Free Reply to Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona State Bar No. 6835 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, CIV-04-0429-PHX-MHM Plaintiff, v. John E. Potter, Postmaster General, Defendant. Defendant, John E. Potter, hereby requests that the Court enter judgment in his favor and against Plaintiff concerning his allegation that he was discriminated against on the basis of a disability as set forth below and in the other filings concerning the parties' respective summary judgment motions.1 This motion is more fully set forth in the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION: One and only one only claim remains in this case, whether Defendant violated the Rehabilitation Act (the Act) because the Postal Service allegedly refused to accommodate Plaintiff regarding a knee and back impairment in the fall of 2001 and spring of 2002. [Complaint ¶ 46.] Wong v. Regents of University of California, 410 F.3d 1052, 1058 (9th Cir.
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DEFENDANT'S REPLY IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

The parties' summary judgment pleadings include Plaintiff's Motion for Partial Summary Judgment (Pl. PMSJ) and Statement of Facts (Pl. SOF) and Reply in Support thereof 27 (Pl. Reply), Defendant's Response (Def. MSJ Resp.) and Controverting Statement of Facts (Def. 28 CSOF), Defendant's Motion for Summary Judgment (DMSJ) and Supporting Statement of Facts (DSOF), and Plaintiff's Response to defendant's Motion for Summary Judgment (Pl. Resp.) and responsive Facts (Pl. Resp. SOF).
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1 2005) Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). As set forth 2 below, the undisputed facts demonstrate that Plaintiff cannot establish the necessary elements 3 for a prima facie case regarding disability discrimination for the relevant time periods: (1) 4 Plaintiff did not have a physical impairment substantially limiting one or more major life activity 5 (lifting, walking, standing); (2) Plaintiff could not perform the essential functions of his

6 position as a Level 5 Manual Distribution Clerk at the PPMPPC (Distribution Clerk), the facility 7 to which he had bid; (3) The Postal Service's actions against Plaintiff were not solely because 8 he was disabled. See Id. 9 If the Court agrees with Defendant's analysis that Plaintiff nas not established the first

10 element of his claim, that he was disabled under the meaning of the Act, the Court need not 11 consider issues concerning the latter two elements. If the Court finds a genuine issue of material 12 facts regarding the first element, but agrees with Defendant that the facts are not genuinely in 13 dispute on the second element (that Plaintiff could not perform the essential function of his 14 position), the Court need not consider the issues regarding the third element. 15 Plaintiff was not disabled under the Act, and has provided no credible, admissible

16 evidence to establish that he was. Furthermore, Plaintiff's own medical records establish that 17 he was not able to perform the essential functions of his position. Finally, Plaintiff has presented 18 no credible, admissible evidence that the Postal Service's actions were taken solely because he 19 was disabled. 20 II. FACTS: 21 22 A. DEFENDANT DID NOT VIOLATE THE ACT. Despite the reams of paper submitted in connection with the parties' summary judgment

23 motions, the undisputed, admissible material facts are quite straightforward. Plaintiff requested 24 and received light duty for a period in early 2001 and returned to full duty.2 [DSOF ¶¶ 22-24.] 25 26 27 Attached to this reply, are objections to the "evidence" offered by Plaintiff in his Responsive Statement of Facts. 28 2
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Pursuant to Postal Service policies and procedures, he also requested and received light duty

