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

APPENDIX TABLE OF CONTENTS

Appendix A: Court of Appeals of the State

of Washington, Division Three, Unpublished

Opinion, April 3, 2025 . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B: Supreme Court of Washington,

Order Denying Petition for Review, October

8, 2025. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a

Appendix C: U.S. Supreme Court, Opinion,

Cleveland v. Policy Management Systems

Corp., et al., 526 U.S. 795 (1999). . . . . . . . . . . . . 20a

APPENDIX A

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

DIVISION THREE

FILED

APRIL 3, 2025

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

KIMBERLY BOGARDUS,

Appellant,

v.

CITY OF YAKIMA, a Washington

Municipal Corporation,

Respondent.

No. 40060-3-III

UNPUBLISHED OPINION

COONEY, J. —In an amended complaint,

Kimberly Bogardus sued the City of Yakima (City)

under the Washington Law Against Discrimination

(WLAD) and for Wrongful Discharge in Violation of

Public Policy (WDVPP). Her claims stem from the

City’s termination of her employment. The trial court

dismissed Ms. Bogardus’ amended complaint on the

City’s motion for summary judgment.

1a

Ms. Bogardus appeals the trial court’s order on

summary judgment. We affirm.

BACKGROUND

In 2003, Ms. Bogardus was hired as a transit

operator1 for the City. During her time as a transit

operator, Ms. Bogardus experienced “migraine

headaches for which she sought leave.” Clerk’s Papers

(CP) at 133. Due to her migraines, Ms. Bogardus

worked with the City on her Family Medical Leave Act

(FMLA) certification.

In October 2016, Ms. Bogardus was re-certified

for FMLA leave for her migraines that occurred “1-3

times per week/1 day per episode.” CP at 133. Because

Ms. Bogardus had previously exceeded her allowed

FMLA leave, the City required re-certification every 30

days. Ms. Bogardus was re-certified for FMLA leave in

November 2016, January 2017, March 2017, March

2018, September 2018, and March 2019. Between 2016

and her termination on August 27, 2020, Ms. Bogardus

had exhausted her annual allotment of 480 hours of

FMLA leave. Ms. Bogardus used a total of 3,437.25

hours of leave during that period. On some occasions,

Ms. Bogardus had exhausted her allotted leave hours,

did not request additional unpaid leave, and did not

report to work. These deficiencies resulted in Ms.

Bogardus being in an “unauthorized leave without pay

1

The position of transit operator required Ms. Bogardus

to “operate[ ] a City bus” to “transport passengers over local routes

according to prescribed time schedules.” CP at 277.

2a

status.” CP at 134. Ms. Bogardus admitted at her

deposition that she did not have “regular and reliable

attendance,” an essential function of the transit

operator position. CP at 567, 133. She also admitted to

not informing the City that she believed “being

bounced around” while driving a bus all day triggered

her migraines. CP at 550. Ms. Bogardus confessed that

neither she nor her doctors knew why and when she

would experience a migraine.

Due to Ms. Bogardus’ apparent need for a more

flexible schedule, the City offered her an “extra board”

position. CP at 222, 430, 563. The “extra board”

position is “for bus drivers, and so they are not put

specifically on the schedule. They are—they’re

requested to work certain shifts whether there’s an

opening or there’s a need” and allows the driver to

“either accept the shift or decline the shift.” CP at 605.

Ms. Bogardus declined this position because “I have

bills to pay. So I needed to take what I could because

I needed the income to pay for my bills and insurance.”

CP at 552.

Ms. Bogardus was eventually disciplined because

she had exhausted her leave hours and, though

remaining absent from work, failed to request

additional unpaid leave “in accordance with City

policy.” CP at 134. Ms. Bogardus received an oral

reprimand in November 2016 and a written reprimand

in February 2017 for “us[ing] more leave time than

allowable per her approved FMLA allocation” and

failing to “request additional unpaid leave in

accordance with City policy—placing her in an

unauthorized leave without pay status.” CP at 134.

3a

Ms. Bogardus again entered an unauthorized “leave

without pay status” in 2018 and was issued a

suspension for 40-hours without pay for the policy

violation. CP at 135.

In 2020, Washington’s State Paid Family and

Medical Leave Act (PFMLA) took effect. Ms. Bogardus

applied for and was approved for PFMLA benefits for

the 2020 calendar year. Between April 20 and July 13,

2020, Ms. Bogardus called in daily to inform the City

that she would not be coming to work but would

instead be using PFMLA leave.

On July 6, 2020 when her PFMLA leave was

nearly exhausted, the City sent a letter to Ms.

Bogardus stating it was scheduling a meeting for July

20, 2020, to discuss her medical condition, limitations,

and ways in which the City could help her improve her

attendance. Ms. Bogardus, her union representative,

and representatives from the City attended the

meeting. The City and Ms. Bogardus again discussed

the extra board position, but Ms. Bogardus was not

interested. The City encouraged Ms. Bogardus to

“come up with alternative accommodations that she

believed would work for her.” CP at 136, 221. She was

also reminded of the City’s leave without pay policy

that she had previously violated.

By the end of July, Ms. Bogardus depleted her

PFMLA leave. On August 4 and 5, 2020, she did not

report to work despite having exhausted all of her

leave, putting her in an unauthorized leave without

pay status once again. A pre-disciplinary hearing was

held in late August to address the issue. Ms. Bogardus

4a

claimed at that hearing that she had checked her

computer on August 3 and believed she had accrued

leave, but the leave she thought she had accrued had

disappeared when she looked again on August 4.

On August 27, 2020, Ms. Bogardus was

terminated by the Interim City Manager, Alex

Meyerhoff. The four-page termination letter explained

that Ms. Bogardus was being terminated because she

called out of work on August 4 and 5, despite not

having “sufficient leave accruals to cover these two

days of absence” therefore leaving her in an

“unauthorized leave without pay” status. CP at 186.

