Free Response 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 STATEMENT OF FACTS FOR PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

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

1.

Alex suffers from knee and back pain which is disabling. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 2.)

2.

Alex's disability prevents him from participating in many everyday activities. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 3.)

3.

Additionally, his disability affects his ability to walk, sit and stand. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 4.)

4.

The pain and discomfort that Alex suffers can, at times, be incapacitating. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 5.)

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5.

Alex wears a back brace, knee braces and arch supports. Without the extra support, Alex has very low functionality. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 6.)

6.

On or about December 14, 2000, Alex was diagnosed with Chondromalacia of patella by Doctor Chris Reust. (See VA Medical Records Bates Labeled JUNG.VA.00029 through 00031 attached hereto as Exhibit 2.)

7.

Plaintiff's knee injury impacted Plaintiff's ability to walk, causing weakness, numbness and sharp pains in Plaintiff's knees when walking one mile or less. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 126, ll. 10 through 23.)

8.

Plaintiff's knee injury impacted Plaintiff's ability to stand in a prone position for a long period of time, causing numbness and sharp pains through Plaintiffs legs. (See the Deposition of Alexander Jung Attached as Exhibit 3; pg. 127, ll. 13 through 18.)

9.

At the postal Service, Alex was standing, bending to grab, and twisting to the point where his knee and lower back would hurt. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 63, ll. 10 through 14)

10.

When Alex's knees begin to bother him it is necessary for him to sit, walk or stretch out and it usually takes fifteen minutes (15) to one (1) hour to relieve the pressure in his knees. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 33, ll. 16 through 22)

11.

At times, when Alex came home from working at the Postal Service his knees would be swollen and he would be unable to sleep because of the pain. Alex suffered from a lack of sleep due to waking in the night because of the pain.

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(See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 153, ll. 1 through 4) 12. On September 21, 2000, Plaintiff was seen by Dr. John Jensen, Plaintiff's primary Care Physician. Dr. Jensen noted that both of Plaintiff's knees were painful and were locking in the mornings. (See Medical Records of Dr. Jensen Bates Labeled JUNG.MFP.00037 attached hereto as Exhibit 4.) 13. Dr. Jensen regularly saw Alex for bilateral knee pain and back pain including May 22, 2001, February 28, 2002, March 18, 2002 and May 22, 2002. (See Medical Records of Dr. Jensen Bates Labeled JUNG.MFP.00030; JUNG.MFP.00023; JUNG.MFP.00022 attached hereto as Exhibit 4.) 14. On December 5, 2001 Dr. Jensen completed paperwork for the Department of Labor in which he listed Alex's knee pain as a disabling condition. Dr. Jenson described the injury occurring due to "prolonged standing in work environment". (See Duty Status Report Bates Labeled JUNG.MFP.00061 Attached hereto as Exhibit 6.) 15. On January 26, 2001 Dr. Jenson filled out an FMLA certification in which he listed Alex's condition as chronic and further stated that `pain in knees due to injury and arthritis. Pain and discomfort can at times be incapacitating.' Dr. Jenson listed the probable duration of condition to be chronic/lifelong. (See Certification by Employee's Health Care Provider for Employee's Serious Illness - FMLA Bates Labeled JUNG.MFP.00065; JUNG.MFP.00067 attached hereto as Exhibit 7.) 16. On February 21 and March 6, 2001, Dr. Berry from the VA concurred with Dr. Jensen's assessment of chronic bilateral knee pain and added "Alex is unable to sit for prolonged periods, ride a bike, knee[ling], stairs. Describes achy

