Petition for Writ of Certiorari — Kim Bogardus, Petitioner v. City of Yakima, Washington

No. 25-___

IN THE

Supreme Court of the United States

KIM BOGARDUS,

Petitioner,

v.

CITY OF YAKIMA,

Respondent.

On Petition for a Writ of Certiorari to the Supreme

Court of the State of Washington

PETITION FOR A WRIT OF CERTIORARI

Favian Valencia

Counsel of Record

Sunlight Law, Pllc

306 Holton Ave

Yakima, WA 98902

favian@sunlightlaw.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED

In Cleveland v. Policy Management Systems

Corp., 526 U.S. 795 (1999), this Court held that a

claim of total disability for Social Security Disability

Insurance (SSDI) purposes does not automatically

estop a plaintiff from claiming to be a "qualified

individual" under the Americans with Disabilities

Act (ADA), provided the plaintiff proffers a

"sufficient explanation" for the apparent

inconsistency.

The questions presented are:

1. Whether the "sufficient explanation" requirement

under Cleveland is satisfied only by an affirmative,

textual reconciliation within the four corners of the

SSDI application or testimony, as held by the First,

Third, and Fifth Circuits; or whether it may be

satisfied by contextual evidence as held by the D.C.

and Ninth Circuits; and

2. Whether courts may effectively apply a judicialestoppel or heightened summary-judgment standard

against ADA plaintiffs by resolving credibility and

factual disputes arising from SSDI filings at

summary judgment rather than leaving those

determinations to the trier of fact.

3. Whether a plaintiff’s explanation is legally

sufficient under Cleveland where she applies for

SSDI while on medical leave and actively pursuing

an available accommodation that would render her a

“qualified individual.”

i

PARTIES TO THE PROCEEDING

The Petitioner is Kim Bogardus, the plaintiff

and appellant in the proceedings below.

The Respondent is the City of Yakima, a

municipal corporation organized under the laws of

the State of Washington, the defendant and

respondent in the proceedings below.

RELATED PROCEEDINGS

Bogardus v. City of Yakima, 577 P.3d 379

(Washington Supreme Court, October 8, 2025).

Bogardus v. City of Yakima, 40060-3-III (Wash. App.

Apr 03, 2025).

Bogardus v. City of Yakima, 21-2-00063-39 (Wash.

Super. Ct. Yakima Cnty. Oct. 11, 2023).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ........................... ii

TABLE OF AUTHORITIES ...................................... iv

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 3

REASONS FOR GRANTING THE PETITION ......... 6

CONCLUSION............................................................ 9

APPENDIX A: Opinion of the Washington Court of

Appeals...................................................App. 1a

APPENDIX B: Order Denying Review, Washington

Supreme Court.....................................App. 18a

APPENDIX C: Opinion Cleveland v. Policy Mgmt.

Sys. Corp. .............................................App. 20a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Cleveland v. Policy Management Systems

Corp., 526 U.S. 795 (1999) ......... i, 2, 6, 9

Davis v. Microsoft Corp., 149 Wash. 2d 521

(2003) ..................................................... 2

Dean v. Municipality of Metropolitan Seattle,

104 Wash. 2d 627 (1985) ....................... 2

Detz v. Greiner Industries, Inc., 346 F.3d 109

(3d Cir. 2003) ......................................... 8

Motley v. New Jersey State Police, 196 F.3d

160 (3d Cir. 1999) .................................. 7

Pena v. Honeywell Int'l, Inc., 923 F.3d 18 (1st

Cir. 2019) ............................................... 8

Reed v. Petroleum Helicopters, 218 F.3d 477

(5th Cir. 2000) ....................................... 8

Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950

(9th Cir. 2013) ................................... 8, 9

Solomon v. Vilsack, 628 F.3d 555 (D.C. Cir.

2010) ...................................................... 8

Statutes

RCW 49.60.040................................................. 2

Revised Code of Washington (RCW) 49.60.180

............................................................... 2

Title 28 U.S.C. § 1257 ...................................... 1

Title 42 U.S.C. § 423 ........................................ 2

Title 42 U.S.C. § 12111 .................................... 1

Title 42 U.S.C. § 12112 .................................... 1

iv

OPINIONS BELOW

The opinion of the Washington State Court of

Appeals, Division III, affirming the summary

judgment dismissal of Petitioner’s claims, is

captioned Bogardus v. City of Yakima, No. 40060-3III, and was filed on April 3, 2025. (App. 2a-17a). It

is unpublished.