1 on several occasions, with varying restrictions, between October 2001 and March 2002. [DSOF 2 ¶¶ 25-29, 40-41.] The only evidence of a "permanent restriction" and alleged accommodation 3 about which Plaintiff notified the Postal Service was after he was already on light duty in 4 October 2001, and involved his request for a soft cushion chair. [Ex. 18, Pl. Resp. SOF 5 (JUNG.PSMF.00127) ("return to work with restrictions (see below) permanent," "Work 6 Restrictions: Other: Soft Cushion Chair.").] This request did not provide notice to the Postal 7 Service that he was claiming an accommodation for an alleged disability under the Act. 8 Plaintiff was a light duty employee with restrictions when this request was made, and the Postal 9 Service was not required to furnish him with the requested chair. [See DSOF ¶¶ 14-18.] 10 However, Plaintiff was not precluded from bringing his own cushion. [CSOF ¶ 13.] More 11 importantly, there is no evidence that Plaintiff could have performed the essential functions of 12 his position had he been provided with a soft cushion chair, particularly since his own physician 13 admitted that Plaintiff was required to stand for at least 7 hours to do his job as a Distribution 14 Clerk, and would therefore be unable to sit. [Pl. Resp. SOF, Ex. 6.] 15 Plaintiff presents no admissible credible evidence that while on light duty, he ever

16 notified the Postal Service that he had a disability or requested an accommodation other than a 17 soft cushion chair. Even if that request were for an accommodation under the Act, there is no 18 credible admissible evidence that Plaintiff could have performed his job had he been allowed 19 to sit on a soft cushion chair. Rather, he attempts to claim the Postal Service should have 20 inferred that he had a disability based upon the medical information he submitted and his light 21 duty requests. There are no facts to support such an allegation. One of the convincing,

22 contemporaneous and admissible pieces of evidence concerning whether Plaintiff was 23 substantially limited by his physical impairment is found in his November 2001 letter to the 24 Department of Labor. There, Plaintiff he advised that he could play light sports and golf, and 25 do all household chores including yard work. [DSOF ¶ 35]. It is undisputed that the DOL 26 denied his claim that his alleged injuries were causally related to his employment at the Postal 27 28 3
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1 Service (a decision that plaintiff did not appeal). [DSOF ¶ 36.]3 Plaintiff did not respond to 2 the Postal Service's written correspondence in February 2002, advising him of numerous options 3 regarding his alleged impairment Instead, Plaintiff made a request for light duty work within 4 his restrictions. [DSOF ¶¶ 38-39.] 5 Even if Plaintiff were disabled for purposes of the Act, according to all admissible and

6 credible evidence, he could not perform the essential functions of his job as a Distribution Clerk. 7 Plaintiff has already testified that in early 2001 he could not perform the essential functions of 8 the Distribution Clerk because he "couldn't do [that] portion of the job at all," that required him 9 to push the "OTR", a big, metal cage in which bags are put to transport mail to different states. 10 [DSOF ¶ 5; CSOF) ¶ 6; Ex. 3, Pl. Resp. SOF (Jung's Dp. Excerpts) 131:17-132:25.] 11 Although Plaintiff has sought to strike Camper's declaration, which contains evidence about the 12 requirements of his job, Plaintiff's own medical records, per his own factual allegations, state 13 that his job as a Distribution Clerk required "heavy lifting, twisting and prolonged standing," and 14 that he was "unable to continue doing the same type of work." [Pl. Resp. SOF, ¶¶ 18 20.] The 15 difference between the essential functions of a Distribution Clerk according to evidence 16 submitted by Plaintiff, and those asserted by Camper are minor and do not create genuine issues 17 of material fact. [Pl. Resp. SOF, ¶ 14, Ex. 6.] Below is a summary of the assertions made by 18 Plaintiff and his physician, Dr. Jensen, about duties that he could and could not perform as a 19 Distribution Clerk. 20 21 22 23 24 25 It is important to note that while these medical records establish that Plaintiff cannot perform the essential functions of his position, they do not establish that the Postal Service was 27 notified that Plaintiff has a disability. Plaintiff never establishes that these records were provided to the Postal Service, Further, these records do not establish that he was substantially 28 limited ione or more major life activities as required by the Act. 26 4
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Box 7 "Usual Work Requirements of Restrictions on Usual Work Employee": Lifting/Carrying: 25 pounds 6 Hrs Per Day Sitting: 1 hrs Per Day Requirements: Lifting/Carrying 10 pounds 4 Hrs Per Day Sitting: 2 hrs Per Day

