Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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DANIEL G. KNAUSS 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, Plaintiff, v. John E. Potter, Postmaster General, Defendant. Defendant, John E. Potter, hereby requests clarification of the Court's minute entry dated November 15, 2007 (Doc #210). In that minute entry, the Court noted that Plaintiff had filed a supplemental memorandum and granted "the Defendant leave to file a supplemental memorandum" by November 21, 2007. Defendant filed a supplemental memorandum on October 29, 2007, in which he requested that the Court limit the time frame for the back pay award to the date that Plaintiff went AWOL, or at the latest, was terminated. [See Doc #208.] Defendant also asserted that the requested limitation of the back pay award would not require an evidentiary hearing. Plaintiff's supplemental memorandum (Doc. # 209), filed shortly after Defendant's, includes fifteen (15) exhibits (the Exhibits), none of which were admitted into evidence at trial. Defendant anticipates that the Exhibits would be the subject of an evidentiary hearing if the Court is inclined to award back pay beyond September 28, 2002, front pay, or other remedies that Defendant has asserted are inappropriate in this case. [See Doc. #208, p. 6, l. CIV-04-0429-PHX-MHM DEFENDANT'S REQUEST FOR CLARIFICATION

Case 2:04-cv-00429-MHM

Document 213

Filed 11/19/2007

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19 - p. 7, l. 2.] Defendant intends to object to at least some of these Exhibits at an evidentiary hearing, and would also want to submit his own evidence regarding his position on the information contained in the Exhibits. For example, Ex. 12, an unsigned "Letter to Judge" appears to be Plaintiff's statement and is objectionable for reasons including that it lacks foundation, and is hearsay. Exhibit 13 contains a number of purported job vacancies, most of which are from locations other than the Phoenix District, involve jobs at a salary higher that Plaintiff's, and required qualifications beyond what Plaintiff is able to do. At an evidentiary hearing, Defendant would object to Ex. 13 for reasons including that the purported job vacancies are hearsay, lack foundation, and are contrary to the requirements regarding reassignment of a disabled employee. In March 2002, even if a disabled employee were unable to perform the essential functions of his or her position with a reasonable accommodation, under 28 C.F.R. 1614.203(g) the following was in effect regarding reassignment: When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer or reassign the individual to a funded vacant position located in the same commuting area and service by the same appointing authority, and at the same grade or level, the essential function of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at the same grade or level, an offer of reassignment to a vacant position at the highest available grade or level below the employee's current grade or level shall be required. . . . The aforementioned objections are examples of what defendant intends to present at an evidentiary hearing. If the Court wants Defendant to submit complete objections to the Exhibits, or other supplemental briefing, Defendant requests further clarification so that he may comply with the Court's Order Respectfully submitted this 16th day of November, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /S/ Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney
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CERTIFICATE OF SERVICE I hereby certify that on November 16, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Rosval A. Patterson 777 E. Thomas Rd. Phoenix, AZ 85014 S/ LaRee Zickefoose Office of the U.S. Attorney

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