead of terminating his employment.

8. 9.

The plaintiff was demoted to SCO effective July 8, 2002. The essential functions of the SCO position are as set forth in Defendants' Exhibit 5, as enumerated in Section M.

10.

The plaintiff received appropriate training for his SCO duties as soon as he began those duties.

11.

The plaintiff worked a total of ten days in the SCO assignment, all between July 17 and July 31, 2002. During the ten days the plaintiff worked as an SCO, the volume on the radio in the control box was turned up at the plaintiff's request and the Detention Officers were asked to speak up to enable the plaintiff to better hear and understand radio messages. During the ten days the plaintiff worked as an SCO, a desk lamp was installed in

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the control box at the plaintiff's request to help him see the control panel better. On or about August 5, 2002, the plaintiff applied for and was granted FMLA leave. Shortly after August 6, 2002, YCSO obtained an Essential Functions questionnaire and a Certification of Health Care Provider from the plaintiff's physician indicating that the plaintiff was unable to perform the essential functions of the SCO position, that he "may not work at all in the stressful present work environment," and that his physical incapacity was lifelong. The plaintiff has not been able to perform the essential functions of any SCO assignment, with or without reasonable accommodation, since August 6, 2002. The plaintiff never returned to work with defendants, and his 12 weeks of FMLA leave were exhausted on or about October 28, 2002. As of October 28, 2002, the plaintiff had exhausted all his FMLA leave. On or about October 16, 2002, the plaintiff sent Sheriff Ogden a memo asserting his continued inability to perform the essential functions of the SCO position and requesting an appointment to discuss "reinstatement to my job as a Warrants Officer or any position with the department that would allow me to perform the duties of that position." The day Sheriff Ogden received the plaintiff's memo of October 16, 2002, he sent it to Capt. Robert Mitchell and directed Capt. Mitchell to provide any information regarding positions the plaintiff might be able to perform. On or about October 18, 2002, Capt. Mitchell informed Sheriff Ogden that he and Capt. Robert Gonzalez had reviewed the required functions of YCSO positions and had determined that no position was available that would meet the requirements set forth in the plaintiff's memo of October 16, 2002. On or about October 21, 2002, Sheriff Ogden sent the plaintiff a
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letter informing him YCSO had no available positions that met his needs as expressed in his memo of October 16, 2002, and instructing him to meet with the department's Human Resources representative about his options. The plaintiff never met with the department's Human Resources representative about his options. On or about November 1, 2002, the plaintiff's attorney hand-delivered a letter to Sheriff Ogden asserting that the plaintiff had been constructively terminated as of October 21, 2002 and demanding that the plaintiff be reinstated to his prior position of Warrants Officer. Sometime before November 18, 2002, YCSO determined that the plaintiff's FMLA and all other accrued leave had been exhausted as of November 12, 2002. On November 18, 2002, YCSO hand-delivered to the plaintiff notice that his FMLA leave and all other accrued leave had been exhausted and that his employment would be terminated if he did not request a hearing within three working days. On November 19, 2002, the plaintiff requested a hearing and reinstatement to the position of Warrants Officer. On November 22, 2002, the plaintiff was served a notice of hearing scheduled for November 27, 2002. On or about November 27, 2002, Sheriff Ogden conducted a hearing with regard to the plaintiff's continued employment by YCSO. At that hearing, the plaintiff reiterated that his physician would not release him to perform the duties of an SCO, that he could not squat, and that he was limited in his ability to sit, stand, and walk. At that hearing, the plaintiff stated: "all I'm doing is requesting my old job back, which I can work, which I can be released by a doctor for, which is my Warrants job and fugitive extradition job." At that hearing, the plaintiff also stated: "I just want it to be said and it be known on the record that I can come back to work as a Warrants
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Officer because I have full function of my legs . . . . With the Warrants job, I can handle because I can sit when I want, walk when I want and stand when I want. At that hearing, the plaintiff also said that the administrative investigations against him were not justified "except for maybe one of them, and I would do it again if I had to." Asked what he meant by the comment about doing it again if he had to, the plaintiff said he was referring to telling Lt. Reyes to "stick it up his ass." On or about November 29, 2002, the plaintiff's employment with YCSO was terminated because he had exhausted his FMLA and other available leave, had been medically barred from returning to his position as SCO, and the parties had not been able to identify a suitable position within the plaintiff's medical restrictions. The plaintiff was notified at the time that, in accordance with County policy and with an appropriate medical release, he could apply for reinstatement as an SCO or any posted openings for which he met the job requirements. Defendants' Exhibit 19, as enumerated in Section M, is a true and accurate record of the proceedings in the hearing of November 29, 2002. On or about December 5, 2002, the plaintiff filed a Charge of Discrimination with the EEOC alleging he had been subjected to unlawful discrimination because of age and disability. In the ADA Questionnaire the plaintiff completed that same day he asserted that, although he could not perform the duties of Security Control Officer, he had no difficulties performing the duties of Warrants Officer. Asked what accommodation he needed, the plaintiff stated: "Return me to the warrants officer which I am able to perform even with my condition." On or about December 9, 2002, the plaintiff submitted a Notice of Claim. Defendants' Exhibit 23, as enumerated in Section M, is a true and correct copy of that Notice of Claim.
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24.