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sensation with knees." And has "trouble with static standing, kneeling, stairs, bike." (See VA Medical Records Bates Labeled JUNG.VA.00026 and 00027 attached hereto as Exhibit 8.) 17. On September 26, 2001, Alex was seen by Dr. Mendlick, a VA doctor who concurred with the diagnosis of Dr. Reust of Chondromalacia of Patella. He further stated that Alex "has had rather chronic patello-femoral arthralgia. (See VA Medical Records Bates Labeled JUNG.VA.00249 attached here as Exhibit 9.) 18. On or about November 28, 2001 Dr. Sumit Dewanjee opined that Alex's "symptoms [are] aggravated by work as a distribution clerk which requires heavy lifting, twisting and prolonged standing". (See VA Medical Records Bates Labeled JUNG.VA. 00020 and 00021 Attached hereto to Affidavit as Exhibit 10.) 19. On February 28, 2002 Dr. Herring opined that Alex "complains of numbness in knees....does a lot of lifting and squatting, which has aggravated the pain. Knees occasionally lock up, give way. Dr. Herring concurred with Dr. Jensen that Chondromalacia of Patella as a chronic condition for Alex. Dr. Herring further concurred with Dr. Mendlick that Alex had bilateral patellofemoral arthralgia... (See VA Medical Records Bates Labeled JUNG.VA.00018, 00019 attached to Affidavit as Exhibit 11.) 20. On or about March 2002, Dr. Christopher Hiller opined that "Alex's work of repetitive pushing and pulling has exacerbated his back and knee conditions and increasing the pain." He further wrote that "Alex is unable to do the same kind of work or the work will cause worsening injuries and permanent

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damage." (See Note from Dr. Hiller Bates Labeled JUNG.VA.00122 attached hereto as Exhibit 12.) 21. Additionally, on July 7, 2005, Dr. Lillian Chang for the VA opined "Alex has inability to perform prolonged walking, standing, kneeling, squatting, climbing, running and any other high impact activities", adding that Alex's "posture is abnormal and there is a presence of genu varum deformities of both knees" (See VA Medical Records Bates Labeled JUNG.VA. 00136 attached hereto as Exhibit 13.) 22. Alex was recently had an MRI in which he was told he had tears in his knees, making him a candidate for orthopedic surgery, which he is hoping to get soon. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 216, ll. 15 through 25 and pg. 217, ll. 1 through 7) 23. On January 7, 2001 Dr. Jensen issued a medical certificate with restrictions for Alex to lift less than ten (10) pounds for four (4) hours a day, walk 1 ½ hours then sit for one (1) hour. (See Medical Certificate Bates Labeled JUNG.PSMF.00042 attached hereto as Exhibit 14.) 24. On February 28, 2002, Dr. Jenson issued a medical certificate that restricted Alex to lifting less than 10 pounds, 4 hours a day, walk for 1 ½ hours then sit for 1 hour. (See Medical Certificate Bates Labeled JUNG.PSMF.00063 attached hereto as Exhibit 15.) 25. On March 8, 2002 Dr. Jensen restricted Alex to lifting under 10 pounds. He stated that in an 8 hour workday, Alex should walk for 1 ½ hours and then sit for 1 hour. (See Medical Certificate Bates Labeled JUNG.LAB.00026 attached hereto as Exhibit 16.)

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26.

Alex's disability impacts his ability to stand in a prone position for a long period of time which will cause numbness in his knees and sharp pains through his legs. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 127, ll. 13 through 25)

27.

Alex cannot stand in a prone position for longer than fifteen (15) minutes without having to walk or sit. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 7.)

28.

When Alex walks a certain distance he feels weakness and numbness in both knees and sharp pain in his knee caps. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 126, ll. 10 through 23)

29.

Alex is unable to walk the equivalent of one city block without his knees locking and becoming numb. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 10.)

30.

Alex cannot walk for even a minimal distance; a couple of blocks at the most. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 9.)

31.

Alex can only walk for very brief periods of time. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 8.)

32.

When Alex's knees lock and become numb, walking becomes nearly impossible and extremely slow for him. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 11.)

33.

At times Alex feels as though he has to take both of his hands and lift up his leg to take one step at a time. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 12.)

34.
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Sometimes, when Alex is in a public place, such as a store, he would doubt whether he could make it out of the store safely and would hold on to the wall

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for support. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 13.) 35. If Alex is required to sit for a long period of time with his legs at a 90o angle his knees get stiff and numb. Because of the stiffness and numbness, he is required to stretch out or walk around. Alex needs to stretch or walk around after sitting 15 to 30 minutes. At times, after sitting for an extended length of time, Alex's knees would buckle. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pgs. 133 ll. 9 through 25 and 134 ll. 1 through 5) 36. Alex must shift positions in order to remain seated more than 25 minutes. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 15.) 37. When sitting in his car, Alex must shift his weight, squirm and change positions slightly, so as to minimize his pain. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 14.) 38. Alex can only drive for two consecutive hours because he needs to be able to shift his body to prevent pain. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 16.) 39. Alex had to trade in his manual car for an automatic since he had hard time driving a car with the manual transmission. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 17.) 40. Alex is in constant pain. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 22, ll. 11 through 13) 41. Alex has to rely on someone to take food to him when he could not move due to his knees. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 18.)

