Free Report - 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. The parties, pursuant to the Court's order, hereby submit their joint statement regarding CIV-04-0429-PHX-MHM PARTIES' JOINT REPORT RE: EQUITABLE REMEDIES

15 the Court's anticipated proceedings on awarding front pay, back pay, reinstatement, and attorneys 16 fees. The parties request that the Court rule in advance of the hearing on the issue of the scope 17 of the parties' claims and whether it has determined that certain remedies, such as reinstatement, 18 should not be available so that the hearing can be proceed as efficiently as possible. 19 I. WHAT IS THE SCOPE OF PLAINTIFF'S CLAIMS FOR WHICH HE MAY SEEK REMEDIES? 20 21 22 PLAINTIFF'S POSITION: A district court's damages award under the Rehabilitation Act, incorporates the remedial

23 provisions for Title VII, see 29 U.S.C. § 794a, and thus must comport with Title VII's "central 24 statutory purposes of eradicating discrimination throughout the economy and making persons 25 whole for injuries suffered through past discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 26 405, 422, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). 27 Title VII of the Civil Rights Act of 1964 permits courts to grant equitable remedies to 28 employees who have been impermissibly discriminated against. See 42 U.S.C. § 2000e-5(g)

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1 (1994). The relevant remedies include reinstatement; reassignment and awards of back pay; 2 prejudgment interest and front pay. Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1448 3 (9th Cir.1990). A full complement of remedies for Title VII requires courts to remedy instances 4 of discrimination by sending a strong message to would-be-discriminators. See Albemarle Paper 5 Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (holding that, in order 6 to achieve "complete justice," district courts have the obligation to "render a decree which will 7 so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination 8 in the future ") (emphasis added) (quotation omitted). 9 10 Plaintiff requested remedies: A. Order permanent injunction enjoining Defendants and their officers, successors,

11 assigns and all persons in active concerns or participation with them, from engaging in any 12 employment practice which discriminates on the basis of disability. 13 B. Order Defendants to institute and carry out policies, practices and programs which

14 provide equal employment opportunities for qualified individuals with disabilities, and which 15 eradicate the effects of its past and present unlawful employment practices. 16 17 C. D. Order Defendants to post notices required by the ADA and Title VII. Order Defendants to make whole Alexander Jung, by providing appropriate back

18 pay with prejudgment interest and reinstatement. 19 20 21 files. 22 23 24 25 By filing this report, Defendant does not waive any arguments for post-trial motions, 26 including those under FRCP 50 and 59. Defendant reserves the right to object to any arguments or 27 the Joint pre-trial order, Court's rulings, or otherwise improper. Plaintiff's sections were not available 28
for review until after 2:30 pm on October 5, 2007. evidence in Plaintiff's sections that are inaccurate, not contained in the record, or beyond the scope of
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E. F.

Order Defendants to pay front pay in an amount to be proven at trial. Order Defendant to expunge any record of wrongdoing from Plaintiff personnel

DEFENDANT'S POSITION: 1/ The Discriminatory Events Occurred Between October 2001 - March 2002:

2
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1

In this Rehabilitation Act case, Plaintiff's claims involve certain adverse employment

2 actions in connection with his temporary light duty requests, that occurred between October 2001 3 and March 2002 (the "Rehab Act Claims"). It is undisputed that Plaintiff has no claim arising 4 from his September 28, 2002 removal (the "Removal"), and has no constructive discharge claim. 5 [Ex. 1, (Excerpts from Transcript of Proceeding on July 30, 2007), p. 8, ll.2-4 ("[Plaintiff does] 6 not have a constructive discharge claim or [he] would have made that."); See also Doc.# 62, p. 7 3 ll. 14-15. ("Plaintiff [had] not demonstrated good cause for the belated motion to file an 8 amended complaint.").] In fact, Plaintiff affirmatively avowed during formal discovery in this 9 case that "he was not constructively terminated on or about March 5, 2002." [Ex. 2 (Pl. Resp. 10 to RFP No. 14).] 11 Prior to trial, the Court ruled on Defendant's motion to preclude evidence or argument that

12 he was entitled to damages arising from or after his September 28, 2002 removal. Defendant's 13 motion was based upon Plaintiff's failure to exhaust administrative remedies regarding claims 14 concerning his termination, and because the Court already precluded Plaintiff's attempt to amend 15 his complaint to include such claims.
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[Doc. # 137.] The Court granted the Defendant's

16 motion as to "admissibility of additional claims" but denied the motion without prejudice 17 concerning plaintiff being instructed to leave the Postal Service building after he refused to sign 18 the March 2002 temporary light duty offer. [Doc. # 167.] 19 Plaintiff requested $330,000 in compensatory damages, but was awarded $280,000 for his