The letter noted that she had been disciplined

numerous times for this same violation. Mr. Meyerhoff

stated in the letter that he found her proffered excuses

at the disciplinary hearing “not credible.” CP at 187.

Ms. Bogardus was alleged to have violated City of

Yakima Transit Operations Policy and Procedures

Manual Section 2.6(3), which states:

Each employee shall be held responsible for

tracking and knowing the amount of accrued

leave to which they are entitled to assure

coverage of all requested leave time. Taking

leave without sufficient accrued leave to

cover the time taken off is considered an

unauthorized absence and subject to

disciplinary action.

CP at 187. The termination letter also noted Ms.

Bogardus violated City of Yakima General Civil

Service Rules and Regulations, Chapter IX, Section

5a

(A)(1) for which discipline is appropriate for

“dereliction of duty.” CP at 187. Finally, the letter

stated Ms. Bogardus had violated City of Yakima

Administrative Policy Nos. 1-100 by taking

“[u]nauthorized absence from the job” and

“[u]nauthorized or improper use of any type of leave.”

CP at 187.

Following her termination, the City learned Ms.

Bogardus had applied for full and permanent disability

benefits with the Social Security Administration

(SSA), stating on the application that she had stopped

working on April 17, 2020. Her application was

granted effective April 17, 2020, approximately four

months prior to her termination.

In January 2021, Ms. Bogardus filed suit against

the City and individual defendants. In her original

complaint, Ms. Bogardus asserted claims for (1)

“Violation of Washington State Law Against

Discrimination,” including disparate treatment,

retaliation, and failure to engage in the interactive

process; (2) “Willful Violation of the Washington State

Family Leave Act (WFLA);” (3) “Hostile Work

Environment in Violation of WLAD;” (4) “Wrongful

Termination in Violation of Public Policy;” and (5)

“Intentional infliction of physical injury and

aggravation.” CP at 6-7.

In 2023, the City moved for summary judgment

dismissal of all of Ms. Bogardus’ claims. In response to

the City’s motion, Ms. Bogardus indicated that she

intended to dismiss her claims for WFLA, hostile work

environment, and intentional infliction of physical

6a

injury. Ms. Bogardus also noted an intention to

dismiss her claims against “Each Individual

Defendant” and asserted that her WDVPP claim was

not addressed in the City’s motion and was therefore

not subject to summary judgment.2 CP at 456.

Ms. Bogardus moved to continue the City’s motion

for summary judgment. Following a hearing on her

motion, the court issued an order stating, “Plaintiff

indicates intent to dismiss all but 3 theories of

complaint and will dismiss against all defendants but

City of Yakima.” CP at 248. Thereafter, Ms. Bogardus

filed an amended complaint naming only the City as a

defendant and asserting claims for violating the

WLAD and for WDVPP.

Following a hearing on September 28, 2023, the

court granted the City’s motion for summary judgment

and dismissed Ms. Bogardus’ claims with prejudice.

Ms. Bogardus timely appeals.

ANALYSIS

We review orders on summary judgment de novo.

Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080

(2015). Summary judgment is only appropriate if there

are no genuine issues of material fact, and “the moving

party is entitled to judgment as a matter of law.” Id.;

2

Despite this assertion, the City did move for summary

judgment dismissal of Ms. Bogardus’ WDVPP claim, dedicating a

page and a half of argument to it in its opening brief.

7a

CR 56(c). The moving party bears the initial burden of

establishing that there are no disputed issues of

material fact. Young v. Key Pharms., Inc., 112 Wn.2d

216, 225, 770 P.2d 182 (1989). “A material fact is one

upon which the outcome of the litigation depends in

whole or in part.” Atherton Condo. Apartment-Owners

Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506,

516, 799 P.2d 250 (1990).

When considering a motion for summary

judgment, evidence is considered in a light most

favorable to the nonmoving party, here, Ms. Bogardus.

Keck, 184 Wn.2d at 370. If the moving party satisfies

its burden, then the burden shifts to the nonmoving

party to establish there is a genuine issue for the trier

of fact. Young, 112 Wn.2d at 225-26. While questions

of fact are typically left to the trial process, they may

be treated as a matter of law if “reasonable minds

could reach but one conclusion.” Hartley v. State, 103

Wn.2d 768, 775, 698 P.2d 77 (1985).

A nonmoving party may not rely on speculation or

having its own affidavits accepted at face value. Seven

Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1,

13, 721 P.2d 1 (1986). Instead, a nonmoving party

must put “forth specific facts that sufficiently rebut the

moving party’s contentions and disclose that a genuine

issue as to a material fact exists.” Id.

WLAD— FAILURE TO ACCOMMODATE

Ms. Bogardus argues summary judgment in favor

of the City was erroneous because the City failed to

accommodate her in violation of the WLAD. The City

8a

contends that judicial estoppel bars Ms. Bogardus’

claims under the WLAD. We agree with the City. The

WLAD prohibits an employer from discharging an

employee “because of . . . the presence of any sensory,

mental, or physical disability.” RCW 49.60.180(2). To

prevail on a failure to accommodate claim, a plaintiff

must prove: (1) “the employee had a sensory, mental,

or physical abnormality that substantially limited his

or her ability to perform their job[;]” (2) “the employee

was qualified to perform the essential functions of the

job[;]” (3) the employee gave the employer notice of the

abnormality and its resulting substantial limitations;

and (4) upon receiving notice, the employer failed to

adopt measures that were available to the employer

and that were medically necessary to accommodate the

employee’s abnormality. Davis v. Microsoft Corp., 149

Wn.2d 521, 532, 70 P.3d 126 (2003) (emphasis in

original).

