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* This motion was determined to be suitable for decision

without oral argument. L.R. 78-230(h). 

1 In Plaintiff’s various opposition filings to Defendant’s

Motion for Summary Judgment, Plaintiff cites to information

contained in several depositions. Pursuant to Local Rule 56-260,

the opposing party is responsible for filing with the Clerk all

evidentiary documents cited in the opposing papers. Pertinent

portions of a deposition intended to become part of the official

record must be submitted as an exhibit in support of the motion.

L.R. 5-133(j). Plaintiff failed to submit exhibits containing the

portions of the depositions referenced in the opposition filings.

On a motion for summary judgment, the court may only consider the

information contained in the record. See Fraser v. Goodale, 342

F.3d 1032, 1036 (9th Cir. 2003). Since the pertinent portions of

the depositions are not part of the official record, the

depositions were not considered in opposition to Defendant’s Motion

for Summary Judgment. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN C. JENSEN, ) 2:04-cv-0686-GEB-KJM

)

Plaintiff, ) ORDER*

)

)

v. )

)

JOHN E. POTTER, Postmaster )

General of the U.S. POSTAL SERVICE )

)

Defendant. )

 )

Defendant moves for summary judgment or partial summary

judgment on Plaintiff’s claims. Plaintiff opposes the motion.1

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2

BACKGROUND

Plaintiff John Jensen is a former employee of the United States Postal

Service (“USPS”). He began work for the USPS in 1963, and with the

exception of two years military service, worked there continuously

until March 2002. (Statement of Facts in Supp. of Pl.’s Opp’n to

Def.’s Mot. for Summ. J. (“Pl.’s Statement of Facts”) at 3.) 

Plaintiff is a Caucasian male who was over fifty-five years of age at

the time of all events relevant to this litigation. (Id.) 

From approximately 1997 to March 2002, Plaintiff served as

the Postmaster of the Sacramento Post Office. (Id. at 15.) During

part of that time, however, Plaintiff was detailed as the Sacramento

District Business Performance Initiative (“BPI”) Coordinator. (Id.) 

In May 2001, after spending twenty-two months as the BPI Coordinator,

Plaintiff resumed his position as Postmaster of Sacramento. (Id. at

16.) When he returned, his immediate supervisor was Hugo Francia, the

Acting District Manager of the Sacramento District. (Def.’s Statement

of Undisputed Facts (“SUF”) ¶ 2; Pl.’s Resp. to Def.’s Claimed

Undisputed Facts (“SDF”) ¶ 2.) Francia’s superior was Al Iniguez, the

Vice President of the Pacific Area. (Pl.’s Statement of Facts at 4.) 

Both Francia and Iniguez are Hispanic males. (Id.) 

As a result of events that allegedly occurred between May

2001 and March 2002, Plaintiff brings this action against John Potter,

Postmaster General of the United States Postal Service. Plaintiff

asserts claims of race and sex discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”),

age discrimination under the Age Discrimination in Employment Act, 29

U.S.C. §§ 621, et seq. (“ADEA”), and disability discrimination under

the Rehabilitation Act, 29 U.S.C. §§ 701, 791, et seq. In addition,

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2 “The standards applicable to motions for summary judgment

are well known, see, e.g., Rodgers v. County of Yolo, 889 F. Supp.

1284 (E.D. Cal. 1995), and need not be repeated here.” Reitter v.

City of Sacramento, 87 F. Supp. 2d 1040, 1042 (E.D. Cal. 2000).

3 The discussion of the Title VII and the ADEA

discrimination claims have been combined because the framework for

analysis is the same. See, e.g., Wallis v. J.R. Simplot Co., 26

F.3d 885, 888-89 (9th Cir. 1994).

3

Plaintiff alleges unlawful retaliation under Title VII, the ADEA, and

the Rehabilitation Act. Furthermore, Plaintiff asserts that he was

constructively discharged in violation of the Rehabilitation Act,

Title VII, the ADEA, and public policy. Defendant has moved for

summary judgment on all of Plaintiff’s claims. In addition, Defendant

has moved to strike Plaintiff’s request for punitive damages under the

Rehabilitation Act, request for general damages under the ADEA, and

request for a jury trial under the ADEA. 

DISCUSSION2

I. Discrimination Claims under Title VII and ADEA

Defendant moves for summary judgment on Plaintiff’s race and

gender discrimination claims brought under Title VII, 42 U.S.C.

§§ 2000, et seq., and Plaintiff’s age discrimination claim brought

under the ADEA, 29 U.S.C. §§ 621, et seq.3 To prevail on a Title VII

and ADEA discrimination claim, the plaintiff must first establish a

prima facie case, either through the presumption set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), or with

direct or circumstantial evidence of discriminatory intent. Vasquez

v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004); Cordova

v. State Farm Ins. Co., 124 F.3d 1145, 1148 (9th Cir. 1997). 

To establish a prima facie case through the McDonnell

Douglas presumption, a plaintiff must show that (1) he belongs to a

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protected class, (2) he was performing according to his employer’s

legitimate expectations, (3) he suffered an adverse employment action,

and (4) other employees with qualifications similar to his own were

treated more favorably. Bergene v. Salt River Project Agric.

Improvement and Power Dist., 272 F.3d 1136, 1140 (9th Cir. 2001). 

When a plaintiff does not rely on the McDonnell Douglas presumption,

but instead seeks to establish a prima facie case with direct or

circumstantial evidence, the “requisite degree of proof . . . on

summary judgment is minimal . . . . The plaintiff need only offer

evidence which gives rise to an inference of unlawful discrimination.” 

Wallis, 26 F.3d at 889; Lowe v. City of Monrovia, 775 F.2d 998, 1009

(9th Cir. 1986) (“when a plaintiff does not rely on the [McDonnell

Douglas] presumption but seeks to establish a prima facie case through

the submission of actual evidence, very little such evidence is

necessary to raise a genuine issue of fact . . . any indication of

discriminatory motive . . . may suffice to raise a question that can

only be resolved by a factfinder”).