20 Rehab Act Claims, arising between October 2001 and March 2002 in connection with his 21 temporary light duty requests. [Doc. # 181 (verdict form); Doc. # 179, p. 17 (jury instructions).] 22 The jury found that Plaintiff's "disability was the sole reason for Defendant's decision to change 23 Plaintiff's work hours with no guarantee of hours and send Plaintiff home or require Plaintiff to 24 use leave on unspecified dates." [Doc. # 181.] The Court must still determine what, if any, 25 26 27 28 Defendant reurges its motion in limine re: termination in connection with its request to limit the scope of the hearing for the reasons set forth in this joint report and that motion. 3
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1 equitable remedies should be awarded to Plaintiff, to make him whole for his Rehab Act Claims 2 occurring between October 2001 and March 2002. 3 4 According to the Evidence At Trial, the Rehab Act Claims Are Unrelated to the Removal Certain events relevant to the Court's decision about an award of equitable remedies were

5 established at trial, where the evidence was undisputed that Plaintiff: 6 · refused a temporary light duty offer in March, 2002 which would have

7 guaranteed him to be paid for four hours of work within his physical restrictions [Jt. PTO (Doc. 8 # 124), § E, Paragraphs 7, 8]; 9 · requested and received leave between May 22, 2002 and July 1, 2002 because

10 Plaintiff was unable to perform any of his duties at the Postal Service [Trial Exs. 292, 51]; 11 12 229:11-13]; 13 · did not report to work or contact the Postal Service after July 1, 2002 and was · moved to California in June, 2002 where he started another job in July [Ex. 3,

14 therefore AWOL [Trial Ex. 309]; 15 · did not give the Postal Service an opportunity to accommodate him after July 1,

16 2002 [Ex. 3, 304:15-20] 17 · did not respond to the fact finding or the removal [Ex 3 (Trial Excerpts) 304:24-

18 305:5; Trial Exs. 303, 309]; 19 · was removed from the Postal Service on September 28, 2002 for being AWOL

20 on and after July 1, 2002 [Ex. 3, 474:19-20; Ex. 309]. 21 Plaintiff's AWOL and removal for being AWOL were not caused by the discriminatory

22 acts that are the basis for the Rehab Act Claims, consistent with the trial evidence, the jury 23 verdict, and the Court's rulings. The jury did not find that the Rehab Act Claims were in any way 24 related to Plaintiff's removal, the undisputed evidence was that he was removed for being AWOL 25 after July 1, 2002, and it was the jury's findings that discrimination occurred had a cut off date 26 of March 2002. There is no allegation and no evidence that the removal was based upon the 27 temporary light duty offers. Thus based upon the Court's rulings, the Rehab Act claims, the trial 28 evidence, and the jury's verdict, Plaintiff is precluded from recovering damages for the time after 4
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1 he went AWOL on July 1, 2002 and after his September 28, 2002 removal for being AWOL. As 2 evidenced from the Court's ruling on Defendant's Motion in Limine re: Termination (Doc. # 3 137), Plaintiff's Motion to Amend (Doc. # 42), and the jury verdict (Doc. # 181), Plaintiff has 4 no claim concerning his removal for being AWOL after July 1, 2002, or a constructive 5 termination claim for his failure to report to duty on or after July 1, 2002. He is therefore not 6 entitled to equitable damages after July 1, 2002 (or the period in which he was medically unable 7 to work, between May 22, 2002 and July 1, 2002, as detailed below). 8 The Constructive Discharge Doctrine Limits the Scope of Equitable Remedies to Damages

9 Occurring Before July 1, 2002, When Plaintiff Went AWOL 10 It is important to establish that Plaintiff did not allege and did not have a constructive

11 discharge claim because under Ninth Circuit law, "a constructive discharge occurs when the 12 working conditions deteriorate, as a result of discrimination, to the point that they become 13 sufficiently extraordinary and egregious to overcome the normal motivation of a competent, 14 diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her 15 employer." Poland v. Chertoff, 494 F.3d 1174,1184 (9th Cir. 2007). This high standard has a 16 purpose: "federal antidiscrimination polices are better served when the employee and employer 17 attack discrimination within their existing employment relationship, rather than when the 18 employee walks away and then later litigates whether his employment situation was intolerable." 19 Poland at 1184-85 (9th Cir 2007) (citations omitted). 20 The constructive discharge doctrine limits the availability of an employee's equitable