The term “essential functions” as used in element

(2) is “derived from WLAD’s federal counterpart, the

Americans with Disabilities Act (ADA).”3 Id. at 533.

“While the question of whether an employer

adequately accommodated an employee normally

presents a factual question for a jury to decide,

summary judgment is appropriate on a WLAD

accommodation claim when reasonable minds could

reach but one conclusion.” Slack v. Luke, 192 Wn. App.

3

“‘The term “qualified individual with a disability” means

an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.’”

Davis, 149 Wn.2d at 533 n.5 (quoting 42 U.S.C. § 12111(8)).

9a

909, 919, 370 P.3d 49 (2016).

“‘Judicial estoppel is an equitable doctrine that

precludes a party from asserting one position in a

court proceeding and later seeking an advantage by

taking a clearly inconsistent position.’” Arkison v.

Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13

(2007) (quoting Bartley-Williams v. Kendall, 134 Wn.

App 95, 98, 138 P.3d 1103 (2006)). Three factors guide

a court’s determination of whether to apply the

doctrine of judicial estoppel: (1) whether the party’s

later position is “clearly inconsistent with its earlier

position[;]” (2) whether acceptance of the “inconsistent

position in a later proceeding would create the

‘perception that the first or second court was misled[;]’”

and (3) whether the party asserting the inconsistent

position would receive an unfair advantage or impose

an unfair disadvantage on the opposing party if not

estopped. Id. at 538.

In Cleveland v. Policy Management Systems,

Corporation, the United States Supreme Court held:

[P]ursuit, and receipt, of [Social Security

Disability Insurance (SSDI)] benefits does

not automatically estop a recipient from

pursuing an ADA claim. Nor does the law

erect a strong presumption against the

recipient’s success under the ADA.

Nonetheless, an ADA plaintiff cannot simply

ignore her SSDI contention that she was too

disabled to work. To survive a defendant’s

motion for summary judgment, she must

explain why that SSDI contention is

10a

consistent with her ADA claim that she

could “perform the essential functions” of her

previous job, at least with “reasonable

accommodation.”

526 U.S. 795, 797-98, 119 S. Ct. 1597, 143 L. Ed. 2d

966 (1999) (emphasis added). The Supreme Court

explained “a plaintiff’s sworn assertion in an

application for disability benefits that she is, for

example, ‘unable to work’ will appear to negate an

essential element of her ADA case—at least if she does

not offer a sufficient explanation.” Id. at 806. This is

because an ADA plaintiff “bears the burden of proving

that she is a ‘qualified individual with a

disability’—that is, a person ‘who, with or without

reasonable accommodation, can perform the essential

functions’ of her job.” Id. at 806.

In essence, the Court held a plaintiff’s assertion

that they cannot work in an SSDI application does not

inevitably result in them being estopped from

asserting an ADA claim, but it can if the plaintiff does

not provide an explanation for why both of their

positions are consistent with one another.

Here, Ms. Bogardus offered no explanation for

why or how her assertion in her SSDI application that

she was too disabled to work could be reconciled with

her later position that she could, in fact, work had the

City offered her a reasonable accommodation. Her

SSDI application negates element (2) of her WLAD

failure to accommodate claim—that she was qualified

to perform the essential functions of the job. Because

she provides no explanation for her contrary positions,

11a

her accommodation claim cannot survive the City’s

summary judgment motion.

WLAD—RETALIATION

Ms. Bogardus argues that her WLAD retaliation

claim was improperly dismissed on summary

judgment. However, aside from reciting the legal

standard for such a claim, she provides no argument or

analysis explaining why her claim was improperly

dismissed. For this reason, we decline to address this

issue. State v. Stubbs, 144 Wn. App. 644, 652, 184 P.3d

660 (2008) (“Passing treatment of an issue or lack of

reasoned argument is insufficient to allow for our

meaningful review.”), rev’d on other grounds by 170

Wn.2d 117, 240 P.3d 143 (2010).

WDVPP CLAIM

Ms. Bogardus argues her WDVPP claim was

erroneously dismissed on summary judgment.4 We

disagree.

4

The City contends that though it moved for summary

judgment dismissal of Ms. Bogardus’ WDVPP claim, Ms.

Bogardus did not substantively respond to its argument below. In

moving for summary judgment, the City bore the initial burden of

proving the absence of a genuine issue of material fact related to

Ms. Bogardus’ WDVPP claim. After making this showing, the

burden shifted to Ms. Bogardus to present evidence demonstrating

the presence of a genuine issue of material fact. In not responding

to the City’s argument, Ms. Bogardus failed to meet her burden.

Notwithstanding Ms. Bogardus’ deficiency, because we review the

trial court’s order de novo, we exercise our discretion and review

her claimed error.

12a

To establish a prima facie case under the

WDVPP, an employee must demonstrate: (1) her

discharge may have been motivated by reasons that

contravene a clear public policy, and (2) the employee’s

public-policy linked conduct was a significant factor in

the decision to terminate the employee. Mackey v.

Home Depot USA, Inc., 12 Wn. App. 2d 557, 577-78,

459 P.3d 371 (2020).

A WDVPP claim is typically limited to four

scenarios: (1) when the discharge was a result of the

employee refusing to commit an illegal act (e.g.

refusing to engage in price fixing); (2) when the

discharge was a result of the employee performing a

public duty or obligation (e.g., jury duty); (3) when the

termination resulted due to an employee exercising a

legal right or privilege (e.g., filing a worker’s

compensation claim); and (4) where the discharge is

premised on an employee “whistleblowing.” Dicomes v.

State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989).

