Free Reply to 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 Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

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PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Alexander Jung (hereinafter referred to as "Alex") submits his Reply to Defendant's Response to Plaintiff's Motion for Partial Summary Judgment. Summary Judgment should be granted on Defendants failure to provide a reasonable accommodation and enter the interactive process and on Defendant's affirmative defenses of Legitimate Business Reason and Undue Hardship defenses. There are no disputed facts on this matter. Defendants' Response does not dispute one fact listed in Plaintiff's Motion for Partial Summary Judgment. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 22nd day of May, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff
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MEMORANDUM OF POINTS AND AUTHORTIES I. PLAINTIFF WAS CLEARLY DISABLED UNDER THE REHABILITATION ACT.

Title I of the ADA and § 504 of the Rehabilitation Act create the same rights and
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obligation. Wong v. Regents of the University of California, 410 F. 3d 1052, 1055 (9th
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Cir. 2005). Based on the depositions, physician statements, and the employer's related
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medical documents Alex is disabled. 1 On December 14, 2000, Alex was diagnosed with Chondromalacia of Patella by

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Doctor Chris S. Reust. ("Dr. Reust"). (SOF ¶ 1). Alex's knees and back impairment
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substantially limit the major life activity of walking, lifting and standing.2 (SOF ¶¶ 2-3). When determining whether an impairment substantially limits a major life activity, three

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factors detailed in 29 C.F.R. § 1630.2(j)(2) should be considered. 3 Viewing the evidence in the light most favorable to the Alex, Alex easily meets

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each of the factors. The testimony will show that Alex suffers from substantial limitation
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of major life activities. While performing his duties at the United States Postal Service
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("USPS"), Alex's constant standing, bending to grab, twisting caused his knee and lower
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back to hurt. (SOF ¶ 4).
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At times, when Alex came home from working at the USPS his knees would be
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swollen and he would be unable to sleep because of the pain. The pain and discomfort
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that Alex suffers can, at times, be incapacitating. (SOF ¶ 5). Furthermore, Alex must
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(1) he is disabled under the Act; (2) he is "otherwise qualified" because he can meet the essential eligibility requirements with or without reasonable accommodation; (3) he was dismissed solely because of his disability. See 42 U.S.C. § 12111(8) (Supp. V 1993). Zulke v. The Regents of the University of California, 166 F.3d 1041 (9th Cir. 1999).
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The definition of "major life activities" found in the Rehabilitation Act regulations, 34 C.F.R. § 104. See 29 C.F.R. Pt. 1630, Appendix to Part 1630, § 1630.2(i). The phrase "major life activities" is defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1620.2(9). As stated in the appendix to these regulations, "this list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting." 29 C.F.R. § 1620.2(9). 3 (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 2