Once the plaintiff establishes a prima facie case through

the McDonnell Douglas presumption or with direct or circumstantial

evidence of discriminatory intent, the burden shifts to the defendant

to articulate a legitimate, non-discriminatory reason for the

allegedly discriminatory conduct. Vasquez, 349 F.3d at 640; Wallis,

26 F.3d at 888-89. If the defendant provides such a reason, the

burden shifts back to the plaintiff to show that the defendant’s

proffered reason is a pretext for discrimination. Vasquez, 349 F.3d

at 640; Wallis, 26 F.3d at 888-89. 

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A. Race

Defendant contends that Plaintiff cannot establish a prima

facie case of race discrimination under the McDonnell Douglas

presumption. (Def.’s Mot. for Summ. J. (“Def.’s Mot.”) at 14.) As

noted previously, however, Plaintiff may establish a prima facie case

through either the McDonnell Douglas presumption or by offering direct

or circumstantial evidence of discriminatory intent. Vasquez, 349

F.3d at 640; Cordova, 124 F.3d at 1148. 

Plaintiff offers the declaration of Jackie Gee-Lawver, the

former Manager of Training in the Sacramento District, as evidence of

discriminatory intent. (Gee-Lawver Decl. ¶ 1.) Gee-Lawver states

that Francia asked her for a document containing information on the

racial make-up of Postal Service employees in the Sacramento District. 

(Pl.’s Statement of Facts at 5; Gee-Lawver Decl. ¶ 5.) Gee-Lawver

declares that when Francia viewed the document, he stated that there

were “too many Anglo people in higher levels” and “[w]e need more

Hispanics.” (Id.) In addition, Gee-Lawver states that Francia

directed her to remove certain employees from the “Key Resources

List,” a list containing information about Postal Service Managers who

were suitable for management and training opportunities. (Pl.’s

Statement of Facts at 4-5; Gee-Lawver Decl. ¶¶ 2,4.) Gee-Lawver

declares that Francia removed Plaintiff from the list, along with

three other older, non-Hispanic males, and then instructed her to

cancel Plaintiff’s management training. (Pl.’s Statement of Facts at

4-5; Gee-Lawver Decl. ¶ 4.) 

Plaintiff also offers the declaration of Silvia Woodside,

the former manger of Human Resources. (Woodside Decl. ¶¶ 1, 2.)

Woodside declares that Iniguez “told me he wanted to hire all

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4 Because Defendant concedes that a genuine issue of

material fact exists with regard to discriminatory animus, it would

appear that Defendant also concedes that a genuine issue of

material fact exists with regard to discriminatory intent. 

6

Hispanics.” (Pl.’s Statement of Facts at 13; Woodside Decl. ¶ 3.) 

When Woodside informed Iniguez that “such a practice would be

illegal,” Iniguez insisted that she “figure out a way to hire all

Hispanics.” (Id.) 

“The requisite degree of proof necessary to establish a

prima facie case is minimal . . . . The plaintiff need only offer

evidence which gives rise to an inference of unlawful discrimination.” 

Wallis, 26 F.3d at 889. The statements of Francia and Iniguez,

Plaintiff’s supervisors, are sufficient to raise an inference of

unlawful discrimination. See Cordova, 124 F.3d at 1149 (“derogatory

comments can create an inference of discriminatory motive”). In

addition, Defendant concedes that “Plaintiff has raised triable

issues regarding . . . discriminatory animus.”4 (Def.’s Reply to Pl.’s

Opp’n (Def.’s Reply) at 14.) Therefore, Plaintiff has established a

prima facie case of race discrimination because there is a genuine

issue of material fact as to discriminatory intent. 

Once a plaintiff has established a prima facie case of race

discrimination, the burden shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the allegedly discriminatory

conduct. Vasquez, 349 F.3d at 641. Defendant has offered reasons for

certain employment actions that occurred while Plaintiff was the

Postmaster of Sacramento, namely, placing Plaintiff on a Performance

Improvement Plan (“PIP”), issuing Plaintiff a Letter of Warning, and

issuing Plaintiff a Notice of Proposed Reduction. Francia asserts

that Plaintiff was placed on a PIP because his office was the worst

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performing unit of the five largest in the Sacramento region. (SUF

¶ 25; Francia Decl. ¶ 25.) Francia states that Plaintiff was issued a

Notice of Proposed Reduction because he failed to improve the

performance of the Sacramento Post Office. (SUF ¶¶ 22-24; Francia

Decl. ¶¶ 21-23.) Lastly, Francia contends that Plaintiff was given a

Letter of Warning because he failed to timely report an on-the-job

injury. (SUF ¶ 29; Francia Decl. ¶ 28.) Therefore, Defendant has

satisfied this burden of production because the reasons articulated by

Defendant are legitimate and non-discriminatory.

Because Defendant has provided non-discriminatory reasons

for the employment actions, the burden shifts back to Plaintiff to

show that Defendant’s reasons are a pretext for discrimination. 

Vasquez, 349 F.3d at 641. However, “when a plaintiff has established

a prima facie inference of disparate treatment through direct or

circumstantial evidence of discriminatory intent, he will necessarily

have raised a genuine issue of material fact with respect to the

legitimacy or bona fides of the employer’s articulated reason for its

employment decision.” Lowe, 775 F.3d at 1008. As discussed

previously, Plaintiff has established a prima facie case of race

discrimination through direct and circumstantial evidence of

discriminatory intent; thus, Plaintiff has necessarily raised a

genuine issue of material fact as to whether the Defendant’s reasons

for the employment decisions were a pretext for discrimination. 

Furthermore, Defendant concedes that “Plaintiff has raised triable

issues regarding pretext and discriminatory animus.” (Def.’s Reply at

14.) Therefore, a genuine issue of material fact exists as to whether

the Defendant’s proffered reasons for the employment decisions were

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pretextual. Accordingly, Defendant’s motion for summary judgment on

Plaintiff’s race discrimination claim is denied. 