Upon the employee making a prima facie case of

WDVPP, the burden shifts to the employer to

“‘articulate a legitimate, nondiscriminatory reason’” for

the employee’s termination. Mackey, 12 Wn. App. 2d at

571 (quoting Mikkelsen v. Pub. Util. Dist. No. 1 of

Kittitas County, 180 Wn.2d 516, 527, 404 P.3d 464

(2017)). If the employer meets its burden, the employee

“must produce sufficient evidence showing that the

employer’s alleged nondiscriminatory reason for the

discharge was a ‘pretext.’” Id. at 572 (quoting

Mikkelsen, 180 Wn.2d at 527). “‘An employee may

satisfy the pretext prong by offering sufficient evidence

to create a genuine issue of material fact either (1)

13a

that the defendant’s reason is pretextual or (2) that

although the employer’s stated reason is legitimate,

discrimination nevertheless was a substantial factor

motivating the employer.’” Mikkelsen, 180 Wn.2d at

527 (quoting Scrivener v. Clark College, 181 Wn.2d

439, 446-47, 334 P.3d 541 (2014)).

In order to defeat summary judgment, the

employee must show only that a reasonable trier of

fact could find that discrimination was a substantial

factor in the employer’s decision to discharge the

employee. Id. at 528.

Here, Ms. Bogardus’ WDVPP claim is premised on

two legal rights she exercised: requesting a reasonable

accommodation and taking protected leave. However,

there is no evidence that this conduct was a significant

factor in her termination. Indeed, Ms. Bogardus’

termination letter articulated multiple reasons for her

discharge, including: violations of the City of Yakima

Transit Operations Policy and Procedures Manual’s

rules for how to take time off; violation of City of

Yakima General Civil Service Rules and Regulations,

namely “dereliction of duty;” and violations of City of

Yakima Administrative Policies for “[u]nauthorized

absence from job” and “[u]nauthorized or improper use

of any type of leave.” CP at 186-87. The letter clearly

expressed that Ms. Bogardus was not being terminated

for using protected leave, but instead for being in an

“unauthorized leave without pay status” for which she

had been disciplined prior. CP at 186.

Ms. Bogardus is unable to direct this court to any

evidence in the record that indicates discrimination

14a

was a factor in her termination. Rather, her argument

is limited to the City “openly admit[ing] in their

discipline and termination letters that their reason for

reprimanding and terminating [Ms. Bogardus] was

due to time off that she took as an accommodation and

protected time off for her disability.” Appellant’s Am.

Open. Br. at 16. She provides no citation to the record

supporting her argument, and the letter itself clearly

contradicts her unsupported statement. Consequently,

there is an absence of any genuine issue of material

fact related to her WDVPP claim, and it was properly

dismissed on summary judgment.

WFLA CLAIM

Ms. Bogardus argues the trial court improperly

dismissed her WFLA claim. The City responds that it

was Ms. Bogardus, not the trial court, who voluntarily

dismissed her WFLA claim. We agree with the City.

In Ms. Bogardus’ response to the City’s motion for

summary judgment, she wrote “Plaintiff Intends to

Dismiss her Claim for Willful Violation of Washington

State Family Leave Act.” CP at 455. On September 26,

2023, Ms. Bogardus filed a first amended complaint

that did not include a claim for a violation of the

WFLA. If an amended complaint “abandons a former

theory or cause of action, it does not relate back to the

original complaint, but, instead, rests the action upon

the pleadings as amended.” Ennis v. Ring, 49 Wn.2d

284, 288, 300 P.2d 773 (1956). Because Ms. Bogardus

voluntarily dismissed her claim for violation of the

WFLA, we decline review.

15a

ATTORNEY FEES

Ms. Bogardus requests her attorney fees pursuant

to RAP 18.1 and RCW 49.48.030. RCW 49.48.030

provides: “In any action in which any person is

successful in recovering judgment for wages or salary

owed to him or her, reasonable attorney’s fees, in an

amount to be determined by the court, shall be

assessed against said employer or former employer.”

(emphasis added). Because Ms. Bogardus has not been

successful in recovering judgment for wages or salary

owed to her, she is not entitled to her attorney fees on

appeal.

Affirmed.

A majority of the panel has determined this

opinion will not be printed in the Washington

Appellate Reports, but it will be filed for public record

pursuant to RCW 2.06.040.

/s/

Cooney, J.

WE CONCUR:

/s/

Lawrence-Berrey, C.J.

16a

/s/

Johnson, J.P.T.†

†

Brandon L. Johnson, an active judge of a court of

general jurisdiction, is serving as a judge pro tempore of this court

pursuant to RCW 2.06.150(1).

17a

APPENDIX B

THE SUPREME COURT OF WASHINGTON

FILED

SUPREME COURT

STATE OF WASHINGTON

10/8/2025

BY SARAH R. PENDLETON

CLERK

KIMBERLY BOGARDUS,

Petitioner,

v.

CITY OF YAKIMA,

Respondent.

No. 104306-6

ORDER

Court of Appeals

No. 40060-3-III

Department I of the Court, composed of Chief

Justice Stephens and Justices Johnson, González, Yu,

and Whitener, considered at its October 7, 2025,

Motion Calendar whether review should be granted

pursuant to RAP 13.4(b) and unanimously agreed that

the following order be entered.

18a

IT IS ORDERED:

That the petition for review is denied.

DATED at Olympia, Washington, this 8th day of

October, 2025.

For the Court

/s/

CHIEF JUSTICE

19a

APPENDIX C

OCTOBER TERM, 1998

CLEVELAND v. POLICY MANAGEMENT

SYSTEMS CORP. et al.