21 remedies unless the circumstances reach the level of a formal discharge for remedial purposes. 22 Cecala v. Newman, 2007 WL 1297241, p. 40 (D. Ariz. May 2, 2007); See also Cecala v. Newman 23 2007 WL 2530369, pp. 6, 9 (D. Ariz. August 31, 2007) (voluntary resignation cut off damages 24 for claims concerning retaliatory conduct); Anderson v. Arizona 2007 WL 1461623, p. 16 (D. 25 Ariz. May 16, 2007) (employee's Title VII damages were cut off be resignation where there was 26 27 28 5
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1 no constructive discharge). 3/ It is important to note that in sexual harassment or hostile work 2 environment cases, to establish constructive discharge, a plaintiff must demonstrate circumstances 3 aggravated beyond the usual discrimination claim, that "the abusive working environment became 4 so intolerable that [the] resignation qualified as a fitting response." Pennsylvania State Police 5 v. Suders, 542 U.S. 129, 130 (2004). Here, Plaintiff's decision not to sign the temporary light 6 duty offer in March 2002 which involved different hours and was arguably limited to four hours 7 of work was not justified. Temporary light duty offers are only effective for a brief period of time 8 before they are renewed. Plaintiff could have signed that offer, grieved the parts of the offer to 9 which he objected, and continued to work for an be paid by the Postal Service, and try to work 10 with his employer, while awaiting the next temporary light duty offer. He did not. Instead, he 11 refused to sign the light duty offer, sought and received medical leave, and went AWOL on July 12 1, 2002, the date he advised the Postal Service that he was first able to work. [Trial Ex. 51.] The 13 Postal Service's removal of him for being AWOL, are unrelated to the Rehab Act Claims. The 14 Court should therefore limit its consideration of evidence in awarding equitable remedies to that 15 for damages occurring before July 1, 2002. 16 Defendant Requests Advance Rulings to Stream Line Evidentiary Hearing on Equitable

17 Remedies. 18 Defendant requests that the Court rule in advance of the post trial equity hearing on the

19 scope of recovery in this matter for purposes of equitable relief. As set forth in Defendant's 20 Motion In Limine re: Termination Claims (Doc. # 137) and this statement, Plaintiff should be 21 precluded from requesting or presenting evidence about damages arising after he went AWOL 22 and certainly after his removal from the Postal Service on September 28, 2002. Defendant 23 requests that the Court rule in advance of the equitable hearing so that the parties may determine 24 25 Although not applicable here, it should be noted that in certain situations, usually in failure to promote or failure to hire cases, courts have deviated from the constructive discharge 26 doctrine by allowing back pay to extend beyond the date of the employee's resignation. Thorne v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986) (Where police department discriminated 27 against clerk-typist on the basis of sex and improperly disqualified her for a position on the 28 police force back pay would not cease on the date of her resignation from the clerk-typist position.) 6
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1 whether stipulations can be reached, and determine what evidence and witnesses will be required 2 at the hearing. For example, if the Court is considering reinstatement, evidence about the 3 available jobs in that district will be required, including whether Plaintiff is qualified for those 4 positions, whether other Postal Service employees would be affected, and whether the terms of 5 the collective bargaining agreement or other Postal Service policies would be violated. 6 II. REINSTATEMENT ISSUES: 7 8 9 10 11 PLAINTIFF'S POSITION: Is Plaintiff eligible for reinstatement? Title VII's enforcement regime includes the traditional remedies for employment law Is Plaintiff eligible for reinstatement? If so, to what position is he entitled?

12 violations, such as reinstatement. 42 U.S.C. § 1981a; see also Rivera v. NIBCO, Inc., 364 F.3d 13 1057 (9th Cir 2004). In an action under Title VII of the Civil Rights Act, it is within discretion 14 of trial court to order reinstatement of a wrongfully discharged employee. Civil Rights Act of 15 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.; Sias v. City Demonstration Agency, 16 588 F.2d 692 (9th Cir 1978). In relation to front pay, "reinstatement, when it is feasible, is the 17 `preferred remedy' in a discrimination suit." Gotthardt v. National R.R. Passenger Corp., 191 18 F.3d 1148, 1156 (9th Cir.1999). 19 The Jury found that Plaintiff was wrongfully discharged. Plaintiff as a remedy has

20 requested reinstatement. 21 If so, to what position is the entitled? 22 In determining whether a federal agency has violated the Rehabilitation Act, the standards

23 under Title I of the Americans with Disabilities Act ("ADA") apply. See 29 U.S.C. §§ 791(g), 24 794(d); Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.1996). Under Title I of the ADA, a 25 reasonable accommodation includes reassignment to a vacant position. 42 U.S.C. § 12111(9)(B). 26 Similarly, the regulations implementing the Rehabilitation Act provide that an agency's duty of 27 reasonable accommodation includes, in certain circumstances, the duty to reassign an employee 28 to a vacant position 7
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Alex is requesting reassignment in the vacant position in which the pay scale would be the

2 same. Pay is the ordinary basis for distinctions in grade or level see, e.g., 5 U.S.C. § 5102 3 (defining "grade" as a "class of positions which, although different with respect to kind or 4 subject-matter of work, are sufficiently equivalent as to ... level of difficulty and responsibility 5 ... to warrant their inclusion within one range of rates of basic pay ") (emphasis added); The 6 EEOC has stated that, under an employer's reassignment obligation, the employer "should search 7 for vacant positions that are equivalent to the current position in terms of pay, status, and other 8 relevant factors (e.g., geographical location or benefits)." Federal Sector Equal Employment 9 Opportunity, 65 Fed.Reg. 11,022. Assertion that an employee's current position and a vacant 10 position are not equivalent. 11 The question whether a vacant position is at the "same grade or level" as an employee's

