Free Motion to Amend/Correct - District Court of Arizona - Arizona

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DIANE HUMETEWA United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona Bar Number 6835 230 N. First Avenue, Suite 4000 Phoenix, Arizona 85025 (602) 514-7500 Fax: (602) 514-7760

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, CIV-04-0429-PHX-MHM Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. DEFENDANT'S MOTION TO ALTER OR AMEND JUDGMENT

Defendant hereby requests that the Court amend or alter its judgment dated July 1, 2008

15 pursuant to FRCP 59(e) to correct a factual and legal error as set forth in the following 16 Memorandum of Points and Authorities. 17 18 MEMORANDUM OF POINTS AND AUTHORITIES Defendant files this motion under Fed. R. Civ. P. 59(e), which allows a party to direct the

19 Court's attention to "correct manifest errors of law or fact upon which the judgment was based." 20 Demasse v. ITT Corp., 915 F.Supp. 1040, 1048 (D. Ariz. 1996), aff'd in part, rev'd in part on
th 21 other grounds, 185 F.3d 866 (9 Cir. 1999), quoting, F.D.I.C. v. World University, Inc, 978 F.2d st th 22 10 (1 Cir. 1992); See also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9 Cir. th 23 1999); School District No. 1J, Multnomah County, Or., v. A C and S, Inc., 5 F.3d 1255, 1263 (9 th 24 Cir. 1993); Moro v. Shell Oil Company, 91 F.3d 872, 876 (9 Cir. 1996). The Court has ruled

25 and judgment has been entered entitling Plaintiff to back pay from March 2002 to the present 1 The Court found that Plaintiff had been 26 because Plaintiff was constructively discharged. 27 28
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For the same reasons that the back pay award is in error, front pay should be eliminated.

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1 constructively discharged, relying solely upon Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 2 1984) "because a reasonable person in his position would have felt that he was forced to quit 3 because of intolerable and discriminatory working conditions." [Court's July 1, 2008 order (Doc. 4 # 217), p. 7, ll. 11-13.] Reliance solely upon Satterwhite may be invalid because that case 5 involves claims under 42 U.S.C. §§ 1981, 1983 and 1985(3), not Title VII. See Odima v. Westin 6 Tucson Hotel, 53 F.3d 1484, 1496 n. 5 (9th Cir. 1995) (distinguishing a case "dealing with 7 back-pay under Title VII" from one that interprets 42 U.S.C. § 1981). The facts in Plaintiff's 8 case fall short of the high standard controlling a plaintiff's burden in establishing a constructive 9 discharge occurred in a Title VII case, as required by Poland v. Chertoff, 94 F.3d 1174, (9th Cir. 10 2007); See also Parties' Joint Report (Doc. # 206), pp. 4-6; Defendant's Supp. Memo. (Doc. 11 #208). 12 In Poland, the plaintiff alleged age discrimination, retaliation for filing an EEO

13 complaint, and constructive discharge based upon his involuntarily transfer to a new job in a new 14 location. Id. at 1179. Prior to the transfer, Poland's supervisor wrote twenty-three notes 15 criticizing Poland's conduct during a fourteen-month period after he filed an EEO complaint, 16 compared with only four notes over a twenty-eight-month period before the EEO complaint was 17 filed. Poland at 1178. An administrative inquiry was conducted and Poland was found to have 18 engaged in improper conduct and it was determined that Poland should be transferred to a non 19 supervisory position in a different location. After a bench trial, the district court ruled in 20 Poland's favor and found that he had been constructively discharged because a reasonable 21 person would have felt that the transfer from Oregon to Virginia was "a career-ending" event 22 that forced him into early retirement. Id. at 1179. However, the Ninth Circuit reversed stating, 23 "[n]either the district court's factual finding or any other evidence in the record indicated that 24 Poland's working conditions in Virginia were so poor that they trumped his motivation to earn 25 a living." Id. at 1185. The Ninth Circuit pointed out that even after Poland decided to retire, he 26 worked the same job for three more months. "As a matter of law these are not the actions of 27 someone who finds his working conditions so intolerable that he felt compelled to resign." Id. 28 2

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1 In Poland v. Chertoff, the Ninth Circuit has reiterated that a high bar is necessary to prove 2 constructive discharge claim because "federal antidiscrimination polices are better served when 3 the employee and employer attack discrimination within their existing employment relationship 4 rather than when the employee walks away and then later litigates whether his employment 5 situation was intolerable." Id. at 1184. 6 Plaintiff Jung did not establish that his "job conditions [were] worse than those which a

7 reasonable person could tolerate." See Poland at 1185; See also Parties' Joint Report (Doc. # 8 206), pp. 4-6; Defendant's Supp. Memo. (Doc. #208). One of Plaintiff's own witnesses, 9 Angelita Martinez, who was working temporary light duty in October and November of 2001 10 where Plaintiff worked, testified that if she had been given a temporary light duty offer that 11 changed her days off, or the hours she was working, she would have signed it. [Trial Trans. 12 638:14-25; 640:14-16.] In fact, the record does not even support that the conditions were so bad 13 that Plaintiff quit. The opposite is true. It is undisputed that after Jung refused the March 2002 14 temporary light duty offer, he continued his employment relationship with the Postal Service.2 15 Examples of Plaintiff's continued relationship with the Postal Service include his requesting 16 FMLA leave (for which he had insufficient hours), sick leave, responding to his employer's May 17 2002 inquiry about his failure to show up for work, and providing the Medical Unit with 18 information about his being unable to perform the essential functions of his job. [Trial Exs. 15, 19 16, 51.] The March 2002 events surrounding that light duty offer do not meet the high bar 20 dictated by the Ninth Circuit for proving the job conditions were so awful that the employee was 21 justified in quitting instead of remaining on the job and trying to resolve his differences with his 22 employer. Plaintiff is not entitled to equitable remedies on that basis. 23 24 It is important to emphasize that- a temporary light duty offer is just that­a temporary 25 offer during which the employer attempts to locate suitable and available work within the employee's restrictions, craft and bid position. [See e.g. Trial Exs. 75, 231, 303; Trial Trans. 26 331:14-335:22.] Further, even though an employee is guaranteed four hours of work when he is working pursuant to a temporary light duty agreement, the employee is not guaranteed more 27 than four hours of work. [Trial Ex. 231.] 28 3
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Based upon the foregoing, it is respectfully requested that the Court amend its order and

2 a corrected judgment be entered. 3 4 5 6 7 8 9 CERTIFICATE OF SERVICE 10 I hereby certify that on July 15, 2008, I electronically transmitted the attached document 11 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 12 Electronic Filing to the following CM/ECF registrants: 13 Rosval A. Patterson 14 777 E. Thomas Rd. Phoenix, AZ 85014 15 s/S.Chynoweth 16 Office of the U.S. Attorney 17 18 19 20 21 22 23 24 25 26 27 28 4 Respectfully submitted this 15th day of July, 2008. DIANE HUMETEWA United States Attorney District of Arizona s/Suzanne Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney

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