B. Age

Defendant argues that Plaintiff cannot establish a prima

facie case of age discrimination under the McDonnell Douglas

presumption. (Def.’s Mot. at 14.) However, as discussed previously,

Plaintiff may establish a prima facie case through either the

McDonnell Douglas presumption or by offering direct or circumstantial

evidence of discriminatory intent. Vasquez, 349 F.3d at 640; Cordova,

124 F.3d at 1148. 

Plaintiff offers the declaration of Jackie Gee-Lawver, the

former Manager of Training in the Sacramento District, as evidence of

discriminatory intent. (Gee-Lawver Decl. ¶ 1.) Gee-Lawver declares

that during a meeting with Francia regarding persons on the Key

Resource List, including Plaintiff, Francia looked at the list and

stated “These are all ol . . . - you know what I mean. I want people

who are up and coming.” (Pl.’s Statement of Facts at ¶ 4-5; GeeLawver Decl. ¶ 3.) Gee-Lawver understood Francia to be saying the

word “old” when he interrupted himself, and so she responded “I guess

that leaves me out because I am old.” (Id.) Gee-Lawver states that

Francia did not disagree or correct her reference to the word “old.”

(Id.) Furthermore, Gee-Lawver declares that Francia “required me to

provide him with eligible retirement dates for mid and high level

managers in Sacramento including John Jensen.” (Pl.’s Statement of

Facts at 4; Gee-Lawver Decl. ¶ 6.) 

In addition, Jensen offers the declaration of Gary

Greenhalgh, a Postmaster Representative for the National Association

of Postmasters. (Greenhalgh Decl. ¶¶ 1, 2.) Greenhalgh declares that

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5 Because Defendant concedes that a genuine issue of

material fact exists with regard to discriminatory animus, it would

appear that Defendant also concedes that a genuine issue of

material fact exists with regard to discriminatory intent. 

9

during meetings with Francia, Francia stated he “did not trust his

direct reports, as they were part of the ‘good old boys’ of

Sacramento, they had been there too long and he needed to change

that.” (Pl.’s Statement of Facts at 6-7; Greenhalgh Decl. ¶ 10.) 

Furthermore, Plaintiff declares that Francia “made statements

like . . . people who are eligible to retire should ‘go ahead.’” 

(Jensen Decl. ¶ 17.2.) 

The alleged statements by Francia give rise to an inference

of age discrimination. See Cordova, 124 F.3d at 1149 (“derogatory

comments can create an inference of discriminatory motive”). In

addition, the Defendant concedes that “[p]laintiff has raised triable

issues regarding . . . discriminatory animus.”5 (Def.’s Reply at 14.) 

Accordingly, Plaintiff has established a prima facie case because

there is a genuine issue of material fact as to discriminatory intent. 

Therefore, the burden of production shifts to the defendant to

articulate a legitimate, non-discriminatory reason for the allegedly

discriminatory conduct. Vasquez, 349 F.3d at 641. As discussed

previously, Defendant has met this burden by articulating nondiscriminatory reasons for the allegedly discriminatory conduct. See

supra pages 6-7. Consequently, the burden shifts back to Plaintiff to

show that Defendant’s reasons are a pretext for discrimination. 

Vasquez, 349 F.3d at 641. However, because Plaintiff established a

prima facie case through actual evidence, he has necessarily raised a

genuine issue of material fact whether Defendant’s articulated reasons

are pretextual. See Lowe v. City of Monrovia, 775 F.3d 998, 1008 (9th

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Cir. 1986). Furthermore, Defendant concedes that “Plaintiff has

raised triable issues regarding pretext and discriminatory animus.” 

(Def.’s Reply at 14.) Accordingly, Defendant’s motion for summary

judgment on Plaintiff’s age discrimination claim is denied. 

C. Gender

Defendant contends that Plaintiff cannot establish a prima

facie case of gender discrimination under the McDonnell Douglas

presumption. (Def.’s Mot. at 14.) However, Plaintiff may establish a

prima facie case through either the McDonnell Douglas presumption or

by offering direct or circumstantial evidence of discriminatory

intent. Vasquez, 349 F.3d at 640; Cordova, 124 F.3d at 1148.

The only evidence of gender discrimination offered by

Plaintiff is an alleged statement by Francia regarding “the good ‘ol

boys system” of Sacramento. (Greenhalgh Decl. ¶ 4; Pl.’s Statement of

Facts at 6.) This single comment by Francia, without more, is

insufficient evidence of discriminatory intent. See Gagne v.

Northwestern Nat'l Ins. Co., 881 F.2d 309, 314-16 (6th Cir. 1989)

(finding that a "single, isolated discriminatory comment" by

plaintiff's immediate supervisor was insufficient to trigger burden

shift or to avoid summary judgment for defendant); Merrick v. Farmers

Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990)(holding that a "stray"

remark was insufficient to establish discrimination). Since Plaintiff

cannot establish a prima facie case of gender discrimination through

direct or circumstantial evidence of discriminatory intent, Plaintiff

must rely on the McDonnell Douglas presumption to establish a prima

facie case. See Vasquez, 349 F.3d at 640-41 (stating that because

plaintiff had failed to establish direct or circumstantial evidence of

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discriminatory intent, the plaintiff must proceed under the McDonnell

Douglas framework to establish a prima facie case).

Assuming arguendo that Plaintiff can establish a prima facie

case through the Mc Donnell Douglas presumption, Plaintiff must

produce additional evidence to rebut Defendant’s non-discriminatory

reasons for the employment actions. Goodwin v. Hunt, 150 F.3d 1217,

1220 (9th Cir. 1998). A plaintiff can prove pretext through direct

evidence, by showing that unlawful discrimination more likely

motivated the employer, or through circumstantial evidence, by showing

that the employer’s proffered explanation is unworthy of credence

because it is internally inconsistent or otherwise not believable. 

Vasquez, 349 F.3d at 641. Direct evidence is evidence which, if

believed, proves the fact of discriminatory animus without inference

or presumption, while circumstantial evidence is evidence that

requires an additional inferential step to demonstrate discrimination. 

Coghlan v. American Seafoods Company LLC, 413 F.3d 1090, 1095 (9th

Cir. 2005).

A showing that Defendant treated similarly situated

employees outside Plaintiff’s class more favorably would be probative

of pretext. Vasquez, 349 F.3d at 641. However, Plaintiff has not

offered any evidence that similarly situated female employees were

treated more favorably. The only evidence Plaintiff offers of pretext

are alleged statements by Francia to a work team “to find something

wrong” with a post office station under Jensen’s supervision, even

though the team had given the station a “100% rating.” (Pl.’s

Statement of Facts at 7; Greenhalgh Decl. ¶ 12.) However, the

statement, if true, does not directly establish that Francia’s actions

were motivated on account of Plaintiff’s gender. Rather, the

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statement is circumstantial evidence of pretext because it requires an

“additional inferential step to demonstrate discrimination” on the

basis of gender. See Coghlan, 413 F.3d at 1095. When the plaintiff

offers circumstantial evidence of discriminatory motive, that evidence

must be specific and substantial to create a triable issue of fact. 