The order of the Supreme Court of

Washington denying Petitioner’s petition for

discretionary review was entered on October 8, 2025,

in Case No. 104,306-6. (App. 18a).

JURISDICTION

The judgment of the Washington State Court

of Appeals was entered on April 3, 2025. A timely

petition for review was denied by the Supreme Court

of Washington on October 8, 2025. This Petition for a

Writ of Certiorari is filed within 90 days of that

denial. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

STATUTORY PROVISIONS INVOLVED

The Americans with Disabilities Act and

Washington Law Against Discrimination

(collectively referred to as “ADA”):

•

42 U.S.C. § 12111(8): "The term 'qualified

individual' means an individual who, with or without

reasonable accommodation, can perform the

essential functions of the employment position that

such individual holds or desires."

•

42 U.S.C. § 12112(a) & (b)(5)(A) provide that:

“No covered entity shall discriminate against a

qualified individual on the basis of disability in

1

regard to ... employment.” Such discrimination

includes “not making reasonable accommodations to

the known physical or mental limitations of an

otherwise qualified individual with a disability who

is an applicant or employee.”

•

Revised Code of Washington (RCW) §

49.60.180 is construed consistent with the ADA.

Dean v. Municipality of Metropolitan Seattle, 104

Wn.2d 627, 636 (1985); Davis v. Microsoft Corp., 149

Wn.2d 521, 532 (2003). It is an unfair practice for an

employer “[t]o discharge or bar any person from

employment because of ... the presence of any

sensory, mental, or physical disability” or to

discriminate in other terms of employment on that

basis. Disability discrimination includes the failure

to reasonably accommodate and employee’s

disability. RCW 49.60.040(7)(d).

The Social Security Act (SSA):

•

The Social Security Act, 42 U.S.C. §

423(d)(2)(A): "An individual shall be determined to

be under a disability only if his physical or mental

impairment or impairments are of such severity that

he is not only unable to do his previous work but

cannot, considering his age, education, and work

experience, engage in any other kind of substantial

gainful work which exists in the national economy."

INTRODUCTION

This case concerns whether a worker who

applies for Social Security Disability Insurance

(SSDI) forfeits her right to pursue a disability

discrimination claim. In Cleveland, this Court held

that SSDI claims may coexist with ADA claims, so

long as the employee offers a “sufficient explanation”

for any apparent inconsistency. 526 U.S. at 806. The

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decision below misapplies Cleveland by treating

Petitioner’s SSDI application statements as a

judicial estoppel barring her claims of failure to

accommodate and wrongful termination. The lower

court’s decision reveals a deep divide in the circuits,

with some circuits effectively abrogating Cleveland.

STATEMENT OF THE CASE

This case illustrates the apparent

inconsistency in claiming to be disabled under the

SSA but able to work with a reasonable

accommodation under the ADA.

A.

Petitioner Was A Disabled Employee

That Needed An Accommodation In The Form

Of A Transfer To An Available Position

Petitioner Kim Bogardus served as a bus

driver for Respondent, the City of Yakima, beginning

in 2001. Around 2014, the cumulative physical

demands of driving a bus—specifically the vibration

and repetitive neck movements—caused Petitioner

to develop debilitating migraines and related spinal

conditions.

From September 2014 through September

2019, Petitioner’s physicians provided Respondent

with continuous written notices and Family Medical

Leave Act (FMLA) certifications. These documents

explicitly stated that the physical act of driving

flared up her migraines and medical conditions,

causing vision changes, numbness, and nausea—that

prevented her from driving. The medical

certifications requested intermittent leave, which

Respondent initially approved and Petitioner utilized

alongside vacation and sick time to manage her

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condition while attempting to maintain her

employment. By September 2019, her physician

notified Respondent that the condition had become

permanent.

Despite six years of medical notice and

Petitioner’s evident struggle to maintain her driving

duties, Respondent failed to initiate an interactive

process until July 20, 2020. During this period

(2014–2020), Respondent had multiple vacancies for

non-driving positions, including Transit Office

Assistant and Transit Dispatcher roles—positions

previously offered to other bus drivers as light-duty

accommodations. At the July 2020 meeting,

Petitioner requested a transfer to a Dispatcher or

Assistant position. Respondent summarily rejected

this request without an explanation.

