Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791)
MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Craig Tucker, plaintiff, vs. The City of Tempe, defendant. Plaintiff hereby submits the following Proposed Supplemental Jury Instructions.

No. CIV 03-1425-PHX-DGC Plaintiff's Proposed Supplemental Jury Instructions

Dated this 1st day of December 2005. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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15.8 REASONABLE ACCOMMODATION

If you find the plaintiff qualified for the position that he holds or desires, but able to qualify or perform the job only with some form of accommodation, then you 4 must determine whether the defendant had a duty to provide a reasonable 5 accommodation.
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To establish the defendant's duty to provide a reasonable accommodation, 7 plaintiff must prove, by a preponderance of the evidence, that the defendant could have made a reasonable accommodation that would have enabled the plaintiff to 8 qualify for perform the essential functions of the job.
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Under the ADA, a reasonable accommodation by the defendant may include, but is not limited to: 1. 2. 3. job restructuring; reassignment to a vacant position, or other similar accommodations for individuals with plaintiff's disabilities.

A reasonable accommodation does not include changing or eliminating any 17 essential function of employment, shifting any of the essential functions of the 18 subject employment to others, or creating a new position for the disabled employee.
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If the plaintiff rejects a reasonable accommodation that is necessary to enable 20 the plaintiff to perform the essential functions of the position, and plaintiff cannot, as a result of that rejection, perform the essential functions of the position, the plaintiff 21 cannot be considered a qualified individual.
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Reasonable Accommodation­the Interactive Process

A reasonable accommodation is best determined through a flexible, "interactive process" that involves both the employer and the employee with a 4 disability.
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The interactive process requires: (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) 7 consideration of the employee's request; and (3) offering an accommodation that is reasonable and effective.
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The interactive process is triggered either by a request for accommodation by 10 a disabled employee or by the employer's recognition of the need for such an accommodation.
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An employee requesting a reasonable accommodation should inform the 13 employer of the need for an adjustment due to a medical condition using plain English and need not mention the ADA or use the phrase "'reasonable 14 accommodation."
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In some circumstances, the employee need not even request the accommodation. An employer should initiate the reasonable accommodation 17 interactive process without being asked if the employer:
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1. 2.

knows that the employee has a disability, knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.

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If an employee proves that the employer failed to engage in the interactive 25 process in good faith, the employer is liable to the employee under the ADA if a reasonable accommodation would have been possible.
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See Barnett v. U.S. Air, Inc., 228 F. 3d 1105, 1113-1117 (9th Cir. 2000), (en banc), 28 vacated on other grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct.
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1516, 152 L.Ed.2d 589 (2002), and Zivkovic v. Southern California Edison Company, th 2 302 F.3d 1080, 1089-1090 (9 2002).
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DUE PROCESS REQUIREMENTS Plaintiff had a legally protected interest in (1) his continued employment with the City of Tempe and (2) in his reputation.

The City of Tempe could not lawfully terminate Plaintiff of his employment with the City or injure Plaintiff's reputation without giving him a timely evidentiary hearing 6 in which Plaintiff could present evidence on his behalf and confront any evidence 7 that the City of Tempe used to support it actions regarding Plaintiff.
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CERTIFICATE OF SERVICE

:

I hereby certify that on December 1, 2005, 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: Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek Tempe City Attorney's Office P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendants

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I further certify that on December 1, 2005, the attached document was hand-delivered to: The Honorable David G. Campbell United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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