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wear a back brace, knee braces and arch supports. Without the extra support, he has very low functionality. (SOF ¶ 6). Dr. John Jensen ("Dr. Jensen") was Plaintiff's Primary Care Physician. On September 21, 2000, Dr. Jensen noted that both of Plaintiff's knees were painful and were locking in the mornings. (SOF ¶ 7). 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. (SOF ¶ 8). On December 5, 2001 Dr. Jensen noted that Alex's knee pain was a disabling condition. (SOF ¶ 9). Dr. Jensen stated that Alex's disability is occurring because of "prolonged standing in the work environment". (SOF ¶ 9). On January 26, 2001 and May 22, 2001, Dr. Jensen opined that Alex's condition as chronic. (SOF ¶ 10). He further stated that `Alex's pain in his knees was due to injury and arthritis'. (SOF ¶ 10) Dr. Jensen went on to opine that the "pain and discomfort can at times be incapacitating." (SOF ¶ 10). Dr. Jensen listed the probable duration of the condition to be chronic/lifelong. (SOF ¶ 10). Numerous doctors who have treated Alex agree with Dr. Jensen's assessments. On February 21 and March 6, 2001, Dr. Berry from the Veteran's Administration ("VA") concurred with Dr. Jensen's assessment of chronic bilateral knee pain and added that "Alex is unable to sit for prolonged periods, ride a bike, knee[ling], [or walk] stairs". (SOF ¶ 11). Dr. Berry noted Alex described an "achy sensation with [his] knees" and that Alex has "trouble with static standing, kneeling, stairs, and bike[ing]." (SOF ¶ 11) On September 26, 2001, Alex was seen by Dr. Mendlick, a VA doctor. Dr. Mendlick stated that Alex "has had rather chronic patello-femoral arthralgia". (SOF ¶ 12). On November 28, 2001, Dr. Sumit Dewanjee, also a VA doctor, opined that Alex's "symptoms [are] aggravated by work as a distribution clerk which requires heavy lifting, twisting and prolonged standing". (SOF ¶ 13). On February 28, 2002, Dr. Herring, yet another VA doctor, opined that Alex "complains of numbness in knees....does a lot of lifting and squatting, which has aggravated the pain" and Alex's "knees occasionally lock
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up, give way". (SOF ¶14). Dr. Herring concurred with Dr. Jensen that Chondromalacia of Patella was a chronic condition for Alex. (SOF ¶14). Dr. Herring further concurred with Dr. Mendlick that Alex had bilateral patellofemoral arthralgia. (SOF ¶14). 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 damage. (SOF ¶ 15). Additionally, on July 7, 2005, Dr. Lillian Chang, from the VA opined that Alex is "unable to perform prolonged walking, standing, kneeling, squatting, climbing, running and any other high impact activities". (SOF ¶ 16). She added that Alex's "posture is abnormal and there is a presence of genu varum deformities of both knees". (SOF ¶ 16). Alex 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. (SOF ¶ 17). Alex's doctors have restricted his lifting to less than ten (10) pounds as well as restricted the length of time he can walk or sit. On January 7, 2001 and February 28, 2002 and March 8, 2002, Dr. Jensen issued a medical certificate with restrictions precluding Alex from lifting more than ten (10) pounds. (SOF ¶¶ 18-20) Plaintiff's allegations are consistent with the reports of his treating physicians. Plaintiff testified at deposition under penalty of perjury that his 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. (SOF ¶ 21). Alex cannot stand in a prone position for longer than fifteen (15) minutes without having to walk or sit. (SOF ¶ 22). Additionally, when Alex walks a certain distance he feels weakness and numbness in both knees and sharp pain in his knee caps. (SOF ¶ 23). Alex stated in his affidavit

