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Faapouli v. County of Fresno

September 16, 2009

POROTESANO FAAPOULI, PLAINTIFF,
v.
COUNTY OF FRESNO, DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER

Discovery Cut-Off: 3/16/10

Non-Dispositive Motion

Filing Deadline: 4/1/10

Dispositive Motion Filing

Deadline: 4/16/10

5/5/10 10:00 Ctrm. 7 Settlement Conference Date:

Pre-Trial Conference Date: 6/14/10 11:00 Ctrm. 3

Ctrm. 3 (JT-5 days) Trial Date: 7/13/10 9:00

I. Date of Scheduling Conference. September 16, 2009.

II. Appearances Of Counsel.

John P. Buchko, Esq., appeared on behalf of Plaintiff. William F. Mar, Jr., Esq., appeared on behalf of Defendant.

III. Summary of Pleadings.

1. This is an action under the Uniformed Services Employment and Re-employment Rights Act, 38 U.S.C. § 4301, et

seq. ("USERRA"). Plaintiff Porotesano Faapouli contends that the Defendant, Fresno County, willfully violated USERRA by failing to promptly re-employ him when he returned from active military duty and by failing to place him in a position of equivalent seniority, status, and pay to the position he held before his military service. As relief, Plaintiff seeks re-employment in a position of equivalent seniority, status, and pay to the position he held before his military service, with an appropriate accommodation for his disability, if necessary; back wages and benefits from the time he first sought re-employment with Defendant less mitigation; prejudgment interest; and liquidated damages.

2. Defendant County of Fresno contends that Plaintiff returned from active duty with a medical condition that prevented him from performing an essential function of the position he had held, and that in following Plaintiff's desire to return to that position, allowed him time to recover and his doctor opportunity to clear him to perform that function. When it appeared unlikely that his doctor would clear him, and after trying to get guidance and assistance from the Department of Labor, the County promptly re-employed him in a position which was the nearest approximation in terms of seniority, status, and pay, to the position he would have held had his employment been uninterrupted. The County prays that Plaintiff be denied relief and that he take nothing by this action.

IV. Orders Re Amendments To Pleadings

1. The parties do not anticipate amending the pleadings at this time.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.

1. Plaintiff is a citizen of the United States and was employed by the County of Fresno commencing in April 1999.

2. By June 2004, Plaintiff was a Senior Juvenile Correctional Officer ("Senior JCO") in Defendant's Probation Office.

3. As a member of the U.S. Navy Reserve, Plaintiff was called to active duty on June 14, 2004.

4. Plaintiff informed County Personnel Analyst Nancy Aragon of his activation to active duty.

5. While on active duty Plaintiff suffered a serious injury that required several surgeries and an extended period of recuperation.

6. Plaintiff County notified County Personnel Officer Tina Young that his deployment was being extended because of his injuries and recuperation.

7. Plaintiff was released from active duty in September 2007, and on September 21, 2007, met with Defendant to discuss re-employment.

8. He presented a form from the Navy entitled "Findings of the Physical Evaluation Board Proceedings," which found him to be presently physically disabled for military service for reasons stated in the report.

9. Defendant did not re-employ Plaintiff on September 21, 2007.

10. Defendant informed Plaintiff that he needed to submit a County ADA/FEHA Accommodation Information form completed by his doctor regarding his physical limitations.

11. Plaintiff signed a Fresno County Request for Unpaid Leave of Absence covering the period between September ...


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