12 current position must turn on objective differences between the two positions, such as pay or 13 benefits, not merely on an employer's bare assertion that the positions are not "equivalent." 14 Otherwise, the regulation would allow employers covered by the Rehabilitation Act to avoid their 15 reassignment obligation under § 1614.203(g) by merely asserting an employee's current position 16 is at a different "grade or level". In addition, such an interpretation would provide employers with 17 an incentive to reduce their reassignment obligation by arbitrarily creating as many grade and 18 level classifications as possible and denying that any one classification is the equivalent "grade 19 or level" as another. For these reasons, we conclude that absent a significant difference in 20 relevant factors such as status or benefits, a "vacant position ... at the same grade or level" in 29 21 C.F.R. § 1614.203(g) includes a vacant position with an equivalent level of pay as an employee's 22 current position. 23 24 DEFENDANT'S POSITION: Title VII specifically allows reinstatement as a type of equitable relief that the Court may

25 order. 42 U.S.C. § 2000d-5(g)(1). However, reinstatement is discretionary, and the Court should 26 consider factors including whether the employer/employee relationship is acrimonious, plaintiff 27 is able to work, plaintiff is qualified for the job to which he will be reinstated, and whether the 28 employer is satisfied with plaintiff's job performance. Gotthardt v. National Railroad Passenger 8
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1 Corp., 191 F.3d 1148, 1156 (9th Cir. 1999). The evidence presented at trial and the evidence to 2 be presented at the hearing establish that reinstatement is not appropriate. 3 4 According to the Evidence At Trial, Reinstatement Is Not Appropriate According to the undisputed evidence at trial, there is sufficient antagonism between

5 Plaintiff and the Postal Service that should preclude his reinstatement. It is undisputed that 6 Plaintiff was diagnosed with his knee condition in the military, between 1986 and 1989, and 7 received a significant amount of medical treatment for his knee condition. After the military, 8 Plaintiff mislead the Postal Service on his employment applications and other physical fitness 9 inquiries, denying that he had a knee condition even though he had received treatment in the 10 military on numerous occasions, applied for VA benefits, and had advised the VA of contrary 11 medical information. [Ex. 3, 251:15-21; 257:21-266:6; Trial Exs. 200-228.] Had Plaintiff 12 disclosed his knee condition, the Postal Service would have likely conducted further medical 13 evaluation, and may have precluded his employment altogether. Plaintiff kept his knee condition 14 a secret, when he sought and received a transfer to the Phoenix area with the hope that the warm 15 weather would relieve his knee problems. When Plaintiff's knee condition interfered with his job 16 in Phoenix at the GMF, and he sought disability benefits, he claimed that he had never before had 17 problems with his knees. [Trial Ex. 260] Further, Plaintiff has been unable to work in any type 18 of physical job that requires lifting weights greater than 10 pounds, bending, twisting, and has 19 other limitations that preclude him from being able to work at the Postal Service as a distribution 20 clerk. To move plaintiff into a position outside of his craft as a distribution clerk would violate 21 the union contract. [Ex. 3, 473:2-11)] 22 Plaintiff made no legitimate efforts to work out his differences with the Postal Service.

23 In fact, his efforts were focused on setting up the Postal Services, such as taping his conversations 24 with Postal Service employees. Plaintiff never disclosed the existence of the taped conversation 25 of his call to the Priority center during the course of the EEO investigation and in fact kept secret 26 for nearly 3 years. Rather than making efforts to work out his disagreements with the Postal 27 Service, he accepted a job in California by May 2002, got married, and moved there. Plaintiff 28 sought and received leave on the grounds that he was unable to work at all for six weeks (May 22, 2002 until July 1, 2002), and then he went AWOL.
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After Plaintiff refused the light duty offer, he obtained leave from May 22, 2002 until July

2 1, 2002, when he was to have reported for duty. Plaintiff never reported. He was sent and 3 received a notice of removal, to which he provided no response. Plaintiff's job abandonment July 4 1, 2002 violated seven different Postal Service regulations, none of which involved his refusal 5 to sign the March 5, 2002 light duty offer. [Trial Ex. 309 4/ .] 6 7 The Scope of Evidence Contemplated At a Hearing: Should this issue proceed to a hearing, Defendant will provide further evidence that

8 Plaintiff was an unsatisfactory employee and did not follow Postal Service procedures. Evidence 9 to be presented will include details about his February 2002 suspension for continued failure to 10 maintain regular attendance and a letter of warning on February 2, 2001 for failure to maintain 11 regular attendance, events well before the events that give rise to this action. Other evidence that 12 Plaintiff is an unwelcome employee includes that he improperly tape recorded conversations with 13 his employer and began other employment, which also violated Postal Service policies. 14 The Postal Service will also need to present evidence and further guidance about other

