Free Memorandum - 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 Bar Number 6835 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. Defendant, John E. Potter, pursuant to the Court's October 15, 2007 order, hereby submits CIV-04-0429-PHX-MHM DEFENDANT'S SUPPLEMENTAL MEMORANDUM RE: EQUITABLE REMEDIES

15 his supplemental briefing regarding the equitable remedies that should be awarded in this case 16 and whether further evidentiary hearing may be necessary, as set forth below. 17 MEMORANDUM OF POINTS AND AUTHORITIES 18 I. BACKGROUND: 19 This is a case, according to the jury, about a Plaintiff who successfully alleged that 20 Defendant committed certain acts of disability discrimination between October 2001 and March 21 2002 while he was on temporary light duty. Plaintiff's own statement of the case instructed the 22 jury at the beginning of the trial that the Postal Service "discriminated against him based on his 23 alleged disability" ending in March 2002. [Doc. #166.] That Plaintiff's case was and is limited 24 to certain actions between October 2001 and March 2002 is also evidenced by the complete jury 25 instructions and verdict form. The acts of discrimination for which Plaintiff is entitled to 26 equitable remedies involve the Postal Service's light duty offers, which changed his work hours 27 with no guarantee of hours and sent Plaintiff home, or required him to use leave (on dates that 28

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Document 208

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1 were never specified or proven at trial). [Doc. # 179 (jury instructions), Doc # 181 (verdict form).] 2 This is not and never has been a case about an employee who was fired because he had

3 a disability. The history of this litigation more than demonstrates the falsity of Plaintiff's 4 assertion that the jury found he was wrongfully terminated under the Rehabilitation Act, and is 5 thus entitled to the full gamut of equitable remedies. [Doc. #206, p. 7, ll. 19-20.] Long before 6 trial, Plaintiff tried to add Family and Medical Leave Act and retaliation claims to this case so he 7 could argue he was improperly fired or constructively discharged. Plaintiff's motion to amend 8 and proposed amended complaint included the following language: "Plaintiff alleges that 9 Defendant's unlawful termination of Plaintiff's employment or constructive termination of 10 employment on account of his physical disability." [Doc. #42, Ex. 1, ¶ 85.] In sharp contrast to 11 this proposed language, nowhere in Plaintiff's Complaint does he mention that he was terminated 12 or removed or fired, or constructively discharged from the Postal Service based upon his 13 disability, and that was not an allegation he made during his administrative complaint that 14 concerned this action. The Court denied Plaintiff's Motion to Amend. [Doc. # 61.] 15 Plaintiff again tried to expand the scope of his complaint to include his being fired when

16 he submitted his portions for the proposed joint pretrial order, in which he claimed that he had 17 been dismissed because of his disability. [See e.g., Doc. # 124, p. 6, ¶ 11; See also Defendant's 18 Motion in Limine Re: Termination Claims, Doc. # 137, incorporated by this reference.] Because 19 the Pretrial Order controls the ligation and supercedes the pleadings, Defendant was forced to file 20 a Motion in Limine to stop Plaintiff's improper attempts to claim that his being fired was based 21 upon the disability discrimination regarding the temporary light duty offers. [Doc. # 137; DP 22 Aviation v. Smiths, 268 F.3d 829, 842, n. 8 (9th Cir. 2001).] In ruling on this Motion in Limine, 23 the Court agreed that Plaintiff could not present evidence or argue that he had been wrongfully 24 25 26 27 28 2
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1 fired and granted the Defendant's motion as to "admissibility of additional claims." 1/ [Doc. # 2 167.] 3 Plaintiff also tried to interject into this action a claim that he was improperly fired by

4 submitting a proposed verdict form that included language that "plaintiff's disability was the 5 determining factor in the defendant's decision to fire the plaintiff." [Doc. # 128, p. 2, ll. 2-3.] The 6 Court rejected Plaintiff's proposed verdict form, instead giving one that stated, "has the Plaintiff 7 proved, by a preponderance of the evidence that the Plaintiff's disability was the sole reason for 8 the Defendant's decision to change Plaintiff's work hours with no guarantee of hours and send 9 Plaintiff home, or to require Plaintiff to use leave on unspecified dates." [Doc. #181, ¶ 1.] 10 The last of the discriminatory events occurred in March 2002, nearly six months before

11 Plaintiff was fired for being AWOL, after he had failed to show up for work or contact the Postal 12 Service for nearly three straight months. Plaintiff requested and received approved medical leave 13 for six weeks before that because he was unable to work at all. [See e.g. Trial Ex. 303 ("On 5-2214 02 you notified the postal service that you would be on a medical leave until 7-1-02. You have 15 not reported to work or contacted this office regarding your continued absence since 7-1-02.")] 16 These events occurred well after the discriminatory events, and sever the period in which Plaintiff 17 can claim money damages or other equitable relief. 18 II. ANALYSIS: 19 A. PLAINTIFF'S MISCONDUCT/ACTIONS AFTER MARCH 2002 LIMIT HIS BACK