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 97–1008. Argued February 24, 1999—

Decided May 24, 1999

After suffering a stroke and losing her job, petitioner

Cleveland sought and obtained Social Security

Disability Insurance (SSDI) benefits, claiming that she

was unable to work due to her disability. The week

before her SSDI award, she filed suit under the

Americans with Disabilities Act of 1990 (ADA),

contending that her former employer, respondent

Policy Management Systems Corporation, had

discriminated against her on account of her disability.

In granting Policy Management Systems summary

judgment, the District Court concluded that

Cleveland’s claim that she was totally disabled for

SSDI purposes estopped her from proving an essential

element of her ADA claim, namely, that she could

“perform the essential functions” of her job, at least

with “reasonable . . . accommodation,” 42 U. S. C. §

12111(8). The Fifth Circuit affirmed, holding that the

application for, or receipt of, SSDI benefits creates a

rebuttable presumption that a recipient is estopped

from pursuing an ADA claim and that Cleveland failed

20a

to rebut the presumption.

Held:

1. Pursuit, and receipt, of SSDI benefits does not

automatically estop a recipient from pursuing an ADA

claim or erect a strong presumption against the

recipient’s ADA success. However, to survive a

summary judgment motion, an ADA plaintiff cannot

ignore her SSDI contention that she was too disabled

to work, but must explain why that contention is

consistent with her ADA claim that she can perform

the essential functions of her job, at least with

reasonable accommodation. Pp. 801–807.

(a) Despite the appearance of conflict between the

SSDI program (which provides benefits to a person

with a disability so severe that she is unable to do her

previous work or any other kind of substantial gainful

work) and the ADA (which prohibits covered

employers from discriminating against a disabled

person who can perform the essential functions of her

job, including those who can do so only with reasonable

accommodation), the two claims do not inherently

conflict to the point where courts should apply a

special negative presumption such as the one applied

below. There are many situations in which an SSDI

claim and an ADA claim can comfortably exist side by

side. For example, since the Social Security

Administration (SSA) does not take into account the

possibility of “reasonable accommodation” in

determining SSDI eligibility, an ADA plaintiff ’s claim

that she can perform her job with reasonable

accommodation may well prove consistent with an

21a

SSDI claim that she could not perform her own job (or

other jobs) without it. An individual might qualify for

SSDI under SSA’s administrative rules and yet, due to

special individual circumstances, be capable of

performing the essential functions of her job. Or her

condition might have changed over time, so that a

statement about her disability made at the time of her

application for SSDI benefits does not reflect her

capacities at the time of the relevant employment

decision. Thus, this Court would not apply a special

legal presumption permitting someone who has

applied for, or received, SSDI benefits to bring an ADA

suit only in some limited and highly unusual set of

circumstances. Pp. 801–805.

(b) Nonetheless, in some cases an earlier SSDI

claim may turn out genuinely to conflict with an ADA

claim. Summary judgment for a defendant is

appropriate when a plaintiff fails to make a sufficient

showing to establish the existence of an essential

element on which she has the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322. An ADA

plaintiff’s sworn assertion in an application for

disability benefits that she is unable to work appears

to negate the essential element of her ADA claim that

she can perform the essential functions of her job, and

a court should require an explanation of this apparent

inconsistency. To defeat summary judgment, that

explanation must be sufficient to warrant a reasonable

juror’s concluding that, assuming the truth of, or the

plaintiff ’s good-faith belief in, the earlier statement,

the plaintiff could nonetheless perform the essential

functions of her job, with or without reasonable

accommodation. Pp. 805–807.

22a

2. Here, the parties should have the opportunity

in the trial court to present, or to contest, Cleveland’s

explanations for the discrepancy between her SSDI

statements and her ADA claim, which include that the

SSDI statements that she was totally disabled were

made in a forum that does not consider the effect that

reasonable workplace accommodation would have on

her ability to work and that those statements were

reliable at the time they were made. P. 807.

120 F.3d 513, vacated and remanded.

Breyer, J., delivered the opinion for a unanimous

Court.

John E. Wall, Jr., argued the cause for petitioner.

With him on the brief was Laura Eardley Calhoun.

Matthew D. Roberts argued the cause for the

United States et al. as amici curiae urging reversal.

With him on the brief were Solicitor General Waxman,

Acting Assistant Attorney General Lee, Deputy Solicitor

General Underwood, Arthur J. Fried, C. Gregory

Stewart, Philip B. Sklover, Lorraine C. Davis, and

Robert J. Gregory. Stephen G. Morrison argued the

cause for respondents. With him on the brief were C.

Adair Bledsoe, Jr., David N. Kitner, and Kimberly S.

Moore.*

*

Briefs of amici curiae urging reversal were filed for the

Aids Policy Center for Children, Youth, and Families et al. by

Catherine A. Hanssens and Beatrice Dohrn; and for the National

Employment Lawyers Association et al. by Alan B. Epstein and

Paula A. Brantner.

23a

JUSTICE BREYER delivered the opinion of the

Court.

The Social Security Disability Insurance (SSDI)

program provides benefits to a person with a disability

so severe that she is “unable to do [her] previous work”

and “cannot . . . engage in any other kind of

substantial gainful work which exists in the national

economy.” § 223(a) of the Social Security Act, as set

forth in 42 U. S. C. § 423(d)(2)(A). This case asks

whether the law erects a special presumption that

would significantly inhibit an SSDI recipient from

simultaneously pursuing an action for disability

discrimination under the Americans with Disabilities

Act of 1990 (ADA), claiming that “with . . . reasonable

accommodation” she could “perform the essential

functions” of her job. § 101, 104 Stat. 331, 42 U. S. C.

§ 12111(8).