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Standing: 7 Hrs Per Day Walking: 4 Hrs Per Day Twisting: 6 Hrs Per Day Pulling/Pushing: 6 Hrs Per Day Simple Grasping: 6 Hrs Per Day

Standing: 0 Hrs Per Day Walking: 6 Hrs Per Day Twisting; 1Hrs Per Day Pulling/Pushing: 2 Hrs Per Day Simple Grasping: 8 Hrs Per Day

6 [Id.] Plaintiff was required to and could not lift the weight necessary for his position. Plaintiff 7 was required to stand 7 hours per day and could stand no hours per day. It is undisputed that 8 Plaintiff could not fulfill the twisting, pulling and pushing requirements of his job. It is 9 undisputed that Plaintiff was unable to work unless he was provided with light duty tasks within 10 his restrictions. Plaintiff has provided no admissible and credible evidence to meet his burden 11 of establishing that any appropriate employee at the Postal Service knew he was disabled or
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B. PLAINTIFF'S RESPONSIVE SOF AND EXHIBITS ARE OBJECTIONABLE. Plaintiff must establish that he had a disability when he claims the Postal Service violated

15 the Rehabilitating Act. See Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 16 196 (2000) (Supreme Court considered "whether the Sixth Circuit properly determined that 17 respondent was disabled under . . . the ADA . . . at the time that she sought an

18 accommodation."); See also Hawkins v. Trustees of Indiana University, 83 F. Supp.2d 987, 996 19 (S.D. Ind. 1999); Fed. R. Evid. 402.] As set forth in the attached list of objections to Plaintiff's 20 factual assertions under the Act, much of the evidence Plaintiff requests the Court to consider 21 is inadmissable and/or improper. For example, Paragraphs 20-22 contain conclusory,

22 unsupported, and self-serving statements that Defendant was aware that Plaintiff was disabled 23 under the Act. A review of one of the underlying instances generally cited by Plaintiff in 24 Paragraph 22 of his affidavit, shows that the medical documentation he provided to the Postal 25 Service Medical Unit in October 2001 stated that his restriction would be reviewed in three 26 27 28 5
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At Plaintiff's deposition in 2005, he testified that he did not even recall requesting an accommodation on September 25, 2001. [Ex. 3, Pl. Resp. SOF (Jung Dp.) 134:25-135:14.]

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1 months, from which the Postal Service could have reasonably concluded that these restrictions 2 were temporary. [DSOF, Ex. O (1170).] Furthermore, the certificates for FMLA leave 3 demonstrate only that Plaintiff suffered from intermittent episodes in which he could not work. 4 Intermittent, episodic impairments are not generally considered to be disabilities under the ADA. 5 Brown v. BKW Drywall Supply, Inc., 305 F. Supp.2d 814, 826-27 (S.D. Ohio 2004). 6 Additionally, those FMLA certificates are dated for times when Plaintiff was working on full 7 duty (May 22, 2001 and January 26, 2001), and therefore not evidencing any impairment at that 8 time. [Pl. Resp. SOF, Ex. 7; DSOF ¶¶ 23-24.] 9 10 B. CAMPER'S DECLARATION IS PROPER. Plaintiff has improperly requested that Camper's declaration be stricken because Camper

11 is an interested witness and therefore the evidence should be disregarded. Plaintiff's objections 12 rely, in part, upon Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), which 13 has been misread. In Reeves, the Supreme Court found that the Fifth Circuit improperly

14 reversed a jury's verdict in favor of the employee/petitioner by ignoring certain evidence 15 favoring the petitioner/employee and "misconceiv[ing] the evidentiary burden borne by plaintiffs 16 who attempt to prove intentional discrimination through direct evidence." Id. at 134. Further, 17 using Plaintiff's logic, his declaration should be stricken as well. 18 Plaintiff also requests that Camper's declaration be stricken because he "has no

19 knowledge whatsoever about reasonably accommodating Alex;" relies on hearsay concerning 20 a prior suspension, did not testify at his deposition about essential functions, and cannot attest 21 to the information regarding light duty. [P. Resp., pp. 12-13.] The suspension issue is not