20 PAY AWARD IN THIS LITIGATION 21 According to the Undisputed Evidence at Trial Plaintiff's Back Pay Award Must End on

22 July 1, 2002 or September 28, 2002, at the Latest. 23 As stated above, according to the jury instructions and the jury verdict, there was no

24 finding that Plaintiff was wrongfully terminated. This is consistent with the evidence and the 25 The Court clarified that the Motion In Limine was denied without prejudice concerning 26 Plaintiff being instructed to leave the Postal Service building after he refused to sign the March 2002 temporary light duty offer­events which did involve the claims at issue in this case. [Doc. 27 # 167.] 28 3
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1 scope of the claims that were before the jury. In May, 2002, Plaintiff was advised of his AWOL 2 status after he refused the light duty offer in early March, 2002. [Trial Ex. 292 ("You have not 3 reported to work or contacted this office regarding your continued absence since 3-12-02. This 4 letter is to notify you that you have been AWOL since 3-13-02.").] Plaintiff responded by

5 requesting and receiving leave for being unable to work for medical reasons from May 22, 2002 6 until July 1, 2002. The Postal Service approved Plaintiff's leave request and he was to report to 7 work on July 1, 2002. Plaintiff never reported to work. He did not contact the Postal Service. 8 Instead, he married and moved to California in June 2002, where he started a new job. Plaintiff 9 did not respond to the Postal Service's notice requesting a fact finding, or the notice that he would 10 be fired effective September 28, 2002. These events all limit the amount of back pay to be 11 awarded in this case as a matter of law for several reasons. Plaintiff's claims in this case do not 12 and cannot involve his being fired in September 2002, as stated above. They only involve his 13 claims for disability discrimination arising between October 2001 and March 2002 in connection 14 with his temporary light duty requests. [Doc. # 181 (verdict form); Doc. # 179, p. 17 (jury 15 instructions).] The jury specifically found that Plaintiff's "disability was the sole reason for 16 Defendant's decision to change Plaintiff's work hours with no guarantee of hours and send 17 Plaintiff home or require Plaintiff to use leave on unspecified dates." [Doc. # 181 (verdict

18 form).] The jury instructions made clear that this case was about alleged discrimination that 19 occurred during Plaintiff's seeking temporary light duty offers between October 2001 and March 20 2002, not about Plaintiff being fired from the Postal Service six months later. [See e.g., Doc. # 21 179, p. 17 (jury instructions).] 22 A back pay period can end due to an employee's conduct after the discriminatory events.

23 Here, Plaintiff effectively resigned from the Postal Service when he moved to California, and 24 started another job instead of reporting for duty on July 1, 2002 (when he would have been 25 required to receive medical clearance to continue working as a manual distribution clerk). A 26 voluntary resignation operates "as a supervening cause" to limit an employee's damages. Cecala 27 v. Newman 2007 WL 2530369, pp. 6, 9 (D. Ariz. August 31, 2007). See also Caudle v. Bristow 28 Optical Company, Inc., 224 F.3d 1014, 1020 (9th Cir. 2000) (Employee's decision to withdraw 4
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1 from the work force after voluntary resignation barred recovery as of that date.) "Whether an 2 employee quit or was constructively discharged will determine whether he or she will be entitled 3 to back pay and perhaps other remedies for the period following termination of employment." 4 Cecala v. Newman, 2007 WL 1297241, p. 40 (D. Ariz. May 2, 2007) (Citation omitted). Thus, 5 to receive back pay extending beyond the date of his termination, Plaintiff had to claim and prove 6 that he was wrongfully terminated, which he did not, or that his work environment was so 7 intolerable that he did not return to work, which he did not. It is not surprising that Plaintiff did 8 not claim constructive discharge because a prima facie case requires more than actionable 9 discrimination, it requires "working conditions so intolerable that a reasonable person would have 10 felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 131 (2004). The 11 "something more" in the Ninth Circuit is a very high bar. "[A] constructive discharge occurs 12 when the working conditions deteriorate, as a result of discrimination, to the point that they 13 become sufficiently extraordinary and egregious to overcome the normals motivation of a 14 competent, diligent , and reasonable employee to remain on the job to earn a livelihood and to 15 serve his or her employer." Poland v. Chertoff, 494 F.3d 1174,1184 (9th Cir. 2007). See also 16 Anderson v. Arizona 2007 WL 1461623, p. 16 (D. Ariz. May 16, 2007) (employee's Title VII 17 damages were cut off by her resignation where there was no constructive discharge). 18 The jury did not find that any acts of discrimination occurred after March 2002. [Doc. #