On March 18, 2003, the parties participated in an EEOC-sponsored mediation of the plaintiff's charges with Hon. Bruce Meyerson (ret.). The central thrust of the mediation was discussion of the plaintiff's desire to be reinstated as Warrants Officer and alternative positions the plaintiff might be able to perform. During the process, the plaintiff and Sheriff Ogden met alone and discussed the Sheriff's unwillingness to restore the plaintiff to Warrants Officer. At the end of the mediation, the plaintiff agreed to obtain an updated statement of his medical restrictions from his physician so that the parties could look for other County jobs that might be within those restrictions.

25.

On April 21, 2003, the defendants' attorney sent the plaintiff's attorney an email asking about the status of the updated medical restrictions the plaintiff had agreed to provide. On April 23, 2003, the plaintiff's attorney responded with an update of the plaintiff's medical restrictions stating: 1. 2. 3. 4. He cannot climb. No squatting. Prefer daytime work. Four hours maximum standing.

26. 18 19

On April 25, 2003, Sheriff Ogden responded to the update of the plaintiff's medical restrictions with a letter identifying two YCSO positions and ten positions administered by County Human Resources thought to be within

20 the plaintiff's medical restrictions. In that letter, Sheriff Ogden offered to 21 provide job descriptions of the two YCSO positions for review by the 22 plaintiff's physician and asked the plaintiff to let him know by May 13, 23 2003 if he intended to pursue any of the listed positions so that YCSO 24 could do whatever might be appropriate to facilitate the plaintiff's move 25 into the position. Although the plaintiff had applied for a Superior Court 26 Bailiff position in October 2002, he did not apply for or otherwise 27 communicate with the defendants about either of the two YCSO positions 28
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or any of the "County-wide" positions identified in Sheriff Ogden's letter of April 25, 2003. On May 13, 2003, counsel for the plaintiff and the defendants had a conference call in which the plaintiff's attorney proposed to bifurcate the Warrants Officer position into two separate positions and indicated that the other positions listed in Sheriff Ogden's letter of April 25, 2003 had not been ruled out. The plaintiff's attorney expressed his client's primary desire: to achieve uninterrupted service in his pension plan. The defendants' attorney promised to discuss the plaintiff's bifurcation proposal with Sheriff Ogden and get back to the plaintiff's attorney. On or about May 15, 2003, the Chief Civil Deputy for the Yuma County Attorney's Office sent the plaintiff's attorney a letter informing him that Sheriff Ogden had previously rejected the bifurcation proposal in his March 18, 2003 meeting with the plaintiff, and it still was not an option. There was no response from the plaintiff or his attorney. On June 6, 2003, the plaintiff's attorney was sent a copy of an email message from the defendants' attorney to the EEOC mediator updating the mediator on the status of the parties' attempts to find an accommodation for the plaintiff. There was no response from the plaintiff or his attorney. On or about August 11, 2003, the defendants' attorney attempted to determine from the plaintiff's attorney the status of the plaintiff's efforts to identify a suitable County position into which he might be reinstated. The plaintiff's attorney did not respond. On or about August 18, 2003, the defendants' attorney left another message with the plaintiff's attorney in an attempt to determine the status of the plaintiff's efforts to identify a suitable County position into which he might be reinstated. The plaintiff's attorney did not call back or otherwise respond.
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32.