We believe that, in context, these two seemingly

divergent statutory contentions are often consistent,

each with the other. Thus pursuit, and receipt, of SSDI

benefits does not automatically estop the recipient

from pursuing an ADA claim. Nor does the law erect a

strong presumption against the recipient’s success

under the ADA. Nonetheless, an ADA plaintiff cannot

simply ignore her SSDI contention that she was too

disabled to work. To survive a defendant’s motion for

summary judgment, she must explain why that SSDI

Briefs of amici curiae urging affirmance were filed for the

Association of American Railroads by Daniel Saphire; and for the

Equal Employment Advisory Council by Ann Elizabeth Reesman.

24a

contention is consistent with her ADA claim that she

could “perform the essential functions” of her previous

job, at least with “reasonable accommodation.”

I

After suffering a disabling stroke and losing her

job, Carolyn Cleveland sought and obtained SSDI

benefits from the Social Security Administration

(SSA). She has also brought this ADA suit in which

she claims that her former employer, Policy

Management Systems Corporation, discriminated

against her on account of her disability. The two

claims developed in the following way:

August 1993: Cleveland began work at Policy

Management Systems. Her job required her to

perform background checks on prospective

employees of Policy Management System’s

clients.

January 7, 1994: Cleveland suffered a stroke,

which damaged her concentration, memory, and

language skills.

January 28, 1994: Cleveland filed an SSDI

application in which she stated that she was

“disabled” and “unable to work.” App. 21.

April 11, 1994: Cleveland’s condition having

improved, she returned to work with Policy

Management Systems. She reported that fact to

the SSA two weeks later.

25a

July 11, 1994: Noting that Cleveland had

returned to work, the SSA denied her SSDI

application.

July 15, 1994: Policy Management Systems fired

Cleveland.

September 14, 1994: Cleveland asked the SSA to

reconsider its July 11th SSDI denial. In doing so,

she said:

“I was terminated [by Policy Management

Systems] due to my condition and I have not been

able to work since. I continue to be disabled.” Id.,

at 46. She later added that she had “attempted to

return to work in mid April,” that she had

“worked for three months,” and that Policy

Management Systems terminated her because

she “could no longer do the job” in light of her

“condition.” Id., at 47.

November 1994: The SSA denied Cleveland’s

request for reconsideration. Cleveland sought an

SSA hearing, reiterating that “I am unable to

work due to my disability,” and presenting new

evidence about the extent of her injuries. Id., at

79.

September 29, 1995: The SSA awarded Cleveland

SSDI benefits retroactive to the day of her stroke,

January 7, 1994.

On September 22, 1995, the week before her SSDI

award, Cleveland brought this ADA lawsuit. She

26a

contended that Policy Management Systems had

“terminat[ed]” her employment without reasonably

“accommodat[ing] her disability.” Id., at 7. She alleged

that she requested, but was denied, accommodations

such as training and additional time to complete her

work. Id., at 96. And she submitted a supporting

affidavit from her treating physician. Id., at 101. The

District Court did not evaluate her reasonable

accommodation claim on the merits, but granted

summary judgment to the defendant because, in that

court’s view, Cleveland, by applying for and receiving

SSDI benefits, had conceded that she was totally

disabled. And that fact, the court concluded, now

estopped Cleveland from proving an essential element

of her ADA claim, namely, that she could “perform the

essential functions” of her job, at least with

“reasonable accommodation.” 42 U. S. C. § 12111(8).

The Fifth Circuit affirmed the District Court’s

grant of summary judgment. 120 F. 3d 513 (1997). The

court wrote:

“[T]he application for or the receipt of social

security disability benefits creates a

rebuttable presumption that the claimant or

recipient of such benefits is judicially

estopped from asserting that he is a

‘qualified individual with a disability.’ ” Id.,

at 518.

The Circuit Court noted that it was “at least

theoretically conceivable that under some limited and

highly unusual set of circumstances the two claims

would not necessarily be mutually exclusive.” Id., at

27a

517. But it concluded that, because

“Cleveland consistently represented to the

SSA that she was totally disabled, she has

failed to raise a genuine issue of material

fact rebutting the presumption that she is

judicially estopped from now asserting that

for the time in question she was

nevertheless a ‘qualified individual with a

disability’ for purposes of her ADA claim.”

Id., at 518–519.

We granted certiorari in light of disagreement

among the Circuits about the legal effect upon an ADA

suit of the application for, or receipt of, disability

benefits. Compare, e.g., Rascon v. U S West Communications, Inc., 143 F.3d 1324, 1332 (CA10 1998)

(application for, and receipt of, SSDI benefits is

relevant to, but does not estop plaintiff from bringing,

an ADA claim); Griffith v. Wal-Mart Stores, Inc., 135

F.3d 376, 382 (CA6 1998) (same), cert. pending, No.

97–1991; Swanks v. Washington Metropolitan Area

Transit Authority, 116 F.3d 582, 586 (CADC 1997)

(same), with McNemar v. Disney Store, Inc., 91 F.3d

610, 618–620 (CA3 1996) (applying judicial estoppel to

bar plaintiff who applied for disability benefits from

bringing suit under the ADA), cert. denied, 519 U.S.

1115 (1997), and Kennedy v. Applause, Inc., 90 F.3d

1477, 1481–1482 (CA9 1996) (declining to apply

judicial estoppel but holding that claimant who

declared total disability in a benefits application failed

to raise a genuine issue of material fact as to whether

she was a qualified individual with a disability).

28a

II

The Social Security Act and the ADA both help

individuals with disabilities, but in different ways. The

Social Security Act provides monetary benefits to every

insured individual who “is under a disability.” 42 U. S.

C. § 423(a)(1). The Act defines “disability” as an

“inability to engage in any substantial

gainful activity by reason of any . . . physical

or mental impairment which can be expected

to result in death or which has lasted or can

be expected to last for a continuous period of

not less than 12 months.” § 423(d)(1)(A).