Goodwin, 150 F.3d at 1222. The evidence offered by Plaintiff fails to

specifically or substantially establish that Defendant’s articulated

non-discriminatory reasons for the employment actions were a pretext

for gender discrimination.

Therefore, even assuming that Plaintiff could establish a

prima facie case under the McDonnell Douglas framework, he has not

offered sufficient evidence that demonstrates Defendant’s explanations

for the employment actions were pretextual. See Vasquez, 349 F.3d at

640-41 (assuming without deciding that plaintiff established a prima

facie case of discrimination, but affirming summary judgment against

plaintiff because he did not demonstrate that the employer’s nondiscriminatory explanation for his demotion was pretextual). 

Accordingly, Defendant’s motion for summary judgment on Plaintiff’s

gender discrimination claim is granted. 

II. Disability Discrimination under the Rehabilitation Act

Defendant argues that Plaintiff cannot establish a claim of

disability discrimination under the Rehabilitation Act, 29 U.S.C.

§§ 701, 791, et seq. (Def.’s Mot. at 27.) The standards governing

disability discrimination under the Rehabilitation Act and the

Americans with Disabilities Act (“ADA”) are essentially the same. 

Coons v. Sec’y of U.S. Dept. of the Treasury, 383 F.3d 879, 884 (9th

Cir. 2004); Collins v. Longview Fibre Co., 63 F.3d 828, 832 (9th Cir.

1995). To establish a prima facie case of disability discrimination

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under the ADA, a plaintiff must show that (1) he is a disabled person

within the meaning of the ADA, (2) he is able to perform his essential

job functions with or without reasonable accommodation, and (3) he has

suffered an adverse employment decision because of his disability. 

Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). 

Defendant argues that Plaintiff is not a disabled person

within the meaning of the ADA. (Def.’s Mot. at 29.) Courts apply a

three step process to determine if a person is disabled within the

meaning of the statute: first, the plaintiff must suffer from a

physical or mental impairment; second, the impairment must have

affected a “major life activity”; third, the impairment must have

“substantially limited” the identified major life activity. See e.g.

Bragdon v. Abbott, 524 U.S. 624, 631-41 (1998). To constitute a

substantial impairment, a plaintiff must be completely unable to

perform the activity or be significantly restricted as to the

condition, manner or duration under which he or she can perform the

activity as compared to an average person in the general population. 

Coons, 383 F.3d 879 (9th Cir. 2004). 

Plaintiff alleges that he has a mental impairment because he

suffers from clinical depression. (Pl.’s Memo. of P.& A. at 8). 

Plaintiff’s doctor, M. Rynda Norsell, states that Plaintiff has

Adjustment Disorder with Mixed Anxiety and Chronic Depressed Mood. 

(Jensen Decl. Attach. 9.) Plaintiff alleges that due to this mental

impairment, several of his major life activities have been

substantially impaired, including eating, driving/traveling,

concentration, sleeping, sexual relations, and working. (Pl.’s

Statement of Facts at 40; Jensen Decl. ¶¶ 8, 53.) 

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First, Plaintiff contends that his ability to eat has been

substantially impaired. (Pl.’s Statement of Facts at 40; Jensen Decl.

¶ 53.) “Broadly speaking, eating is a major life activity. However,

eating specific types of foods, or eating specific amounts of food,

might or might not be a major life activity.” Fraser v. Goodale, 342

F.3d 1032, 1040 (9th Cir. 1999). Plaintiff has not alleged that he is

unable to eat, nor has Plaintiff stated how his ability to eat has

been affected by his disability. Rather, Plaintiff only asserts that

“important activities in my life including . . . eating were

impaired.” (Jensen Decl. ¶ 53.) Conclusory declarations are

insufficient to raise a question of material fact. Head v. Glacier

Northwest, Inc., 413 F.3d 1053, 1059 (9th Cir. 2005). “To survive

summary judgment, an affidavit supporting the existence of a

disability must not be merely self serving and must contain sufficient

detail to convey the existence of an impairment.” Id. Since

Plaintiff’s declaration does not contain sufficient detail to convey

the existence of a substantial eating impairment, no genuine issue of

fact exists regarding whether his ability to eat has been

substantially affected. 

Second, Plaintiff contends that his ability to travel/drive

has been substantially impaired. (Pl.’s Statement of Facts at 40;

Jensen Decl. ¶ 53.) Plaintiff states he “experienced alarming

episodes such as . . . getting lost driving to work which happened

several times.” (Jensen Decl. ¶ 53.) The Ninth Circuit has expressed

doubt whether traveling is a major life activity. Coons, 383 F.3d at

885. In Coons, the Ninth Circuit stated:

Even if travel were a major life activity, Coons

would have to show that he is either unable to

travel, or that the condition, manner or duration

under which he can travel is significantly

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restricted as compared to the average person. 

Coons does not allege that he cannot travel

because of his impairments, but only that he

cannot travel extensively. 

Id. Similarly, Plaintiff has not alleged that he is unable to

travel/drive. Rather, Plaintiff only alleges that on several

occasions he became lost while driving to work. Becoming lost while

driving does not establish that the condition, manner or duration

under which he can travel/drive is significantly restricted as

compared to an average person in the general population. See id.

(holding that plaintiff’s ability to travel was not substantially

impaired because he did not present evidence that he was unable to

ride in a car, train, airplane, or was unable to manage short distance

flights.) Therefore, no genuine issue of material fact exists as to

whether Plaintiff’s ability to travel has been substantially impaired.

