Preview
1 Linda J. Lynch, Esq. SBN: 88811
John A. Shupe, Esq., SBN: 87716
2 Eric K. Shiu, Esq., SBN: 156167
3
LYNCH AND SHUPE,
700 Airport Blvd., Suite
CA
LLP
410 FILED
MN'EO GOUNTV
Burlingame, 94010 SAN
4 Telephone: (650) 579-5950
Facsimile: (650) 579-0300 OCT lg F012
5
eSu rl urt
Attorneys for Defendant SEQUOIA er
6 UNION HIGH SCHOOL DISTRICT
5Hutv~fc
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO, UNLIMITEDCIVILJURISDICTION
10 MANUELE. DELGADO, JR., ) Case No: CIV499511
)
Plaintiff, ) MOTION IN LIMINENO. 1
)
12 V. )
lk ) DEFENDANT SCHOOL DISTRICT'S
AH 13 SEQUOIA UNION SCHOOL DISTRICT; and IN LIMINEMOTION NO. 1: MOTION
+co DOES 1-50, inclusive,
)
TO EXCLUDE EVIDENCE OFFERED
)
14 ) TO PROVE FAILURE TO
> 0 Defendants. ) ACCOMMODATEAND FAILURE TO
15 ) ENGAGE IN INTERACTIVE
) PROCESS CLAIMS
16 )
) Trial Date: October 15, 2012
17 ) Time: 9:00 am
) Dept: TBA
18 )
)
19
20
MOTION IN LIMINE
21
Defendant Sequoia Union High School District herewith moves the Court, in limine, for an Order
22
excluding &om the trial of this action all evidence offered by Plaintiffto prove his claims for failure to
23
engage in the interactive process and failure to provide reasonable accommodation, as Plaintiffcannot
24
show that he has a disability which renders him unable to perform the essential elements of his job
25
without a reasonable accommodation, a necessary predicate to pursuing these FEHA claims. Evidence
26
which Plaintiff offers to support these claims is therefore irrelevant and should be excluded &om the
27
trial.(Evidence Code $ 350) Such evidence should also be excluded because its mammal relevance is
28
DEFENDANT SCHOOL DISTRICT'S IN LIMINEMOTION NO. 1 Page 1
1 outweighed by the probability that it will prejudice and confuse the jury and consume undue time.
2 (Evidence Code $ 352)
MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
Mr. Delgado's two alleged disabilities (Type I Diabetes, Anxiety Disorder) are followed by Dr.
5 Mebane and Dr. Wyss, respectively, at Kaiser Redwood City and Kaiser So. S.F. Copies of the two
6 "request for accommodation letters" signed by each of those physicians (but drafted by Mr. Delgado)
7 are Exhibit A. Mr. Delgado has been attempting to use these letters to leverage the District into giving
8 him different teaching assignments. The letters, however, contain a curious phrase indicating that Mr.
9 Delgado's alleged disabilities in fact do not prevent him from carrying out the duties of his teaching
1.0 assignments; just that acquiescing to Mr. Delgado's assignment demands would be "beneficial" to him.
11 This text in each is highlighted in yellow. MA administrators interpreted these letters as indicating that
12 Mr. Delgado's disabilities did not prevent him &om performing any of the teaching assignments he had
I4
AH
gZo 13 been given. For that reason they doubted that MA had an accommodation-based obligation to change
e"-0a
EI
o
IQ'g~
~. y) Ch Vl
Ch 14 condition he/she follows (Diabetes Type 1,Anxiety Disorder) prevents Mr. Delgado &om performing
'lS~
P 15 any part of his teaching job. (Mebane depo. testimony, (25:1 - 29:1)attached as Exhibit B; Wyss depo.
R 16 testimony (96:9-101:24); attached as Exhibit C; Muse depo. testimony, (30:9-17), attached as Exhibit
17 D. Mr. Delgado has not disclosed any other medical experts. He must now live with the opinion
18 testimony of his treaters, that his Diabetes and Anxiety Disorder are disabilities which do not prevent
19 him &om performing his job as a teacher. Because Mr. Delgado's alleged disabilities do not prevent him
20 &om performing the essential functions of his job, he is not within the protective scope of FEHA's
21 mandate to engage in the interactive process and provide reasonable accommodations. (Nadaf-Rahrov
22 v. Neiman Marcus Group, Inc., supra, 166 Cal. App.4th 952)
23
24
25
26
27
28
DEFENDANT SCHOOL DISTRICT'S IN LIMINEMOTION NO. 1 Page 3
1
2 CONCLUSION
3 Because Mr. Delgado has no evidence to establish a threshold prerequisite for FEHA failure to
4 accommodate and failure to engage in the interactive process claims, he cannot prevail on those claims.
5 Any evidence he offers to support them is irrelevant and inadmissible. Because such evidence is of no
6 or minimal relevance, but would both confuse and prejudice the jury, and consume undue trial time, such
7 evidence should also be excluded under Evidence Code section 352.
