# Petition for Writ of Certiorari — Cleveland v. Policy Management Systems Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 795

## Text

Supreme U.S.
* FILE

97 1008 DEC 15 1997

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

>—
October Term, 1997

CAROLYN C. CLEVELAND,
Petitioner,

vs.

POLICY MANAGEMENT SYSTEMS CORP; GENERAL
INFORMATION SERVICES, a Division of Policy Management
Systems Corporation; and CYBERTEK CORP.,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN E. WALL, JR.
Counsel of Record
LAW OFFICES OF JOHN E. WALL, JR.
Attorney for Petitioner
5728 Prospect Avenue, Suite 2001
Dallas, Texas 75206
(214) 887-0100

T2396 (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 M Aagstae
ervices, inc.

i
QUESTIONS PRESENTED FOR REVIEW

Carolyn_Cleveland sued her former employers for violating
the Americans with Disabilities Act (“ADA”) when they
terminated her for alleged poor performance after suffering a
stroke and returning to work, despite her employers’ admitted
refusal to reasonably accommodate her resultant disability. Post-
discharge of her employment, Cleveland was granted social
security disability benefits retroactive to the date of her stroke
which preceded her return to work without requested
accommodation. The termination and the employer’s tortious
conduct directly worsened Cleveland’s disability.

Nevertheless, and contrary to the decisions of most other
Circuit Courts, the Fifth Circuit affirmed summary judgment,
reasoning that Cleveland's social security disability application
presumptively judicially estopped her from asserting she was a
“qualified individual with a disability”. The Fifth Circuit
concluded its reasoning with the proposition that only under
limited and highly unusual circumstances could a social security
disability applicant/recipient rebut the presumption that such
application and/or receipt would judicially estop such a person
from maintaining that they were a “qualified individual with a
disability.” The questions presented for review are:

1. Doesn’t the victim of an ADA violation have a right of
action under the ADA for disability/wage loss damages caused
by inability to work resulting from a tortious violation of the
ADA?

2. Couldn’t a covered employer, when equipped with the
Fifth Circuit's opinion, patently and with impunity refuse to hire
or fire a social security applicant/recipient solely because he/
she is disabled, ignoring even the simplest of work place
accommodations and without ever having to even articulate a

legitimate non-discriminatory business reason for the adverse
employment action?

3. Realizing that Congress recognizes that Americans with
disabilities continually encounter various forms of
discrimination, doesn’t the Fifth Circuit's reasoning that a social
security claimant or recipient is presumptively estopped from
asserting that he/she is a “qualified individual with a disability”
pose yet another form of discrimination against those individuals
who are disabled in the eyes of the law?

4. Doesn't the Fifth Circuit’s opinion exhibit a judicially
crafted means of excluding social security recipients from the
protection of the ADA?

5. Doesn't the Fifth Circuit’s opinion presumptively
exclude a protected class (those regarded as being disabled) from
protection of the ADA?

6. Doesn't the Fifth Circuit’s opinion relegate social
security recipitnts to perpetual ward status?

7. Did the United States Court of Appeals for the Fifth
Circuit Court err in holding that: (1) “the application for or
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’ ” for purposes of pursuing a claim
under the Americans With Disabilities Act (“ADA”); and that
(2) this presumption can only be overcome in “limited and highly
unusual circumstances”, a holding which is clearly contrary to
decisions of the United States Courts of Appeals for the Sixth,
Seventh, Eleventh and D.C. Circuits, as well as the Social
Security Administration and the Equal Employment Opportunity
Commission, each of which has determined that judicial estoppel

——

— lm ——_ ee

iii

would rarely apply to such a case because a finding of
“disability” by the Social Security Administration (“SSA”) is
not inconsistent with a finding that the same individual is a
“qualified individual with a disability” because the ADA
considers the issue of reasonable accommodation when
determining “disability” and the SSA does not.

iv

TABLE OF CONTENTS

Questions Presented for Review ..............5055:

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SCS. covnccetadeantobeeunaeuns

A. Basis for Federal District Court Jurisdiction ..

Facts Material to Consideration of the Questions
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Reasons for Granting the Writ ............6500055:

Il.

The Fifth Circuit Has Issued An Opinion On An
Important Federal Issue Which Has Yet To Be
Addressed By The Supreme Court, And In So
Doing Has Crafted A Means Of Excluding The
Disabled From The Protection Of The Americans
With Disabilities Act. ...........-.eeeeeees

The Fifth Circuit's Holding That: (1) “The
Application For Or Receipt Of Social Security
Disability Benefits Creates A Rebuttable

Contents

Presumption That The Claimant Or Recipient Of
Such Benefits Is Judicially Estopped From
Asserting That He Is A ‘Qualified Individual With
A Disability’ ” For Purposes Of Pursuing A Claim
Under The Americans With Disabilities Act
(“ADA”); And That (2) This Presumption Can
Only Be Overcome In “Limited And Highly
Unusual Circumstances” Is Clearly Contrary To
Decisions Of The United States Courts Of Appeals
For The Sixth, Seventh, Eleventh And D.C.
Circuits, As Well As The Positions Of The Social
Security Administration And The Equal
Employment Opportunity Commission, Each Of
Which Has Determined That Judicial Estoppel
Would Rarely Apply To Such A Case Because A
Finding Of “Disability” By The Social Security
Administration (“SSA”) Is Not Inconsistent With
A Finding That The Same Individual Is A
“Qualified Individual With A Disability” Because
The ADA Considers The Issue Of Reasonable
Accommodation When Determining “Disability”
And The SSA Does Not. ............20020:-

TABLE OF CITATIONS

Cases Cited:

Blanton v. Inco Alloys International, Inc., 123 F.3d 916
I oe ie ia Gian ek ke chen kn 17, 18, 20

Page

vi
Contents
Page
Dush v. Appleton Elec. Co., 124 F.3d 957 (8th Cir. 1997)
0 0 ge cade cackunwel cpeeekaaas bes cbbbesnebewe 12
Krouse v. American Sterilizer Company, 126 F.3d 494 (3rd

Cae, Gee wed cbekes cbbaee dub acuies chbdstadi 12
McNemar v. The Disney Store, Inc., 91 F.3d 610 (3rd Cir.

1996), cert. denied, 117 S. Ct. 958 (1997) ........ 12
Overton v. Reilly, 977 F.2d 1190 (7th Cir. 1992) ...... 17
Risetto v. Plumber and Steamfitters Local 343, 94 F.3d

FOE EG COD hc bata ccats en eeceucsécducs 12

Swanks v. Washington Metropolitan Area Transit Authority,
116 F.3d 582 (D.C. Cir. 1997) ....14, 15, 16, 17, 18, 19, 20

Talavera v. School Board of Palm Beach County, __ F.3d
__ (11th Cir. 1997) (1997 WL 728368 (11th Cir. Nov.

i EE akan dds ddkbusds ockoiaelednbaanwecs 18, 19
Whitbeck v. Vital Signs, Inc., 116 F.3d 588 (D.C. Cir.
SEEN sécnadsthebchdéconkenteubacanen dec 14, 15, 17, 20
Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997)
Scbacdens bénartoscewnbeesseel thule 17, 18, 20
Statutes Cited ~
Be Ge ED eo cce cdebdheL Pbk dees oe |

Contents

Page
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42 U.S.C. § 4ZSIEMAMA) oe ccc ccsccsccccccccecss 3
SS UBL. § ISGRAIMA). 200 cece ccccscccccves 3
42 U.S.C. § USER OMINMB) 2c ccc ccssccccccccccces 3
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Tex. Lab. Code Ann. § 451.001 (Vernon 1996) ....... | 3

Other Authority Cited:

Daniel L. Skoler, ASSOC. COMM’R SOC. SEC.
ADMIN., DISABILITIES ACT INFO. MEM. at 2, June
Ry See Ge GENE occ vcccenccsescebenscvcees 14

vill

Contents

APPENDIX

Appendix A — Opinion of the United States Court of
Appeals for the Fifth Circuit Filed August 14, 1997

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Appendix B — Judgment of the United States District
Court for the Northern District of Texas, Dallas
Division Filed September 6, 1996 ...............

Appendix C —- Per Curiam Opinion of the United States
Court of Appeals for the Fifth Circuit Denying
Petition for Rehearing Filed September 15, 1997...

Appendix D — Brief of the Equal Employment
Opportunity Commission as Amicus Curiae in Support
of the Appellant's Petition for Rehearing Filed
Sapte D. FOGG occ ccddsiesevecevtsnccedes

Page

l4a

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Petitioner respectfully requests that a writ of certiorari be issued
to review the judgment of the United States Court of Appeals for
the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth
Circuit, reported at 120 F.3d 513 (Sth Cir. 1997), affirmed the
decision of the United States District Court for the Northern District
of Texas, which granted summary judgment in favor of the
Respondents. The Fifth Circuit's August 14, 1997 opinion is printed
here as Appendix A. The district court’s September 6, 1996 opinion
is printed here as Appendix B. The Fifth Circuit's September 15,
1997 Order denying Petitioner's Petition for Rehearing is printed
here as Appendix C.

STATEMENT OF JURISDICTION

This Petition for a Writ of Certiorari seeks review of the opinion
of the United States Court of Appeals for the Fifth Circuit entered
on August 14, 1997. Petitioner's timely filed petition for rehearing
was denied by the Fifth Circuit Court of Appeals on September 15,
1997.

Jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1). This
Petition for Certiorari is timely filed pursuant to 28 U.S.C. § 2101(c).

2

STATUTES INVOLVED

The statues applicable to this case are as follows:

Americans With Disabilities Act of 1990:

General Rule

No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and or other terms conditions, and privileges
of employment. 42 U.S.C. § 12112(a)

Disability

The term “disability” means, with respect to an
individual —

(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having an impairment. 42 U.S.C.
§ 12102(2)

Qualified individual with a disability

The term “qualified persons 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. 42 U.S.C.
§ 12111(8)

Social Security Act:
Disability

The term “disability” means — inability to
engage in any substantial gainful activity by reason
of any medically determinable 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. 42
U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(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, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work. 42 U.S.C. § 423(d)(2)(A); 42
U.S.C. § 1382c(a)(3)(B).

STATEMENT OF THE CASE
A. Basis for Federal District Court Jurisdiction

Petitioner, Carolyn C. Cleveland (“Cleveland”) brought suit
against her former employers, Respondents, Policy Management
Systems Corp., General Information Services and Cybertek Corp.,
pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12101 et seg. and Tex. Lab. Code Ann. § 451.001 (Vernon 1996)'.

1. Cleveland's Tex. Lab. Code Ann. § 451.001 claim was dismissed
without prejudice by the district court on the September 6, 1996 and is
not at issue here.

4

Jurisdiction was proper in the United States District Court for the
Northern District of Texas pursuant to 28 U.S.C. § 1331.

B. Facts Material to Consideration of the Questions
Presented

On January 7, 1994, during the course and scope of her
employment with the Respondents, Carolyn Cleveland suffered a
stroke.

Steven Herzog, M.D. provided medical treatment to Cleveland
in connection with her stroke. As a result of the stroke, Cleveland
suffered a condition known as aphasia. Aphasia is a disorder
involving input and output of language, which affects reading ability,
calculation ability, and the understanding and processing of all
language functions. Aphasia also causes problems with memory.

After the stroke, Cleveland’s ability to speak and to concentrate
were impaired, and for a period of time, she could not speak at all.
Cleveland was unable to read or dial a phone, and had trouble
understanding most of what was said to her. Additionally,
Cleveland’s memory was impaired as a result of the stroke-induced
aphasia.

After observing Cleveland's difficulty with communication,
comprehension and memory, Cleveland’s daughter, Sheri Short,
became concerned about her mother. As a result, in January 1994,
Short obtained an application for social security disability benefits.’
Short filled in the application and had her mother sign it. Short
then submitted the application to the Social Security Administration

2. Short had previously worked for the Tarrant County Adult
Probation Department for approximately 14 years, and had observed that
it often took a long time for government paperwork to be processed.
Therefore, Short requested the social security application quickly in the
event her mother would need benefits.

5

for her mother. Due to Cleveland’s debilitated condition in January
1994, she does not recall her daughter filing this application, and
although Cleveland signed the application form, she does not recall
doing so.

After suffering the stroke, Cleveland worked hard to recover,
and according to Dr. Herzog, she had made significant progress
between January and April 1994. In fact, after undergoing speech
rehabilitation, Cleveland was able to speak fairly well by April
1994.

In light of Cleveland’s progress, Dr. Herzog released Cleveland
to return to work in April 1994. At the time Cleveland was released
to return to work, Dr. Herzog felt Cleveland’s prognosis was positive
for continued improvement and that she would eventually reach a
near 100% recovery.