15 related issues, such as whether Plaintiff can, under his current medical restrictions, qualify for a 16 position within his craft (he does not), whether he can be reinstated to a position outside of his 17 craft (Distribution Clerk) (he cannot), whether reinstatement is limited to the Phoenix area (it is), 18 seniority issues relating to requested positions including transfers (seniority is lost in transfers to 19 another postal installation), and other related issues. 5/ It is the Postal Service's position that

20 although the jury found the Postal Service responsible for failure to accommodate, it need not 21 accommodate Plaintiff outside his craft. Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 22 1996)(citing 29 C.F.R. pt. 1630 app. at 415) (employer retains ultimate discretion to choose 23 effective accommodation); Burch v. City of Nacogdoches, 174 F.3d 615, 620-21 (5th Cir. 24 1999)("the ADA does not require an employer relieve an employee of any essential functions of 25 26 27
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Defendant will scan and file trial exhibits under separate notice.

The APWU collective bargaining agreement, which covers distribution clerks, requires that employees who transfer to another facility begin a new period of seniority. Employees may 28 not be transferred to a full-time regular position "to the detriment of career part-time flexible employees who are available for conversion at the gaining installation." Therefore, Plaintiff could not transfer into a full-time regular position if there are any part-time flexible employees available for conversion at that facility.
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1 his or her job"). Finally, the Postal Service will be required to present evidence about whether 2 the proposed reinstatement would violate any terms of the collective bargaining agreement, Postal 3 Service policies and procedures, seniority requirements, and other issues. 4 III. 5 6 7 8 9 PLAINTIFF'S POSITION: Is Plaintiff entitled to front pay? Front pay is the term used to describe damages paid as [prospective] compensation for FRONT PAY Is Plaintiff entitled to Front Pay? If so, how much?

10 training or relocating to another position. An award of front pay is made in lieu of reinstatement 11 when the antagonism between employer and employee is so great that reinstatement is not 12 appropriate." Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1167 (9th Cir.1984), 13 overruled on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 14 L.Ed.2d 268 (1989); see also Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir.1986). 15 16 If so how much? When calculating Alex's front pay, the district court can assess pertinent factors in

17 calculating front pay. The qualifications for the position and Plaintiff's work and life expectancy 18 are pertinent factors in calculating front pay. See Gotthardt v. National R.R. Passenger Corp., 19 191 F.3d 1148, 1156 (9th Cir.1999), 20 Alex is clearly qualified for the position in which he has requested with the post office.

21 However, the Postal service is refusing to rehire him. The court should base Alex award based 22 on Alex's life expectancy of an Asian male which is 79 years. Alex is 41 years old he should 23 receive front pay in the amount of 24 25 DEFENDANT'S POSITION: Front pay would not be appropriate because Plaintiff has found other employment with

26 comparable salary and benefits. It is difficult to address this issue with any specificity because 27 Plaintiff, despite numerous requests, has not provided information about his current salary and 28 benefits.

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1 IV. 2 3 4 5

BACK PAY: Is Plaintiff eligible for Back Pay? PLAINTIFF'S POSITION: Is Plaintiff eligible for back pay? An award of back pay is appropriate to advance "Congress' intent to make `person's whole

6 for injuries suffered through past discrimination.' " Loeffler v. Frank, 486 U.S. 549, 558, 108 7 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 8 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). Indeed, there is a presumption in favor of back pay 9 awards. See Albemarle Paper, 422 U.S. at 421, 95 S.Ct. 2362. 10 11 If so in what amount? Wages: Plaintiff is entitled to the wages he would have received less and monies earned

12 while not employed by Defendant. As of the end of October, Plaintiff's backpay totals 13 $172,595.00 (See spreadsheet attached hereto as Exhibit A.) 14 Prejudgment interest: An award of prejudgment interest on a backpay award is

15 appropriate. Domingo v. New England Fish Co. 727 F.2d 1429 (9th Cir. 1984). As of the end of 16 October, prejudgment interest totals $84,312.28 (See spreadsheet attached hereto as Exhibit B.) 17 Benefits: Plaintiff has lost many employment benefits such as medical insurance, 401k

18 and life insurance. The amount of loss to Plaintiff regarding these benefits should be audited by 19 the Defendant's in order to determine what Plaintiff should be reimbursed for his losses. 20 Additionally Plaintiff has lost vacation days, holiday pay and sick pay. (See spreadsheet attached 21 hereto as Exhibit A.) 22 What affect, if any, does the collateral of source rule have on BACKPAY in this case?

23 The 9th Circuit has recognized that any back pay awarded in an employment discrimination 24 action under Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) had to be 25 reduced, as required by the statute (42 U.S.C.A. § 2000e-5(g)), by the interim earnings of the 26 persons who were the victims of the discrimination where the income was earned during normal 27 business hours within the applicable period for which back pay was awarded. Sias v. City 28 Demonstration Agency 588 F.2d 692 (9th Cir. 1978).