9 Dated: October 10, 2012 LYNCH AND SHUPE, LLP
10
By:
John S pe, attorneys
12
f Defendant
13
14
ORDER ON DEFENDANT'S MOTION IN LIMINENUMBER 1
15
The Court, having reviewed Defendant's Motion in Limine No. 1, aswell as the opposition and
16
any reply, and having considered oral argument, and FINDING GOOD CAUSE, does now rule as
17
follows:
18
Defendant's Motion in Limine No. 1 is granted. During the trial of this action Plaintiffand his
19
counsel shall not offer into evidence or argue evidence, whether documentary or through
20
testimony, proving or suggesting that Defendant did not meet a legal obligation to provide reasonable
21
accommodations or engage in the interactive process regarding same. Such evidence is excluded because
22
it isirrelevant, and is also excluded because its probative value is outweighed by its tendency to confuse
23
and prejudice the jury, and unduly consume trial time.
24
25
Dated: October 2012
26
Judge, Superior Court
27
28
DEFENDANT SCHOOL DISTRICT'S IN LIMINEMOTION NO. 1 Page 4
12/22/2889 81': 2B 88888888t. XXXXXXX XXXXXXXXX',. PAGE 82
iAttachment 3
Kaiser Permanente
Department of Psychiatry
1001 Sneath Lane, Suite 204
. San Bruno,CA 94066
Dept: 650-616-6200 Main: 650-742-2000
12/1 8/2009
Manual E Delgado Jr.Jr.
524 Hurlingame Ave;
Redwood City. CA 94063-341 0
MR4: 110002859727
To Whom It May Concern
Mr. Delgado has'been a patient of mine since October of 1997. In addition to having
Type 1 diabetes, he has also been'diagnosed and prescribed medicine for generalized
anxiety disorder. Mr. Delgado recently expressed concerns to me that a number of his
workplace assignments are disproportionately stressful as compared to other teachers
at his school. For example, he states that he has been assigned to teach outside his
credentialed area or outside his area of expertise and he also noted that he was also ..
assigned to teach courses with a challenging populatiori of at-risk" atuderits (which he
describes as students who test Below-Basic or Far Below-Basic). I feel that his level of
stress has been impacting both his anxiety disorder and his blood sugar levels. While
Mr. Delgado is not precluded from a full-time job, it would be beneficial to him if the
number of high-intensity assignments were limited.
Thank you.
Sincerely,
Stephan Wyss, MD
Department of Psychiatry
«@
DELGADO OOOOZ1
Debbie Moore Weehmgton - DoctoiNote2 sTrMeKene.pdt Pag~e1
12/22/2889 '1: 28 8888lt8888 PAGE 81
The Permaneate Medical Groilp, Inc.
MEDICINEJ, CYPR1!88 BLDG
Vctcvooe Blvd '190
Itedvvood City, CA 94063-2037
DePt: 690-299-2015
Msitu 650-299-2000
December 21, 2009
Manuel E Delgado Jr. Jr.
524 Jlntt'tbtmnC AVC.
Redwood City, CA 94063-3410
To whom it may concern,
Mr. Manucl Delgado has been a paneutof mine for over ten years.
Ho has Type 1
Diabetes Mr. Delgsdo
Mcllitus aud a chronic anxiety disorder. rcccntly expressed
a
concernthat some of his workplace assignmcuts stressful.
are disproportionately He
mentioned he hasbeen assignedto teachcoursesoutsideof his credentialed
area of
population of "at-risk" students.
oxltcrtisc with a challenging Xhc resultant
increased
level of stress
is affecting both his anxiety.disorder His diabetes
and his diabetes. has
&om working a foll-
While Mr. Dclgado is not precluded
been more did&cult to controL
if
'ime job, it would be beneficial to him
the nutnbcr of hiigh-intensity assignments
werc
significantly redu'ccd
or eliminated.Please if
feei free to contact meyou needfurther
clarification.
Sincerely,
ERIC W MEBANE MD
..Ke
i
l3elgado-00%304
The Permanente Medical Group, Inc.
MEDICINE J, CYPRESS BLDG
1190 Veterans Blvd
Redwood City; CA. 94063-2037
Dept: 650-299-2015
Main: 650-299-2000
Date: April 13, 2010
RE: Manuel E Delgado Jr'.Jr.
524 Hurlingame Ave.
Redwood City, CA 94063-3410
To whom it may concern:
Mr. Delgado has been a patient of mine for over 10 years. In addition to having Type 1
diabetes, he has.also been diagnosed and prescribed medicine for generalized anxiety
disorder. Mr. Delgado has expressed a concern that some ofhis workplace assignments
are disproportionately stressful compared to other teachers at his school. The resultant
increased level of stress is affecting both his anxiety disorder and diabetes. Ihave
reviewed the job description for 'Classroom Teacher" for Sequoia Union High School
District— as well as the specific job assignments Mr. Delgado has been asked to perform
during the last two school 'years which are not listed on your school district's job
description. Though Mr. Delgado is not pre'eluded from a full-~e job performing the
12 duties (or essential job functions) as detailed in'our district's j ob description for
'Classroom Teacher,"I do believe Mr. Delgado would benefit from the followingjob
accommodations (or as described by the ADA as a ') obrestructuring" or as a 'fob
reassignment'):
1) Not assigned to teach courses outside his credential area or areas of expertise
.2) Significantly limit or e»~i~ate assignxnents.which involve teaching courses
designed primarily for the most challenging population of 'ht-risk" students who
test "below-basic" or "far-below basic" (or significantly limit assignments which
involve teaching the same core of 'ht-risk" students who test "below-basic" or "far-
below basic" for more than 1 period per school day) ..