Third, Plaintiff contends that his ability to concentrate

has been substantially impaired. (Pl.’s Statement of Facts at 40;

Jensen Decl. ¶ 53.) Courts have reached different conclusions as to

whether concentration is a major life activity. Compare Head, 413

F.3d at 1061 (“thinking” is a major life activity), with Pack v. Kmart

Corp., 166 F.3d 1300, 1305 (10th Cir. 1999) (“concentration is not

itself a major life activity). However, assuming that concentration

is a major life activity, Plaintiff must show that his ability to

concentrate has been substantially affected. Plaintiff does not

allege that he is completely unable to concentrate. Rather, Plaintiff

states that he “experienced . . . episodes such as unconsciously

biting through the skin of my finger,” that he had “ideas of harming

Mr. Francia,” and that he “did not report a minor accident that

happened to me at work.” (Jensen Decl. ¶¶ 53-54.) Plaintiff does not

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describe the frequency of these occurrences or whether they were

severe, long term, or had a permanent impact on his ability to

concentrate. See Pack, 166 F.3d at 1305-06. Consequently,

Plaintiff’s assertions do not establish that the condition, manner or

duration of his ability to concentrate is significantly impaired as

compared to an average person in the general population. Cf. Head,

413 F.3d at 1061 (stating that a “constant impairment” of the ability

to think is a substantial limitation, but inability to think three

times in five months is not). Therefore, no genuine issue of material

fact exists as to whether Plaintiff’s ability to concentrate has been

substantially impaired.

Fourth, Plaintiff alleges that his ability to sleep has been

substantially impaired. (Pl.’s Statement of Facts at 40; Jensen Decl.

¶¶ 8,53.) Sleeping is a major life activity. E.g. Head, 413 F.3d at

1060. Plaintiff has not alleged that he is unable to sleep. Rather,

Plaintiff states that he experienced “sleeplessness” and “disturbing”

nightmares, in some of which he “would be naked in a meeting with Mr.

Francia while he was berating me and the other people in the room

would be laughing.” (Pl.’s Statement of Facts at 40; Jensen Decl.

¶¶ 8,53.) Plaintiff’s psychologist states that Plaintiff reported

receiving four to five hours of sleep for two weeks. (Jensen Decl.

Attach. 3.) However, Plaintiff does not state whether this period of

sleeplessness was severe, long term, or had a permanent impact. Pack,

166 F.3d at 1305-06. Experiencing sleeplessness over a two-week

period does not demonstrate that Plaintiff was substantially

restricted in his ability to sleep as compared to an average person in

the general population. See Pack, 166 F.3d at 1305-06 (plaintiff’s

sleeping not substantially impaired where she experienced episodes of

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sleep disruption and woke up without feeling rested). Therefore, no

genuine issue of material fact exists as to whether Plaintiff’s

ability to sleep has been substantially impaired. 

Fifth, Plaintiff alleges that because of his disability, he

experienced a loss of libido. (Jensen Decl. ¶ 8.) Engaging in sexual

relations is a major life activity. McAlindin, 192 F.3d at 1234. 

Plaintiff does not assert that he is unable to engage in sexual

relations, but rather that he has experienced a loss of sexual desire. 

However, a loss of sexual desire does not demonstrate that the

condition, manner, or duration of his ability to engage in sexual

relations has been substantially affected as compared to the average

person in the general population. Cf. McAlindin v. County of San

Diego, 192 F.3d 1226, 1235 (9th Cir. 1999) (plaintiff’s ability to

engage in sexual relations was substantially impaired because he was

impotent as the result of medication). Therefore, there is no genuine

issue of material fact whether Plaintiff’s ability to engage in sexual

relations has been substantially impaired. 

Lastly, Plaintiff alleges that his ability to work was

affected by his disability. (Jensen Decl. ¶ 53.) To establish a

substantial limitation on his ability to work, Plaintiff must

demonstrate that he is “significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable training,

skills and abilities.” Thompson v. Holy Family Hosp., 121 F.3d 537,

540 (9th Cir. 1997). The inability to “perform one particular job,”

id., or “work for one particular supervisor” does not constitute such

a limitation. See Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062

(7th Cir. 2000)(“standing alone, a personality conflict between an

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employee and a supervisor--even one that triggers the employee's

depression--is not enough to establish that the employee is disabled,

so long as the employee could still perform the job under a different

supervisor”). 

Plaintiff contends that “[m]y symptoms related to the stress

imposed on me by Mr. Francia were becoming worse over time. . . . By

the end of January 2002, I was struggling to maintain my composure at

work and to perform my duties.” Plaintiff’s doctor, N. Rynda Norsell,

states that Plaintiff “attributed the source of his stress to the

managerial style of his immediate supervisor, Hugo Francia, whom he

considers to be unsupportive and even obstructive” to the Plaintiff’s

work needs. (Jensen Decl. Attach. 9.) Plaintiff’s doctor further

notes that Plaintiff’s “stressor” is the “alleged unprofessional

behavior of a supervisor . . . .” (Id.) When viewed in a light most

favorable to Plaintiff, his allegations do not establish that he could

not perform a class of jobs or broad range of jobs in various classes,

but rather that he could not work in one single job, Postmaster of

Sacramento, under the supervision of one supervisor, Hugo Francia. 

Consequently, no genuine issue of material fact exists as to whether

Plaintiff’s ability to work was substantially impaired. 

Since there is no genuine issue of material fact whether any

of Plaintiff’s major life activities have been substantially affected

by his alleged impairment, Plaintiff cannot establish that he is a

disabled person within the meaning of the Rehabilitation Act. 

Accordingly, Defendant’s motion for summary judgment on Plaintiff’s

disability discrimination claim is granted.

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6 The discussion of the retaliation claims under Title VII,

the ADEA, and Rehabilitation Act have been combined because the

framework for analysis is the same. See e.g. Merrick v. Farmers

Ins. Group, 892 F.2d 1434, 1441 (9th Cir. 1990); Coons, 383 F.3d at

887.

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III. Retaliation Claims under Title VII, ADEA, and Rehabilitation Act

Defendant argues that Plaintiff cannot establish a prima

facie case of retaliation under Title VII, 42 U.S.C. §§ 2000, et seq.,

the ADEA, 29 U.S.C. §§ 621, et seq., and the Rehabilitation Act, 29

U.S.C. §§ 701, 791, et seq.6 (Def.’s Mot. at 25.) To establish a

prima facie case of retaliation, Plaintiff must show that (1) he

engaged in protected activity, (2) his employer subjected him to an

adverse employment decision, and (3) there was a causal link between

the protected activity and his employer’s action. Bergene, 272 F.3d

at 1140-41. 