Cleveland returned to work for the Respondents in April 1994
on a part-time basis. Shortly after returning to work, Cleveland
received some paperwork from the Social Security Administration.
Upon receiving this paperwork, Cleveland contacted the Social
Security Administration and informed them that she had returned
to work and that she did not need social security disability benefits.

Cleveland worked part-time for about two weeks and then
started working full time. Cleveland was fearful about returning to
work, but her supervisors, Anthony Clark-and Debra Levine,
claimed they would assist Cleveland, or, if necessary, would provide
her another job. This did not occur.

When Cleveland returned to work, she was not fully recovered
from the stroke’, and she experienced some difficulty with the
increased workload she was assigned. As the Fifth Circuit noted in

3. Dr. Herzog noted that it sometimes takes 6-12 months to fully
recover from a stroke.

6

their August 14, 1997 opinion, Cleveland requested several
accommodations, including computer training, permission to take
work home in the evenings, a transfer of position, and permission
for the Texas Rehabilitation Commission to provide a counselor
— free of charge — to assist Cleveland; however, the Respondents
refused each of these requests.

In addition to the refusal to make reasonable accommodations
for Cleveland, Cleveland’s supervisor and her co-workers made
cruel mocking remarks in reference to Cleveland’s disabled
condition. In Cleveland’s presence, they laughed at her and belittled
her by mimicking her stroke-induced speech impediment.

Less than two months after returning to work from her stroke,
Cleveland received her first written warning. After this written
warning, Cleveland doubled her efforts to produce quality work.
In fact, a day or two before Cleveland's termination, Cleveland felt
encouraged because she was finally getting some training from
some of her co-workers, training which her supervisor repeatedly
withheld.

In addition to finally receiving some training, Cleveland was
experiencing fewer problems related to her stroke during the time
prior to the termination. Cleveland could communicate more easily,
her spelling had improved and the need to repeatedly recheck her
work was decreasing.* Cleveland felt positive about her job
performance. Indeed, prior to her termination, Dr. Herzog had
anticipated that Cleveland would experience a near 100% recovery.

Regardless, on or about July 14, 1994, Peter Moore, Regional
Vice President, and supervisor Debra Levine informed Cleveland

4. Dr. Herzog observed that Cleveland was experiencing few
problems with aphasia, but still needed some additional time to recover
fully.

7

that she was terminated because of poor job performance. Cleveland
begged Moore to let her keep her job or move to another job. At
this, Moore told Cleveland that his father had previously suffered a
stroke and has not been able to do anything since. Moore declared
that Cleveland would not be able to do anything either. During the
initial termination meeting, Moore did agree to review Cleveland's
work; however, the next day, Moore confirmed the termination.

As a result of Cleveland’s termination in July 1994, she was
devastated emotionally. Cleveland became depressed and her
aphasia worsened as a result of the humiliating way she was treated
and terminated by the Respondents. Cleveland deteriorated
physically and began to feel worthless. Cleveland was fatigued,
stressed and depressed after her termination.

For this reason, in September 1994, Cleveland renewed her
prior application for social security disability benefits by filing a
“Request for Reconsideration”. In this request, Cleveland confirmed
that: “I continue to be disabled”. In connection with this request,
Cleveland also filed a “Work Activity Report” wherein she
explained that she had been terminated from her job with the
Respondents because she could no longer do the job because of
her condition — indeed, this was the Respondents’ stated reason
for termination.

In approximately December 1994, Cleveland began seeing a
psychologist, Dr. Gant, for her depression and worsening condition.
Dr. Gant determined that the loss of Cleveland’s job and income
were “emotionally devastating and have compounded her injury
by affecting her self-confidence and self-esteem.” Dr. Herzog noted
in December 1994 that “[s]tress and anxiety have also exacerbated
all of her [(Cleveland’s] symptoms.”

In January 1995, Cleveland filed another “Request for
Reconsideration” with the SSA and again confirmed that she was

unable to work due to her disability. In September 1995, Cleveland
was granted social security disability benefits effective retroactively
to January 7, 1994, the date of her stroke.

Approximately one week before receiving notice of the
decision from the SSA, Cleveland filed suit against the Respondents
for discriminating against her, failing to accommodate her disability
and terminating her in violation of the Americans With Disabilities
Act. The Respondents moved for summary judgment on the ADA
claim for the sole reason that Cleveland was judicially estopped
from claiming to be a “qualified individual with a disability” under
the ADA by reason of her application for and receipt of social
security disability benefits.

Included in the evidence presented in opposition to the
summary judgment motion was an affidavit from Dr. Herzog,
wherein he opined that Cleveland’s depression resulted from her
termination and that her depression over the termination caused
her aphasia to worsen. Dr. Herzog further stated that, in his opinion,
had Cleveland “been given training time and assistance on the job,
instead of being terminated, she would have continued to recover
from the stroke.” Dr. Herzog also noted that “[wJith time,
understanding and therapy, Cleveland has slowly begun to recover

from the post-termination relapse of her aphasia and depression.”

Nevertheless, finding that Cleveland was judicially estopped
from claiming to be a “qualified individual with a disability”
because she previously declared herself “disabled” to the SSA, the
district court granted summary judgment on Cleveland's ADA
claim. In an opinion filed August 14, 1997, the Fifth Circuit Court
of Appeals affirmed the summary judgment and held that Cleveland,
“failed to raise a genuine issue of material fact which, if proved,
would rebut the presumption that her sworn declarations of
disability to the Social Security Administration (SSA) judicially
estop her from asserting that under the ADA she is a ‘qualified
individual with a disability.’ ”

9

REASONS FOR GRANTING THE WRIT
I.

THE FIFTH CIRCUIT HAS ISSUED AN OPINION ON
AN IMPORTANT FEDERAL ISSUE WHICH HAS YET TO
BE ADDRESSED BY THE SUPREME COURT, AND IN SO
DOING HAS CRAFTED A MEANS OF EXCLUDING THE
DISABLED FROM THE PROTECTION OF THE
AMERICANS WITH DISABILITIES ACT.

Enacting the Americans with Disabilities Act of 1990, Congress
specifically found that:

{I}ndividuals with disabilities are a discrete and
insular minority who have been faced with
restrictions and limitations, subjected to a history of
purposeful unequal treatment and relegated to a
position of political powerlessness in our society,
based on characteristics that are beyond the control
of such individuals and resulting from stereotypic
assumptions not truly indicative of the individual
ability of such individuals to participate in and
contribute to society.

42 U.S.C. § 12'01(a).
Congress stated that:

[H]istorically, society has tended to isolate and
segregate individuals with disabilities and that
despite some improvements, such forms of
discrimination against individuals with disabilities
continue to be a serious and pervasive social

problem.
Id.

10

Congress further found that discrimination based on
disability persists in critical areas such as employment, and
recognized that unlike individuals who have experienced
discrimination on the basis of race, color, sex, national origin,
religion or age, disabled ir:‘iw juals have often had no legal
recourse to redress such discrimination. /d. According to
Congress:

[T]he Nation’s proper goals regarding individuals
with disabilities are to assure equality of opportunity,
full participation, independent living, and economic
self-sufficiency for such individuals.

ld. —_
Congress concluded that:

[T}he continuing existence of unfair and unnecessary
discrimination and prejudice denies people with
disabilities the opportunity to compete on an equal
basis and to pursue those opportunities for which
our free society is justifiably-famous, and cost the
United States billions of dollars in unnecessary
expenses resulting from dependency and
nonproductivity.

(Emphasis added). Id.

After making such findings, Congress set forth the purpose of
the ADA; to wit: (1) to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals
with disabilities; (2) to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals with
disabilities; (3) to ensure that the Federal Government plays a central
role in enforcing the standards established in this chapter on behalf

of individuals with disabilities; and (4) to invoke the sweep of
congressional authority, including the power to enforce the
fourteenth amendment and to regulate commerce, in order to
address the major areas of discrimination faced day-to-day by
people with disabilities. 42 U.S.C. § 12101(b).

Absent review by The Court of the effect of a declaration of
disability to the SSA on an ADA claim, disabled individuals will
be relegated to their pre-1990 status of being members of a society
that may freely, without fear of legal recourse, discriminate against
the disabled. The well-founded purpose for enacting the ADA is
entirely usurped by the Fifth Circuit's holding that the application
for or receipt of social security disability benefits creates a rebuttable
presumption that the disabled individual is judicially estopped from
asserting that he is a “qualified individual with a disability” for
purposes of pursuing a discrimination ‘n employment claim under
the ADA. The ADA’s goal to eliminate discrimination against
disabled individuals is further defeated by the Fifth Circuit's
determination that an individual such as Cleveland was judicially
estopped from pursuing an ADA claim and that judicial estoppel
would only be inapplicable in “limited and highly unusual
circumstances”.

The evidence in the present case established that had the
to return to work, her condition would have continued to improve
rather than deteriorate as it did after the termination. In other words,
but for the Respondent's discriminatory conduct, Cleveland would
not have been forced to renew her application for social security
disability benefits. It was only after, and as a result of, the
termination (which caused the worsening of her condition) that
Cleveland actively pursued and received social security disability
benefits.

Honoring the purpose and foundation of the ADA, employers
such as the Respondents should not be absolved from violating the

12

ADA simply by reason of the fact that the employee at some point
in time applied for or received social security disability benefits.
Indeed, to allow the Fifth Circuit's ruling on this issue to stand, an
employer would be able to hire an individual who is receiving social
security disability benefits, and later ireely discriminate against
that individual. In other words, if the employer decided it no longer
wished to comply with the law, the employer could blatantly
discriminate against such an individual and that individual would
have no legal recourse simply because she was receiving social
security disability benefits. Additionally, an employer reluctant to
hire the disabled could openly weed out disabled applicants by
simply refusing to hire any individual who has applied for or
receives social security disability benefits. Such an employer could,
without fear of prosecution, place 4 sign in the window which read:
“Social Security Disability Recipients Need Not Apply”. On its
face, such conduct would plainly violate the ADA; however, in
light of rulings such as the Fifth Circuit ruling in the present case’,
a disabled individual subjected to such discrimination would have
no recourse if they had previously applied for or received social
security disability benefits. In light of the multitude of Americans
receiving social security disability benefits today, the Fifth Circuit's
determination that social security disability applicants are
presumptively judicially estopped from asserting an ADA claim
will allow the history of discrimination based on disability to persist

5. The United States District Courts of Appeals for the Third, Eighth
and Ninth Circuits have also found that the doctrine of judicial estoppel
bars an ADA claim when the employee has applied for or received social
security disability benefits. See McNemar v. The Disney Store, Inc., 91
F.3d 610, 617-18 (3rd Cir. 1996), cert. denied, 117 S. Ct. 958 (1997);
Dush v. Appleton Elec. Co., 124 F.3d 957 (8th Cir. 1997) and Risetto v.
Plumber and Steamfitters Local 343, 94 F.3d 597, 606 (9th Cir. 1996).
Notably, in a recent opinion, the Third Circuit acknowledged that
McNemar had come under considerable criticism, some of which might
be well-founded, and indicated that upon presentation of an applicable
case, the issue may be revisited en banc. Krouse v. American Sterilizer
Company, 126 F.3d 494, 502-03 (3rd Cir. 1997).

13

and permeate into the present and the future despite the enactment
of the ADA — a statute specifically enacted to protect the disabled.

Il.

THE FIFTH CIRCUIT’S HOLDING THAT: (1) “THE
APPLICATION FOR OR 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 WITHA DISABILITY’ ” FOR
PURPOSES OF PURSUING A CLAIM UNDER THE
AMERICANS WITH DISABILITIES ACT (“ADA”); AND
THAT (2) THIS PRESUMPTION CAN ONLY BE
OVERCOME IN “LIMITED AND HIGHLY UNUSUAL
CIRCUMSTANCES” IS CLEARLY CONTRARY TO
DECISIONS OF THE UNITED STATES COURTS OF
APPEALS FOR THE SIXTH, SEVENTH, ELEVENTH
AND D.C. CIRCUITS, AS WELL AS THE POSITIONS OF
THE SOCIAL SECURITY ADMINISTRATION AND THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
EACH OF WHICH HAS DETERMINED THAT JUDICIAL
ESTOPPEL WOULD RARELY APPLY TO SUCH A CASE
BECAUSE A FINDING OF “DISABILITY” BY THE
SOCIAL SECURITY ADMINISTRATION (“SSA”) IS NOT
INCONSISTENT WITH A FINDING THAT THE SAME
INDIVIDUAL IS A “QUALIFIED INDIVIDUAL WITH A
DISABILITY” BECAUSE THE ADA CONSIDERS THE
ISSUE OF REASONABLE ACCOMMODATION WHEN
DETERMINING “DISABILITY” AND THE SSA DOES
NOT.