3) 'Limiting'assignments with more than two.prep periods per school day
4) Not assigned to teach courses without proper access to resources such as
textbooks,.computers, software, online access,-or other pertinent classroom .
materials and/or supplies.
Please feel fiee to contact me ifyou need further clarification.
Sincerely,
ERIC W MEBANE MD
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DELGADO 000030
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
UNLIMITED CIVIL JURISDICTION.
---oOo---
5 MANUEL E. DELGADO, JR.g
Plaintiff,
7. vso NO ~ CIV4 99511
8 SEQUOIA UNION SCHOOL DISTRICT; and
-
9
DOES 1 50, inolua5.ver
IRT~VmD
Defendants. COPV
10 /
12
13
15 DEPOSITION OF ERIC W. MEBANE, M. D,
16 Thursday., August 4, 2011
17
18
19
20 REPORTED BY:
21 JANIE WISBAUM( CSR NO. 11035
22
23
24 YEE & ASSOCIATES
630 North San Mateo Drive
25 San Mateo, CA 94401
(650) 343-9519 Fax (650) 343-2921
YEE & ASSOCIATES (650) 343-9519
1 your recollection that he gave you a copy at some point7
2 A. I believe -- I think he did when we were
3 talking about -- when he asked me to write letters
4 related to what he could and couldn't do on the job. I
5 believe he gave me a job description that I would have
6 given back to him.
'7 Q. All right..So what's your knowledge of what
8 his job duties are? Tell me what you do know at this
9 point.
10 '. I believe he's a math teacher primarily and
11 Mat he has a wide range of- students that range from
12 slow students to advanced students and that he teaches
13 several classes. I don't remember whether it;'s four or
14 five periods over the course of a day. And I believe he
15 may have taught in the athletics as well, but I'm just
16 guessing.
1T Q ~ Xt's okay. Anything else you can tell me based
18 on your knowledge?
19 A. Mo.
20 Q. Do you know anything about what kinds of
courses op. classes Mr. Delgado' credential allOws him
22. to teach?
A. He's discussed it, but I don't remember the
24 details.
25 Q. One of the letters that you signed -- I don'
25
YEE & ASSOCIATES (650) 343-9519
1 know if you wrote it; we'l find that out 3.n a minute--
2 contains the assertion that he was assigned classes or
3 courses outside of his credential. Do you have enough
4. of a memory of that to--
-
5 A. I reeember--
6 Q. -- tell me what classes or courses you were
7 referring to?
8 A. X remember him telling me some details about
9 that and making that judgment at the time, but I don'
10 remember the classes specifically outside of his
11 'redential.
12 Q. Did you do any —did you do anything to verify
13 the accuracy of his assertion--
14 A. No.
15 Q. -- that he was teaching courses outside of his
16
17
18
'.
credential?
Q.
No.
You don't know what his credential is, I take
19 it?
20 A. No.
21 Q. And you have no knowledge apart from what
22 little you remember him telling you of what classes or
23 courses his credential allows him to teach?
24 A. No, I don't remember.
25 Q. But as his primary care physician following his
YEE & ASSOCIATES (650) 343-9519
1 diabetes, let me ask you a couple of questions more then
2 generally concerning a teacher's job duties. Does his
3 Type 1 diabetes prevent him from standing in front of a
4 class and lecturing?
5 A.'o.
6 Q. Does it prevent him from writing things related
7 to work?
8 A. No.
9 Q. Does it prevent him from grading papers?
10 A. No.
11 Q. Does iC prevent him from administering tests?
12 A. No.
13 Q. From verbally conununicating with students7
14 A. No,
15 Q. From communicating in writing with students7
16 A. No.
17 Q. Does it prevent him from disciplining'students
18 who act out?
19 - A.. No.
20 Q. Does it prevent him from reading?
21 A. No.
22 Q. Does it prevent--him from preparing and
23 unde'rstanding lesson plans?
A. No.
Q. From walking?
27
Vt:E a ASSOCZATSS (650) 343-9519
Q.'oes it prevent him from traveling to and from
3 work?
4 A. No.
5 Q, Prevent him from being at. work on a re'gular
6 day-to-day basis'P
7 A. Depending on his general health status it
8 could.
9 Q. Are you familiar with any specific day that Hr.
10 Delgado's diabetes as opposed to other issues have
11 prevented him from going to work?
12 A. His diabetes by itself purely?
13. Q. Yeah.
14 A. No.
15 Q~ Okay. I just gave you a laundry list of duties
16 that are at least related to teaching, Frankly, I tried
17 to think of them all when I wrote this laundry list and
18 I can't think of any more.
Can you think, as, you sit here now, of any of
20 his job duties which his Type 1 diabetes prevents him
21 from accomplishing?