It is undisputed that Plaintiff filed several informal Equal

Opportunity Commission (“EEO”) forms and a formal EEOC complaint. 

(SUF ¶¶ 32-35; Pl.’s Resp. to Def.’s SUF ¶¶ 32-35.) Filing a

complaint with the EEOC is a protected activity. Ray v. Henderson,

217 F.3d 1234, 1240 n.3 (9th Cir. 2000). Therefore, Plaintiff has

established the first element of a prima facie case of retaliation. 

Defendant argues that Plaintiff cannot establish the second

element of a prima facie case because the PIP, Letter of Warning, and

the Notice of Proposed Reduction are not adverse employment actions. 

(Def.’s Mot. at 25-26.) “An adverse employment action is one that is

reasonably likely to deter employees from engaging in protected

activity.” Ray, 217 F.3d at 1243. Subjecting an employee to a

hostile work environment because he engaged in protected activity is

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7 Defendant argues that Plaintiff “retreated from his prima

facie burden of establishing an adverse employment action by

raising a new claim of hostile work environment.” (Def.’s Reply at

1.) However, Defendant misinterprets Plaintiff’s argument.

Plaintiff has not stated a separate claim for hostile work

environment, but rather alleges that harassment by his supervisors

constitutes an adverse employment action because it created a

hostile work environment. (See Pl.’s Compl. ¶ 20(u); Pl.’s Mem.

of P. & A. in Opp. to Def.’s Mot. for Summ. J. at 6.) 

8 Making an informal complaint to a supervisor is also a

protected activity. Ray, 217 F.3d at 1240 n.3. 

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an adverse employment action.7 Id. at 1245 (“Harassment as retaliation

for engaging in a protected activity . . . is the paradigm of adverse

treatment that is based on retaliatory motive and is reasonably likely

to deter the charging party or others from engaging in the protected

activity”). Harassment is actionable only if it creates a hostile

work environment which is “sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive

working environment.” Id.

Plaintiff contends that after he engaged in protected

conduct, he was subjected to a “series of hostile actions and conduct

intended to create a negative work situation.” (SDF ¶ 17.) Plaintiff

offers several examples of allegedly “hostile actions and conduct” by

Francia. First, Plaintiff states that on September 19, 2001, he filed

an informal EEO investigation form to initiate a complaint against

Francia, and on October 16, 2001, he sent a letter to Iniguez (with

copy to Francia) complaining about Francia’s conduct.8 (SDF ¶ 10;

Jensen Decl. ¶¶ 15, 22.2.) On October 23, 2001, approximately six

weeks after Plaintiff filed the EEO form and one week after he sent

the letter to Iniguez, Francia submitted a request to replace

Plaintiff as Postmaster of the Sacramento Post Office. (See SUF ¶ 10;

Francia Decl. ¶ 11.) Plaintiff asserts that the letter “came on the

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heals of protected EEO activity” and “adverse and harassing actions by

Francia followed close in time after Jensen’s EEO activity.” (SDF

¶ 10.) Defendant alleges that Francia submitted the letter “based on

Plaintiff’s failure to improve the performance of the Sacramento Post

Office.” (SUF ¶ 10.) Plaintiff states that when he returned to his

position as Postmaster, the Sacramento Office was performing poorly

due a lack of personnel. (Jensen Decl. ¶ 4.3.) However, Plaintiff

alleges that he “repeatedly requested Mr. Francia to assist me in

hiring the authorized level of staffing” but that “Mr. Francia at

first refused to assist me,” then accused Plaintiff of “making

excuses,” and began to act on his requests only after a delay of

several weeks. (Id. at 6.) Furthermore, Plaintiff asserts that after

he returned to his position, the performance of the Sacramento Office

improved and performed better than the entire Sacramento District. 

(SDF ¶ 10; Jensen Decl. ¶ 7.) Therefore, a genuine issue of material

fact exists as to whether the letter written by Francia was issued for

legitimate reasons or to harass Plaintiff because he engaged in a

protected activity.

In addition, Plaintiff alleges that the PIP was an “adverse

action of harassment creating a hostile work environment.” (Pl.’s

Memo. P. & A. in Opp’n at 6.) On December 13, 2001, Francia placed

Plaintiff on a formal PIP. (SUF ¶ 15.) The PIP was issued

approximately six weeks after Plaintiff filed a second informal EEO

investigation claim that alleged discriminatory conduct by Francia. 

(See SDF ¶ 13; Jensen Decl. ¶ 74.) Defendant contends that Francia

placed Plaintiff on the PIP in order to improve the “poor performance

of the Sacramento Post Office.” (SDF ¶ 15; Francia Decl. ¶ 15.) 

However, as discussed above, there is a genuine issue of material fact

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regarding the performance of Plaintiff and the Sacramento Post Office. 

See supra page 21. Therefore, a genuine issue of material fact exists

as to whether the PIP was issued for legitimate reasons or to harass

Plaintiff because he engaged in protected conduct. 

Furthermore, Plaintiff argues that the February 1, 2002,

Letter of Warning issued by Francia for failing to timely report an

on-the-job injury not only contributed to the hostile work environment

but also “in and of itself” constitutes an adverse employment action. 

(Pl.’s Memo. P. & A. in Opp’n at 6; SDF ¶ 29.) The Letter of Warning

was issued approximately six weeks after Plaintiff filed a formal EEO

complaint alleging discrimination. (See SUF ¶ 34; SDF ¶ 34.) 

Plaintiff states that a “Letter of Warning is formal

discipline . . . . Its existence on the employee’s record adversely

impacts the conditions of employment by . . . [hindering] the employee

from obtaining promotions, merit raises, or other benefits to which

the employee might otherwise be entitled.” (Pl.’s Memo. of P. & A. in

Opp’n at 6; Charon Decl. ¶ 10.) Plaintiff states that on February 4,

2002, he “formally appealed the Letter of Warning . . . [and] Francia

set up a meeting for February 8, 2002, to discuss Jensen’s pending

appeal.” (Jensen Decl. ¶ 60; SDF ¶ 30.) Defendant contends that

Francia “would have removed the Letter of Warning from plaintiff’s

personnel file” if Plaintiff had met with him to discuss the letter. 