19 181 (verdict form).] Plaintiff's request for approved leave in May, 2002, failure to report to duty 20 in July 1, 2002, and being fired for going AWOL all operate to cut off his damages. Thus 21 Plaintiff's claim for back pay must stop on or before September 28, 2002. 22 Plaintiff's Failure to Mitigate His Damages by Accepting the Temporary Light Duty Offer

23 Further Limits Back Pay. 24 Even if the Court determines that the date Plaintiff was fired for being AWOL, September

25 28, 2002, is the date Plaintiff's back pay award should end, the July 1, 2002 date operates to 26 reduce further his damages under a failure to mitigate defense. Beginning March 4, 2002, 27 Plaintiff had the opportunity to earn at least four hours of work for every shift, or more if work 28 falling within Plaintiff's restrictions were available. For the period in which the Court determines 5
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1 that back pay should be awarded, between March 4, 2002 up to July 1, 2002 or September 28, 2 2002 at the latest, Plaintiff's back pay award should be reduced for his failure to agree to work 3 a four-hour shift beginning at midnight. 4 5 6 B. FRONT PAY/REINSTATEMENT ARE NOT APPROPRIATE EQUITABLE REMEDIES For the same reasons that Plaintiff's back pay is cut off by September 28, 2002 at the

7 latest, Plaintiff is not entitled to reinstatement or front pay. The jury's verdict was limited to 8 events occurring six months before Plaintiff was fired. The evidence at trial also demonstrates 9 that it was Plaintiff's own actions, not those of Defendant's discrimination, that resulted in his 10 being fired and Plaintiff's voluntary choices that lead him to pursue other jobs in other locations. 11 Therefore, reinstatement is not an equitable remedy available to Plaintiff. Likewise, front pay, 12 an alternative remedy to reinstatement when the various factors disfavor reinstatement, is not 13 available to Plaintiff. 14 Furthermore, since Plaintiff has found other employment to replace his income, front pay

15 would be improper in this case. 16 C. AN AWARD OF BACKPAY BEYOND SEPTEMBER 28, 2002, OR

17 REINSTATEMENT OR FRONT PAY WOULD REQUIRE SIGNIFICANT EVIDENTIARY 18 HEARING. 19 As set forth in the Joint Report Re: Equitable Remedies (Doc . # 206), if the Court is

20 inclined to award back pay beyond September 28, 2002, or other remedies, an evidentiary hearing 21 will be required. For example, Defendant, as required by the Court's rulings on motions in 22 limine, did not present evidence to the jury about Plaintiff's prior disciplinary actions, or 23 emphasize why he is not a good employee. (Of course, as demonstrated in the Joint Report, there 24 was sufficient evidence from which the Court could determine that reinstatement would not be 25 appropriate.) Furthermore, Plaintiff has refused to provide information about his current salary 26 27 28 6
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1 and benefits despite numerous inquires since it was learned he had been promoted. 2/ [See e.g. 2 letter dated October 2, 2007, attached without enclosures.] 3 III. CONCLUSION: 4 Based upon the foregoing analysis and the record in this case, Defendant requests that the

5 Court enter an order that Plaintiff's damages are cut off on July 1, 2002, or not later that 6 September 28, 2002. Defendant further requests that the Court deduct from any back pay award 7 the amount's of Plaintiff's interim earnings as well as the amount he could have earned had he 8 signed the light duty offer. Further, Defendant should not have to pay Plaintiff for the time in 9 which he was unable to work and for which he did not have available sick leave or annual leave 10 between May 22, 2002 and July 1, 2002. Plaintiff has not met his burden of proof to warrant 11 awarding any other damages for the discriminatory acts that occurred between October 2001 and 12 March 2002. 13 At the hearing on October 15, 2007, the parties agreed what Plaintiff's income was in

14 March of 2002. Therefore, if the Court agrees with the Defendant's analysis, it is proposed that 15 the Court order the parties to submit proposed calculations for back pay damages limited to the 16 time frame of March, 2002 through July 1, 2002 or September 28, 2002 at the latest. 17 18 19 20 21 22 23 24 25 26 27 28 It should be noted that Plaintiff has provided information about his earnings in 2007, but not about his salary and benefits since his promotion earlier this year. 7
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Respectfully submitted this 29th day of October, 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 September 11, 2007, I electronically transmitted the attached 3 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: 4 A. Patterson 5 Rosval Thomas Rd. 777 E. 6 Phoenix, AZ 85014 7 s/S. Guerin U.S. Attorney Office of the 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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