22 A; No.
23 Q. Have you ever told his employer that his
24 diabetes prevents him from accomplishing any part of his
25 job as a teacher?
'28
YEE & ASSOCIATES (650) 343-9519
1 A. Not that .I recall.
2 Q. I'm going to ask you a couple of questions
3 about the way high schools proceed and you probably
4 don't know the answer since you don't work in a high
5 school. If you do know the answer, you can tell me, but
6 if the answer is --. if the accurate answer is I don'
7 know, then that's what you'l be saying,' guess, but
.8 bear with me on this.
Are you familiar enough with the way public
10 high schools in the Bay Area operate to tell me whether
11 the custom and practice is that teachers get to decide
12 what courses they will teach?
13 A. I don't know.
14 Q. How about at the high school Hr. Delgado works
15 at? At that school is it the custom and practice that
16 teachers get to decide what courses they'l teach?
17 A. From what he's told me, I don't think so, but I
18 don't know.
19 . Q. What has he told you that you can recall?
20 A. That casse@ are generally assigned.
21 Q. Okay. Let's look at -- by the way, we marked
22 as Exhibit A to your depo'sition a copy. of the notice and
23 subpoena. I was going to reserve Exhibit B for your CU,
24 .but we don't have one, so I'm going to ask you to take a
25 look at this, which we'l have the court reporter mark
29
YES & ASSOCIATES (650),343-9519
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
UNLIMITED CIVIL JURISDICTION
---oOo---
5 MANGEL E DELGADO ~ JR
Plainti ff,
vs. NO. CIV499511
8 SEQUOIA UNION SCHOOL DISTRICT; and
DOES 1-50, inclusive,
Defendants.
10 I
14 DEPOSITION OF STEPHAN P. WYSS, M. DE
15 Thursday, September 29, 2011
VOLUME XI
(Pages 56 through 198)
18
19
20 REPORTED BY:
21 JANIE WISBAUM, CSR NO~
-
11035
22
23
24 YEE & .ASSOCIATES
630 North San Mateo Drive
25 San Mateo, CA 94401
(650) 343-9519 Fax (650) 343-2921
56
YEE & ASSOCIATES (650) 343-9519
1 with him.
2 Q. Okay.
3 A. I realize -- he talks about job .stress and
4 about changing assignments and, you know, feels that
5 his
Q. His principal is out to get him?
7 A. He feels his principal is out to get him. Yes,
8 he does feel that way.
9. Q. Okay. So let's assume that his job does
10 involve teaching math to students through lecture and
11 teacher/student interactions in a classroom. Okay7
12 A. Hmm-mm.
13 Q. Is that yes7
A., Yes, let's assume that ~
15 Q. Have you ever been of the opinion that Mr.
16 Delgado's psychiatric disorder prevents him from doing
17 that work?
18 MRS SECREST: Overbroad, vague and ambiguous,
19 incomplete hypothetical.
20 THE WITNESS: I tried to answer this question
21 before. I did not take an opinion on this. I wanted
22 him to go through our normal -- if he wanted to get time
23 off work, I wanted there to be other providers involved.
24 MR. SHUPE: Q. So the question is have you
25 ever been of the opinion that'Mr. Delgado's psychiatric
96
YEE 6 ASSOCIATES (650) 343-9519
1 disorder prevents him from doing that work?
MR. SECREST: Same objection.
THE WITNESS: That seems to imply I. have the
4 opposite viewpoint when, in fact, I'e taken no
5 viewpoints
MR. SHUPE: Q. Well, I'm not sure that
7 responds to the question. And for the record, I'm going
8 to move to strike that response, because it doesn'.
And I'm going to ask you again, have you ever
10 had or been of or developed the opinion such that it was
11 your opinion that Mr. Delgado's psychiatric disorder
12 prevents him from doing that work?
13 MR. SECREST: Objection. Vague, ambiguous,
14 overbroad, compound, incomplete hypothetical.
15 MR. SHUPE: Q. Doctor, it's yes or no. Either
16 that you had that opinion or you didn't have that
17 opinion.
18 MR. SECREST: Same objections. Asked and
19 answered, argumentative, harassing the witness.
20 THE WITNESS: No.
21 MR. SHUPE: Okay.
22 THE WITNESS: But that doesn't mean yes.
23 NR. SHUPE: Q. No usually does not mean yes, I
24 agree.
25 A. But the converse is not true.
97
YEE & ASSOCIATES (650) 343-9519
1 Q. I think I understand.'ave
you ever been of the opinion that Mr.
3 Delgado needs any special accommodations from the school
4 district in order,to perform the work of teaching math
5 to students through lecture and teacher/student
6 interaction in the classroom?
A. I believe I signed a.letter to that effect.
Q. Okay. So the answer is7
A. Yes'0
. Q. Thank you.
Mr. Delgado also teaches classes which are more
12 like a self-study computer lab. Were you aware of that?