(Francia Decl. ¶ 29; SUF ¶ 30.) Defendant claims that “Plaintiff did

not attend the February 8, 2002 appeal meeting . . . . Instead,

plaintiff advised Francia that he could no longer do the job of

Postmaster of the Sacramento Post Office . . . .” (Francia Decl. 30;

SUF ¶ 31.) Plaintiff claims that he did attend the meeting, but that

Francia “did not discuss his appeal nor . . . [act] upon it.” (Jensen

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9 Defendant argues that the Letter of Warning is not an

adverse employment action, citing Brooks v. City of San Mateo, 229

F.3d 917 (9th Cir. 2000), because “the Letter of Warning could have

been changed on appeal, had Plaintiff pursued the appeal instead of

retiring.” (Def.’s Reply at 6.) However, in light of Francia’s

alleged actions, there is a genuine issue of material fact as to

whether an appeal was pending at the time Plaintiff retired. 

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Decl. ¶ 60; SDF ¶ 30.) Consequently, there is a genuine issue of

material fact whether an appeal was pending or had been denied by

Francia’s conduct.9 Accordingly, a genuine issue of material fact

exists as to whether the Letter of Warning was an adverse employment

action. 

In addition, Plaintiff contends that the Notice of Proposed

Reduction was “part and parcel of the harassment campaign aimed at

pushing . . . [me] out of the Postal Service.” (Pl.’s Mem. of P. & A.

in Opp’n at 6.) On March 22, 2002, Francia issued Plaintiff “a Notice

of Proposed Reduction in Grade and Pay, proposing to reduce plaintiff

from Postmaster of Sacramento (EAS-26) to Postmaster of Escalon (EAS20).” (SUF ¶ 24.) The Notice of Proposed Reduction was issued

approximately six weeks after Plaintiff filed another informal EEO

investigation form alleging discrimination by Francia. (See SDF

¶ 35.) Approximately four weeks after Plaintiff filed the EEO form,

Francia requested an employee “to prepare a letter proposing to remove

plaintiff from the position of Postmaster of the Sacramento Post

Office.” (SUF ¶ 23; Francia Decl. ¶ 22.) Defendant contends that the

demotion was due to Plaintiff’s poor performance. (SUF ¶ 28; Francia

Decl. ¶ 27.) However, as discussed above, there is a genuine issue of

material fact regarding the performance of Plaintiff at the Sacramento

Post Office. (See supra page 21.) Therefore, a genuine issue of

material fact exists as to whether the Notice of Proposed Reduction

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was issued for legitimate reasons or to harass Plaintiff because he

engaged in protected conduct. 

Finally, Plaintiff alleges that after a meeting with Francia

in July or August 2001, Francia became “curt and hypercritical” of

him, treated him “with disdain,” sent him “disrespectful emails,”

accused him of “blowing smoke” or “making excuses,” “scowled” at him,

and “frequently” did not answer his correspondence on “important

matters.” (Pl.’s Statement of Facts at 16; Jensen Decl. ¶ 4.2.) 

Plaintiff also alleges that Francia “was frequently disrespectful and

sarcastic to me during open meetings.” (Jensen Decl. ¶ 8.) In

addition, Plaintiff alleges that he was falsely accused of misconduct

when Francia accused Plaintiff of failing to inform him about the

removal of certain mail collection boxes. (See Pl.’s Statement of

Facts at 37-39; Jensen Decl. ¶ 46-48.) Plaintiff asserts, however,

that he informed Francia that “the box removal process was

underway . . . [and] kept him informed.” (Jensen Decl. ¶ 46-48; Pl.’s

Statement of Facts at 37-39.) Plaintiff contends that the incident

was “a dishonest endeavor . . . to create the basis for a false charge

that I had acted improperly when, all long, he was responsible for and

participating in the collection box removal project.” (Jensen Decl.

¶ 49.) 

For purposes of summary judgment, Plaintiff has presented

sufficient evidence to raise a genuine issue of fact whether he was

subjected to a hostile work environment. See Ray, 217 F.3d at 1245

(sufficient evidence of retaliatory hostile work environment where

plaintiff was targeted for verbal abuse, yelled at by supervisors at

meetings, called a troublemaker, and falsely accused of misconduct).

As noted earlier, a hostile work environment constitutes an adverse

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employment action. Id. Therefore, a genuine issue of material fact

exists as to whether Plaintiff was subjected to an adverse employment

action. 

To establish the last element of a prima facie case of

retaliation, Plaintiff must show a causal link between the protected

activity and his employer’s action. Bergene, 272 F.3d at 1140-41. 

Causation can be inferred from timing alone. Passantino v. Johnson &

Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000). Plaintiff

asserts that the harassment by Francia occurred only six weeks after

Plaintiff engaged in protected activities. See supra pages 21-25. 

Consequently, a causal link can be inferred from the proximity in time

between the Plaintiff’s protected activities and the alleged

harassment. See Ray, 217 F.3d at 1244; Yartoff v. Thomas, 809 F.2d

1371, 1376 (9th Cir. 1987) (stating that causation was established

where adverse action occurred less than three months after complaint

filed, two weeks after charge investigated, and less than two months

after investigation ended). Therefore, a genuine issue of material

fact exists as to the requisite causal link. 

Accordingly, Plaintiff has established a prima facie case of

retaliation. Therefore, the burden shifts to Defendant to articulate

a legitimate, non-discriminatory reason for the allegedly

discriminatory conduct. Bergene, 272 F.3d at 1140-41. As discussed

previously, Defendant has provided legitimate, non-discriminatory

reasons for the allegedly retaliatory actions. See supra pages 6-7.

Consequently, the burden shifts back to Plaintiff to show that

Defendant’s proffered reasons are a pretext for retaliation. Bergene,

272 F.3d at 1140-41. 

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As evidence of pretext, Plaintiff asserts that in 2001 he

and Francia attended a meeting to discuss the “redress” mediation

process through which EEO complaints can be resolved informally. 

(Pl.’s Statement of Facts at 22; Jensen Decl. ¶ 16.1.) At the end of

the meeting, Francia addressed the group, stating that people only

file EEO complaints “to get money,” that “we are not a bank,” and that

employees can go to redress meetings but “don’t settle anything.” 