On July 20, 2020, having exhausted her

FMLA leave and in fear of losing her job, Petitioner

made an effort to continue working in her bus driver

position and was able to successfully perform her

duties intermittently—when she did not have

migraine flare ups—until August 17, 2020. On

August 17, 2020, Petitioner suffered a flare up that

left her unable to continue to drive. Petitioner

requested unpaid time off as an accommodation to

attempt to heal. Respondent denied this

accommodation request.

On August 27, 2020, Respondent terminated

Petitioner solely for having too many absences.

B.

Petitioner’s Disability Left Her Unable

To Perform Her Previous Work

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On May 12, 2020, while still employed, on

approved medical leave and actively seeking

reasonable accommodation, Petitioner applied for

Social Security Disability Insurance (SSDI), alleging

that her disabilities limited her ability to perform

her job of driving a bus. On October 18, 2021, a year

after her termination, the first SSDI application was

denied. On January 13, 2021, Petitioner submitted a

second SSDI application making the same claim.

This was adjudicated and eventually approved on

April 20, 2023. The SSDI administrative law judge

explained her reasoning in a written order stating

that the evidence showed that Petitioner:

had only been working intermittently

from April 2020 into August 2020, when

she was ultimately terminated due to

her impairments and resulting

absences. There is no indication that the

claimant worked at levels consistent

with substantial gainful activity after

the alleged onset date. I therefore find

that the claimant was not engaged in

substantial gainful activity since the

alleged onset date.

C.

Procedural History

Petitioner filed suit alleging failure to

accommodate and wrongful termination under

WLAD. The trial court granted summary judgment

for the Respondent and the Washington Court of

Appeals affirmed invoking Cleveland, but finding

that Petitioner did not provide an explanation for the

apparent inconsistency. The Washington Court of

Appeals failed to note in its opinion that Respondent

had vacant sedentary positions that Petitioner

5

requested to be transferred to as an accommodation,

but was denied. The Washington Supreme Court

denied review.

REASONS FOR GRANTING THE PETITION

Twenty-five years ago, this Court in

Cleveland, held that an SSDI claim of "total

disability" does not inherently conflict with an ADA

claim of being a "qualified individual." 526 U.S. 795.

However, Cleveland included a caveat: a plaintiff

cannot simply ignore the apparent contradiction but

"must proffer a sufficient explanation." Id. at 806.

The lower courts have since diverged sharply on

what constitutes a "sufficient explanation," with

some circuits practically resurrecting a de facto

presumption of estoppel.

A number of circuits have interpreted

Cleveland’s “sufficient explanation” to impose an

obscure and heightened pleading standard. These

courts seem to require the employee to articulate

specific language to "explain" the inconsistency, but

do not explain what this language needs to be or

when this explanation needs to happen. Presumably,

these courts expect the plaintiff to provide an

affirmative statement—in the form of a post-hoc

affidavit or specific deposition testimony—that

explicitly parses the legal distinctions between the

SSA’s "inability to work" and the ADA’s "qualified

individual." Another possibility is that these courts

expect plaintiff’s actual SSDI application statements

to provide an explanation related to the ADA

standard in the context of a reasonable

accommodation. If an employee truthfully checks

the "I am unable to work" box on an SSDI

6

application without adding a legal disclaimer about

reasonable accommodation, these courts seem to

deem the contradiction unexplained and the ADA

claim estopped. This interpretation effectively raises

the Cleveland standard, punishing employees who

lack the legal sophistication to navigate complex

statutory definitions while filling out government

forms for survival benefits. It creates a trap where

the "honest but disabled" worker is barred from court

not because their claims are factually inconsistent,

but because they failed to recite a legal explanation

to reconcile them. These courts ignore contextual

evidence that can provide the requisite “sufficient

explanation.”

In Motley v. New Jersey State Police, 196 F.3d

160 (3d Cir. 1999), for example, the court treated the

plaintiff’s statement in his disability pension

application—that he was “totally and permanently

disabled”—as conclusive, rejecting his ADA claim for

failing to affirmatively explain the inconsistency.