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42.

On October 29, 2001 Alex received a Return to Work Authorization from Dr. Lawrence Shank. This authorization listed Plaintiff's bilateral knee pain as permanent and restricted Alex to sit on a soft cushion chair. (See Deposition of Humberto Trujillo Attached as Exhibit 17, pg. 90, ll. 8 through 21. Also see Return to Work Authorization, Exhibit 18 from the Deposition of Humberto Trujillo Attached as Exhibit 18)

43.

Defendants were also aware of Alex's condition via Authorizations for Medical Attention which were submitted from the Postal Service Health Unit on July 21, 2001; March 6, 2001; September 25, 2001; October 10, 2001; January 7, 2002; March 1, 2002 and May 22, 2002. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 20. Also see Authorization for Medical Attention Bates Labeled JUNG.PSMF.00038; JUNG.PSMF.00047; JUNG.PSMF.00051; JUNG.PSMF.00054; JUNG.PSMF.00058; JUNG.PSMF.00065; JUNG.PSMF.00070 Attached hereto as Exhibit 19.)

44.

Defendant was further aware of Alex's limitations through Supervisors LightDuty Approval Forms dated on February 6, 2001; October 10, 2001; January 7, 2002 and March 1, 2002. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 22. Also see Supervisors Light-Duty Approval Forms Bates Labeled JUNG.PSMF.00053; JUNG.PSMF.00045; JUNG.PSMF.00064; JUNG.PSMF.00059 attached hereto as Exhibit 20.)

45.

Additionally, Alex submitted Dr.'s Notes to Defendant on March 6, 2001; September 10, 2001; January 2, 2002; February 8, 2002 and February 28, 2002. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 21. Also see Doctor's Notes Bates Labeled JUNG.USPS.00250;

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JUNG.PSMF.00048; JUNG.SUPR.00101; JUNG.RUT.00021; JUNG.SUPR.00176 attached hereto as Exhibit 21.) 46. Alex provided the Postal Service Health Unit with paperwork from his doctor(s) explaining his condition. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg 83, ll. 9 through 13) 47. Once Alex's submits his paperwork to the Health Unit, the Health Unit provides the Supervisor with the documentation. The supervisor then fills out a Supervisors light duty request form and completes that light duty assignment with Alex receives. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pg. 88, ll. 19 through 24) 48. In October of 2001, it became necessary for me to sit on a soft-cushion chair for 15-30 minutes at a time to relieve the pain in my knees and lower back. My supervisor, Johnny Camou was aware of my condition and allowed me to sit in a chair with a cushion. The manager, Humberto Trujillo, however refused to allow me to sit on the chair. He told Mr. Camou that I would need a doctor's note in order to sit on a chair with a cushion. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶¶ 23 through 25.) 49. Mr. Trujillo refused to accommodate Plaintiff and allow him to use a cushioned chair while working. (See Deposition of Humberto Trujillo Attached as Exhibit 17, pg. 91, ll. 20 through 23.) 50. As a distribution clerk, Plaintiff's duties include separating and distributing mail, knowledge of the distribution scheme, maintaining records of mail, examine balances in advance deposit accounts, face and cancel mail, tie mail and insert facing slips, open and dump pouches and sacks, operate canceling machines and provide service at public windows. (See Deposition of