22 a genuine issue of material fact, and merely background information. It is unknown why 23 Plaintiff would object to Camper providing a declaration about the essential functions of the 24 Distribution Clerk position when Plaintiff's counsel did not ask Camper questions about that 25 issue. Finally, the objection about Camper not being able to "attest to information about light 26 duty" is confusing. While Plaintiff may dispute some facts in Camper's declaration, it is based 27 28 6
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1 on personal knowledge and supported by Postal Service documents. Defendant's objections are 2 unfounded. 3 III. ANALYSIS: 4 5 A. THE UNDISPUTED FACTS ESTABLISH THAT PLAINTIFF IS NOT DISABLED. Defendant's Motion for Summary Judgment set forth the governing legal standard for

6 determining whether Plaintiff was Disabled under the Act prior to his refusal to sign the light 7 duty offer in March 2002, attendance violations, AWOL status, and subsequent removal in 8 September, 2002. [DMSJ, pp. 10-11.] The controlling analysis is whether Plaintiff has a

9 physical or mental impairment substantially limiting one or more major life activity.5 10 "Substantially limited" means that an individual is either unable to perform a major life activity 11 that the average person in the general population can perform or is significantly restricted as to 12 the condition, manner or duration under which the individual can perform a particular major life 13 activity as compared to the condition, manner or duration under which the average person in the 14 general population can perform that same major life activity. 29 C.F.R. § 1630.2(j). 15 Plaintiff has submitted a self-serving affidavit, responsive "facts," and six pages of

16 argument based upon conclusory statements which do not support an alleged disability under the 17 Act. [United States v. Roane, 378 F.3d 382, 400 -401 (4th Cir. 2004) ("`[a]iry generalities, 18 conclusory assertions and hearsay statements [do] not suffice' to stave off summary judgment 19 or entitle a habeas petitioner to an evidentiary hearing, because none of these would be 20 admissible evidence at an evidentiary hearing.") (citation omitted); Forsberg v. Pacific 21 Northwest Bell Telephone Co., 840 F.2d 1409, 1419 (9th Cir. 1988) (purely conclusory 22 allegations of alleged discrimination, with no concrete, relevant particulars, will not bar 23 summary judgment).] Further, as stated above and in the attached objections, most of Plaintiff's 24 affidavit and its corresponding factual assertions should be stricken or rejected by the Court for 25 a variety of reasons, including that they claim he is disabled now, not years ago when he 26 Plaintiff does not claim that he should be considered disabled because he has a record of impairment, or was regarded as having an impairment. [See e.g., Pl. Resp., p.8; Pl. Resp. 28 SOF.] These alternative definitions are not relevant to this motion. 27 7
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1 allegedly requested an accommodation. Plaintiff did not establish during his deposition or 2 interrogatory answers that he was a qualified person with a disability. Plaintiff's own statements 3 to the Department of Labor establish that he was able to perform the type of manual tasks central 4 to most people's lives, and therefore he was not substantially limited in a major life activity. 5 [See Toyota v. Williams, 534 U.S. 184, 198 (2002); Bryant v. Caritas Norwood Hospital, 345 6 F. Supp.2d 155, 165-66 (D. Mass. 2004) (claim of difficulty with heavy lifting and nighttime 7 driving cannot overcome evidence of high-level, independent functioning.).] 8 B. PLAINTIFF COULD NOT PERFORM THE ESSENTIAL FUNCTIONS OF HIS

9 DISTRIBUTION CLERK POSITION. 10 Under Ninth Circuit law, it is Plaintiff's burden to establish that he is qualified and can