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Has Plaintiff failed to mitigate his damages? If so, how is in the award for back pay

2 affected? 3 Alex has mitigated his damages. He has been gainfully employed since the date of his

4 termination. 5 The burden of proving a failure to mitigate damages in an employment discrimination suit

6 is on defendant. Kaplan v. Intern. Alliance of Theatrical, etc., 525 F.2d 1354, 1363 (9th Cir. 7 1975). To satisfy this burden, Defendant must establish (1) that the damage suffered by plaintiff 8 could have been avoided, i.e. that there were suitable positions available which plaintiff could 9 have discovered and for which he was qualified; and (2) that Plaintiff failed to use reasonable 10 care and diligence in seeking such a position. To satisfy this burden, Defendant has to prove 11 "that, based on undisputed facts in the record, during the time in question there were substantially 12 equivalent jobs available, which [the plaintiff] could have obtained, and that [the plaintiff] failed 13 to use reasonable diligence in seeking one." EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 (9th 14 Cir.1994) (emphasis in original). See also Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 15 1449 (9th Cir.1990); Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978). 16 Alex applied for several positions. He regularly reviewed the classified ads, and he sent his 17 resume to friends and to family members who were working in the Greater Los Angles Area in 18 order to help him find a position. Alex's employment history and job descriptions since his 19 discriminatory termination from the United States Postal Service are as follows: 20 Purchasing Specialist 21 World Wide Electronic Solutions - Tustin, CA (July 2002 ­ November 2002)

22 Suppliers Relations 23 · 24 · Attend national trade shows to develop contacts and current market knowledge. Receive visiting sales representatives and make personal visits to companies for on-going

25 customer relations. 26 Bid Acquisition 27 · Prepared $100,000 to $1 million commodity-bidding events and managed the outcomes.

28 Negotiation

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1 ·

Continually doing comparisons for the best value over 20+ different venders, I have

2 achieved savings averaging 5 to 15 percent over industry vendor prices. 3 · Built and maintained strong relationship with vendors, ensuring there continued business

4 with the firm. 5 Owner / Manager 6 7 · 8 · 9 · 10 · 11 · Bento Teriyaki and Rolls ­ Mission Viejo, CA (November 2003- December 2004) Responsible for setting up fast Japanese Restaurant with open kitchen concept. Developing business plan, and overseeing the contractors. Analyze daily sales data and inventories to plan and make adjustments. Hiring, hands-on training employees, scheduling, and payroll. Implemented customer service policy with in-depth understanding of customer service and

12 loyalty. 13 · Building on-going relationship with community for public relations.

14 Manager 15 HMS Host Corporation - Los Angles LAX, CA (March 2005-Present)

16 Operations Management 17 · Take positive action to ensure that equal opportunity is conducted in all our business

18 activities. 19 · 20 · Provide leadership to the organization in a way that motivates associates. Demonstrate an ability to effectively grow sales and operating profit and continuously

21 improve customer and associate satisfaction. 22 · Ensure on a daily basis the store is opened, staffed, and closed to maximize its hours of

23 operation to provide customers with quality products and excellent service. 24 · Ensure on a daily basis the store is clean, inventory levels are appropriate and the

25 machines are properly maintained. 26 · Maintain effective communications through out all levels of the organization by written

27 reports and verbal communication. 28

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1 HR Skills/Training 2 · Delegate work and responsibility clearly so that associates understand what is expected

3 of them, and the standards by which they will be evaluated. 4 · Train and develop associates to achieve maximum productivity as well as associate job

5 satisfaction. 6 · Assist associates in self-development and career planning, evaluate associate performance;

7 administer wages; time-keeping; promote, or recommend for promotion associates who have 8 demonstrated a capability. 9 · 10 · Ensure that associate files are effectively maintained. Follow through all procedure that eliminates potential hazards by educating associates in

11 safe work practices and use of equipment. Comply with all federal and state occupational safety 12 and health laws. Promptly report and record all work place injuries. 13 · Maintain a workplace free from harassment and intimidation based on race, color, creed,

14 age, religion, sexual orientation, national origin, and disability or veteran status. 15 · Understand the laws and regulations to properly handle grievance and prepare meetings

16 with Union to resolve issues raised by associate. 17 Customer Service 18 · 19 · Manage Customer service and relations. Handle customer complaints and follow proper procedure including investigation.

20 Cash Handling/Internal Controls 21 · Ensure on a daily basis all store-level paperwork is completed accurately, i.e., inventory,

22 accountabilities, communication logs, work orders, etc. 23 · Analyze and manage the financial results of the store to ensure maximum profits are

24 balanced with customer and associate satisfaction. 25 Based on Alex's job searches and employment, one can only conclude that the defendants

26 will fail to meet its burden of proving that Alex did not mitigate his damages. 27 Defendants Notice of Removal (Trial Exhibit #25) was not an unconditional job offer and 28 cannot be used to toll the accrual of back pay owed to Alex.