that he was unable to walk the equivalent of one city block without his knees locking and becoming numb. (SOF ¶ 24). Alex cannot walk for even a minimal distance; a couple of blocks at the most. (SOF ¶ 25). He can only walk for very brief periods of time. (SOF ¶
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26). When Alex's knees lock and become numb, walking becomes nearly impossible and extremely slow. (SOF ¶ 27). 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. (SOF ¶ 28). Sometimes, when Alex is in a public place, such as a store, he has felt that he possibly could not make it out of the store safely and would hold on to the wall for support. (SOF ¶ 29). Furthermore, 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. (SOF ¶ 30) At times, after sitting for an extended length of time, Alex's knees would buckle. (SOF ¶ 30). Alex is required to shift positions in order to remain seated more than 25 minutes. (SOF ¶ 31). Driving has become difficult for Alex, for instance, when he is sitting in his car, he must shift his weight, squirm and change positions slightly, so as to minimize the pain. (SOF ¶ 32). Alex was forced to trade in his car with manual transmission for a car with an automatic transmission. (SOF ¶ 33). It became too difficult for him to drive a car with the manual transmission. (SOF ¶ 33). Alex is in constant pain. (SOF ¶ 34). At times, the pain is so debilitating that Alex cannot move he must rely on someone to take food to him because he can not move his knees. (SOF ¶ 35). It is well-established in the 9th Circuit that a twenty-five (25) pound lifting restriction is not substantially limiting, however a recommendation that Plaintiff is unable to perform prolonged walking, standing, kneeling, squatting, climbing, running and any other high impact activities, with attendant weight restrictions of less than ten (10) pounds, certainly appears to be more restrictive, and thus more substantially limiting. Puckett v. Park Place Entm't, Corp., 2006 U.S. Dist. LEXIS 14778, 13-14 (D. Nev. 2006). Additionally, several courts have held that lifting restrictions, when combined with other limitations, create a genuine issue of material fact with regard to whether a plaintiff is disabled. See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996) (reasonable jury could conclude Plaintiff with multiple sclerosis and fifteenpound lifting restriction was disabled); Haysman v. Food Lion, Inc., 893 F. Supp. 1092,
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1100 (S.D. Ga. 1996) (triable issue regarding disability when Plaintiff, after knee surgery and a laminectomy, was restricted from sitting more than sixty minutes, from standing more than thirty minutes, from walking continuously for more than three minutes, and from lifting more than ten to fifteen pounds); Martin v. Lockheed Martin, 1998 U.S. Dist. LEXIS 4258, *8 (N.D. Cal. 1998) (triable issue raised when Plaintiff had two surgeries for carpal tunnel syndrome, was restricted from sustained hand activity and from lifting items over 10 pounds). Additionally, the 9th Circuit and other Circuits support a finding that Alex is substantially limited. Lutz v. Glendale Union High Sch., 8 Fed. Appx. 720, 722 (9th Cir. 2001) (triable issue regarding disability Plaintiff's arthritis had a debilitating effect on her ability to walk and stand). Stephenson v. United Airlines, Inc., 9 Fed. Appx. 760, 763 (9th Cir. 2001) (Holding "we identify Stephenson's arthritic condition as the relevant physical impairment, and "walking" as the major life activity at issue".) EEOC & Keane v. Sears, Roebuck, & Co., 233 F.3d 432, 438-39 (7th Cir. 2000) (holding that factual issues existed with respect to whether an employee was substantially limited in the major life activity of walking where her diabetes-related neuropathy required her to limit her walking). Alex is clearly substantially limited. a. Defendants have had More than Two Years of Notices Regarding Alex's Disability Before They Kicked Him Out of the Building. Alex has informed the defendants about his disability. In Barnett v US Air, Inc, 228 F3d 1105 (9th Cir 2000), the obligation to engage in the interactive process "is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation." Id at 1114. If the company knows of the existence of the employee's disability, the employer must assist in initiating the interactive process." Id. On October 29, 2001, Alex submitted a Return to Work Authorization from Dr. Lawrence Shank to the Medical Health Unit ("Health Unit"). This authorization listed Plaintiff's bilateral knee pain as permanent and restricted Alex to sit on a soft cushion
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chair. (SOF¶ 36). Defendants were also aware of Alex's condition via request for work restrictions which the Health Unit authorized and submitted to Plaintiff's supervisors on July 21, 2000; March 6, 2001; September 25, 2001; October 10, 2001; January 7, 2002; March 1, 2002 and May 22, 2002. (SOF ¶ 37). Defendant was further aware of Alex's limitations through Supervisors Light-Duty Approval Forms dated on February 6, 2001; October 10, 2001; January 7, 2002 and March 1, 2002. (SOF ¶ 38). Additionally, Plaintiff submitted Doctor's Notes to Defendant on March 6, 2001; September 10, 2001; January 2, 2002; February 8, 2002 and February 28, 2002. (SOF ¶ 39). The key issue is determining the availability to the employer of knowledge of the preexisting condition, not necessarily the employers' actual knowledge of it. . . . The employee's appearance, medical reports and work experience are relevant, but the critical element is what the employer has available ..., should he decide to take notice of it. Dillingham Corp. v. Massey, 505 F.2d 1126, 1128 (9th Cir. 1974). "If the condition is readily discoverable from the employee's medical record in the possession of the employer, knowledge of the condition is imputed to the employer." Bunge Corp., INA v. Director, OWCP, 951 F.2d 1109, 1111 (9th Cir. 1991). The Defendants failed to take notice of Plaintiff's disability and their knowledge of his condition is imputed. b. Plaintiff Requested an Accommodation. The Defendant was aware the Alex needed an accomodation as early as 2000. On July 21, 2000 the Health Unit issued a Authorization for Medical Attention stating that "Employ[ee] complains of discomfort and may need some accommodations this p.m. to continue work. Refer to supervisor." In October of 2001, Alex made a request to sit on a soft-cushion chair for 15-30 minutes at a time to relieve the pain in his knees and lower back. The manager, Humberto Trujillo ("Trujillo"), however refused to allow Alex to sit on the chair. Trujillo told Alex's supervisor, Johnny Camou ("Camou") that Alex would need a doctor's note in order to sit on a chair with a cushion. (SOF ¶ 40). On October
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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. (SOF ¶ 36). Trujillo refused to accommodate Plaintiff and allow him to use a cushioned chair while working. (SOF ¶ 41). II. Defendants Have Admitted that Plaintiff was Capable of Performing the Essential Functions of His Job With or Without a Reasonable Accommodation.