11 perform the essential functions of the job with or without reasonable accommodation. See 12 Barnett v. U.S. Air, Inc., 196 F.3d 979 (9th Cir. 1999) revers'd on other grounds, 228 F.3d 1105 13 (9th Cir. 2000), vacated by 535 U.S. 391 (2002); Kennedy v. Applause, Inc., 90 F.3d 1477, 14 1481 (9th Cir. 1996); see also Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1292 (10th 15 Cir. 2000). In this case, the disputed issue involves whether Plaintiff can perform the essential 16 duties Distribution Clerk. Shiring v. Runyon, 90 F.3d 827, 832 (3rd Cir. 1996). Essential 17 functions are the fundamental duties of the relevant position. 29 C.F.R. 1630.2(n)(1). The 18 evidence that the Court may consider evidence in determining whether a particular function is 19 essential includes "the employer's judgment as to which functions are essential," "the amount 20 of time spent on the job performing the function"; the terms of a collective bargaining 21 agreement, and "the work experience of past incumbents in the job." 29 C.F.R. § 1630.2(n)(3); 22 Frazier v. Simmons, 254 F.3d 1247, 1258 (9th Cir. 2001). 23 It is unclear why Plaintiff has objected to Camper's declaration for not accurately stating

24 the essential functions of the Distribution Clerk. According to Camper, the Distribution Clerk 25 position required that Plaintiff be able to lift up to 75 pounds, stand for an entire shift, and bend, 26 lift and twist to perform his job. [SOF ¶¶ 4-5.] Plaintiff's own evidence submitted in this case 27 supports Camper's claims about the essential functions for that position. The functional purpose 28 8
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1 of a Distribution Clerk is to separate mail "in accordance with established schemes, including 2 incoming or outgoing mail or both." [Pl. Resp. SOF, Ex. 22.] Plaintiff's duties and

3 responsibilities included making "primary and one or more secondary distributions of incoming 4 mail by delivery point," "primary and one or more secondary distributions of outgoing mail for 5 dispatch," and other duties including "open[ing] and dump[ing] pouches and saks." [Id.] 6 Plaintiff's own medical records prove that he was regularly required to do the very functions that 7 Camper claimed were required. [Pl. Resp. SOF, ¶ 18 ("work as a distribution clerk requires 8 "heavy lifting, twisting and prolonged standing"); Pl. Resp. SOF ¶ 19 (Plaintiff "does a lot of 9 lifting and squatting"); Pl. Resp. SOF ¶ 20 ("work of repetitive pushing and pulling," "unable 10 to do the same kind of work").] Plaintiff's own testimony demonstrated that he could not one 11 of the essential functions of the Distribution Clerk position because he could not operate the 12 required machinery. [DSOF ¶ 5; CSOF) ¶ 6; Ex. 3, Pl. Resp. SOF (Jung's Dp.) 131:1713 132:25.] 14 Finally, as detailed in the above chart, Plaintiff's own treating physician established that

15 he cannot do the Distribution Clerk job because, among other things, Plaintiff could not stand 16 for any length of time and the job required him to stand seven (7) hours, he could not lift the 17 required weight, and he could not do the required pushing, pulling, and twisting. [Pl. Resp. 18 SOF, ¶ 14, Ex. 6.] 6 19 20 C. THE POSTAL SERVICE HAD NO DUTY TO PROVIDE ACCOMMODATION The reasonableness of Plaintiff's alleged accommodation request for a "soft cushion

21 chair" is not relevant to this motion. Plaintiff never put the Postal Service on notice that he had 22 a disability and therefore needed a special accommodation so that he could do his job. As stated 23 by the First Circuit in Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260 (1st Cir. 2001): 24 25 26 27 It is important to note that this document was submitted to the Department of Labor, not the Post Office. 28 9
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The employee's request must be "sufficiently direct and specific," giving notice that she needs a "special accommodation." Wynne v. Tufts Univ., 976 F.2d 791, 795 (1st Cir.1992) (quoting Nathanson v. Medical Coll. of Pa., 926 F.2d 1368, 1381 (3d Cir.1991)). At the least, the request must explain how the

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accommodation requested is linked to some disability. The employer has no duty to divine the need for a special accommodation where the employee merely makes a mundane request for a change at the workplace. See EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, FEP (BNA) 405:7601, at 7605-06 (March 1, 1999) (request for new office chair because current one is "uncomfortable" does not provide sufficient notice that accommodation is needed due to a disability), available at http: //www.eeoc.gov/docs/accommodation. html. Id. (Emphasis added.) Plaintiff argues that the Postal Service was on notice that he had an alleged disability