(Id.) Plaintiff argues that this incident “shows Francia’s disdain

for the EEO process and for those who use it.” (Pl.’s Mem. of P. & A.

in Opp’n at 8.) This incident, when viewed in conjunction with the

proximity in timing between Plaintiff’s EEO filings and the employment

actions taken by Francia, is sufficient to create a genuine issue of

material fact as to whether Defendant’s reasons for the employment

actions were pretextual. Therefore, Defendant’s motion for summary

judgment on Plaintiff’s retaliation claim is denied. 

IV. Constructive Discharge

Defendant argues that Plaintiff cannot establish a prima

facie case of constructive discharge. (Def.’s Mot. at 26.) A prima

facie case of constructive discharge requires more than a showing of a

hostile work environment. Pennsylvania State Police v. Suders,

__ U.S. __, 124 S.Ct. 2342, 2354 (2004). To establish a prima facie

case of constructive discharge, a plaintiff must show “working

conditions so intolerable that a reasonable person would have felt

compelled to resign.” Id.; Bergene, 272 F.3d at 1143-44 (stating that

plaintiff must show “a triable issue of fact as to whether a

reasonable person in [her] position would have felt that [she] was

forced to quit because of intolerable and discriminatory working

conditions”). The Ninth Circuit has stated: 

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The determination whether conditions were so

intolerable and discriminatory as to justify a

reasonable employee’s decision to resign is

normally a factual question left to the trier of

fact. However we have noted that, in general, a

single isolated instance of employment

discrimination is insufficient as a matter of law

to support a finding of constructive

discharge . . . . Hence, a plaintiff alleging a

constructive discharge must show some aggravating

factors such as a continuous pattern of

discriminatory treatment. 

Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987)

(citations omitted). 

Plaintiff argues he has established a prima facie case of

constructive discharge because he was forced to retire against his

will. (Pl.’s Mem. of P. & A. in Opp’n at 8.) Plaintiff contends that

during a meeting with Francia in July or August 2001, Francia told him

that “he wanted him to consider leaving his postmaster position for

another detail.” (Pl.’s Statement of Facts at 15, Jensen Decl. ¶ 4.1.) 

When Plaintiff declined to leave, Francia allegedly stated “[w]ell, you

might be better off if you went ahead and took this assignment.” (Id.)

 Plaintiff contends that he felt threatened by Francia’s tone and his

remarks. (Id.) As discussed previously, Plaintiff also claims he was

subjected to discriminatory actions because of his race, such as his

removal from the Key Resources List and the cancellation of his

management training. (See supra pages 5-6.) In addition, Plaintiff

contends he was subjected to discriminatory remarks because of his age,

such as alleged remarks by Francia that “people who are eligible to

retire should ‘go ahead.’” (Jensen Decl. ¶ 17.2; see supra pages 8-9.) 

Plaintiff further asserts he was harassed after he engaged in protected

activities, he was falsely accused of misconduct, and Francia treated

him with disdain, sent disrespectful emails, and accused him of making

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excuses. (See supra pages 20-24.) Plaintiff alleges that all of these

actions took place over an eleven-month period, between May 2001, when

he resumed his job as Postmaster, and March 2002, when he resigned. 

Plaintiff has alleged sufficient facts to raise a genuine

issue of material fact whether his working conditions were so

intolerable that a reasonable person would have felt compelled to

resign. (See Watson, 823 F.2d at 361 (“The determination whether

conditions were so intolerable and discriminatory as to justify a

reasonable employee’s decision to resign is normally a factual question

left to the trier of fact.”). Plaintiff has not alleged that he was

subjected one isolated instance of employment discrimination, but

rather to eleven months of harassment and discriminatory treatment. 

See id. Therefore, Defendant’s motion for summary judgment on

Plaintiff’s constructive discharge claim is denied. 

V. Punitive Damages under the Rehabilitation Act

Defendant argues that Plaintiff is not entitled to punitive

damages against the Postal Service under the Rehabilitation Act.

(Def.’s Mot. at 32-33.) Plaintiff “does not oppose the granting of the

motion” as to this issue. (Pl.’s Statement of Non-Opp’n at 1.)

Furthermore, punitive damages may not be awarded in private suits

brought under the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181,

189 (2002). Therefore, Defendant’s motion to strike Plaintiff’s prayer

for punitive damages under the Rehabilitation Act is granted. 

VI. Damages under the ADEA

Defendant argues that Plaintiff is not entitled to damages

for pain and suffering under the ADEA. (Def.’s Mot. at 33.) Plaintiff

“does not oppose the granting of the motion” as to this issue. (Pl.’s

Statement of Non-Opp’n at 2.) Furthermore, the ADEA does not permit a

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separate recovery of compensatory damages for pain and suffering. 

Comm’r of Internal Revenue v. Schleir, 515 U.S. 323, 326 (1995) (noting

that all the Courts of Appeal have unanimously held that compensatory

damages for pain and suffering are not available), Naton v. Bank of

Cal., 649 F.2d 691, 698 (9th Cir. 1981) (stating that “damages for pain

and suffering may not be awarded under the ADEA”). Therefore,

Defendant’s motion to strike Plaintiff’s prayer for damages for pain

and suffering under the ADEA is granted.

VII. Right to Jury Trial under ADEA

Defendant argues that Plaintiff is not entitled to a jury

trial under the ADEA. (Def.’s Mot. at 34.) Plaintiff “does not oppose

the granting of the motion” as to this issue. (Pl.’s Statement of NonOpp’n at 2.) Furthermore, a federal employee does not have a right to

a jury when suing the government under the ADEA. Lehaman v. Nakshian,

453 U.S. 156, 165, 168 (“Congress did not intend to confer a right to

trial by jury on ADEA plaintiffs proceeding against the Federal

Government.”). Therefore, Defendant’s motion to strike Plaintiff’s

demand for a jury trial on this claim is granted.

CONCLUSION

Defendant’s motion for summary judgment on Plaintiff’s gender

discrimination claim and disability discrimination claim are granted. 

Defendant’s motion to strike Plaintiff’s request for punitive damages

under the Rehabilitation Act, request for general damages under the 

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ADEA, and request for a jury trial under the ADEA are granted. 

Defendant’s motion is otherwise denied. 

IT IS SO ORDERED. 

DATED: October 27, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-00686-GEB -KJM Document 50 Filed 10/28/05 Page 30 of 30