13 A. No ~
14 Q. Assuming that's what he does or has done, have
15 you ever been of the opinion that Mr. Delgado's
16 psychiatric disorder makes him unable
Preview
1 Linda J. Lynch, Esq. SBN: 88811 John A. Shupe, Esq., SBN: 87716 2 Eric K. Shiu, Esq., SBN: 156167 3 LYNCH AND SHUPE, 700 Airport Blvd., Suite CA LLP 410 FILED MN'EO GOUNTV Burlingame, 94010 SAN 4 Telephone: (650) 579-5950 Facsimile: (650) 579-0300 OCT lg F012 5 eSu rl urt Attorneys for Defendant SEQUOIA er 6 UNION HIGH SCHOOL DISTRICT 5Hutv~fc SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO, UNLIMITEDCIVILJURISDICTION 10 MANUELE. DELGADO, JR., ) Case No: CIV499511 ) Plaintiff, ) MOTION IN LIMINENO. 1 ) 12 V. ) lk ) DEFENDANT SCHOOL DISTRICT'S AH 13 SEQUOIA UNION SCHOOL DISTRICT; and IN LIMINEMOTION NO. 1: MOTION +co DOES 1-50, inclusive, ) TO EXCLUDE EVIDENCE OFFERED ) 14 ) TO PROVE FAILURE TO > 0 Defendants. ) ACCOMMODATEAND FAILURE TO 15 ) ENGAGE IN INTERACTIVE ) PROCESS CLAIMS 16 ) ) Trial Date: October 15, 2012 17 ) Time: 9:00 am ) Dept: TBA 18 ) ) 19 20 MOTION IN LIMINE 21 Defendant Sequoia Union High School District herewith moves the Court, in limine, for an Order 22 excluding &om the trial of this action all evidence offered by Plaintiffto prove his claims for failure to 23 engage in the interactive process and failure to provide reasonable accommodation, as Plaintiffcannot 24 show that he has a disability which renders him unable to perform the essential elements of his job 25 without a reasonable accommodation, a necessary predicate to pursuing these FEHA claims. Evidence 26 which Plaintiff offers to support these claims is therefore irrelevant and should be excluded &om the 27 trial.(Evidence Code $ 350) Such evidence should also be excluded because its mammal relevance is 28 DEFENDANT SCHOOL DISTRICT'S IN LIMINEMOTION NO. 1 Page 1 1 outweighed by the probability that it will prejudice and confuse the jury and consume undue time. 2 (Evidence Code $ 352) MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION Mr. Delgado's two alleged disabilities (Type I Diabetes, Anxiety Disorder) are followed by Dr. 5 Mebane and Dr. Wyss, respectively, at Kaiser Redwood City and Kaiser So. S.F. Copies of the two 6 "request for accommodation letters" signed by each of those physicians (but drafted by Mr. Delgado) 7 are Exhibit A. Mr. Delgado has been attempting to use these letters to leverage the District into giving 8 him different teaching assignments. The letters, however, contain a curious phrase indicating that Mr. 9 Delgado's alleged disabilities in fact do not prevent him from carrying out the duties of his teaching 1.0 assignments; just that acquiescing to Mr. Delgado's assignment demands would be "beneficial" to him. 11 This text in each is highlighted in yellow. MA administrators interpreted these letters as indicating that 12 Mr. Delgado's disabilities did not prevent him &om performing any of the teaching assignments he had I4 AH gZo 13 been given. For that reason they doubted that MA had an accommodation-based obligation to change e"-0a EI o IQ'g~ ~. y) Ch Vl Ch 14 condition he/she follows (Diabetes Type 1,Anxiety Disorder) prevents Mr. Delgado &om performing 'lS~ P 15 any part of his teaching job. (Mebane depo. testimony, (25:1 - 29:1)attached as Exhibit B; Wyss depo. R 16 testimony (96:9-101:24); attached as Exhibit C; Muse depo. testimony, (30:9-17), attached as Exhibit 17 D. Mr. Delgado has not disclosed any other medical experts. He must now live with the opinion 18 testimony of his treaters, that his Diabetes and Anxiety Disorder are disabilities which do not prevent 19 him &om performing his job as a teacher. Because Mr. Delgado's alleged disabilities do not prevent him 20 &om performing the essential functions of his job, he is not within the protective scope of FEHA's 21 mandate to engage in the interactive process and provide reasonable accommodations. (Nadaf-Rahrov 22 v. Neiman Marcus Group, Inc., supra, 166 Cal. App.4th 952) 23 24 25 26 27 28 DEFENDANT SCHOOL DISTRICT'S IN LIMINEMOTION NO. 1 Page 3 1 2 CONCLUSION 3 Because Mr. Delgado has no evidence to establish a threshold prerequisite for FEHA failure to 4 accommodate and failure to engage in the interactive process claims, he cannot prevail on those claims. 5 Any evidence he offers to support them is irrelevant and inadmissible. Because such evidence is of no 6 or minimal relevance, but would both confuse and prejudice the jury, and consume undue trial time, such 7 evidence should also be excluded under Evidence Code section 352. 