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Humberto Trujillo Attached as Exhibit 17; pg. 37, ll. 14 through 23. Also see Position Description for Distribution Clerk, Exhibit 1 from the Deposition of Humberto Trujillo Attached as Exhibit 22.) 51. Plaintiff is qualified of sorting and distributing mail to post office and carrier routes. (See the Deposition of Mark Camper Attached as Exhibit 23; pg. 13, ll. 17 through 19.) 52. Plaintiff is qualified for sorting odd sized mail by hand. (See the Deposition of Mark Camper Attached as Exhibit 23; pg. 13, ll. 10 through 12.) 53. The PPMPPC had one (1) machine in the facility during the time Plaintiff worked there, a small process bundle sorter which Plaintiff was qualified to run. (See the Deposition of Mark Camper Attached as Exhibit 23; pg. 14, ll. 14 through 21.) 54. Mark Camper testified that he has no knowledge whatsoever about reasonably accommodations Alex. (See the deposition of Mark Camper Attached as Exhibit 23; pgs. 34, l. 25 through 35, ll. 1 through 2) 55. Mark Camper testified that he was not obligated to explore with Alex whether there were other methods in which Defendant could reasonably accommodate him "that's the duty of the RAC committee". (See the deposition of Mark Camper Attached as Exhibit 24; pg. 36 ll. 3 through 11) 56. On or about August 2000 Alex was confronted by his supervisors regarding a failure to maintain regular attendance. On January 19, 2001 Alex was issued a letter of warning. Alex filed a grievance with the union and the parties agreed that the letter would be removed from Plaintiff's records on September 1, 2001, if no similar discipline issues occurred in the interim. There were no more discipline issues and the letter of warning was taken from Alex's file.

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Therefore, it should not be brought up at all. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 19.) 57. On February 4, 2002 Alex was issued a seven day suspension regarding a failure to maintain a regular schedule and failure to report to work as scheduled. However, Alex maintains he was not suspended and that he worked twelve hours between February 23 and March 1, the supposed suspension. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶¶ 26 through 27.) 58. Plaintiff's absence from November 11, 2001 through November 17, 2001 was approved. Plaintiff's absence from December 21, 2001 through December 22, 2001 was approved. Plaintiff's absence for January 10, 2002 was approved. Therefore, of the 55.86 hours Defendant claimed was unscheduled; 52 hours were approved by Plaintiff's supervisor. (See the Deposition of Humberto Trujillo attached as Exhibit 17; pgs. 110 through 115 ll. 2-18. Also see Requests for or Notification of Absence as Exhibit 28, 29 and 31 from the Deposition of Humberto Trujillo attached hereto as Exhibit 24.) 59. The copy submitted by Defendant states 8 hours of lifting and is signed on March 5, 2002 by Mark Camper. The Defendant also generated a light duty assignment that stated 4 hours of lifting and was signed on March 4, 2002 by Mark Camper. The light duty assignment Plaintiff was required to sign stated 4 hours of lifting and was unsigned. Plaintiff refused to sign the only light duty assignment he saw, which stated 4 hours. Plaintiff never saw the light duty assignment stating 8 hours of lifting, which defendant attempts to present as evidence in this motion. (See the Deposition of Alexander Jung attached hereto as Exhibit 3; pgs. 179 through 183, ll. 1-5. Also see Light Duty

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Assignments as Exhibit 16, Exhibit 17 and Exhibit 19 from the Deposition of Alexander Jung attached hereto as Exhibit 25.) 60. Mr. Camper states that it is not the supervisor's responsibility to put employees on Light Duty, but the facility manager's responsibility. It is also the facility manager who determines hours given to employees on light duty (See the Deposition of Mark Camper Attached as Exhibit 23; pgs. 18 through 19, ll. 21 through 1 and pgs. 20 through 21, ll. 23-3.) 61. Alex disputes that he was notified that the appropriate light duty request would be assigned when available in the amount available, including in amounts less that four hours. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 28.) 62. Mr. Trujillo did not enter into the interactive process in making a determination if Plaintiff was disabled when answering questions in Plaintiff's EEO complaint. (See the Deposition of Humberto Trujillo Attached as Exhibit 17, pg. 165, ll. 2 through 4.) 63. Mr. Trujillo did not enter into the interactive process in determining if Plaintiff needed a job accommodation when answering affidavit in Plaintiff's EEO complaint. (See the Deposition of Humberto Trujillo Attached as Exhibit 17; pg. 165, ll. 5 through 13.) 64. Mr. Trujillo did not enter into the interactive process to determine any undue hardship in accommodating the Plaintiff's disability and if Plaintiff's request for accommodation would be in violation of any regulation or bargaining contract when answering the Plaintiff's EEO affidavit. (See the Deposition of Humberto Trujillo Attached as Exhibit 17; pgs. 165 and 166, ll. 14 through 25 and l. 1.)

