By Brandi O. Brown, J.D.
It was not enough to contend that disability under the ADA and SSDI were different. Nor did she qualify her statement on her benefits application that she was totally disabled as of her last day of work.
A federal district court properly found that an employee was judicially estopped from bringing an ADA claim based on statements she made in her application for disability benefits, the First Circuit held, affirming summary judgment in favor of her employer. The appeals court agreed that the plaintiff failed to satisfy the requirements of Cleveland v. Policy Management Systems Corp. for explaining away the inconsistencies between her SSDI claim that she was completely disabled and her assertion in her ADA complaint that she was a qualified individual with a disability. The court likewise affirmed summary judgment on her reasonable accommodation and retaliation claims. Judge Lipez dissented in part (Pena v. Honeywell International, Inc., April 26, 2019, Lynch, S.).
Molding department-induced anxiety. Honeywell International determined that all of its production and assembly employees should be cross-trained in various departments. As a result, the plaintiff, who worked in the respiratory department, was expected to cross-train in the molding department, among others. In the months and years prior to and after this decision, she took several periods of medical leave related to her depression and anxiety, including a leave of absence following the beginning of cross-training. When she returned after a period of leave, she began working in the molding department for several hours, several times per week, with the rest of her time spent in the respiratory department.
However, she soon complained about being assigned to the molding department because she believed “it was harmful to [her] emotionally.” The letter she provided from her doctor stated that the employee had reported that her anxiety symptoms were exacerbated by placement in the molding room. Nonetheless, she was told to work in the molding department and that if she refused, she would have to go home. She left and never returned.
Later, the employee clarified that the problem with the molding department was “the noise, speed and overall environment gives [her] anxiety, palpitations.” However, in spite of multiple additional letters from her physician and communications with the employee’s attorney, the employer remained unsatisfied with the explanation.
Termination and SSDI application. After the employee had been absent for over three months and used up all of her medical leave, the employer terminated her for job abandonment. Two months later, she applied for SSDI benefits, stating, “I became unable to work because of my disabling condition on March 8, 2013,” and “I am still disabled.”
In 2015 she filed suit alleging violations of the ADA and state law. The district court granted the employer’s motion for summary judgment on the basis of judicial estoppel, in light of the statements made by the employee during her pursuit of SSDI benefits.
Inconsistent statements. On appeal, the employee argued that she had satisfied the requirements of Cleveland and that judicial estoppel did not apply. She stated that being disabled under the ADA is different than being disabled for the purpose of SSDI benefits, as the former takes reasonable accommodations into account. However, the First Circuit had already rejected a similar argument in DeCaro v. Hasbro, Inc., and required evidence explaining how the two statements were consistent. The majority concluded that the employee failed to provide an adequate explanation for the inconsistency between her statements on her application for disability benefits and her position in the ADA litigation (noting that the employee was represented by counsel during both proceedings).
The appeals court was also unpersuaded by the employee’s claim that she produced evidence of a reasoned explanation that would have allowed a jury to find she was a qualified individual under the ADA. In her SSDI application, she provided “no qualification of any sort to her statement that she was totally disabled as of March 8, 2013,” the majority observed. In her deposition, she was asked to explain this assertion on her SSDI application and to explain the discrepancy between the statements, but failed to do so. Instead, her testimony reinforced the inconsistencies. In a later affidavit, she attempted to explain away her deposition but the court found she could not create a genuine issue of fact in that way. Dismissing other arguments by the employee, the appeals court concluded that she failed to make a sufficient showing that a genuine issue existed regarding whether she was a qualified individual.
Dissent. Dissenting in part and concurring in part, Judge Lipez contended that summary judgment should not have been granted on the basis of judicial estoppel and that the employee should have had a shot at a jury. The statements at issue, Lipez explained, consisted of a statement that the employee “became unable to work” on March 8 and that she was “still disabled.” In order “to assess the ostensible conflict between those SSDI assertions and the particulars of her ADA reasonable accommodation claim,” Judge Lipez explained, “we have to understand how Pena explains her good-faith belief in these assertions.”
She explained them by stating that she understood herself to have become disabled on that date in March “only after her employer denied her request for a reasonable accommodation.” The dissent pointed to statements made by the employee in her deposition that supported this assertion and contended that the majority should not have dismissed the relevance of the affidavit where she attempted to explain the contradiction.
Judge Lipez also noted some key aspects of how SSDI decisions are made that undermined estoppel, and pointed to a Third Circuit decision for the proposition that “limited prior factual assertions did not foreclose a finding that the plaintiff could perform the essential functions of her job.”
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