9 Dated: October 10, 2012 LYNCH AND SHUPE, LLP 10 By: John S pe, attorneys 12 f Defendant 13 14 ORDER ON DEFENDANT'S MOTION IN LIMINENUMBER 1 15 The Court, having reviewed Defendant's Motion in Limine No. 1, aswell as the opposition and 16 any reply, and having considered oral argument, and FINDING GOOD CAUSE, does now rule as 17 follows: 18 Defendant's Motion in Limine No. 1 is granted. During the trial of this action Plaintiffand his 19 counsel shall not offer into evidence or argue evidence, whether documentary or through 20 testimony, proving or suggesting that Defendant did not meet a legal obligation to provide reasonable 21 accommodations or engage in the interactive process regarding same. Such evidence is excluded because 22 it isirrelevant, and is also excluded because its probative value is outweighed by its tendency to confuse 23 and prejudice the jury, and unduly consume trial time. 24 25 Dated: October 2012 26 Judge, Superior Court 27 28 DEFENDANT SCHOOL DISTRICT'S IN LIMINEMOTION NO. 1 Page 4 12/22/2889 81': 2B 88888888t. XXXXXXX XXXXXXXXX',. PAGE 82 iAttachment 3 Kaiser Permanente Department of Psychiatry 1001 Sneath Lane, Suite 204 . San Bruno,CA 94066 Dept: 650-616-6200 Main: 650-742-2000 12/1 8/2009 Manual E Delgado Jr.Jr. 524 Hurlingame Ave; Redwood City. CA 94063-341 0 MR4: 110002859727 To Whom It May Concern Mr. Delgado has'been a patient of mine since October of 1997. In addition to having Type 1 diabetes, he has also been'diagnosed and prescribed medicine for generalized anxiety disorder. Mr. Delgado recently expressed concerns to me that a number of his workplace assignments are disproportionately stressful as compared to other teachers at his school. For example, he states that he has been assigned to teach outside his credentialed area or outside his area of expertise and he also noted that he was also .. assigned to teach courses with a challenging populatiori of at-risk" atuderits (which he describes as students who test Below-Basic or Far Below-Basic). I feel that his level of stress has been impacting both his anxiety disorder and his blood sugar levels. While Mr. Delgado is not precluded from a full-time job, it would be beneficial to him if the number of high-intensity assignments were limited. Thank you. Sincerely, Stephan Wyss, MD Department of Psychiatry «@ DELGADO OOOOZ1 Debbie Moore Weehmgton - DoctoiNote2 sTrMeKene.pdt Pag~e1 12/22/2889 '1: 28 8888lt8888 PAGE 81 The Permaneate Medical Groilp, Inc. MEDICINEJ, CYPR1!88 BLDG Vctcvooe Blvd '190 Itedvvood City, CA 94063-2037 DePt: 690-299-2015 Msitu 650-299-2000 December 21, 2009 Manuel E Delgado Jr. Jr. 524 Jlntt'tbtmnC AVC. Redwood City, CA 94063-3410 To whom it may concern, Mr. Manucl Delgado has been a paneutof mine for over ten years. Ho has Type 1 Diabetes Mr. Delgsdo Mcllitus aud a chronic anxiety disorder. rcccntly expressed a concernthat some of his workplace assignmcuts stressful. are disproportionately He mentioned he hasbeen assignedto teachcoursesoutsideof his credentialed area of population of "at-risk" students. oxltcrtisc with a challenging Xhc resultant increased level of stress is affecting both his anxiety.disorder His diabetes and his diabetes. has &om working a foll- While Mr. Dclgado is not precluded been more did&cult to controL if 'ime job, it would be beneficial to him the nutnbcr of hiigh-intensity assignments werc significantly redu'ccd or eliminated.Please if feei free to contact meyou needfurther clarification. Sincerely, ERIC W MEBANE MD ..Ke i l3elgado-00%304 The Permanente Medical Group, Inc. MEDICINE J, CYPRESS BLDG 1190 Veterans Blvd Redwood City; CA. 94063-2037 Dept: 650-299-2015 Main: 650-299-2000 Date: April 13, 2010 RE: Manuel E Delgado Jr'.Jr. 524 Hurlingame Ave. Redwood City, CA 94063-3410 To whom it may concern: Mr. Delgado has been a patient of mine for over 10 years. In addition to having Type 1 diabetes, he has.also been diagnosed and prescribed medicine for generalized anxiety disorder. Mr. Delgado has expressed a concern that some ofhis workplace assignments are disproportionately stressful compared to other teachers at his school. The resultant increased level of stress is affecting both his anxiety disorder and diabetes. Ihave reviewed the job description for 'Classroom Teacher" for Sequoia Union High School District— as well as the specific job assignments Mr. Delgado has been asked to perform during the last two school 'years which are not listed on your school district's job description. Though Mr. Delgado is not pre'eluded from a full-~e job performing the 12 duties (or essential job functions) as detailed in'our district's j ob description for 'Classroom Teacher,"I do believe Mr. Delgado would benefit from the followingjob accommodations (or as described by the ADA as a ') obrestructuring" or as a 'fob reassignment'): 1) Not assigned to teach courses outside his credential area or areas of expertise .2) Significantly limit or e»~i~ate assignxnents.which involve teaching courses designed primarily for the most challenging population of 'ht-risk" students who test "below-basic" or "far-below basic" (or significantly limit assignments which involve teaching the same core of 'ht-risk" students who test "below-basic" or "far- below basic" for more than 1 period per school day) .. 