In addition to deviating from the purpose of the ADA, the Fifth
Circuit's holding is in direct contrast to decisions from the Sixth,

14

Seventh, Eleventh and D.C. Circuit Courts of Appeals, as well as
the positions of the Social Security Administration and the Equal
Employment Opportunity Commission.

Specifically, the United States Court of Appeals for the District
of Columbia Circuit has issued two opinions wherein it he!d that
receipt of social security disability benefits is not a bar to a disability
discrimination claim. See Swanks v. Washington Metropolitan Area
Transit Authority, 116 F.3d 582 (D.C. Cir. 1997); Whitbeck v. Vital
Signs, Inc., 116 F.3d 588 (D.C. Cir. 1997). The court in Swanks
and Whitbeck rejected the argument that a social security disability
claim precludes a disability discrimination claim because the two
schemes employ “quite different standards and objectives”. Swanks,
116 F.3d at 583-4; Whitbeck, 116 F.3d at 591. Rejecting a judicial
estoppel theory, the D.C. Circuit in Swanks and Whitbeck
recognized that in determining eligibility for social security
disability benefits, the critical issue in an ADA case — reasonable
accommodation — is not considered. Swanks, 116 F.3d at 583-87;
Whitbeck, 116 F.3d at 591. The D.C. court noted that no where in
the SSA's five step evaluation process for determination of eligibility
for disability benefits is the issue of reasonable accommodation
considered. See Swanks, 116 F.3d at 584-85. Moreover, in an
Information Memorandum, the SSA states that “[t]he fact an
individual may be able to return to a past relevant job, provided
that the employer makes accommodations, is not relevant. . . .” See
Swanks at 585, citing, Daniel L. Skoler, ASSOC. COMM’R SOC.
SEC. ADMIN., DISABILITIES ACT INFO. MEM. at 2, June 2,
1993 (No. SG3P2).

The Swanks and Whitbeck holdings are significant because
they are based on guidance from the SSA and the Equal
Employment Opportunity Commission. Specifically, prior to
rendering the Swanks and Whitbeck opinions, the court sought and
considered amici curiae briefs from the SSA and the EEOC. Swanks
at 584; Whitbeck at 590. Considering the standards and procedures

15

of the SSA and the EEOC, the D.C. Circuit determined that a social
security disability claim does not bar a disability discrimination
claim.* Swanks at 583-87; Whitbeck at 591.

As in Swanks, the Equal Employment Opportunity
Comuuaission filed an amicus curie brief in support of Clevelands’
petition for rehearing in this case. See Appendix D. In addition to
pointing out the conflict of the decision with recent circuit case
law, in the amicus curie brief, the EEOC pointed out that the Fifth
Circuit’s decision in Cleveland was “flatly inconsistent with the
position of the Social Security Administration.” (Appendix D,
p. 19a). The EEOC quoted the position of the SSA, as was set forth
in the amicus curiae brief by the SSA in Swanks, as follows: “[a)n
application for, and award of, social security disability benefits does
not constitute an admission as a matter of law that the individual is
physically unable to work”, and thus, does not, under any
circumstance, “bar as a matter of law his claim under the ADA.
(See Appendix D, p. 19a). As noted by the EEOC, applying the
SSA's legal standards for determining eligibility for disability
benefits, it is clear that judicial estoppel has no place in the context
of an ADA claim because in the SSA context, there is no specific
inquiry into “the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome
those limitations.” (Appendix D, p. 24a). Confirming this point,
the SSA specifically stated in a June 2, 1993 memorandum, which
specifically addressed the ADA’s “potential effect on the evaluation

6. In Swanks, the court also stated that in reaching this conclusion,
it did not mean that statements in support of a social security disability
claim were never relevant in an ADA case. Swanks, at 587. As example,
keeping with the position that SSA determinations do not consider whether
a claimant could work with reasonable accommodations, the Swanks court
noted that statements to the SSA that a claimant could not perform the
essential functions of their job even with accommodation could bar that
claimant from asserting in an ADA claim that an accommodation would
have allowed them to perform that same job. Swanks, at 587.

16

of disability under the [SSA]”, that “[t}he fact that an individual
may be able to return to a past relevant job, provided that the
employer makes accommodations, is not relevant to the [eligibility
determination}.” (Appendix D, p. 24a). As noted by the EEOC, in
this memorandum, the SSA concluded that eligibility standards
under the ADA and SSA have “no direct application to one another”;
therefore, a finding of “total disability” under the SSA is not
“synonymous” with a finding of an inability to work either with or
without reasonable accommodations for purposes of the ADA.
(Appendix D, p. 24a). As was reaffirmed by the SSA in its amicus
curiae brief in Swanks, there is nothing “inherently inconsistent”
between a claim for social security disability benefits and a claim
of being an otherwise qualified individual with a disability under
the ADA. (Appendix D, p. 25a). Also, as acknowledged by the
EEOC and SSA, there are many individuals who would qualify as
disabled because of having one of the SSA’s listed impairments
and that:

[Mjany persons with listed impairments, for
example, amputations, in fact are able to work quite
successfully, even though SSA would find them
“disabled” if they decided not to work and instead
sought benefits.

(Appendix D, p. 26a).

The EEOC also opined in its amicus curiae brief that although
properly rejecting any absolute rule that a claim for social security
disability benefits bars suit under the ADA, the Fifth Circuit had:

[E]mbraced a standard that would leave aggrieved
individuals without recourse under the ADA in most
cases in which an individual has applied for or
received social security disability benefits.

(Appendix D, p. 23a).

17

Indeed, the Fifth Circuit's claim that it would be the “highly
unusual” case wherein a social security disability recipient would
not be barred from an ADA claim is directly contrary to the
EEOC’s and the SSA’s position that an ADA claim which is
properly barred by some inconsistent statement in the SSA
application would be the rarity.

In conformity with the position of the EEOC and the SSA,
and in the wake of Swanks, the Sixth Circuit Court of Appeals, on
rehearing, issued a Supplemental Opinion on August 22, 1997
wherein it stated that it agreed with the holding in Swanks that
receipt of social security disability benefits does not preclude an
ADA claim, that judicial estoppel is rejected and that prior sworn
statements are only considered as a material factor in analyzing
the case. Blanton v. Inco Alloys International, Inc., 123 F.3d 916,
917 (6th Cir. 1997).

In addition to Swanks, Whitbeck and Blanton, the Seventh
Circuit recently confirmed its position that an individual's claim
for social security disability benefits does not bar a claim under
the ADA. See Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997).’
The Weigel court held that the granting of social security disability
benefits “is not determinative as to whether or not she [the
employee] may be considered a ‘qualified individual’ under the
ADA.” Weigel, 122 F.3d at 466. The Seventh Circuit held that
statements of “disability” to the SSA are “not irrelevant to the
question of whether an ADA plaintiff is a ‘qualified individual with
a disability’ ” and that, in the absence of evidence that the individual
could have performed her prior job with reasonable accommodation,

7. See also Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992)
wherein the Seventh Circuit held that the issue of whether the plaintiff
was entitled to social security disability benefits might be relevant to the
severity of the handicap, but that such a determination could not be
construed as a judgment that such a plaintiff was not qualified to do his
job under the Rehabilitation Act.

18

such statements along with other evidence could support summary
judgment. /d. at 466-68. The Weigel court, however, also held that
declarations of being “ ‘wholly unable to work, or some other
variant to the same effect” is not conclusive on the issue of whether
that same individual is a “qualified individual with a disability”
under the ADA. /d. At 466-67. As such, the court found that the
apparent incongruity between an ADA claim and an SSA cla‘m is
“entirely illusory because the terms, ‘totally disabled’ and ‘qualified
individual with a disability’ are terms of art that must be understood
within their respective statutory contexts.” /d. at 466.

In Talavera v. School Board of Palm Beach County, __ F.3d __
(11th Cir. 1997) (1997 WL 728368 (11th Cir. Nov. 24, 1997)), the
Eleventh Circuit Court of Appeals joined the ranks of the majority
of circuit courts and held that “a certification of total disability on
an SSD [social security disability] application is not inherently
inconsistent with being a ‘qualified individual with a disability’
under the ADA.” Talavera at *7. The Talavera opinion is significant
because it illustrates the fact that the Fifth Circuit's “rebuttable
presumption” position in Cleveland is a deviation from the opinions
of the majority of circuit courts on this issue. Specifically, when
analyzing the case law on the interplay between a claim for social
security disability benefits and a claim of being a “qualified
individual with a disability”, the Eleventh Circuit noted that the
Fifth Circuit's opinion in Cleveland exuded an “obvious skepticism”
and displayed a reluctance to find that individuals who are “totally
disabled” for social security disability purposes are covered by the
ADA. Talavera at *7. Rejecting the “skeptical” position of the
Fifth Circuit, the Eleventh Circuit followed the reasoning behind
Swanks, Blanton, and Weigel and held that:

A certification of total disability on a SSD
application does mean that the applicant cannot
perform the essential functions her job without
reasonable accommodation. It does not necessarily

19

mean that the applicant cannot perform the essential
functions of her job with reasonable accommodation.

Talavera at *7.

In contrast to the position of the EEOC, the SSA, and the Sixth,
Seventh, Eleventh and D.C. Circuit Courts of Appeals, when
analyzing the facts in Cleveland and determining that her statements
were “entirely inconsistent”, the Fifth Circuit failed to consider
the fact that inquiries in a social security disability claim do not
encompass the accommodation issue. (Appendix A, pp. 12a-13a).
Specifically, as noted by the Fifth Circuit in Cleveland, the
statements in question were as follows: (1) in an initial application
filed with the assistance of her daughter, Cleveland stated that she
was “unable to work because of her disabling condition on January
7, 1994” and was “still disabled”; (2) a September 1994 (post
termination) “Request for Reconsideration” which stated “I
continue to be disabled”; (3) a “Work Activity Report” which stated
she was terminated “because I could no longer do the job because
of my condition”; (4) a January 1995 second “Request for
Reconsideration” and May 1995 request for hearing wherein she
stated she was “unable to work due to my disability”. (Appendix
A, p. 3a). Contrary to the Fifth Circuit's finding that these statements
were inconsistent with her claim she was a “qualified individual
with a disability”, such statements do not bar Cleveland's ADA
claim as a matter of law because they do not speak to the issue of
reasonable accommodation. See Swanks at 583-87.

In light of the SSA’s complete lack of consideration of
reasonable accommodations in an SSA determination of
“disability”, there is nothing inconsistent about Cleveland's
statements to the SSA. Because the question of reasonable
accommodation was not raised in the SSA proceeding, Cleveland's
statements in her SSA claim that she was “disabled” or “unable to
work” or “unable to do [her] job” were not inconsistent with her

20

claim in her ADA case that she would have been able to do her job
had she been provided reasonable accommodation. Based on facts
similar to the present case wherein the employee had no
accommodation in his or her past work, the Swanks court held that
an SSA “determination that the claimant cannot do past work says
nothing about the claimant's ability to perform his or her former
job.” (emphasis added) Swanks at 585. As in Swanks, Whitbeck,
Weigel and Blanton, Cleveland's statements regarding her disability
are not inconsistent and do not bar her ADA claim.

Nevertheless, the Fifth Circuit ignored the absence of the
consideration of reasonable accommodations by the SSA and ruled
that Cleveland’s ADA claim was barred by judicial estoppel. Far
from being a fact specific ruling, under the Fifth Circuit's opinion
in Cleveland, similar statements of an inability to work, which are
no doubt made by most all other social security disability applicants,
would act to bar most every ADA claim brought by social security
disability applicants or recipients.

21

CONCLUSION

The Fifth Circuit’s presumption of judicial estoppel cannot be
reconciled with the holding of the majority of the circuit courts
that the application for or receipt of social security disability benefits
is not inconsistent with being a “qualified individual with a
disability”; therefore, absent review-by The Court an inherent
inconsistency will inequitably fester in the application of a federal
law designed to in part to provide “clear, strong, consistent,
enforceable standards addressing discrimination against individuals
with disabilities.” See 42 U.S.C. § 12101(b)(3).

Absent review by the Court, of the Fifth Circuit's decision on
this sharply conflicting legal issue, disabled individuals will be left
to suffer the indignities of discrimination without recourse and
without the protection of the law specifically designed to protect_
the disabled.

Respectfully submitted,

JOHN E. WALL, JR.
Counsel of Record
LAW OFFICES OF
JOHN E. WALL, JR.
Attorney for Petitioner
5728 Prospect Avenue
Suite 2001

Dallas, Texas 75206
(214) 887-0100

APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
FILED AUGUST 14, 1997

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-11247

CAROLYN C. CLEVELAND,
Plaintiff-Appellant,

versus

POLICY MANAGEMENT SYSTEMS CORPORATION;
GENERAL INFORMATION SERVICES, a Division of

Policy Management Systems Corporation; CYBERTEK
CORPORATION,

Defendants- Appellees.