On August 21, 2003, the plaintiff's attorney was sent a copy of an email message from the defendants' attorney to the EEOC mediator reporting that he had not heard back from the plaintiff's attorney regarding the possibility of settling the charge. There was no response from plaintiff or his attorney.

33.

On or about September 2, 2003, the defendants' attorney left a voicemail message with the plaintiff's attorney suggesting that the parties make one more attempt at mediating the plaintiff's claims before incurring the expense of a formal position statement to the EEOC. The plaintiff's attorney returned the call on September 3, 2003 and indicated he would identify County positions in which plaintiff was interested and might need YCSO assistance in pursuing.

34.

On September 4, 2003, the plaintiff's attorney sent the defendants' attorney a letter identifying several positions for which the plaintiff had applied. All those positions except the "Extradition-Shuttle Officer-Fugitives" position (the bifurcation proposal previously rejected by YCSO) were positions under the Arizona Judicial Merit System Rules rather than the Yuma County Personnel Rules.

35.

Other than openings for SCO, Cook, and Solid Waste Attendant and positions under the Arizona Judicial Merit System Rules, there were no openings administered by Yuma County Human Resources between July 26, 2002 and November 29, 2003 for which the plaintiff would have been qualified.

36.

On September 16, 2003, the defendants' attorney sent the plaintiff's attorney a letter responding to the letter of September 4, 2003, reminding the plaintiff that the County would continue to consider him for positions for which he applied and was qualified, and conceding that further mediation of the plaintiff's charge was not likely to be productive.

37.

On or about October 31, 2003, the plaintiff filed a Complaint in Yuma
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County Superior Court. Defendants' Exhibit 33, as enumerated in Section M, is a true and accurate copy of that Complaint. The defendants removed the action to this Court on about November 20, 2003. On December 17, 2003, the EEOC issued a Dismissal and Notice of Rights in reference to all the plaintiff's charges of discrimination. Exhibit 32, as enumerated in Section M, is a true and accurate copy of that Dismissal and Notice of Rights. On or about March 5, 2004, the plaintiff filed a Verified First Amended Complaint in this Court. Exhibit 34, as enumerated in Section M, is a true and accurate copy of that Verified First Amended Complaint. Once both parties were represented by counsel, much of the interactive process between them had to be communicated through their attorneys. Plaintiff was not a "qualified individual with a disability" because his impairment did not substantially limit one or more of his major life activities. Defendants engaged in good faith in the interactive process required by Ninth Circuit jurisprudence and were not responsible for that process' failure to identify a reasonable accommodation. Plaintiff did not make any serious attempts to find employment for some months after his SCO position was terminated. ISSUES OF LAW IN CONTROVERSY NONE

Plaintiff's:

Defendants: Defendants assert that, to the extent Ninth Circuit jurisprudence requires them to carry the plaintiff's burden of proving prima facie the existence of a facially reasonable accommodation, that jurisprudence is inconsistent with and overruled by Supreme Court precedent. Defendants also assert that the issues of whether the defendants engaged in good faith in the interactive process and are responsible for the failure of the interactive process are not properly before the Court, having never been
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raised by the plaintiff in his pleadings, papers, or otherwise. J. SEPARATE TRIAL OF ISSUES

There is no need for separate trial of any issues. K. WITNESSES

Plaintiff's Witnesses 1. Plaintiff T. J. Larios will testify as to his disability, as damages incurred,

and all matters of fact in (G) above 2. Wife of Plaintiff, Bonnie Larios will testify as to disability, as to

availability and failure to accommodate plaintiff; she is a county employee 3. Dr. Sudheer Gogte 2095 W. 24th St., Suite C, Yuma 85364 may testify if

necessary as to the disability Defendants' Witnesses 1. Sheriff Ralph Ogden (will be called) Sheriff Ogden is expected to testify regarding his knowledge of the plaintiff's performance record, the events that led to the plaintiff's demotion in 2002, YCSO's efforts to locate a position within the plaintiff's medical restrictions and qualifications, and the plaintiff's fixation on reinstatement to the Warrants Officer position from which he had been demoted. 2. Matthew Catron (may be called) Mr. Catron was the Chief Administrator over the Yuma County Jail at the times of the pla