3) 'Limiting'assignments with more than two.prep periods per school day 4) Not assigned to teach courses without proper access to resources such as textbooks,.computers, software, online access,-or other pertinent classroom . materials and/or supplies. 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AQA':ds":aQeb.re~~g;~r rjhi '.t)',MA'SSjj4'4:::tib:feijh':.AiUr'0@'O+iCh''hiS'~84Abjl'eiikgjidiXP6i'tive,r -2),ggN~~ii'.-iim,o DELGADO 000030 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO UNLIMITED CIVIL JURISDICTION. ---oOo--- 5 MANUEL E. DELGADO, JR.g Plaintiff, 7. vso NO ~ CIV4 99511 8 SEQUOIA UNION SCHOOL DISTRICT; and - 9 DOES 1 50, inolua5.ver IRT~VmD Defendants. COPV 10 / 12 13 15 DEPOSITION OF ERIC W. MEBANE, M. D, 16 Thursday., August 4, 2011 17 18 19 20 REPORTED BY: 21 JANIE WISBAUM( CSR NO. 11035 22 23 24 YEE & ASSOCIATES 630 North San Mateo Drive 25 San Mateo, CA 94401 (650) 343-9519 Fax (650) 343-2921 YEE & ASSOCIATES (650) 343-9519 1 your recollection that he gave you a copy at some point7 2 A. I believe -- I think he did when we were 3 talking about -- when he asked me to write letters 4 related to what he could and couldn't do on the job. I 5 believe he gave me a job description that I would have 6 given back to him. '7 Q. All right..So what's your knowledge of what 8 his job duties are? Tell me what you do know at this 9 point. 10 '. I believe he's a math teacher primarily and 11 Mat he has a wide range of- students that range from 12 slow students to advanced students and that he teaches 13 several classes. I don't remember whether it;'s four or 14 five periods over the course of a day. And I believe he 15 may have taught in the athletics as well, but I'm just 16 guessing. 1T Q ~ Xt's okay. Anything else you can tell me based 18 on your knowledge? 19 A. Mo. 20 Q. Do you know anything about what kinds of courses op. classes Mr. Delgado' credential allOws him 22. to teach? A. He's discussed it, but I don't remember the 24 details. 25 Q. One of the letters that you signed -- I don' 25 YEE & ASSOCIATES (650) 343-9519 1 know if you wrote it; we'l find that out 3.n a minute-- 2 contains the assertion that he was assigned classes or 3 courses outside of his credential. Do you have enough 4. of a memory of that to-- - 5 A. I reeember-- 6 Q. -- tell me what classes or courses you were 7 referring to? 8 A. X remember him telling me some details about 9 that and making that judgment at the time, but I don' 10 remember the classes specifically outside of his 11 'redential. 12 Q. Did you do any —did you do anything to verify 13 the accuracy of his assertion-- 14 A. No. 15 Q. -- that he was teaching courses outside of his 16 17 18 '. credential? Q. No. You don't know what his credential is, I take 19 it? 20 A. No. 21 Q. And you have no knowledge apart from what 22 little you remember him telling you of what classes or 23 courses his credential allows him to teach? 24 A. No, I don't remember. 25 Q. But as his primary care physician following his YEE & ASSOCIATES (650) 343-9519 1 diabetes, let me ask you a couple of questions more then 2 generally concerning a teacher's job duties. Does his 3 Type 1 diabetes prevent him from standing in front of a 4 class and lecturing? 5 A.'o. 6 Q. Does it prevent him from writing things related 7 to work? 8 A. No. 9 Q. Does it prevent him from grading papers? 10 A. No. 11 Q. Does iC prevent him from administering tests? 12 A. No. 13 Q. From verbally conununicating with students7 14 A. No, 15 Q. From communicating in writing with students7 16 A. No. 17 Q. Does it prevent him from disciplining'students 18 who act out? 19 - A.. No. 20 Q. Does it prevent him from reading? 21 A. No. 22 Q. Does it prevent--him from preparing and 23 unde'rstanding lesson plans? A. No. Q. From walking? 27 Vt:E a ASSOCZATSS (650) 343-9519 Q.'oes it prevent him from traveling to and from 3 work? 4 A. No. 5 Q, Prevent him from being at. work on a re'gular 6 day-to-day basis'P 7 A. Depending on his general health status it 8 could. 9 Q. Are you familiar with any specific day that Hr. 10 Delgado's diabetes as opposed to other issues have 11 prevented him from going to work? 12 A. His diabetes by itself purely? 13. Q. Yeah. 14 A. No. 15 Q~ Okay. I just gave you a laundry list of duties 16 that are at least related to teaching, Frankly, I tried 17 to think of them all when I wrote this laundry list and 18 I can't think of any more. Can you think, as, you sit here now, of any of 20 his job duties which his Type 1 diabetes prevents him 21 from accomplishing? 