Free Statement - 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 ) ) ) ) PLAINTIFF'S SUPPLEMENTAL ) INJUNCTIVE RELIEF STATMENT ) ) ) ) ) ) )

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

Alex Jung, Plaintiff, submits his Supplemental Injunctive Relief Statement as
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follows:
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CONSTRUCTIVE DISCHARGE:
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The doctrine of constructive discharge does not apply. Alex's claims did not
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involve a rejection for promotion; Thorne, v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986). The Defendants are applying precedents that prohibit an employee, who has been

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denied discriminatorily an opportunity for promotion, from collecting back-pay for
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periods beyond that employee's voluntary resignation; unless the employee demonstrates
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that he was constructively discharged by the employer. See Satterwhite v. Smith, 744 F.2d
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1380, 1381 n. 1 (9th Cir.1984); Heagney v. University of Washington, 642 F.2d 1157, 1166 (9th Cir.1981); Muller v. United States Steel Corp., 509 F.2d 923, 930 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). To apply these precedents to this case would be wrong. Thorne, v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986). Absent compelling circumstances, when an employer has discriminated against an employee in violation of that employee's rights under Title VII, the court should compute the back-pay award from the date of the discriminatory act until the date of final judgment. EEOC v. Monarch Machine Tool Co., 737 F.2d 1444, 1451-53 (6th Cir.1980); Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11th Cir.1985) (district court erred when it ended the back-pay period four months prior to the date of judgment); Patterson v. American Tobacco Company, 535 F.2d 257, 269 (4th Cir.) (backpay extends until the date of judgment), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286. PREJUDGMENT INTREST: Prejudgment interest may be awarded in a suit against the USPS brought under Title VII. Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); Mahoney v. United States Postal Service, 884 F.2d 1194 (9th Cir. 1989). Alex's Pre-judgment interest was calculated at 10% from 2002 to present amounting to $74,660.62. (See Interest Accrual Spreadsheet attached hereto as Exhibit 1). BACK PAY ANALYSIS: Alex requests back pay in the amount of $160,085.00. (See Backpay Spreadsheet attached hereto as Exhibit 2). Alex requests pre-judgment interest in the amount of $74,660.62. (See Interest Accrual Spreadsheet attached hereto as Exhibit 1). Alex requests the value of benefits he has lost in the amount of $137,543.00. (See Benefits for Backpay Spreadsheet attached hereto as Exhibit 3). Finally, Alex requests to be

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reimbursed for the amount his 401k would have accumulated had he not been terminated in the amount of $17,016. (See 401k Information attached hereto as Exhibit 4). The total amount of Alex's backpay request is $389,304.62. Wages and Pre-Judgment Interest: In 2002, Alex would have earned $41,184 with $3,141 night differential with the United States Postal Service ("USPS"). (See USPS Salary Charts attached hereto as Exhibit 5). Alex earned $12,509 with the USPS in 2002. Alex's outside earnings were $14,560 in 2002 making his total earnings $27,069. (See 2002 W-2's attached hereto as Exhibit 6). The difference in the compensation USPS should pay Alex is $17,256 for 2002. In 2003, USPS would have paid Alex $42,835 with a $3,224 night differential. In 2004 USPS would have paid Alex $44,221 with a $3,224 night differential. (See USPS Salary Chart attached hereto as Exhibit 5). Alex did not earn any income in years 2003 and 2004 as the restaurant he had opened was not turning a profit for the years 2003 and 2004. (See Bento Teriyaki and Rolls documentation attached hereto as Exhibit 7). USPS owes Alex $46,059 for 2003 and $47,445 for 2004. In 2005 USPS would have paid Alex $45,997 with a $3,286 night differential. (See USPS Salary Chart attached hereto as Exhibit 5). In 2005, Alex earned $27,026 in outside employment. (See 2005 W-2 attached hereto as Exhibit 8). The difference in the compensation USPS should pay Alex is $22,257 for 2005. In 2006, USPS would have paid Alex $48,620 with a $3,286 night differential. (See USPS Salary Chart attached hereto as Exhibit 5). Alex earned $41,597 in 2006 in outside employment. (See 2006 W-2's attached hereto as Exhibit 9). The difference in the compensation USPS should pay Alex is $10,309 for 2006. In 2007, USPS would have paid Alex $49,306 with a $3,286 night differential. (See USPS Salary Chart attached hereto as Exhibit 5). By the end of 2007, Alex will have earned $35,833 in outside employment for 2007. (See Alex's latest Pay check stub attached hereto as

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Exhibit 10 for current earnings as off October 14, 2007). The difference in the compensation USPS should pay Alex for 2007 is $16,759. Benefits: On or about September 10, 2004, Alex cashed in his 401k in which he received $27,006. As of July 31, 2007, the estimated culmination of Alex's 401k would be $44,022. The USPS should repay Alex the current value of his 401k as if he would not have been terminated from his employment. The estimated value of his 401k is $44,022 less the amount received on September 2004 of $27,006 which amounts to $17,016. (See 401k Information attached hereto as Exhibit 4). Additionally, the USPS offers a number of benefits which Alex no longer receives. The benefits Alex was formerly offered by the USPS include Health Benefits, Life insurance, Retirement Plan, Thrift Savings Plan, Social Security and Medicare. (See Spreadsheet of Estimated Benefits attached hereto as Exhibit 3. See also the Personal Statement of Benefits attached hereto as Exhibit 11 as an example of how Alex figured his loss). Furthermore, Alex has lost Sick Leave, Annual Leave and Holiday Leave offered to employees of the USPS. As Alex is requesting reinstatement, he would like to be able to use the hours accumulated at his discretion. However, if Alex is not reinstated, he requests that the USPS reimburse him for the Leave he has lost. (See Spreadsheet of Estimated Benefits attached hereto as Exhibit 3. See also the Personal Statement of Benefits attached hereto as Exhibit 11). REINSTATEMENT: Alex requests reinstatement. (See letter from Alex attached hereto as Exhibit 12). As of today, there are positions open for the USPS in California, Colorado, Pennsylvania, Kansas and Arizona that Alex is interested in. (See Job Announcements attached hereto