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Defendant's claim that the August 25, 2003 Notice of removal letter was a job offer. (See

2 letter attached as Exhibit C.) Plaintiff had until September 28, 2004 to accept the offer which 3 Alex failed to do. The United States Supreme Court has held that an employer may toll the 4 accrual of back pay and limit its liability by promptly making curative, unconditional job offers 5 to Title VII claimants. Ford Motor Co v EEOC, 458 U.S. 219, 228 (1982). In order to be 6 unconditional, an offer of employment must: 7 1. Be for a position comparably to the positions sought in terms of status, duties,

8 responsibilities, working conditions, and opportunities for advancement; 9 2. Be more than a mere promise of a job; i.e., the offer must be specific and concrete

10 in its terms, proposed location, friends benefits, moving expenses, etc.; 11 12 3. 4. The rejection of this offer by the plaintiffs must be unreasonable; and An unconditional offer cannot be contingent on Plaintiff dismissal of its

13 commission claim or the forfeiture of the claimant's legal remedies. 14 See Ford Motor Co v EEOC, 458 U.S. 219, 228 (1982). 15 Defendants offer fails to meet any of the Ford criteria. Defendants letter fails identify the

16 positions sought in terms of status, duties, responsibilities, working conditions, and opportunities 17 for advancement. The offer is not specific. Plaintiff would be able to determine that it was an 18 offer so his rejection would not be unreasonable. Therefore, Trial exhibit 23 does not mitigate 19 damages on the ninth circuit. 20 21 DEFENDANT'S POSITION: 6/ The purpose of back pay is to make persons whole for injuries suffered on account of

22 unlawful discrimination. Caudle v. Bristow Optical Co., 224, F.3d 1014, 1020 (9th Cir. 2000). 23 However, as stated above, Plaintiff's injuries from the Rehab Act Claims are limited in scope to 24 March 2002. Further, the doctrine of constructive termination limits Plaintiff's entitlement to 25 back pay prior to July 1, 2002, or at the latest, September 28, 2002. See also Spencer v. Wal26 Mart, 469 F.3d 311 (3rd Cir. 2006) (jury award regarding back pay properly vacated when 27 employee alleging hostile work environment failed to succeed on his constructive termination 28 Defendant does not waive any objections to Plaintiff presenting evidence contrary to what was produced during discovery.
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6/

1 claim). Plaintiff did Further, it is clear that any award of back pay would require the Court to 2 deduct Plaintiff's earnings. 42 U.S.C. § 2000e-5(g) ("Interim earnings or amount earnable with 3 reasonable diligence by the person or persons discriminated against shall operate to reduce the 4 back pay otherwise allowable."). Plaintiff has the burden of proving damages caused by the 5 discrimination, which would be a calculation of the difference between the plaintiff's actual 6 earnings and what he would have earned absent the defendant's discrimination. Gotthardt v. 7 National Railroad Passenger Corp., 191 F.3d 1148, 1158 (9th Cir. 1999). 8 V. 9 10 11 LIMITATIONS TO EQUITABLE MONETARY RELIEF Are there any collateral sources that impact Plaintiff's request for monetary relief? Should Plaintiff's payment from the VA offset any award? Has Plaintiff failed to mitigate his damages? If so, how is any award for back or front pay

12 affected? 13 14 Collateral Sources Defendant is not award of any collateral sources suitable for offset. As stated above,

15 interim earnings must be deducted, but these are not "collateral sources." 16 17 Failure to Mitigate Under 42 U.S.C. § 2000e-5(g), Plaintiff must mitigate his damages, and his failure to do

18 so reduces his claims accordingly. The evidence at trial established that Plaintiff failed to 19 mitigate his damages in various ways including his failure to accept the light duty offer on March 20 5, 2002, and afterwards, including on March 16, 2002 and April 8, 2002, to work a minimum of 21 4 hours, and pursue additional hours through the grievance procedure Ex. 3 (Excerpts from Trial 22 Trans.) 216:22-25; 218:10-14; 219:5-13] and his decision to change career directions when he 23 accepted another job in California. Plaintiff also doctor shopped and was not interested in taking 24 steps, such as surgery, to alleviate his symptom­90% of patients would gain some relief with 25 surgery recommended to Plaintiff, and 75-80 percent would have good success. [Ex. 3, 514:326 516:11; Trial Ex. 236.] Plaintiff really wanted a job change, not to improve his knee symptoms. 27 [Ex. 3, 525:15-19.] 28 See e.g., Caudle v. Bristow Optical Company, Inc., 224 F.3d 1014, (9th Cir. 2000) (Employee's decision to withdraw from the work force after voluntary resignation. . . .)
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1 VI. 2 3 4

ATTORNEYS FEES: What Procedure should be followed regarding the award of attorneys fees? PLAINTIFF'S POSITION: Where a Plaintiff has obtained excellent results, his attorney should recover a fully

5 compensatory fee. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). 6 Normally this will encompass all hours reasonably expended on the litigation, and indeed in some 7 cases of exceptional success an enhanced award may be justified. Hensley v. Eckerhart, 461 U.S. 8 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The plaintiff's success is a crucial factor in 9 determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. 10 The 9th Circuit requires a district court to calculate an award of attorneys' fees by first