Appeal from the United States District Court
for the Northern District of Texas

Before WIENER and PARKER, Circuit Judges, and LITTLE,*
District Judge.

WIENER, Circuit Judge:
Plaintiff-Appellant Carolyn C. Cleveland appeals the district

court’s grant of summary judgment for her former employer,
Defendant-Appellee Policy Management Systems Corporation

* Chief District Judge of the Western District of Louisiana, sitting
by designation.

2a
Appendix A

(PMSC), on her claim of wrongful termination under the
Americans with Disabilities Act (ADA).' We affirm, concluding
that Cleveland has failed to raise a genuine issue of material
fact which, if proved, would rebut the presumption that her sworn
declarations of disability submitted to the Social Security
Administration (SSA) judicially estop her from asserting that
under the ADA she is a “qualified individual with a disability.”

1.
FACTS AND PROCEEDINGS

PMSC hired Cleveland in August 1993. The following
January, Cleveland suffered a stroke while on the job and took a
leave of absence. She was unable to return to work immediately,
however, as the stroke caused aphasia, a condition that affects
concentration, memory, and language functions such as
speaking, reading, and spelling.

With her daughter's assistance, Cleveland filed an
application for social security disability benefits. In support of
her sworn application, Cleveland certified that she had become
“unable to work because of [her] disabling condition on January
7, 1994” and that she was “still disabled.” She acknowledged
also that it is a crime to make a false statement in an application
for social security disability benefits.

In April 1994, Cleveland's doctor released her to return to
work and anticipated an eventual recovery for her of nearly
100%. Cleveland alleges that when she returned to work at
PMSC she contacted the SSA and informed them that she had

1. 42 U.S.C. §12101 et seq. (1994).

3a
Appendix A

returned and that she no longer needed disability benefits. PMSC
concedes that she informed the SSA of her return but denies
that she ever withdrew her application for disability benefits or
otherwise indicated that she was anything other than totally
disabled.

Following her return, Cleveland did not perform well at
PMSC. She requested several accommodations, including
computer training, permission to take work home in the evenings,
a transfer of position, and permission for the Texas Rehabilitation
Commission to provide a counselor — free of charge — to assist
her. PMSC denied each of her requests. In July 1994, PMSC
terminated Cleveland for poor job performance.

Cleveland claims that as a consequence of her firing she
became depressed and that her aphasia worsened. In September
1994, she renewed her application for social security disability
benefits by filing a “Request for Reconsideration” in which she
stated, “I continue to be disabled,” and a “Work Activity Report”
in which she stated that she was terminated “because I could no
longer do the job because of my condition.” In January 1995,
Cleveland filed another “Request for Reconsiderativn” and that
May requested a hearing before an Administrative Law Judge
(ALJ), in both instances representing that she was “unable to
work due to my disability.”

In September 1995, the ALJ concluded that Cleveland had
become disabled on January 7, 1994 and was disabled
continuously through the date of the ALJ's decision.
Consequently, the ALJ granted her social security disability
benefits, effective retroactively to January 7, 1994.

One week before the ALJ's decision, Cleveland had filed

4a
Appendix A

suit against PMSC for wrongful termination in violation of the
ADA and the Texas Labor Code. PMSC moved for partial
summary judgment, asserting that Cleveland could not establish
a prima facie case under the ADA, as her representations in her
application for, and her receipt of, social security disability
benefits estopped her from claiming that she is a “qualified
individual with a disability.” The district court granted PMSC's
motion on the ADA claim and dismissed the state law claim
without prejudice.

Cleveland timely appealed, insisting that she is not estopped
from establishing as a matter of law that she is a “qualified
individual with a disability.” Specifically, she maintains that her
position in pursuit of social security disability benefits and her
instant position under the ADA are not inconsistent, as (1) she
was disabled for purposes of social security disability benefits
when she filed the initial application; (2) when she returned to
work, she notified the SSA and withdrew her claim for benefits;
and (3) she became disabled again for purposes of social security
disability benefits only after and as a result of her termination.
Cleveland contends that, from the time she returned to work
until she was terminated, she could have performed the essential
functions of her job with a reasonable accommodation, i.e.,
during that period she was a “qualified individual with a
disability.”

Il.
ANALYSIS
A. Standard of Review

We review the district court’s grant of summary judgment

Sa

Appendix A

de novo, applying the same standards as the district court.’
Summary judgment is proper when the evidence, viewed in the
light most favorable to the non-moving party, shows that there
is nO genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.’

B. Applicable Law

The ADA prohibits an employer from discriminating against
“a qualified individual with a disability because of the
disability."* To assert an ADA violation successfully, in the
absence of direct evidence of discrimination, a plaintiff must
first make a prima facie showing that, inter alia, he is a “qualified
individual with a disability.”* A “disability” is “a physical or
mental impairment that substantially limits one or more of the
major life activities” of the individual.® A “qualified individual
with a disability” is “an individual with a disability who, with
or without reasonable accommodation, can perform the essential
functions” of his job.’

2. Melton v. Teachers Ins. & Annuity Assn. of America, 1997 WL
285720, at *1 (Sth Cir. June 16, 1997).

3. River Production Co., Inc. v. Baker Hughes Production Tools,
Inc., 98 F.3d 857, 859 (Sth Cir. 1996) (citing Fed. R. Civ. P. 56(c)).

4. 42 U.S.C. §12112(a) (1994).

5. See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (Sth Cir.
1995).

6. 42 U.S.C. §12102(2)(A) (1994).

7. 42 U.S.C. §12111(8) (1994).

6a

Appendix A

The Social Security Act prescribes an individual's eligibility
for social security disability benefits. An individual is entitled
to receive such benefits if he is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment” and only if that
impairment is of such severity that he is unable to do his previous
work and cannot engage in any other kind of substantial gainful
work which exists in the national economy.’

When the two statutes are read in pari materia, it seems
logically inconsistent, at first blush, for an individual to claim
that he qualifies for social security disability benefits while
simultaneously maintaining that he can perform the essential
functions of his position for purposes of asserting an ADA claim.
Herein lies the dilemma.

Several of our fellow circuits have held that a plaintiff who
represents that he is totally disabled for purposes of recovering
social security disability benefits cannot then-assert that he is a
“qualified individual with a disability” for purposes of bringing
an ADA claim. Those circuits have barred the subsequent ADA
claim under various theories of preclusion, including the
equitable doctrine of judicial estoppel.'°

8. 42 U.S.C. §423(d)(1)(A) (Supp. 1997). The impairment must be
expected to result in death or to last for a continuous period of not less
than twelve months.

9. 42 U.S.C §423(d)(2)(A) (Supp. 1997).

10. The Third, Sixth, Seventh, and Ninth Circuits have invoked the
doctrine of judicial estoppel. See McNemar v. Te Disney Store, Inc., 91
F.3d 610, 617-18 (3d Cir. 1996), cert. denied, _ U.S. __, 117 S. Ct. 958
(1997) (plaintiff estopped from arguing that he is qualified under the

(Cont'd)

7a

Appendix A

(Cont'd)

ADA); Blanton v. Inco Alloys Int'l, Inc., 108 F.3d 104, 108-09 (6th Cir.
1997) (plaintiff's previous representations to the SSA estop him from
claiming that he can perform the essential functions of his position, but
error for the district court to apply judicial estoppel to plaintiff's claim
that he could have performed other jobs); DeGuiseppe v. Village of
Bellwood, 68 F.3d 187, 192 (7th Cir. 1995) (plaintiff estopped from
arguing that he was anything other than actually disabled); and Risetto v.
Plumber and Steamfitters Local 343, 94 F.3d 597, 606 (9th Cir. 1996)
(plaintiff estopped from claiming that she was performing her job
adequately when she had previously obtained a favorable settlement based
on her assertion that she could not work). The First and Eighth Circuits
have treated a plaintiff's prior representations to the SSA as binding
admissions. See August v. Offices Unlimited, Inc., 981 F.2d 576, 584 (ist
Cir. 1992) (plaintiff conceded that he was totally disabled at all relevant
times and cannot now establish that he was a “qualified handicapped
person” and thus cannot make the prima facie case required to prevail
under the Massachusetts discrimination statute) and Beauford v. Father
Flanagan's Boys' Home, 831 F.2d 768, 771 (8th Cir. 1987), cert. denied,
485 U.S. 938, 108 S. Ct. 1116 (1988) (plaintiff admitted that she cannot
perform the essential functions of the job in question and that she will be
unable to do so in the near future; therefore, she does not qualify for
protection under the federal Rehabilitation Act). The Ninth Circuit has
precluded a plaintiff's subsequent ADA claim based on an insufficiency
of evidence to overcome plaintiff's prior sworn statements to the SSA.
See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481-82 & n.3 (9th Cir.
1996) (unnecessary to apply judicial estoppel when there was no genuine
issue of material fact that plaintiff was totally disabled; only evidence to
the contrary was plaintiff's self-serving and uncorroborated affidavit in
support of her ADA claim). In addition, a number of district courts have
disallowed the subsequent ADA claim. See e.g. Hatfield v. Quantum
Chemical Corp., 920 F. Supp. 108, 110 (S.D. Tex. 1996) (logically
inconsistent for plaintiff to say that he is so impaired that he cannot care
for himself while simultaneously arguing that he can go to work and
perform his job); Harris v. Marathon Oil Co., 948 F. Supp. 27, 29 (W.D.
Tex. 1996), aff'd, 108 F.3d 332 (Sth Cir. 1997) (impossible for plaintiff

to have been totally disabled under social security law and able yo
ont’

8a

Appendix A

Judicial estopped prevents a party from asserting a position
in a legal proceeding that is contrary to a position previously
taken in the same or some earlier proceeding.'' The doctrine
serves a clear purpose: to protect the integrity of the judicial
process.”

We decline, however, to adopt a per se cule that
automatically estops an applicant for or recipient of social
security disability benefits from asserting a claim of
discrimination under the ADA." It is at least theoretically

(Cont'd)

the essential functions of his position under the ADA); Johnson v. Hines
Nurseries, Inc., 950 F. Supp. 175, 178 (N.D. Tex. 1996) (plaintiff should
be judicially estopped from claiming that he is a qualified individual
with a disability after representing himself as totally disabled to the SSA,
but noting that plaintiff's representations of total disability are at a
minimum factors to consider in determining if a fact question exists as to
whether plaintiff could have performed his job); Johnson v. City of Port
Arthur, 892 F. Supp. 835, 842 n.1 (E.D. Tex. 1995) (plaintiff's pursuit of
social security disability benefits is a position at odds with his ADA
claim); and Reigel v. Kaiser Foundation Health Plan of North Carolina,
859 F. Supp. 963, 970 (E.D.N.C. 1994) (plaintiff “cannot speak out of
both sides of her mouth with equal vigor and credibility”).

11. Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (Sth Cir. 1996).

12. United States v. C.1.T. Constr. Inc. of Texas, 944 F.2d 253, 258
(Sth Cir. 1991).

13. See D’Aprile v. Fleet Services Corp., 92 F.3d 1, 4-5 (1st Cir.
1996) (plaintiff's application for disability benefits may not have
constituted a broad admission of incapacity; genuine issue of material
fact existed as to whether plaintiff could have continued to work with a
reasonable accommodation); Blanton, 108 F.3d at 109-10 (plaintiff's
previous representations to the SSA did notestop him from claiming that

(Cont'd)

9a

Appendix A

conceivable that under some limited and highly unusual set of
circumstances the two claims would not necessarily be mutually
exclusive, as the SSA’s determination of an applicant's
entitlement to social security disability benefits would not be
synonymous with a determination that a plaintiff is or is not a
“qualified individual with a disability” under the ADA."

(Cont'd)

he could have performed other jobs); Shirley v. Westgate Fabrics, Inc.,
1997 WL 135605, at *3 (N.D. Tex. Mar. 17, 1997) (“There is no rigid
rule that receipt of disability benefits precludes recovery on an ADA claim.
Courts that have considered the issue have concluded that the receipt of
disability benefits is a factor to be considered by the court.”); Morton v.
GTE North Inc., 922 F. Supp. 1169, 1182 (N.D. Tex. 1996), aff'd, 114
F.3d 1182 (Sth Cir. 1997) (strict estoppel approach has no support in the
case law); Hughes v. Reinsurance Group of America, 957 F. Supp. 1097,
1100 (E.D. Mo. 1996) (evidence demonstrates that plaintiff was
representing that she could not perform her particular job, not that she
was totally disabled); and Smith v. Dovenmuehle Mortgage, Inc., 859
F. Supp. 1138, 1142 (N.D. Ill. 1994) (“Defendant's position would place
plaintiff in the untenable position of choosing between his right to seek
disability benefits and his right to seek redress for an alleged violation of
the ADA.”).