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65.

According to the Managers Guide to Reasonable Accommodation, it is the Managers responsibility to process the accommodation request and provide accommodation. (See Managers Guide to Reasonable Accommodation, pg. 3, Exhibit 3 of the Deposition of Humberto Trujillo Attached as Exhibit 26.)

66.

The Manager is under obligation to involve the employee in an interactive process to determine a reasonable accommodation for a disabled employee. (See Managers Guide to Reasonable Accommodation, pg 3, Exhibit 3 of the deposition of Humberto Trujillo Attached as Exhibit 26.)

67.

The reasonable accommodation process is activated when a request for reasonable accommodation is made and can be done orally, in writing, by the employee or a third party. (See the Deposition of Humberto Trujillo Attached as Exhibit 17; pg. 54, ll. 18 through 25. Also see Handbook EL307, Reasonable Accommodation, an Interactive Process, Exhibit 6 in Humberto Trujillo's Deposition Attached as Exhibit 27.)

68.

All material regarding Reasonable Accommodation are easily accessed throughout the Postal Service where any manager or supervisor can get information on how to accommodate a disabled employee. (See the Deposition of Humberto Trujillo Attached as Exhibit 17, pg. 57, ll. 10 through 19.)

69.

Mr. Trujillo did not enter into the interactive process with Plaintiff regarding Plaintiff's disability. (See the Deposition of Humberto Trujillo Attached as Exhibit 17, pg. 48, ll. 7 through 23.)

70.
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Mr. Trujillo did not read the Handbook EL-307, Reasonable Accommodation, and an Interactive Process, which set forth the policies on reasonable

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accommodation including checklists to be used in testing applicants with disabilities. (See the Deposition of Humberto Trujillo Attached as Exhibit 17, pg.57, ll. 5 through 9. Also see Handbook EL-307, Reasonable Accommodation, an Interactive Process, and Exhibit 6 in Humberto Trujillo's Deposition Attached as Exhibit 27.) 71. Instead of consulting the material regarding Reasonable Accommodation, Mr. Trujillo asks the labor department regarding any questions he has in dealing with injured or disabled employees. (See the Deposition of Humberto Trujillo Attached as Exhibit 17; pg. 58, l. 2.) 72. Mr. Trujillo did not contact labor regarding Plaintiff in the years 2000 through 2003. (See the Deposition of Humberto Trujillo Attached as Exhibit 17, pg.58, ll. 3 through 6.) 73. Had Mr. Trujillo or a supervisor accessed the Handbook EL-307, Reasonable Accommodation, an Interactive Process, they would have been able to determine if Plaintiff had a disability as well as determine what is reasonable for an accommodation. (See Handbook EL-307, Reasonable Accommodation, an Interactive Process, and Exhibit 6 in Humberto Trujillo's deposition Attached as Exhibit 27.) 74. Had Mr. Trujillo or a supervisor accessed the Handbook EL-307, Reasonable Accommodation, an Interactive Process, they would have specific information regarding the interactive process, the starting place in the reasonable accommodation process. (See Handbook EL-307, Reasonable Accommodation, an Interactive Process, Exhibit 6 in Humberto Trujillo's deposition Attached as Exhibit 27.)

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75.

Had Defendants made an attempt to discuss the matter with Alex, they would have learned that there was flexibility in his request. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 30.)

76.

Alex could have been sent to another location in the Post Office where he could have sat in a cushioned seat. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 31.)

77.

Alex could have also discussed the matter with his doctor to determine the scope of his limitations after learning from Defendant what it was willing to do. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 32.)

78.

Consistent with the purpose of the interactive process, perhaps Alex and Defendant working together could have developed a solution. (See the Affidavit of Alexander Jung attached hereto as Exhibit 1; ¶ 33.)

Dated this 17th day of May, 2006

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 17th of May, 2006, 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:

By:

s/Stephanie Coulter Stephanie Coulter

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