The Motley court appeared to expect affirmative

testimony directly from the employee to explain the

inconsistency. The dissenting opinion in Motley

points out that the majority ignored contextual

evidence showing that Motley had attempted to

return to work and had medical support for doing so

with limitations, which was a “sufficient

explanation” for the apparent conflict. Id. at 168-170.

The majority applied Cleveland as a near-estoppel

rule, requiring specific legal parsing that employees

are rarely equipped to articulate. This decision

established a misguided precedent that practically

abrogates Cleveland by resurrecting an estoppel-like

standard.

7

The Motley standard has been reinforced by

several circuits. Pena v. Honeywell Int'l, Inc., 923

F.3d 18, 23 (1st Cir. 2019) (Citing Motley to support

a quasi-estoppel ruling against the employee despite

a physician’s letter that the employee could work

with a reassignment accommodation.); Reed v.

Petroleum Helicopters, 218 F.3d 477, 480 (5th Cir.

2000) (Acknowledging and applying Motley’s judicial

estoppel standard.).

Motley has also been invoked in age

discrimination claims. In Detz v. Greiner Industries,

Inc., the court applied Motley’s judicial estoppel

standard at summary judgment dismissing the

plaintiff’s claim because the court did not believe his

SSDI inconsistency explanation. 346 F.3d 109, 118–

121 (3d Cir. 2003). The Detz court focused only on his

statements made throughout his SSDI applications

and hearings to conclude that his explanation was

not credible. Id. The court ignored contextual

evidence of the fact that up until his termination, he

was performing a light duty position that the

employer had assigned him as an accommodation.

Id. By making these credibility rulings, Detz’s

decision effectively uses the Cleveland standard to

heighten the summary judgment standard for the

plaintiff in these cases.

In contrast, some circuit courts, namely the

D.C. Circuit and Ninth Circuit, have implemented a

holistic approach to determine whether there is a

“sufficient explanation” of inconsistencies by

considering contextual evidence. Solomon v. Vilsack,

628 F.3d 555 (D.C. Cir. 2010); Smith v. Clark Cnty.

Sch. Dist., 727 F.3d 950 (9th Cir. 2013). In Smith,

the court considered contextual evidence and the

8

differing legal standards of the ADA and SSA. Id. at

955-960. The employee in Smith did not provide an

affirmative legal explanation about the

inconsistencies, which would have been fatal to her

case under the Motley standard. Smith ruled that

there was no conflict simply because SSDI does not

take into account reasonable accommodations. Id.

Here, the court below ignored the contextual

evidence that Petitioner was disabled only from

driving, not from working, and had actively sought

transfer to a vacant sedentary position. The lower

court failed to even include in its opinion the fact

that Petitioner requested and Respondent had

available vacant sedentary positions that could have

accommodated her. It noted only the

“accommodation” that Respondent offered to an oncall bus driver position, which completely ignored the

fact that her doctors were saying that driving was

hurting her. It also ignored the ruling of the SSA

administrative judge, which did provide an

explanation of the apparent inconsistency. The lower

court cites to Cleveland, 526 U.S. 795, but

unconsciously adopted the Motley-estoppel standard

appearing to expect an affirmative legal explanation

directly from Petitioner and ignoring contextual

evidence.

CONCLUSION

The uncertainty surrounding Cleveland’s

“sufficient explanation” requirement

disproportionately affects the growing and aging

workforce in the transportation and industrial

sectors. For these employees, where physical

impairments often necessitate a transition to light9

duty roles, the interaction between the ADA and

SSDI is a daily reality. Absent clear guidance from

this Court, the lack of a uniform standard threatens

their livelihoods by forcing a recurring and

untenable choice between accessing subsistence

benefits and preserving workplace civil rights.

By establishing a consistent standard, this

Court will ensure that willing and capable employees

are judged on their actual ability to perform with

accommodations, not on their legal sophistication.

Ultimately, a clear rule will empower capable

employees to remain in the workforce and contribute

their skills, rather than forcing them prematurely

onto Social Security rolls.

For all the foregoing reasons, this Court

should grant the petition for a writ of certiorari or, in

the alternative, summarily reverse the decision

below.

Respectfully submitted,

Favian Valencia

Counsel of Record

Sunlight Law, Pllc

306 Holton Ave

Yakima, WA 98902

10