14. Robinson v. Neodata Services, Inc., 94 F.3d 499, 502 n.2 (8th
Cir. 1996) (SSA determination of eligibility for benefits is not
synonymous with determination whether plaintiff is a qualified individual
for purposes of the ADA; at best, social security determination is evidence
for trial court to consider in making its own independent determination),
Weiler v. Household Finance Corp., 101 F.3d 519, 523-24 (7th Cir. 1996)
(“Because the ADA’s determination of disability and a determination under
the Social Security disability system diverge significantly in their
respective legal standards and statutory intent, determinations made by
the Social Security Administration concerning disability are not
dispositive findings for claims arising under the ADA.”); and Pegues v.
Emerson Electric Co., 913 F. Supp. 976, 980 (N.D. Miss. 1996) (a finding
of disability by the SSA does not necessarily foreclose an ADA claim).

10a

Appendix A

First, while the ADA requires an individualized inquiry into
the ability of a particular person to meet the requirements of a
particular position, the SSA permits general presumptions about
an individual’s ability to work. The SSA considers some
conditions to be presumptively disabling. If a claimant has an
impairment that is medically equivalent to a listed impairment,
the SSA presumes that the disorder is so severe as to prevent
the claimant from doing any substantial gainful activity, without
considering his age, education or past work experience.’ Thus,
an individual can have a “disability” under the SSA definition
and still be able to work.

Second, the SSA does not consider whether the individual
can work with reasonable accommodation. An SSA
interpretative guidance addressing the SSA’s disability
determination process states,

The fact that an individual may be able to return to
a past relevant job, provided that the employer makes
accommodations, is not relevant to the issues to be
resolved. ... [H]ypothetical inquiries about whether
an employer would or could make accommodations
that would allow return to a prior job would not be
appropriate. '®

Thus, a person may be unable to do any work which exists in
the national economy even though he can work with a reasonable
accommodation. In those instances, the person is both a person

15. 20 C.F.R. §404.1520(d) (1997).

16. See “Americans with Disabilities Act of 1990 —
INFORMATION,” Memorandum from the Associate Commissioner,
Social Security Administration 1 (June 2, 1993).

lla
Appendix A

with a “disability” under the SSA and a “qualified individual
with a disability” under the ADA. Accordingly, a person claiming
to be disabled under the SSA may still be entitled to protection
under the ADA.

Third, even the SSA recognizes that an individual may be
able to qualify as SSA “disabled” and still be able to work in a
particular position. For example, the SSA has a trial work period
that allows beneficiaries to work for nine months while their
benefit entitlement and payment levels remain unchanged."
Similarly, the SSA provides individuals who return to work with
benefits in any month in which earnings fall below a statutory
level."*

We hold therefore that the application for or the receipt of
social security disabi.:ty 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.” We thus leave open the possibility
that there might be instances in which the nature and content of
the disability statement submitted to the SSA, in the context of
the particular facts of the case, would not absolutely bar a
plaintiff from attempting to demonstrate that despite his total
disability for Social Security purposes he is a “qualified
individual with a disability.” Conceivably, such a plaintiff might
be able to rebut this presumption if he were able to present
credible, admissible evidence — such as his social security
disability benefits application, other sworn documentation, and
his allegations relevant to his ADA claim — sufficient to show
that, even though he may be disabled for purposes of social

17. 20 C.F.R. §404.1592(a) (1997).

18. /d.

ee as

Appendix A

security, he is otherwise qualified to perform the essential
functions of his job with a reasonable accommodation and thus
not estopped from asserting an ADA claim.

C. Is Cleveland Estopped From Asserting Her ADA Claim?

We conclude that, on the facts before us — particularly her
sworn statements to the SSA that she was disabled — Cleveland
has not raised a genuine issue of material fact to rebut the
presumption that, while she remains disabled for purposes of
Social Security, she is estopped from asserting that she is a
“qualified individual with a disability.” Cleveland continuously
and unequivocally represented to the SSA that she is totally
disabled and completely unable to work. As her statements are
unambiguous and previously uncontroverted, she cannot now
be heard to complain that she could perform the essential
functions of her job during the time between her return to work
and her termination. To permit Cleveland to make such an
argument in the face of her prior, consistent, and — until now
— uncontested sworn representations to the SSA would be
tantamount to condoning her advancement of entirely
inconsistent positions, a factual impossibility and a legal
contradiction.'”

19. Pegues, 913 F. Supp. at 980-81 (ADA claim not necessarily
foreclosed, but when plaintiff previously represented in administrative
proceedings that she was unable to work, she cannot now argue that she
could have performed the essential functions of her job with a reasonable
accommodation); Morton, 922 F. Supp. at 1182-83 (under these facts,
plaintiff has no standing to assert ADA claim, as she has continuously
represented that her disability prevented her from performing her job);
and Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 555 (D. Kan.
1995) (on this record, plaintiff is estopped from asserting ADA claim;
having collected substantial benefits and based on these unambiguous
and seemingly informed representations, plaintiff cannot now claim that
she could perform the essential functions of her job).

13a

Appendix A
Ill.

CONCLUSION

As 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. For the foregoing reasons, the

district court’s grant of summary judgment for PMSC is
AFFIRMED.

l4a

APPENDIX B — JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS, DALLAS DIVISION
FILED SEPTEMBER 6, 1996

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

NO. 3-95-CV-2140-AJ
CAROLYN C. CLEVELAND
VS.

POLICY MANAGEMENT SYSTEMS CORP., GENERAL
INFORMATION SERVICES, a division of POLICY
MANAGEMENT SYSTEMS CORP., and CYBERTEK
CORPORATION

JUDGMENT

This action came on for consideration of defendants’ motion
for partial summary judgment, the undersigned Magistrate Judge
_presiding by the express consent of all parties, and the Court
having determined that plaintiff is estopped as a matter of law
from claiming to be a qualified individual under the Americans
with Disabilities Act.

It is ORDERED and ADJUDGED that the motion for partial
summary judgment on plaintiff's claim under the Americans
with Disabilities Act be, and it is, hereby granted, that this action
be, and it is, dismissed on the merits, and that defendants have
and recover of plaintiff their costs of action.

15a
Appendix B

It is further ORDERED and ADJUDGED that plaintiff's
claim for relief for alleged violations of Tex.Lab.Code Ann.
§451.001 be, and it is, hereby dismissed without prejudice.

Signed this 67H day of September, 1996.
s/ illegible

UNITED STATES MAGISTRATE
JUDGE

16a

APPENDIX C — PER CURIAM OPINION OF THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT DENYING PETITION FOR REHEARING
FILED SEPTEMBER 15, 1997

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-11247

CAROLYN C CLEVELAND
Plaintiff - Appellant

v.

POLICY MANAGEMENT SYSTEMS CORP; GENERAL
INFORMATION SERVICES, a Division of Policy Management
Systems Corporation, CYBERTEK CORP

Defendants - Appellees

Appeal from the United States District Court for the
Northern District of Texas, Dallas

ON PETITION FOR REHEARING

Before WIENER and PARKER, Circuit Judges, and LITTLE,*
District Judge.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the
above case is denied.

* Chief District Judge of the Western District of Louisiana, sitting
by designation

17a
Appendix C
ENTERED FOR THE COURT:

s/ Jacques L. Wiener, Jr.

JACQUES L. WIENER, JR.
UNITED STATES CIRCUIT JUDGE

APPENDIX D — BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS AMICUS CURIAE IN

SUPPORT OF THE APPELLANT’S PETITION FOR
REHEARING FILED SEPTEMBER 5, 1997

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-11247

CAROLYN C. CLEVELAND,
Plaintiff-Appellant,

v.

POLICY MANAGEMENT SYSTEMS CORPORATION and
GENERAL INFORMATION SERVICES,

Defendants- Appellees.

On Appeal from the United States District Court
for the Northern District of Texas

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
THE APPELLANT'S PETITION FOR REHEARING

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission
(“Commission”) is the agency charged with the enforcement of
Title I of the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12101 et seg. (“ADA”). In an opinion dated August 14, 1997,
a panel of this Court affirmed a grant of summary judgment in
favor of the defendants, relying heavily on the fact that the

19a
Appendix D

plaintiff had certified that she was totally disabled in support of
her claim for disability benefits under the Social Security Act.
In dismissing the plaintiff's claim, the panel declined to adopt
“a per se rule that automatically estops an applicant for or
recipient of social security disability benefits from asserting a
claim of discrimination under the ADA.” Cleveland v. Policy
Management Systems Corp., No. 96-11247, 1997 WL 464657,
*3 (Sth Cir. Aug. 14, 1997). The panel ruled, however, “that the
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.’ " Jd. at *4. The panel
implied that an individual would be able to overcome this
presumption only “under some limited and highly unusual set
of circumstances.” /d. at *3.

The panel's decision should be revised or withdrawn for at
least three reasons. First, the panel’s ruling that an individual is
presumptively estopped from asserting an ADA claim, when the
individual has applied for or received social security disability
benefits, is flatly inconsistent with the position of the Social
Security Administration (“SSA”), as recently articulated in a
brief filed in the D.C. Circuit Court of Appeals. In that brief
(included as an addendum to this brief), the SSA stated that
“[a}]n application for, and award of, social security disability
benefits does not constitute an admission as a matter of law that
the individual is physically unable to work” and, thus, does not,
under any circumstance, “bar as a matter of law his claim under
the ADA.” Brief of the SSA at 8, Swanks v. WMATA, 116 F.3d
582 (D.C. Cir. 1997) (“Swanks Brief”). The panel's ruling is
also inconsistent with the decisions of a majority of circuit
courts, which have rejected the application of judicial estoppel
in this statutory context. Most notably, the panel's ruling is

20a

Appendix D

inconsistent with the recent decisions of the D.C. Circuit
(Swanks v. WMATA, 116 F.3d 582 (D.C. Cir. 1997); Whitbeck v.
Vital Signs, Inc., 116 F.3d 588 (D.C. Cir. 1997)); the Sixth Circuit
(Blanton vy. Inco Alloys Int'l, Inc., 108 F.3d 104 (6th Cir. 1997),
supplemental opinion, 1997 WL 525292 (6th Cir. Aug. 22,
1997)); and the Seventh Circuit (Weigel v. Target Stores, No.
96-3719, 1997 WL 526163 (7th Cir. Aug. 26, 1997)). Finally,
as a general matter, the panel's application of judicial estoppel
in this case conflicts with the prior decisions of this Court, which
have been highly critical of the estoppel doctrine. See, e.g.,
Nichols v. Scott, 69 F.3d 1255 (Sth Cir. 1995), cert. denied, 116
S. Ct. 2559 (1996); United States v. McCaskey, 9 F.3d 368 (Sth
Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994). The panel
decision, if left in place, will expand judicial estoppel beyond
the narrow limits established in this Circuit.

As the agency charged to administer Title I of the ADA, the
Commission has a strong interest in arguing against the adoption
of legal doctrines that will unfairly deprive ADA claimants of
their day in court. Because of the importance of the issues raised
by this appeal to the effective enforcement of the ADA, the
Commission offers its views to the court.

STATEMENT OF THE CASE

This case involves a claim of disability discrimination under
the ADA. The plaintiff, Carolyn Cleveland, alleges that her
former employer, Policy Management Systems Corporation
(“PMSC”), terminated her employment because of her disability.

Cleveland began working for PMSC in August 1993.
Cleveland, 1997 WL 464657 at *1. Cleveland suffered a stroke
in January 1994 and took a leave of absence from work. /d.

2la
Appendix D

Cleveland filed an application for social security disability
benefits, certifying that she was “ ‘unable to work because of
(her) disabling condition on January 7, 1994’ and that she was
‘still disabled.’ " Ja.

In April 1994, Cleveland's physician released her to return
to work. /d. Cleveland resumed her job with PMSC, notifying
the SSA of the change in her condition. Jd. Cleveland
encountered difficulties in performing her job, on her return to
work, and asked for several accommodations that would assist
her in performing the essential functions of the job. Jd. PMSC
denied all of Cleveland's requested accommodations and, in July
1994, terminated her employment, allegedly for poor
performance. /d.

In September 1994, Cleveland renewed her application for
social security disability benefits. /d. Cleveland represented that
she “ ‘continue[d] to be disabled’ ” and that she had been
terminated from her job because she “ ‘could no longer do the
job because of [her] condition.’ ” Jd. Cleveland stressed that
her condition had worsened “as a consequence of her firing.”
Id. Cleveland filed a Request for Reconsideration, in January
1995, reaffirming her assertion that she was “ ‘unable to work ”
within the meaning of the legal standards applied by the SSA.
Id. The matter was referred to an ALJ, who awarded Cleveland
disability benefits, effective retroactively to January 7, 1994.
Id. at **1-2.