22 A; No. 23 Q. Have you ever told his employer that his 24 diabetes prevents him from accomplishing any part of his 25 job as a teacher? '28 YEE & ASSOCIATES (650) 343-9519 1 A. Not that .I recall. 2 Q. I'm going to ask you a couple of questions 3 about the way high schools proceed and you probably 4 don't know the answer since you don't work in a high 5 school. If you do know the answer, you can tell me, but 6 if the answer is --. if the accurate answer is I don' 7 know, then that's what you'l be saying,' guess, but .8 bear with me on this. Are you familiar enough with the way public 10 high schools in the Bay Area operate to tell me whether 11 the custom and practice is that teachers get to decide 12 what courses they will teach? 13 A. I don't know. 14 Q. How about at the high school Hr. Delgado works 15 at? At that school is it the custom and practice that 16 teachers get to decide what courses they'l teach? 17 A. From what he's told me, I don't think so, but I 18 don't know. 19 . Q. What has he told you that you can recall? 20 A. That casse@ are generally assigned. 21 Q. Okay. Let's look at -- by the way, we marked 22 as Exhibit A to your depo'sition a copy. of the notice and 23 subpoena. I was going to reserve Exhibit B for your CU, 24 .but we don't have one, so I'm going to ask you to take a 25 look at this, which we'l have the court reporter mark 29 YES & ASSOCIATES (650),343-9519 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO UNLIMITED CIVIL JURISDICTION ---oOo--- 5 MANGEL E DELGADO ~ JR Plainti ff, vs. NO. CIV499511 8 SEQUOIA UNION SCHOOL DISTRICT; and DOES 1-50, inclusive, Defendants. 10 I 14 DEPOSITION OF STEPHAN P. WYSS, M. DE 15 Thursday, September 29, 2011 VOLUME XI (Pages 56 through 198) 18 19 20 REPORTED BY: 21 JANIE WISBAUM, CSR NO~ - 11035 22 23 24 YEE & .ASSOCIATES 630 North San Mateo Drive 25 San Mateo, CA 94401 (650) 343-9519 Fax (650) 343-2921 56 YEE & ASSOCIATES (650) 343-9519 1 with him. 2 Q. Okay. 3 A. I realize -- he talks about job .stress and 4 about changing assignments and, you know, feels that 5 his Q. His principal is out to get him? 7 A. He feels his principal is out to get him. Yes, 8 he does feel that way. 9. Q. Okay. So let's assume that his job does 10 involve teaching math to students through lecture and 11 teacher/student interactions in a classroom. Okay7 12 A. Hmm-mm. 13 Q. Is that yes7 A., Yes, let's assume that ~ 15 Q. Have you ever been of the opinion that Mr. 16 Delgado's psychiatric disorder prevents him from doing 17 that work? 18 MRS SECREST: Overbroad, vague and ambiguous, 19 incomplete hypothetical. 20 THE WITNESS: I tried to answer this question 21 before. I did not take an opinion on this. I wanted 22 him to go through our normal -- if he wanted to get time 23 off work, I wanted there to be other providers involved. 24 MR. SHUPE: Q. So the question is have you 25 ever been of the opinion that'Mr. Delgado's psychiatric 96 YEE 6 ASSOCIATES (650) 343-9519 1 disorder prevents him from doing that work? MR. SECREST: Same objection. THE WITNESS: That seems to imply I. have the 4 opposite viewpoint when, in fact, I'e taken no 5 viewpoints MR. SHUPE: Q. Well, I'm not sure that 7 responds to the question. And for the record, I'm going 8 to move to strike that response, because it doesn'. And I'm going to ask you again, have you ever 10 had or been of or developed the opinion such that it was 11 your opinion that Mr. Delgado's psychiatric disorder 12 prevents him from doing that work? 13 MR. SECREST: Objection. Vague, ambiguous, 14 overbroad, compound, incomplete hypothetical. 15 MR. SHUPE: Q. Doctor, it's yes or no. Either 16 that you had that opinion or you didn't have that 17 opinion. 18 MR. SECREST: Same objections. Asked and 19 answered, argumentative, harassing the witness. 20 THE WITNESS: No. 21 MR. SHUPE: Okay. 22 THE WITNESS: But that doesn't mean yes. 23 NR. SHUPE: Q. No usually does not mean yes, I 24 agree. 25 A. But the converse is not true. 97 YEE & ASSOCIATES (650) 343-9519 1 Q. I think I understand.'ave you ever been of the opinion that Mr. 3 Delgado needs any special accommodations from the school 4 district in order,to perform the work of teaching math 5 to students through lecture and teacher/student 6 interaction in the classroom? A. I believe I signed a.letter to that effect. Q. Okay. So the answer is7 A. Yes'0 . Q. Thank you. Mr. Delgado also teaches classes which are more 12 like a self-study computer lab. Were you aware of that? 13 A. No ~ 14 Q. Assuming that's what he does or has done, have 15 you ever been of the opinion that Mr. Delgado's 16 psychiatric disorder makes him unable