If an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). Defendant has a written job description for Level 5 Distribution Clerks. This description describes the Functional Purpose as: "Separates mail in post office, terminal, airport mail facility or other postal facility in accordance with established schemes, including incoming or outgoing mail or both. The description then lists duties and responsibilities which include: 1 ­ Makes primary and one or more secondary distributions of incoming mail by delivery point, based on knowledge of the distribution scheme. 2- Makes primary and one or more secondary distribution of outgoing mail for dispatch based on a knowledge of the distribution scheme. 3 ­ In addition, may perform any of the following duties: maintain records of mails; 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; record and bill mail requiring special services; and provide service at public windows. (SOF ¶ 42). Based on this job description, Plaintiff could perform the essential functions of his job by being allowed to sit on a soft cushion chair. Furthermore, both of Alex's supervisors admitted that Plaintiff was qualified to perform the essential job functions of a Level 5 Distribution Clerk. (SOF ¶¶ 42-45).

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III.

Plaintiff Moves to Strike the Declaration of Mark Camper

Defendants' Motion relies on unauthenticated and controverted facts which are contained in the declaration of Mark Camper ("Camper"), the Supervisor of Distribution Operations at the Phoenix Priority Mail Postal Processing Center ("PPMPPC"). Unauthenticated documents are not to be considered on a motion for summary judgment. Hal Roach studios, Inc. V. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1987). Additionally, Plaintiff hereby moves to strike Camper's declaration pursuant to the Supreme Court's ruling in Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000), which limits the evidence courts may consider on a Rule 56 motion. The Reeves court unequivocally stated, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party, which the jury is not required to believe. That is, the court should give credence to the evidence favoring the non-movant as well as evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses. Reeves, 120 S.Ct. 2110, (quoting 9A C. Wright & Miller, Federal Practice and Procedure 2529 (2d Ed. 1995) at 300 (emphasis added)). In other words, if Defendants' evidence comes from an interested witness, it cannot be credited on a Summary Judgment motion. Alternatively, if Defendants' evidence is contradicted or impeached, it cannot be credited. It is clear that Camper is an interested witness. Camper was working under the supervision of Trujillo who made the decision not to reasonably accommodate Alex. (SOF ¶ 41). Camper testified in his deposition that he had no knowledge whatsoever about reasonably accommodating Alex. (SOF ¶ 46). It is Camper's judgment, decisionmaking and illegal actions that are at issue in this lawsuit. Thus, his entire declaration must not be credited on this basis alone. In fact, 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". (SOF ¶ 47).
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Additionally, Camper's statement in his declaration that "between February 2001 and March 2002, the essential functions of a Level 5 Distribution Clerk at PPMPPC included: a. b. Lifting sacks, boxes, and parcels up to 75 pounds each; Standing for the entire shift, other than breaks and lunch; Constant bending, lifting, and twisting in connection with retrieving and sorting mail by zip code." is controverted, by the Distribution Clerk's job descriptions as published by the USPS. (SOF¶ 42). Furthermore, Camper did not mention any of these requirements in his deposition. In fact, he testified that Alex was qualified for sorting and distributing mail to post office and carrier routes as well as sorting odd sized mail by hand. (SOF ¶¶ 4344). Camper additionally admitted in his deposition that Alex was qualified to run the small process bundle sorter at the PPMPPC (SOF¶ 45). Camper's affidavit is also controverted by the deposition testimony of Defendant Trujillo who testified that plaintiff was qualified as a distribution clerk. (SOF ¶ 42). Defendant's written job description for a Level 5 Distribution Clerk does not have the requirements put in Camper's declaration. (SOF ¶ 42). Camper's declaration must be stricken because it is unauthenticated and controverts facts. IV. DEFENDANTS ALLEGED ACCOMMODATION OF PROVIDING "LIGHT DUTY" IS INSUFFICIENT UNDER THE REQUIREMENT SET BY THE ADA. In deciding the accommodation, both parties have a duty under the ADA to engage in an "informal, interactive process" to determine the appropriate reasonable accommodation. 29 C.F.R. § 1630.9, Appendix (1995) (see Exh. 24). The EEOC's interpretive guidelines provide that: [o]nce a qualified individual with a disability has requested provision for reasonable accommodation; the employer must make a reasonable
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c.