The individual’s impairment, as we have said, supra,

at 797, must be

“of such severity that [she] is not only unable

to do [her] previous work but cannot,

considering [her] age, education, and work

experience, engage in any other kind of

substantial gainful work which exists in the

national economy . . . .” §423(d)(2)(A).

The ADA seeks to eliminate unwarranted

discrimination against disabled individuals in order

both to guarantee those individuals equal opportunity

and to provide the Nation with the benefit of their

consequently increased productivity. See, e.g., 42 U. S.

C. §§ 12101(a)(8), (9). The ADA prohibits covered

employers from discriminating “against a qualified

individual with a disability because of the disability of

such individual.” § 12112(a). The ADA defines a

29a

“qualified individual with a disability” as a disabled

person “who . . . can perform the essential functions” of

her job, including those who can do so only “with . . .

reasonable accommodation.” § 12111(8).

We here consider but one of the many ways in

which these two statutes might interact. This case

does not involve, for example, the interaction of either

of the statutes before us with other statutes, such as

the Federal Employers’ Liability Act, 45 U. S. C. § 51

et seq. Nor does it involve directly conflicting

statements about purely factual matters, such as “The

light was red/green,” or “I can/cannot raise my arm

above my head.” An SSA representation of total

disability differs from a purely factual statement in

that it often implies a context-related legal conclusion,

namely, “I am disabled for purposes of the Social

Security Act.” And our consideration of this latter kind

of statement consequently leaves the law related to the

former, purely factual, kind of conflict where we found

it.

The case before us concerns an ADA plaintiff who

both applied for, and received, SSDI benefits. It

requires us to review a Court of Appeals decision

upholding the grant of summary judgment on the

ground that an ADA plaintiff ’s “represent[ation] to the

SSA that she was totally disabled” created a

“rebuttable presumption” sufficient to “judicially

esto[p]” her later representation that, “for the time in

question,” with reasonable accommodation, she could

perform the essential functions of her job. 120 F.3d, at

518–519. The Court of Appeals thought, in essence,

that claims under both Acts would incorporate two

30a

directly conflicting propositions, namely, “I am too

disabled to work” and “I am not too disabled to work.”

And in an effort to prevent two claims that would

embody that kind of factual conflict, the court used a

special judicial presumption, which it believed would

ordinarily prevent a plaintiff like Cleveland from

successfully asserting an ADA claim.

In our view, however, despite the appearance of

conflict that arises from the language of the two

statutes, the two claims do not inherently conflict to

the point where courts should apply a special negative

presumption like the one applied by the Court of

Appeals here. That is because there are too many

situations in which an SSDI claim and an ADA claim

can comfortably exist side by side.

For one thing, as we have noted, the ADA defines

a “qualified individual” to include a disabled person

“who . . . can perform the essential functions” of her job

“with reasonable accommodation.” Reasonable

accommodations may include:

“job restructuring, part-time or modified

work schedules, reassignment to a vacant

position, acquisition or modification of

equipment or devices, appropriate

adjustment or modifications of

examinations, training materials or policies,

the provision of qualified readers or

interpreters, and other similar

accommodations.” 42 U. S. C. § 12111(9)(B).

By way of contrast, when the SSA determines whether

31a

an individual is disabled for SSDI purposes, it does not

take the possibility of “reasonable accommodation”

into account, nor need an applicant refer to the

possibility of reasonable accommodation when she

applies for SSDI. See Memorandum from Daniel L.

Skoler, Associate Comm’r for Hearings and Appeals,

SSA, to Administrative Appeals Judges, reprinted in

2 Social Security Practice Guide, App. § 15C[9], pp.

15–401 to 15–402 (1998). The omission reflects the

facts that the SSA receives more than 2.5 million

claims for disability benefits each year; its

administrative resources are limited; the matter of

“reasonable accommodation” may turn on highly

disputed workplace-specific matters; and an SSA

misjudgment about that detailed, and often factspecific matter would deprive a seriously disabled

person of the critical financial support the statute

seeks to provide. See Brief for United States et al. as

Amici Curiae 10–11, and n. 2, 13. The result is that an

ADA suit claiming that the plaintiff can perform her

job with reasonable accommodation may well prove

consistent with an SSDI claim that the plaintiff could

not perform her own job (or other jobs) without it.

For another thing, in order to process the large

number of SSDI claims, the SSA administers SSDI

with the help of a five-step procedure that embodies a

set of presumptions about disabilities, job availability,

and their interrelation. The SSA asks:

Step One: Are you presently working? (If so, you

are ineligible.) See 20 CFR § 404.1520(b) (1998).

Step Two: Do you have a “severe impairment,”

32a

i.e., one that “significantly limits” your ability to

do basic work activities? (If not, you are

ineligible.) See § 404.1520(c).

Step Three: Does your impairment “mee[t] or

equa[l]” an impairment on a specific (and fairly

lengthy) SSA list? (If so, you are eligible without

more.) See §§ 404.1520(d), 404.1525, 404.1526.

Step Four: If your impairment does not meet or

equal a listed impairment, can you perform your

“past relevant work?” (If so, you are ineligible.)

See § 404.1520(e). Step Five: If your impairment

does not meet or equal a listed impairment and

you cannot perform your “past relevant work,”

then can you perform other jobs that exist in

significant numbers in the national economy? (If

not, you are eligible.) See §§ 404.1520(f ),

404.1560(c).

The presumptions embodied in these

questions—particularly those necessary to produce

Step Three’s list, which, the Government tells us,

accounts for approximately 60 percent of all awards,

see Tr. of Oral Arg. 20—grow out of the need to

administer a large benefits system efficiently. But they

inevitably simplify, eliminating consideration of many

differences potentially relevant to an individual’s

ability to perform a particular job. Hence, an

individual might qualify for SSDI under the SSA’s

administrative rules and yet, due to special individual

circumstances, remain capable of “perform[ing] the

essential functions” of her job.