7 because of his doctor's note for a "soft cushion chair," his complaints about pain, his FMLA 8 certificates, and light duty requests, citing two Ninth Circuit cases. Plaintiff's argument should 9 be disregarded for two important reasons. First, none of the suggested evidence demonstrates 10 that Plaintiff had a disability within the meaning of the Act. In fact, the information Plaintiff 11 provided to the Postal Service demonstrated that he did not have a disability under the Act 12 because: 13 14 · he could perform household chores, do yard work and play golf [DSOF ¶ 35]; · his FMLA requests were temporary ("to be reviewed in six months"), intermittent ("off

15 work 3 days per occurrence 4 episodes per month"), and advised that he was "not presently 16 incapacitated;" [Pl. Resp. SOF, Ex. 7]; 17 · he sought no options that would indicate he had a permanent condition ("you may

18 request reasonable accommodation from your supervisor and apply for permanent light duty in 19 writing if you believe that your impairment will permanently prevent you from performing the 20 full duties of your position." [DSOF ¶¶ 38-39; Ex. D-15.] 21 Secondly, the cases cited by Plaintiff are inapplicable. Both cases, Dillingham Corp.

22 v. Massey, 505 Fd 1226 (9th Cir. 1974) and Bunge Corp., INA v. Director, OWCP, 951 F.2d 23 1109 (9th Cir. 1991) involve the Longshoremen's and Harbor Workers' Compensation Act, 33 24 U.S.C. § 908(f)(1). Notice of a disability under that statute does not establish notice under the 25 Act. See Crandall v. Paralyzed Veterans of America, 146 F.3d 894 (D.C. 1998) (If employee's 26 behavior is not so obviously a manifestation of underlying disability that it would be reasonable 27 to infer that employer actually knew of disability, and employer has no other notice of disability, 28 10
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1 there can be no actionable discrimination). Here, Plaintiff has not and cannot meet his burden 2 in showing that the Postal Service had notice of his disability. And the Postal Service had no 3 notice that Plaintiff was allegedly disabled. 4 D. PLAINTIFF CANNOT ESTABLISH THAT THE POSTAL SERVICE'S ACTIONS

5 WERE BASED SOLELY UPON HIS DISABILITY 6 This element will only be addressed briefly because the evidence establishes that Plaintiff

7 cannot establish a prima facie case regarding one or both of the first two elements of his prima 8 facie claim. Because the Postal Service disclaims any reliance on Plaintiff's alleged disability 9 and therefore "the McDonnell Douglas Title VII analysis should be used to determine if the 10 employer's reason is pretextual." Mustafa v. Clark County School District, 157 F.3d 1169, 11 1175 (9th Cir. 1998); DMSJ, pp. 7-10.] In this case, there is no direct evidence that the Postal 12 Service's actions were based upon Plaintiff's alleged disability. Furthermore, according to 13 Plaintiff's supervisors, all actions taken were consistent with Postal Service polies and 14 procedures, including Plaintiff's removal. Consequently, even if the Court addresses this 15 element, judgment should be entered in the Defendant's favor and against Plaintiff on his 16 Disability Claim. 17 IV. CONCLUSION: 18 Based upon the foregoing, it is hereby requested that the Court enter an order awarding

19 judgment in Defendant's favor and against Plaintiff, because there are no genuine issues of 20 material fact, and Defendant is entitled to judgment as a matter of law. 21 22 23 24 25 26 27 28 11
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Respectfully submitted this 6th day of June, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney

1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 14, 2006, I electronically transmitted the attached document

3 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 4 Electronic Filing to the following CM/ECF registrants: 5 Rosval A. Patterson 6 777 E. Thomas Rd. Phoenix, AZ 85014 7 8 s/Suzanne Chynoweth U.S. Attorney's Office 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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