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as Exhibit 13). If requested, Alex can provide more job listings as new positions are posted every two weeks. Based on his college degree, his 11 years of service already credited to him by the USPS, and with on the job training such as National Center for Employee Development, Career Management Program, or Advanced Leadership Program, he is well qualified for these upper management positions. (See Alex's resume and supplement attached hereto as Exhibit 14). Additionally, Alex is asking for the Leave he has accumulated since his termination in 2002 to use at his discretion. The USPS allows 104 hours of sick leave per year and 208 hours of Annual Leave per year. As of the date of this statement, Alex has accumulated 624 hours of Sick Leave and 1248 hours of Annual Leave. FRONT PAY ANALYSIS: Alex is requesting front pay in the amount of $1,465,069.87, representing the amount he would have earned as a USPS employee over his estimated career, with deductions for reasonable mitigating amounts. This amount includes the estimated average salary had Alex continued to work for the USPS as well as benefits and leave less a reasonable mitigation. (See Compensation Spreadsheet attached hereto as Exhibit 15). Awards of front pay are appropriate when it is impossible to reinstate the plaintiff or when it would be inappropriate due to excessive hostility or antagonism between the parties. See Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1167 (9th Cir.1984); see also EEOC v. Pacific Press Publishing Association, 482 F.Supp. 1291, 1320 (N.D.Cal.1979) (when effective employment relationship cannot be reestablished, front pay is appropriate), aff'd 676 F.2d 1272 (9th Cir.1982). USPS has made it clear that Alex is unwelcome in his job as a result of the hostile atmosphere. Accordingly, the Court can properly award front pay on the grounds that Alex is entitled to compensation for the difference between what he would have earned had he not been discriminatorily

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removed from the building and what he is able to earn at a new job. See Gotthardt v. National Railroad Passenger Corporation, 191 F.3d 1148, 1156-57 (9th Cir.1999) (upholding district court's award of front pay calculated by reference to what Plaintiff would have made had she been promoted). At the time of the trial, Alex is 42 years old with an expected working life of 23 years to his normal retirement age of 65. He has 11 years experience at USPS. The annual salary in a PS5O position with differentials at this time is $52,592. (See USPS Salary Chart attached hereto as Exhibit 5). However, this salary does not take into account that Alex would continue to get raises and promotions throughout the remainder of his career. As it is impossible to determine the exact figure for frontpay, a reasonable basis for the purpose of determining frontpay is $56,500.00. A reasonable mitigation figure is the difference in the compensation he would be currently earning at the USPS and the compensation he is earning in his current position. As of the drafting of this supplement the difference is $16,759 per year for mitigation. Additionally, the USPS offers a number of benefits that Alex will lose if not reinstated. Among the benefits are Health and Life Insurance, Retirement Plan, Thrift Saving Plan, Social Security, Medicare, Sick Leave, Annual Leave and Holiday Leave (See USPS Benefits Notice attached hereto as Exhibit 11). By adding Alex's mitigated salary and all benefits he is entitled to as an employee with the USPS, Alex's frontpay should be approximately $1,465,069.87. (See attached Spreadsheet re Salary and Benefits attached hereto as Exhibit 15. Also see Personal Statement of Benefits attached hereto as Exhibit 11). On the other hand, if Alex's career had not been cut short by USPS's violations of Title VII, based on his college degree and USPS job openings one could easily have concluded that he was on the path to upper executive management at EAS Level 21 or above. The job announcements indicated that the compensation packages available to

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EAS Level 22 managers included base salaries ranging from $40,142 up to $88,685. (See Job Announcements attached hereto as Exhibit 13. See also Alex's resume and supplement attached hereto as Exhibit 14). This amount is clearly supported by Gotthardt v. National railroad Passenger Corporation, 191 F.3d 1148 (9th Cir. 1999). (Award of front pay in Title VII hostile environment action covering 11-year period.) Passantino v. Johnson & Johnson Consumer Products, Inc, 212 F.3d 493, (9th Cir. 2000) (Awarding front pay covering 22 year period in the amount of $2,000,000.00). McLean v. Runyon, 222 F.3d 1150 (9th Cir 2000) (Award of $130,000 in front pay). ALEX'S REQUESTED INJUNCTIVE RELIEF Alex requests that the court order the following injunctive relief: 1. Removal of all litigating and EEO matters from Alex's Personnel file; 2. No flagging of any sort to prevent Alex from getting promoted or being transfer to another position; 3. No retaliation; 4. No harassment; 5. No requirement to go through RAC as a prerequisite for a position with the USPS; 6. Not subjected to readjustment program for injured employee as a prerequisite for a position with USPS.

Respectfully submitted this 29th day of October, 2007

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 29th of October, 2007, 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 at [email protected] A copy of this document was provided by mailed to: The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:

s/Stephanie Coulter Stephanie Coulter

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