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effort to determine the appropriate accommodation . . . through a flexible interactive process that involves both the employer and the [employee] with a disability. Defendant's evidence that Alex's light duty request were routinely accommodated is insufficient as a matter of law. Barnett v. U.S. Air, Inc., 228 F.3d 1105, __ (9th Cir. 2000), citing S. Rep. No. 101-116 at 34 (1989) and H.R. Rep. No. 101-485, pt. 2 at 65 (1990), and 29 C.F.R. 1630.2(b); 29 C.F.R. § 1630.2(o)(3). 4 Defendants never involved Alex in any discussion regarding his disability. Trujillo never asked Alex any questions regarding his disability or explored whether there were any other ways the USPS could accommodate him. (SOF ¶¶ 48-52) In defiance of the ADA, Trujillo testified that he was not obligated to explore with Alex whether the USPS could reasonably accommodate Alex. (SOF at ¶¶ 51-54) Trujillo never bothered to read Handbook EL-307, Reasonable Accommodation, an Interactive Process, which set forth the policies on reasonable accommodation. (SOF at ¶ 52) Instead, Trujillo usurped his duties to the labor department. (SOF ¶ 53) However, Trujillo never contacted the labor department regarding Alex's disability. (SOF ¶ 54) On or about April 12, 2002, Trujillo simply kicked Alex out of the PPMPPC and would not allow Alex to return. (SOF ¶¶ 55-56) Defendant's allegation of Alex being AWOL is unsupported by the record. Alex continued on the USPS rolls until after February 3, 2004. On or about February 3, 2004, Trujillo received an e-mail of high importance from Robert Hemphill stating that Alex had not been removed from the rolls and was sent notice indicating his new assignment and status as an unassigned regular. (SOF ¶ 57)
The interactive process involves four steps: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. 11

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On or about March 5, 2002, the date of Alex's refusal to sign the Light Duty Assignment Alex had 155.83 Annual Leave Balance, 193.65 sick leave balance, 1559.07 FMLA leave balance. (SOF ¶ 58) The Employee Everything Report listed that Alex had used 72.04 hours of FMLA. (SOF ¶ 58) Trujillo testified that Alex did not have a record of or a history of being absent. (SOF ¶ 59) It is clear that Alex followed the direction of the Trujillo and did not return to the USPS. Alex's termination was not an appropriate action under the ADA when the alleged misconduct was a direct result of the employer's failure to allow a reasonable accommodation. Lutz v. Glendale Union High Sch., 2005 U.S. Dist. LEXIS 32617 (D. Ariz. 2005) Plaintiff should be granted Partial Summary Judgment on his failure to be reasonably accommodated as there are no disputed material facts on this issue. V. DEFENDANTS DO NOT DISPUTE THAT THEY HAVE NO EVIDENCE WHICH SUPPORTS THEIR LEGITIMATE BUSINESS REASON AND THEIR UNDUE HARDSHIP DEFENSE. Defendants have failed to present any evidence supporting neither their Legitimate Business Reason nor an Undue Hardship defense. VI. CONCLUSION Defendants' generalized statements and speculation is insufficient to demonstrate that they entered into the interactive process to accommodated Alex. Nor have the demonstrated their legitimate business reason or undue hardship defenses. Defendants have failed to meet their burden of proof. Dated this 22nd day of May, 2006.

s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Alex
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CERTIFICATE OF SERVICE I hereby certify that on the 22nd 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: Suzanne M. Chynoweth Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408

s/Stephanie Coulter
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