Cleveland subsequently brought suit under the ADA. PMSC
moved for summary judgment, arguing that “Cleveland could
not establish a prima facie case under the ADA, as her
representations in her application for, and her receipt of, social
security disability benefits estopped her from claiming that she

22a

Appendix D

is a ‘qualified individual with a disability.’ ” /d. at *2. The district
court granted summary judgment on that basis. /d.

On appeal, a panel of this Court affirmed the district court's
grant of summary judgment. The panel first rejected “a per se
rule that automatically estops an applicant for or recipient of
social security disability benefits from asserting a claim of
discrimination under the ADA.” /d. at *3. The panel explained
that, because of the different legal standards involved, claims
under the Social Security Act and the ADA “would not
necessarily be mutually exclusive.” Jd. Having rejected any per
se estoppel rule, the panel, nonetheless, adopted a standard that
would allow for the application of estoppel in most cases in
which an individual applies for or receives social security
disability benefits. Specifically, the panel ruled that “the
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.’ ” Jd. at *4. The panel
opined that an individual would be able to overcome this
presumption only “under some limited and highly unusual set
of circumstances.” Jd. at *3. Based on this standard, the panel
ruled that Cleveland had not “raised a genuine issue of material
fact to rebut the presumption that, while she remains disabled
for purposes of Social Security, she is estopped from asserting
that she is a ‘qualified individual with a disability.’ ” Jd. at *4.

ARGUMF T

This case raises important issues concerning the application
of the doctrine of judicial estoppel to bar otherwise viable claims
of disability discrimination under the ADA. The panel, while
correctly (in our view) rejecting any absolute rule that a claim

23a

Appendix D

for disability benefits under the Social Security Act bars suit
under the ADA, embraced a standard that would leave aggrieved
individuals without recourse under the ADA in most cases in
which the individual has applied for or received social security
disability benefits. For the following reasons, we urge this court
to revise or withdraw the panel opinion and to hold, in
accordance with the growing consensus on this issue, that the
doctrine of judicial estoppel has no place in this statutory
context.

I. THE PANEL’S RULING THAT AN APPLICATION FOR,
OR RECEIPT OF, DISABILITY BENEFITS
PRESUMPTIVELY ESTOPS AN INDIVIDUAL FROM
ESTABLISHING THE QUALIFICATIONS ELEMENT OF
HIS OR HER ADA CLAIM IS INCONSISTENT WITH
THE POSITION OF THE SSA.

The principal ground for revising or withdrawing the panel
decision is that the decision is inconsistent with the position of
the SSA itself. In its opinion, the panel cited to SSA regulations
and other statements by the SSA concerning the relationship
between the Social Security Act and the ADA. See Id. at **3-4.
The panel, however, did not have before it the full views of the
SSA. The SSA has now made clear that, in light of the legal
standards applied by the SSA in determining eligibility for
disability benefits, there is no basis for applying judicial estoppel
in this context.

The disability benefit programs of the Social Security Act
are designed to provide a stream of income to individuals
who, because of a disability, are unable to obtain jobs in
“significant numbers” in the “national economy.” 42 U.S.C.
§ 1382¢(a)(3)(B). The Social Security Act contemplates a

24a

Appendix D

“generalized” inquiry into the individual's “ability to find work
in the national economy.” Overton v. Reilly, 977 F.2d 1190, 1196
(7th Cir. 1992). In sharp contrast to the ADA, there is no
individualized inquiry into “the precise limitations resulting from
the disability and potential reasonable accommodations that
could overcome those limitations.” 29 C.F.R. § 1630.2(0)(2)
(1996) (ADA regulation).

Because of the different legal standards involved, the SSA
has made clear that an individual’s receipt of disability benefits
under the Social Security Act does not preclude a finding that
the individual is a “qualified individual” within the meaning of
the ADA. In a memorandum dated June 2, 1993, the SSA
specifically addressed the ADA’s “potential effect on the
evaluation of disability under the [SSA].” Americans with
Disabilities Act of 1990 — INFORMATION, Memorandum from
the Associate Commissioner, SSA at 1. The SSA stated that,
under the standards of the Social Security Act, “[t}he fact that
an individual may be able to return to a past relevant job,
provided that the employer makes accommodations, is not
relevant to the [eligibility determination].” Jd. at 2. The SSA
stressed that, in contrast to the ADA’s particularized approach
to the qualifications issue, eligibility for disability benefits “is
based on the functional demands and duties of jobs as ordinarily
required by employers throughout the national economy,” and
not on “{w]hether or how an employer might be willing (or
required) to alter job duties to suit the limitations of a specific
individual.” Jd. at 3. The SSA concluded that, because the
eligibility standards under the ADA and the Social Security Act
have “no direct application to one another,” a finding of “total
disability” under the Social Security Act is not “synonymous”
with a finding of an inability to work for purposes of the ADA.
Id. at 1, 3.

25a
Appendix D

The SSA further clarified its views on the relationship
between the disability standards under the Social Security Act
and the ADA in an amicus brief filed on February 28, 1997, in
the case of Swanks v. WMATA, 116 F.3d 582. In that brief, the
SSA stated that “[a]n application for, and an award of, social
security disability benefits does not constitute an admission as
a matter of law that the individual is physically unable to work,
and thus it does not bar as a matter of law his claim under the
ADA.” Swanks Brief at 8. Noting that the “inquiries under the
Social Security Act are ... significantly different from the
inquiries under the ADA,” the SSA asserted that statements made
to obtain disability benefits are “not a per se bar to an ADA
claim” and “may have only limited relevance to the ADA case.”
Id. at 2, 8-9. The SSA emphasized that, in assessing eligibility
for social security disability benefits, the SSA “does not consider
whether the former employer, or other employers, might make
a reasonable accommodation that would allow the claimant to
work,” id. at 6, 9, meaning that an individual could be “totally
disabled” or “unable to work” within the meaning of the Social
Security Act and still be a “qualified individual” for purposes
of the ADA. According to the SSA, there is nothing “inherently
inconsistent” between a plaintiff's claim for disability benefits
under the Social Security Act and his claim of qualifications
under the ADA. /d. at 8.

As the SSA has explained, there are a number of grounds
for reconciling a claim for disability benefits under the Social
Security Act with a claim of qualifications under the ADA. First,
because the SSA does not take into account the issue of
reasonable accommodation, an individual’s claim that she is
“totally disabled” or “unable to work,” within the meaning of
the legal standards applied by the SSA, is in no way inconsistent
with an assertion that she could have performed the essential

26a

Appendix D

functions of her prior job with accommodation. Since
accommodation is a commonplace feature of most ADA cases,
this difference in standards will provide a basis for reconciling
the two claims in a high percentage of cases. In addition, the
SSA has stated that it does not concern itself with an individual's
ability to work in those cases in which benefits are awarded at
step three of the SSA’s sequential evaluation process, due to a
listed impairment. According to the SSA, “[mJany persons with
listed impairments, for example, amputations, in fact are able
to work quite successfully, even though SSA would find them
disabled if they decided not to work and instead sought benefits.”
Swanks Brief at 11. Finally, the SSA has explained that, as a
general matter, a finding of a “total disability” does not constitute
a finding, as a matter of law, that an individual is physically
unable to work.” /d. at 8. The SSA awards disability benefits to
individuals who face real-world barriers to employment, even
though such individuals, with job training or assistance, might
be able to obtain work. See id. at 11; see also 55 SOC. SEC.
BULL. 36 (Spring 1992) (stating that “[e)nabling beneficiaries
with disabilities to achieve a better and more independent
lifestyle by helping them take advantage of employment
opportunities is one of SSA’ s highest priorities”).

The panel decision cannot be squared with these principles.
The panel ruled that an individual who has applied for or received
disability benefits is presumptively estopped from establishing
that she is a “qualified individual with a disability” under the
ADA. The panel implied that such a presumption was proper
because only in “some limited and highly unusual set of -
circumstances” would the two claims “not necessarily be
mutually exclusive.” 1997 WL 464657 at *3. This is simply
wrong. As the SSA has made clear, there is a substantial overlap
between the categories of individuals protected under these two

27a

Appendix D

statutory schemes. It is not the rare case in which claims under
these two statutes can be reconciled. Indeed, in most ADA cases,
the mere application or receipt of disability benefits will be of
little relevance to the qualifications issue, given the SSA’s
assertion that it does not examine the issue of reasonable
accommodation in determining eligibility for disability benefits.
Because an individual's prior claim for disability benefits can
be readily reconciled with her ADA claim, there is no basis for
adopting a rebuttable presumption in favor of judicial estoppel.

Of course, there may be cases in which an individual, not
only asserts that she is “totally disabled” under the standards
applied by the SSA, but makes specific factual representations
(e.g., that she could not perform her prior job even with
reasonable accommodation) that are inconsistent with her claim
of qualifications under the ADA. In these cases, however, there
is no need to resort to judicial estoppel. An individual who has
previously sworn to facts that are specifically inconsistent with
positions taken in her ADA case will have difficulty mounting a
viable ADA claim. In fact, under normal summary judgment
standards, an individual is bound by her prior sworn statements
in the sense that such statements are given “ ‘controlling weight’
at summary judgment unless ‘the shifting party can offer
persuasive reasons for believing the supposed correction.’ ” See
Swanks, 116 F.3d at 587 (quoting Pyramid Sec. Ltd. v. IB
Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)). Courts
can dispose of cases in which an ADA claimant has truly taken
inconsistent positions without invoking estoppel principles.

In this case, Cleveland asserted that she was “unable to
work” within the meaning of the legal standards applied by the
SSA. That assertion, by itself, is not inconsistent with her claim
of qualifications under the ADA. While Cleveland also stated

28a
Appendix D

that she “ ‘could no longer do the job because of [her]
condition,’ " 1997 WL 464657 at *1, that statement, placed in
context, is not inconsistent with her claim that she could have
performed the job if PMSC had not denied her the
accommodations that she sought. In fact, Cleveland claims that
her condition worsened as a result of her termination, meaning
that she might have been able to perform her prior job, with an
accommodation, at the time of her termination, even if she had
reached the point, some months later, that she could no longer
work.' Cleveland's assertions before the SSA are not inconsistent
with her claim of qualifications under the ADA and do not, in
any event, support the application of estoppel as a bar to suit.

ll. THE PANEL'S ADOPTION OF A REBUTTABLE
PRESUMPTION IN FAVOR OF JUDICIAL ESTOPPEL IS
INCONSISTENT WITH THE DECISIONS OF A
MAJORITY OF CIRCUIT COURTS.

A second ground for revising or withdrawing the pane!
decision is that the decision conflicts with the growing
consensus, among the circuit courts, that the doctrine of judicial
estoppel has no place in this statutory context. In its decision,
the panel suggested that most circuit courts had invoked judicial
estoppel to bar ADA claims. In fact, the case law, at the circuit
court level, is stacked firmly against the panel's approach.

First, the D.C. Circuit has issued two decisions that reject

|. That assertion is not inconsistent with the fact that the SSA
awarded benefits retroactively to January 1994, since, as noted above,
the SSA does not ask whether an individual could have performed her
prior job with accommodation. The SSA's award represents a finding
that Cleveland was totally disabled, as of that date, within the meaning
of the legal standards applied by the SSA, not that she was unable to
work, at that point, even with reasonable accommodation.

_

29a
Appendix D

the application of judicial estoppel in this context. In Swanks v.
WMATA, the court rejected the view that an individual's
Statement to the SSA that she is “disabled and unable to work”
bars her ADA claim. 116 F.3d at 587. Stressing that, “in assessing
eligibility for disability benefits, the [SSA] gives no
consideration to a claimant's ability to work with reasonable
accommodation,” the court ruled that “{a)wards of disability
benefits .. . cannot bar ADA relief.” Jd. at 584, 586. The court
held that, because the plaintiff had presented sufficient evidence
to support a finding that he could have performed his prior job
with reasonable accommodation, summary judgment was
improperly granted to the employer. /d. at 587-88; see also
Whitbeck v. Vital Signs, Inc., 116 F.3d at 591-93 (relying on
Swanks in holding that the plaintiff's statements to the SSA did
not bar suit under the ADA; plaintiff presented sufficient
evidence to survive summary judgment on accommodation
claim).?

Relying on Swanks, the Sixth Circuit recently rejected the
view that an individual's certification of a total disability, before
the SSA, could support the application of judicial estoppel. See
Blanton v. Inco Alloys Int'l, Inc., 108 F.3d 104. In Blanton, the
court initially ruled that a claim for disability benefits did not
provide an absolute bar to suit, although it implied that judicial
estoppel might apply, in this context, in some circumstances.
See 108 F.3d at 108-10. The Commission filed a brief in support
of the plaintiff's petition for rehearing, placing before the court
the brief of the SSA in Swanks (and the Swanks decision itself).
In response, the Sixth Circuit issued a supplemental opinion,
clarifying that its prior opinion “should not be read to endorse
judicial estoppel in this context.” 1997 WL 525292 at *1. The

2. Swanks and Whitbeck were both decided on June 20, 1997, some
iwo months before the panel decision. Neither case is mentioned in the

panel opinion.