11 calculating the "lodestar." See, e.g., Morales v. City of San Rafael, 96 F.3d 359, 363 (9th 12 Cir.1996). The "lodestar" is calculated by multiplying the number of hours the prevailing party 13 reasonably expended on the litigation by a reasonable hourly rate. McGrath v. County of Nevada, 14 67 F.3d 248, 252 (9th Cir.1995). After making that computation, the district court then assesses 15 whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the 16 Kerr factors that are not already subsumed in the initial lodestar calculation. Id.; Cunningham v. 17 County of Los Angeles, 879 F.2d 481, 487 (9th Cir.1988), cert. denied, 493 U.S. 1035, 110 S.Ct. 18 757, 107 L.Ed.2d 773 (1990). The twelve Kerr factors bearing on the reasonableness are: 19 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the 20 skill requisite to perform the legal service properly, (4) the preclusion of other employment by 21 the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or 22 contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount 23 involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) 24 the "undesirability" of the case, (11) the nature and length of the professional relationship with 25 the client, and (12) awards in similar cases. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 26 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). 27 In applying the Kerr factors to this case Plaintiff's attorney has expended over 1900 hours

28 on this case. There were model difficult questions involved in the litigation as to whether the post

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1 office could apply the standards outlined in the collective bargaining agreement or whether the 2 Rehabilitation Act applies when providing a reasonable accommodation. 3 The most critical of the Kerr factors is the degree of success obtained. Based on Plaintiff's

4 attorney's success he feels that a reasonable attorney fees should be calculated at the community 5 rate for Employment Law Attorneys of $350.00 per hour together with an hourly rate of $100.00 6 for paralegals'. Plaintiff's attorney will be able to provide several affidavits attesting to the result 7 as of these charges. Both affidavits will be from lawyers who practice principally employment 8 law. Plaintiff's Attorney Fees Application supported by affidavits will show that the average fees 9 for an employment law attorney in Phoenix are $350.00 an hour or more. Clearly based on 10 Plaintiff's degree of success it is reasonable to assume that his services are valued at that rate by 11 his clients. 12 Employment litigation is factually and legally complex. Lawyers need to be skilled to

13 practice in this area. The disputes in this case were exceptionally complex. The defendants novel 14 issue of law that the collective bargaining agreement was the only avenue that plaintiff could use 15 to put forward his claim of disability discrimination thus making the case more difficult and 16 complex. Plaintiff signed an hourly fee contract and was currently being billed at $250.00 per 17 hour. The parties attended two settlement conferences. In the first settlement conference in 18 December 14, 2005, Defendant offered Plaintiff $15,000.00. In the second settlement conference 19 on May 3, 2007 Defendant offered Plaintiff $300,000.00 to settle all claims. This settlement offer 20 did not include an opportunity for reinstatement or repayment of attorney fees and cost. 21 Additionally, Plaintiff submitted several settlement offer letters which Defendants' rejected; it 22 has taken five years to resolve this case. 23 Finally, Plaintiff jury verdict recovery of $280,000.00 is extremely close to the maximum

24 that a Plaintiff could be awarded under Title VII which is $300,000.00. Based on the jury verdict, 25 the attorney fees ask for by Plaintiffs' attorneys are more than reasonable. 26 Presently Plaintiff attorney has amassed over 1910 hours which amounts to $496,405.00

27 dollars and costs in the amount of $8129.21 as of August 31, 2007. Plaintiff's attorney is 28 presently having Plaintiffs invoices audited for a final accounting which will be submitted with the attorney fees application.
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1 2

DEFENDANT'S POSITION: Under FRCP 54(d) and LR Civ. 54.2 claims for attorneys fees are filed after judgment has

3 been entered. According to LRCiv 54.2(b)(1), the party seeking attorneys fees must file a motion 4 within fourteen days after entry of judgment which specifies "the applicable judgment and 5 statutory or contractual authority entitling the party to the award" and the amount of attorneys 6 fees sought. LRCiv 54.2(b)(1)(A) and (B). Absent other orders from the Court, within sixty (60) 7 days of the judgment a memorandum is to be filed that include documentation required by LR 8 Civ 54.2(d). It is Plaintiff's burden to establish that his attorneys fees are reasonable. Under 9 Ninth Circuit law, to calculate attorneys fees, the Court must first calculate the lodestar, and then 10 assess whether that figure should be adjusted based upon additional considerations. Caudle v. 11 Bristow Optical Co., 224, F.3d 1014, 1028-29 (9th Cir. 2000). Defendant requests that the 12 procedures set forth in the Local Rules be followed. 13 14 15 16 17 18 PATTERSON & ASSOCIATES 19 /S/ Rosval Patterson 20 21 22 23 24 25 26 27 28 ROSVAL PATTERSON Attorney for Plaintiff Respectfully submitted this 15th 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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