33a

Further, the SSA sometimes grants SSDI benefits

to individuals who not only can work, but are working.

For example, to facilitate a disabled person’s reentry

into the work force, the SSA authorizes a 9-month

trial-work period during which SSDI recipients may

receive full benefits. See 42 U. S. C. §§ 422(c),

423(e)(1); 20 CFR § 404.1592 (1998). See also §

404.1592a (benefits available for an additional 15month period depending upon earnings). Improvement

in a totally disabled person’s physical condition, while

permitting that person to work, will not necessarily or

immediately lead the SSA to terminate SSDI benefits.

And the nature of an individual’s disability may

change over time, so that a statement about that

disability at the time of an individual’s application for

SSDI benefits may not reflect an individual’s

capacities at the time of the relevant employment

decision.

Finally, if an individual has merely applied for,

but has not been awarded, SSDI benefits, any

inconsistency in the theory of the claims is of the sort

normally tolerated by our legal system. Our ordinary

Rules recognize that a person may not be sure in

advance upon which legal theory she will succeed, and

so permit parties to “set forth two or more statements

of a claim or defense alternately or hypothetically,”

and to “state as many separate claims or defenses as

the party has regardless of consistency.” Fed. Rule Civ.

Proc. 8(e)(2). We do not see why the law in respect to

the assertion of SSDI and ADA claims should differ.

(And, as we said, we leave the law in respect to purely

factual contradictions where we found it.)

34a

In light of these examples, we would not apply a

special legal presumption permitting someone who has

applied for, or received, SSDI benefits to bring an ADA

suit only in “some limited and highly unusual set of

circumstances.” 120 F.3d, at 517.

Nonetheless, in some cases an earlier SSDI claim

may turn out genuinely to conflict with an ADA claim.

Summary judgment for a defendant is appropriate

when the plaintiff “fails to make a showing sufficient

to establish the existence of an element essential to

[her] case, and on which [she] will bear the burden of

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). An ADA plaintiff bears the burden of

proving that she is a “qualified individual with a

disability”— that is, a person “who, with or without

reasonable accommodation, can perform the essential

functions” of her job. 42 U. S. C. § 12111(8). And a

plaintiff ’s sworn assertion in an application for

disability benefits that she is, for example, “unable to

work” will appear to negate an essential element of her

ADA case—at least if she does not offer a sufficient

explanation. For that reason, we hold that an ADA

plaintiff cannot simply ignore the apparent

contradiction that arises out of the earlier SSDI total

disability claim. Rather, she must proffer a sufficient

explanation.

The lower courts, in somewhat comparable

circumstances, have found a similar need for

explanation. They have held with virtual unanimity

that a party cannot create a genuine issue of fact

sufficient to survive summary judgment simply by

contradicting his or her own previous sworn statement

35a

(by, say, filing a later affidavit that flatly contradicts

that party’s earlier sworn deposition) without

explaining the contradiction or attempting to resolve

the disparity. See, e.g., Colantuoni v. Alfred Calcagni

& Sons, Inc., 44 F.3d 1, 5 (CA1 1994); Rule v. Brine,

Inc., 85 F.3d 1002, 1011 (CA2 1996); Hackman v.

Valley Fair, 932 F.2d 239, 241 (CA3 1991); Barwick v.

Celotex Corp., 736 F.2d 946, 960 (CA4 1984); Albertson

v. T. J. Stevenson & Co., 749 F.2d 223, 228 (CA5 1984);

Davidson & Jones Development Co. v. Elmore

Development Co., 921 F.2d 1343, 1352 (CA6 1991);

Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297

(CA7 1993); Camfield Tires, Inc. v. Michelin Tire

Corp., 719 F.2d 1361, 1365–1366 (CA8 1983); Kennedy

v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (CA9

1991); Franks v. Nimmo, 796 F.2d 1230, 1237 (CA10

1986); Tippens v. Celotex Corp., 805 F.2d 949, 953–954

(CA11 1986); Pyramid Securities Ltd. v. IB Resolution,

Inc., 924 F.2d 1114, 1123 (CADC), cert. denied, 502

U.S. 822 (1991); Sinskey v. Pharmacia Opthalmics,

Inc., 982 F.2d 494, 498 (CA Fed. 1992), cert. denied,

508 U.S. 912 (1993). Although these cases for the most

part involve purely factual contradictions (as to which

we do not necessarily endorse these cases, but leave

the law as we found it), we believe that a similar

insistence upon explanation is warranted here, where

the conflict involves a legal conclusion. When faced

with a plaintiff ’s previous sworn statement asserting

“total disability” or the like, the court should require

an explanation of any apparent inconsistency with the

necessary elements of an ADA claim. To defeat

summary judgment, that explanation must be

sufficient to warrant a reasonable juror’s concluding

that, assuming the truth of, or the plaintiff ’s good36a

faith belief in, the earlier statement, the plaintiff could

nonetheless “perform the essential functions” of her

job, with or without “reasonable accommodation.”

III

In her brief in this Court, Cleveland explains the

discrepancy between her SSDI statements that she

was “totally disabled” and her ADA claim that she

could “perform the essential functions” of her job. The

first statements, she says, “were made in a forum

which does not consider the effect that reasonable

workplace accommodations would have on the ability

to work.” Brief for Petitioner 43. Moreover, she claims

the SSDI statements were “accurate statements” if

examined “in the time period in which they were

made.” Ibid. The parties should have the opportunity

in the trial court to present, or to contest, these

explanations, in sworn form where appropriate.

Accordingly, we vacate the judgment of the Court of

Appeals and remand the case for further proceedings

consistent with this opinion.

It is so ordered.

37a