30a
Appendix D

court stated that it agreed with D.C. Circuit's opinion in Swanks,
“that holds that the receipt of disability benefits does not
preclude subsequent ADA relief and rejects the doctrine of
judicial estoppel, but does allow the consideration of prior sworn
statements by the parties as a material factor.” /d.

Finally, the Seventh Circuit has recently ruled that an
individual's claim for disability benefits under the Social
Security Act does not, under any circumstance, bar a claim under
the ADA. See Weigel v. Target Stores, 1997 WL 526163 (7th
Cir. Aug. 26, 1997). Noting that the apparent incongruity
between the two claims is “entirely illusory because the terms
‘totally disabled’ and ‘qualified individual with a disability’ are
terms of art that must be understood within their respective
statutory contexts,” the court ruled that an individual's statement
to the SSA that she is “ ‘wholly unable to work,’ or some other
variant to the same effect,” is not “conclusive as tothe ADA
issue [of qualifications].” /d. at **4-6. The court recognized, as
does the Commission, that such statements are “not irrelevant
to the question of whether an ADA plaintiff is a ‘qualified
individual with a disability’ and that, in the absence of
competent evidence to the contrary, an individual's specific
factual assertions before the SSA might, together with other
evidence in the case, support the grant of summary judgment in
favor of the employer. /d. at **5-6. The court ruled that, because
the plaintiff failed to present competent evidence that she could
have performed her prior job with reasonable accommodation,
the plaintiff could not survive summary judgment. /d. at **6-7.

The panel indicated that the First Circuit has treated an
individual's prior representations to the SSA as “binding
admissions.” See 1997 WL 464657 at *3 n.10 (citing August v.
Offices Unlimited Inc., 981 F.2d 576, 584 (ist Cir. 1992)). In
fact, the First Circuit has since limited August to its narrow facts,

3la
Appendix D

ruling that, in most cases of reasonable accommodation, there
will be no basis for applying estoppel or treating the individual's
statements to the SSA as preclusive. See D’Aprile v. Fleet Servs.
Corp., 92 F.3d 1, 4-5 (ist Cir. 1996). The panel also stated that
the Sixth and Seventh Circuits have invoked judicial estoppel
to bar ADA claims. See 1997 WL 464657 at *3 n.10. As noted
above, both of these courts have now rejected the doctrine in
this statutory context. While the panel suggested that the Eighth
Circuit has applied a form of fact-based estoppel, based on
statements to the SSA, that court, in a recent case, stated that
the issue “remains open in our Circuit.” Dush v. Appleton Elec.
Co., No. 96-3289, 1997 WL 530542, *4 n.8 (8th Cir. Aug. 28,
1997). Finally, the panel drew support from the Ninth Circuit's
decision in Rissetto v. Plumbers and Steamfitters Local 343, 94
F.3d 597 (9th Cir. 1996). In Rissetto, the court applied judicial
estoppel but in a case involving a claim of age (not disability)
discrimination, where the plaintiff had certified to a total
inability to work in a workers’ compensation proceeding (not
before the SSA). The court simply assumed that, in that particular
context, the two claims were inconsistent. In this statutory
context, where the issue of reasonable accommodation, in
particular, differentiates the issue of coverage under the two
statutes, the Ninth Circuit has ruled that an individual's claim
of “total disability” under the SSA, while relevant to the issue
of qualifications, is not conclusive.’ See Kennedy v. Applause,
Inc., 90 F.3d 1477, 1479-82 & n.3 (9th Cir. 1996) (declining to
apply the doctrine of judicial estoppel).

Contrary to the panel's suggestion, the circuit court

3. We also note that the Tenth Circuit has, in general, rejected the
doctrine of judicial estoppel. See, ¢.g., In re Osborn, 24 F.3d 1199, 1207
n.11 (10th Cir. 1994); Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1520 n.10 (10th Cir. 1991); United States v. 49.0] Acres
of Land, 802 F.2d 387, 390 (10th Cir. 1986); Parkinson v. California Co.,
233 F.2d 432, 437-38 (10th Cir. 1956).

32a

Appendix D

precedent strongly militates against the application of judicial
estoppel, in any form, in this statutory context. In fact, the only
circuit court decision to have embraced the doctrine in this
context, McNemar v. The Disney Store, Inc., 91 F.3d 610 (3d
Cir. 1996), cert. denied, 117 S. Ct. 958 (1997), was issued before
the views of the SSA were clearly understood and, thus, stands
as questionable precedent. See Swanks, 116 F.3d at 587
(criticizing McNemar). This Court should hold, in accordance
with the growing consensus on the estoppel issue, that judicial
estoppel does not apply in this statutory context.

Ill. THE PANEL’S EXPANSIVE APPLICATION OF
JUDICIAL ESTOPPEL IS INCONSISTENT WITH THE
DECISIONS OF THIS COURT.

A final ground for revising or withdrawing the panel
decision is that the decision expands the doctrine of judicial
estoppel beyond the narrow limits set by this Court. This Court
has never been a champion of judicial estoppel. This Court has
described judicial estoppel as an “ ‘obscure doctrine,’ " United
States v. McCaskey, 9 F.3d at 378, “lacking ‘defined principles’
and subject to criticism as ‘basically an_ad hoc decision in each
case.’ " Nichols v. Scott, 69 F.3d at 1272. This Court has applied
the doctrine sparingly to prevent individuals from “ ‘playing
fast and loose’ with the courts,” Ergo Science, Inc. v. Martin, 73
F.3d 595, 598 (Sth Cir. 1996), but only when the statements at
issue are “significantly inconsistent.” Brandon v. Interfirst Corp.,
858 F.2d 266, 268-69 (Sth Cir. 1988).

This Court, in fact, has strongly suggested that the doctrine
of judicial estoppel, as its name implies, applies only in the
context of judicial proceedings. This court has stated that judicial
estoppel is designed “ ‘to protect the integrity of the judicial
process.’ ” Grant v. Lone Star Co., 21 F.3d 649, 651 n.2 (Sth

33a
Appendix D

Cir.), cert. denied, 115 S. Ct. 574 (1994). Specifically, the
doctrine “minimizes the danger of a party contradicting a court's
determination based on the party's prior position,” thereby
resulting in “inconsistent court determinations.” United States
ex. rel. Am. Bank v. C.1.T. Constr. Inc., 944 F.2d 253, 258-59
(Sth Cir. 1991). The doctrine is applied when an individual has
taken inconsistent positions before two courts, thereby posing a
“threat to judicial integrity” by creating the probability that
“ ‘one court has . . . been misled.’ ” /d. at 258 (quoting USLIFE
Corp. v. U.S. Life Ins. Co., 560 F. Supp. 1302, 1305 (N.D. Tex.
1983)); see also Dockery v. North Shore Medical Ctr., 909 F.
Supp. 1550, 1558 (S.D. Fla. 1995) (relying, in part, on Fifth
Circuit precedent in holding that judicial estoppel “should not
be applied to oaths undertaken in administrative filings” since
“undertaking such an oath in an administrative filing and then
later attempting to take a different position in a court of law,
does not threaten the integrity of the judicial system”).

Given these standards, this case is wholly unsuitable for
the application of judicial estoppel. As noted above, in the vast
majority of cases, there will be no inconsistency between an
individual's claim for social security disability benefits and his
claim of qualifications under the ADA. Even assuming, however,
that such inconsistency exists, judicial estoppel should not be
extended to administrative filings. If an individual has lied under
oath before the SSA, the SSA has the tools at its disposal to
pursue a case of perjury against the malfeasant. See Dockery,
909 F. Supp. at 1559 n.16. If the individual is misrepresenting
the facts in his ADA case, the normal tools of the adversarial
process, (e.g., discovery, cross-examination, and impeachment)
can ferret out the truth. In light of the important public policies
at stake (e.g., the widespread dismissal of otherwise viable
claims of disability discrimination), this Court should not choose
this statutory context to expand the doctrine of judicial estoppel
beyond its narrow limits.

34a

Appendix D

CONCLUSION

The panel correctly rejected any “per se rule that
automatically estops an applicant for or recipient of social
security disability benefits from asserting a claim of
discrimination under the ADA.” 1997 WL 464657 at *3. The
panel erred, however, in adopting a rebuttable presumption in
favor of estoppel, a standard that would effectively result in the
application of judicial estoppel as an absolute bar to suit in most
ADA cases in which the plaintiff has applied for or rechived
social security disability benefits. This Court should revise or
withdraw its opinion on the estoppel issue.

Respectfully Submitted,

C. GREGORY STEWART
General Counsel

J. RAY TERRY, JR.

Deputy General Counsel
GWENDOLYN YOUNG REAMS
Associate General Counsel]
LORRAINE C. DAVIS

Assistant General Counsel

s/ Robert J. Gregory
ROBERT J. GREGORY
Attorney

EQUAL EMPLOYMENT
OPPORTUNITY
COMMISSION

1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4059

35a

Appendix D
CERTIFICATE OF SERVICE

I, Robert J. Gregory, hereby certify that on this 5th day of
September, 1997, two copies of the attached brief were sent by

overnight mail, postage prepaid, to each of the following counsel
of record:

John Edward Hall, Jr.
5728 Prospect Avenue
Suite 2001

Dallas, Texas 75206

David Norman Kitner
Strasburger & Price, L.L.P.
901 Main Street

Suite 4300

Dallas, Texas 75202

s/ Robert J. Gregory
Robert J. Gregory

36a

Appendix D
ADDENDUM

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-7078

MICHAEL SWANKS,
Plaintiff-Appellant,

Vv.

WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

The United States files this brief as amicus curiae on behalf
of the Social Security Administration (SSA), in response to this
Court's sua sponte order of January 27, 1997, inviting SSA to
file an amicus brief in this appeal within 30 days. The order
provided that the brief “may address but need not be limited to”
two specific questions, namely:

(1) whether [SSA] accounts for the possibility of
reasonable accommodation under the Americans
with Disabilities Act (“ADA”) by the prior employer,

~~

37a
Appendix D

or by employers in the available labor market, when
making a disability determination, and (2) what
adjustments (if any) [SSA] would make to a person's
disability status or benefits as a result of an ADA-
related reinstatement or damage award.

Although the Ceurt asked only these two fairly narrow questions,
we think it would be useful, as the Court also suggested, that
our brief “not be limited to” those questions, but rather that it
also address the underlying question of the overall nature of the
relationship between a prior award of social security (or
supplemental security income) disability benefits and a claim
against a fermer employer under the ADA. On that underlying
question, the courts have reached a variety of inconsistent
conclusions, ranging from the idea that any social security claim
absolutely bars any ADA claim, see McNemar v. The Disney
Store, Inc., 91 F.3d 610, 617-18 (3rd Cir. 1996), to the idea that
the two schemes are so different that the social security claim
would have little effect on the ADA claim, see Overton v. Reilly,
977 F.2d 1190, 1196 (7th Cir. 1992); Smith v. Dovenmuenle
Mortgage, Inc., 859 F.Supp. 1138, 1141-42 (N.D. Ill. 1994).
Our view is that a claim for social security disability benefits
has several significant differences from a claim under the ADA,
and therefore a prior social security benefit claim and award is
not a per se bar to an ADA claim. In some cases, however,
specific statements made by the claimant or findings made by
SSA in connection with a disability claim might be relevant to
the issue before the court in the ADA case concerning the
plaintiff's ability to perform the essential functions of his prior
job.

38a

Appendix D
STATUTES AND REGULATIONS

The pertinent statutes and regulations (including internal
SSA materials) are reproduced in the addendum.

STATEMENT

1. Social Security Disability Determination. Two
programs operated by SSA determine whether an individual is
entitled to benefits on the basis of the same definition of
disability. Both Title II, which provides benefits, and calculates
their level, based on the individual's prior work record, see 42
U.S.C. 423, and Title XVI (also known as Supplemental Security
Income, or SSI), which provides benefits for the indigent, see
42 U.S.C. 1382, define disability for adults as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable 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 * * * .” 42 U.S.C. 423(d)(1)(A), 1382c(a)(3)(A). Under
both programs,

[a]n individual shall be determined to be under a
disabiiity 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, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.

42 U.S.C. 423(d)(2)(A), 1282c(a)(3)(B).

39a
Appendix D

SSA has adopted these requirements into a five-step
sequential evaluation process that it applies to each claim made
by an adult. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
At step one, SSA determines if the claimant engaged in
“substantial gainful activity;” if so, the claim is denied. 20 C.F.R.
404.1520(b), 416.920(b). At step two, SSA determines whether
the claimant has a severe impairment, that is, a medical
impairment that significantly limits his ability to do basic work
activities; if not, the claim is denied; if so, he proceeds to the
next step. 20 C.F.R. 404.1520(c), 404.1521, 416.920(c), 416.921.
At step three, SSA determines whether the claimant has an
impairment that meets or equals any of the impairments
described on a list located at 20 C.F.R. Part 404, Subpart P. App.
1. These are impairments of a nature and of a level of severity
that SSA will presume that anyone who meets or equals one or
more of the listings is unable to work and thus will be awarded
benefits. 20 C.F.R. 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, 416.926.

If the claimant does not meet or equal a listing, he proceeds
to step four, where SSA determines whether he can still perform
his “past relevant work,” that is, “the physical and mental
demands of the kind of work you have done in the past;” if he
can do so, SSA will deny benefits. 20 C.F.R. 404.1520(e),
404.1560(b), 416.920(e), 416.960(b). If he cannot do his past
relevant work, SSA proceeds to step five, where it will determine
whether the impairment prevents the claimant from performing
any other type of work which exists in significant numbers in
the regional or national economy, taking into account the
vocational factors of age, education, and prior work experience.
20 C.F.R. 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).

2. Facts. One year after plaintiff was discharged from his

40a

Appendix D

job as a special police officer for the Washington Metropolitan
Area Transit Authority (WMATA), he applied for social security
disability benefits (Title I]). His claim was denied at the ini a!
and reconsideration stages, but an administrative law judge, after
a hearing, awarded the benefits (App. 18a-18d). The ALJ
concluded that his impairment, a congenital abnormality of the
spine which creates urinary incontinence, does not meet or equal
any listed impairment. The ALJ concluded that it does, however,
leave him unable to perform his past relevant work or any other
work which exists in significant numbers in the regional or
national economy, principaliy because it prevents him from
engaging in frequent contact with other persons (ibid.). The ALJ
thus awarded benefits retroactive to the month in which he left
his job at WMATA, October 1992.

While his social security claim was pending, plaintiff also
sued WMATA under the Americans with Disabilities Act,
claiming that WMATA failed to make a reasonable
accommodation for his disability; according to his brief to this
Court, plaintiff requested 10 minute exercise periods each hour,
which would enable him to maintain better control of his bladder.
WMATA moved for summary judgment, arguing that plaintiff's
receipt of social security disability benefits constitutes an
admission that he is physically unable to work, and thus it bars
as a matter of law his claim under the ADA that he is able to
continue in his job, despite his medical impairments, with or
without a reasonable accommodation. The district court agreed
and granted summary judgment to WMATA (App. 97-103). It
held that plaintiff failed to make a prima facie case that he is a
“qualified individual with a disability” and thus eligible to make
a claim under the ADA, see 42 U.S.C. 12112(a), because his
claim for social security disability benefits is a binding admission
that he cannot perform the essential functions of his job, either

4la

Appendix D

with or without a reasonable accommodation (Order at 5-6, App.
101-102).

SUMMARY OF ARGUMENT

1. A successful claim for social security benefits is not an
absolute bar to the ADA claim. The significant differences
between those types of claims mean that the social security claim
may have only limited relevance to the ADA case.

a. A strong basis to distinguish social security from ADA
is that SSA does not consider whether the former employer, or
other employers, might make a reasonable accommodation that
would allow the claimant to work. SSA does not wish to
speculate about what employers might do but did not in fact do
to provide reasonable accommodations.

b. Another substantive difference between the claims is that
SSA may award benefits at step three, based only on the showing
that the claimant has a listed impairment, without considering
his residual functional capacity or his ability to do past relevant
work, or at step 5, where vocational factors (age, education and
work experience) could be the deciding factors. Moreover, the
ADA court should remember that under Title II, a Beneficiary
can return to work for a 9-month trial period and still continue
to receive his disability benefits.

2. A claimant's representations to SSA when showing at
step four that he is unable to perform his actual past relevant
work, however, can be relevant to the ADA claim, which can
raise a similar factual issue. But the ADA court must look
carefully at the social security record, since there can be specific
factual differences in the two cases.

42a

Appendix D

3. A reinstatement order, if the ADA plaintiff then returns
to work, would trigger the 9-month trial period for Title Il
beneficiaries. Otherwise, a return to work would be substantial
gainful activity and thus require that SSA terminate benefits.
Back pay would not require a repayment of past benefits, since
the award does not represent actual work performed.

ARGUMENT

AN APPLICATION FOR AND AWARD OF
SOCIAL SECURITY DISABILITY BENEFITS
IS NOT A PER SE BAR TO A CLAIM UNDER
THE AMERICANS WITH DISABILITIES ACT,
BUT IT MAY BE RELEVANT EVIDENCE IN
THE ADA CASE

Claims for social security disability benefits and claims
under the ADA have a number of significant differences. Yet
they do share at least one common premise: both can require a
finding as to whether the claimant is able to perform the essential
functions of his former job. Thus, the record in the social security
proceeding can be relevant to the ADA claim. On the other hand,
there can be major distinctions between what is at issue in the
social security proceeding and what is at issue in the ADA
proceeding that make it possible to reconcile the two claims.
The court deciding a later ADA claim thus must be sensitive to
the similarities and differences. It should not, as the district court
did here, simply find that the claimants positions are inherently
inconsistent and thus reject his ADA claim on its face. An
application for, and an award of, social security disability
benefits does not constitute an admission as a matter of law that
the individual is physically unable to work, and thus it does not
bar as a matter of law his claim under the ADA.

43a
Appendix D

1. At least one circuit has held that the mere fact that an
individual has applied for social security benefits and has sworn
that he is disabled, and that SSA accepted that application, is so
entirely inconsistent with a later ADA claim that it absolutely
bars the ADA claim under a theory of judicial estoppel. See
McNemar v. The Disney Store. Inc., 91 F.3d 610, 617-18 (3rd
Cir. 1996) (applying strict judicial estoppel in social security/
ADA context). As a general matter, this circuit does not accept
judicial estoppel. See UMWA 1974 Pension v. Pittston Co., 984
F.2d 469, 477 (D.C. Cir.), cert. denied, 113 S.Ct. 3039 (1993),
citing Konstantinidis v. Chen, 626 F.2d 933 (D.C. Cir. 1980)
(rejecting judicial estoppel doctrine). But even under a judicial
estoppel theory, an absolute bar on the ADA claim fails to
recognize that the inquiries under the Social Security Act are so
significantly different from the inquiries under the ADA that
the social security proceeding may have only limited relevance
to the ADA case.

a. One strong distinction between a social security claim
and an ADA claim is the one raised by this Court in its first
question to SSA: the manner in which SSA treats a possible
reasonable accommodation by the employer that is the defendant
in the ADA case, or by other employers. Often in an ADA case,
including the present case, one of the plaintiff's contentions is
that, even if he could not perform the job as the employer actually
has structured it, he could perform the essential functions of the
job if the employer made a reasonable accommodation. While
the effect of a reasonable accommodation on the claimant's
ability to perform his past job is thus often crucial to an ADA
case, it is SSA’s policy that, when evaluating the claimant's
ability to perform his past relevant work at step four of the
sequential evaluation process, it will not consider the possibility
that the employer might make such a change in the working

44a

Appendix D

environment, if the employer has in fact not done so. Moreover,
at step five, when SSA considers whether the claimant could
perform other work which exists in significant numbers in the
economy, it will look only at the actual jobs in the market, not
at changes that employers might make in those jobs to meet
their obligations under the ADA. '

This position reflects the regulatory definition of “past
relevant work,” which simply provides that SSA will compare
the claimant's “residual functional capacity” with “the physical
and mental demands of the kind of work you have done in the
past.” 20 C.F.R. 404.1560(b), 416.960(b); cf. 20 C.F.R.
404.1573(c), 416.973(c) (special conditions). A reasonable
accommodation that the employer did not in fact provide would
not fit this definition. SSA does not decide cases on the basis of
speculation as whether the employer might be persuaded to adopt
some alteration in the work, or might eventually be ordered to
do so in a suit under the ADA. Since a large proportion of ADA
cases, including this one, are based on a dispute over reasonable
accommodations, rather than on whether the plaintiff is able to
work even without any accommodation, this factor is one of the
most important differences between social security and ADA
claims.

b. Another substantive difference between social security
and the ADA that can allow for granting disability benefits while
still allowing relief under the ADA involves the criteria on which
SSA allows benefits in some cases. As we explained supra, SSA
can award benefits at step three of the sequential evaluation
process, without reaching step four, if the claimant's impairment

1. This policy was announced by Associate Commissioner Daniel
Skolar in a June 2, 1993 memorandum (attached as addendum, infra).

45a

Appendix D

is of a type, and of the severity, that is listed in the regulations
as presumptively disabling. Since SSA does not make an inquiry
at step three of the claimant's ability to do his past work, his
residual functional capacity, or his vocational factors (age,
education and work experience), an award of benefits on that
basis is not necessarily inconsistent with an ADA claim. Many
persons with listed impairments, for example amputations, in
fact are able to work quite successfully, even though SSA would
en enn Gieetiied f Gaay decided nat to weck and instead songhn
ts.

Other claimants are allowed benefits at step five, based upon
a finding that the claimant cannot perform other kinds of work
that exist in significant numbers in the economy. While SSA
does examine at step five the claimant's residual functional
capacity, that is, the limitations on his ability to work that are
caused by his medical condition, it also must consider the
claimant's vocational factors, that is, his age, education, and
work experience. Thus, SSA can award benefits to an individual
who is able to perform sedentary, light, or even medium work,
if his age, education, and lack of transferrable skills from past
employment make it unlikely that he could adjust to other work
for which he is otherwise qualified. See Heckler v. Campbell,
461 U.S. 458 (1983). A finding that the claimant satisfies step
five on that basis is of little if any relevance to an ADA claim.

c. Another distinguishing factor is that the social security
Title I] program has a 9-month trial work period (which need
not be consecutive months), during which an individual can
continue to receive full benefits while also working. See 42
U.S.C. 422(c), 423(e)(1); 20 C.F.R. 404.1592. This is one
situation where the social security program provides, as a work
incentive, that a person can simultaneously be considered

46a

Appendix D

disabled for its purposes and thus entitled to benefits, while also
actually working. Because of the trial work program,
beneficiaries will be less likely to be discouraged from trying
to get back into the workforce, since they would not need to
fear that, by trying to work, they will lose their reliable means
of financial support from the benefits. The ability of a social
security claimant to work while maintaining benefits for this 9-
month period thus tends to show that a finding of disability need
not be a finding that the individual cannot satisfy the work related
requirements of the ADA.

2. The claimant's representations to SSA on the factual
issues in support of an application for disability benefits,
particularly at step four of the sequential evaluation process,
where the ability to perform prior work is considered, and SSA's
findings on them when awarding benefits, nevertheless can be
relevant to a subsequent ADA claim. Both at step four of the
social security process and in the ADA claim, factual issues can
arise as to the claimant's ability to perform his prior job, despite
his medical impairment. The ADA court may take into account
the statements and findings made in the social security
proceeding as relevant evidence of the claimant's ability to
perform the essential functions of his job, as long as those
statements and findings specifically address these functions (and
they are otherwise admissible). As we explained supra, at step
four of its five-step sequential evaluation process, SSA denies
benefits unless the claimant shows that he is unable to perform
his actual past relevant work. See Social Security Ruling 82-61
(reprinted in the addendum). That inquiry bears some similarity
to an issue in the ADA case and the court in the ADA case thus
can consider that fact

On the other hand, however, there can be specific factual

47a
Appendix D

differences between the two claims that the ADA court can rely
upon to still rule in the plaintiff's favor. See, e.g., D’Aprile v.
Fleet Services Corp., 92 F.3d 1, 4-5 (1st Cir. 1996) (reconciling
private disability insurance claim with ADA claim on the facts):
Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)
(finding specific factual inconsistencies between SSA and ADA
claims). The court should not do as the 3rd Circuit did i
McNemar, that is, rely simply on the fact that the claimant signed
a standard form saying that he is unable to work. Rather, it must
look at exactly what the record shows in the social security case,
and what SSA found.

3. The Court’s second question to SSA concerned the
adjustments SSA would make in a claimant's benefits status
should he receive reinstatement or back pay under the ADA. If
the claimant accepts the reinstatement order and actually returns
to work, and the job pays more than $500 a month, that work
will presumably constitute substantial gainful activity. See 20
C.F.R. 404.1572, 404.1574. It will thus trigger the 9-month trial
work period for Title II beneficiaries that we described supra
(assuming that the claimant has not already exhausted that trial
work period with other jobs), during which the individual can
work and still keep the benefits. At the end of the trial work
period, the substantial gainful activity would then require
termination of the benefits. See 42 U.S.C. 423(d)(1)(A), (e)(1).
SSI recipients could also be disqualified because their income
exceeds the program's limit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0145%3A02. Public record. Not legal advice.