Amicus Curiae Brief — Cleveland v. Policy Management Systems Corp.

—_——— —— Se oo

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FILED

JUL 30 1998

No. 97-1008

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jn the Supreme Court of the Cntr Statrs—

OcTOR!I LE} LY

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BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

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QUESTION PRESENTED

Whether the application for or receipt of disability

insurance benefits under the Social Security Act, 42

U.S.C. 423, creates a rebuttable presumption that the

applicant or recipient is judicially estopped from

asserting that he is a “qualified individual with a dis-

ability” under the Americans with Disabilities Act of

1990, 42 U.S.C. 12101 et seq.

TABLE OF CONTENTS

Page

EEE Se Sa ee a aE LE ORE ]

ED iiitlachinthihhiirtcdiihiemncatlininaticinatn et 7

SUEUTEIUIITD ainsdilcciieindtipiachlianescneesitnttinibianingspainbiinit ind niin sniiaenie 20

TABLE OF AUTHORITIES

Cases:

Alexander vy. Gardner-Denver Co., 415 U.S. 36

CETEE susacssessducestnmbcestincabbctcbesesedettoateasebtadiciecenessssess 19

Astor Chauffeured Limousine Co. v. Runnfeldt

Inv. Corp., 910 F.2d 1540 (7th Cir. 1990) ............. 17

Bailey v. Teachers’ Retirement Sys., No. CIV. A.

96-2339, 1998 WL 4484 (E.D. La. Jan. 6, 1998) ......... 1]

Bazile v. AT & T-Bell Labs., Inc., No. CIV. A. 3:96-

CV-2652-G, 1997 WL 600702 (N.D. Tex. Sept. 19,

1997), aff'd, 142 F.3d 1279 (5th Cir. 1998) ............... 11

Bowen v. Yuckert, 482 U.S. 137 (1987) .....c.cccccccccecee 3

Budd vy. ADT Sec. Sys., Inc., 103 F.3d 699 (8th Cir.

SUED sasstctncinsnesbntbidtiiniembbetneninidantiamdsabidisnhiumemdssies i)

D’Aprile v. Fleet Servs. Corp., 92 F.3d 1 (1st Cir.

SUED cuivbltnshctntlinbintinnsathtninnbadbetnatiiiiiindainiicatibaiatatemeses ene 16

Davis v. Wakelee, 156 U.S. 680 (1895) ..................... 16

Dush v. Appleton Elec. Co., 124 F.3d 957 (8th Cir.

SUP cercevidentencennsnsebetnaieddetentons postibansbnbibensencdiseunnsecesees i)

Eback v. Chater, 94 F.3d 410 (8th Cir. 1996) .......... a)

Graf v. Wal-Mart Stores, Inc., No. CIV. A G-97-

410, 1998 WL 244263 (S.D. Tex. May 12, 1998) ........ ll

Griffith v. Wal-Mart Stores:

930 F. Supp. 1167 E.D. Ky. 1996), rev'd on other

grounds, (135 F.3d 376 (6th Cir. 1998), petition

for cert. pending, No. 97-1991 ........ccccccccccccceeeeeees 4

135 F.3d 376 (6th Cir. 1998), petition for cert.

pending, No. 97-1991 ............sccccccccccsceees 4, 8, 12, 19-20

Heckler v. Campbell, 461 U.S. 458 (1983) ................ 3, 15

(IIT)

IV

Cases—Continued: Page

Johnson v. Oregon, 141 F.3d 1361 (9th Cir.

nn RE ean LEE Na aE 9, 10, 13

Konstantinidis v. Chen, 626 F.2d 933 (D.C. Cir.

BBIDD ..cccccececoccccccevescosenccossnscsnboonntnonnorsboseessesssqvonoesess 16

Krouse v. American Sterilizer Co., 126 F.3d 494

(Bd Cir. 1997) ......2cecccccccecsssssereessesesseseereneeserssessesecnes 9, 10

Lefler v. E-Sys., Inc., No. Civ. A. 3:96-CV 1007,

1998 WL 61908 (N.D. Tex. Feb. 6, 1998)... 11

McConathy v. Dr. Pepper/Seven Up Corp., 131

F.3d 558 (Sth Cir, 1998) ........c.cccceceeeeeeeeeeeeeneeseeeeneees ll

McCreary v. Libbey-Owens-Ford Co., 132 F.3d

1159 (7th Cir. 1997) ......ccccccesecenecsereeenensecenseenenensees 8-9, 12

McKennon v. Nashville Banner Publ’g Co., 513 US.

BED (1905) .......ccccccccsecccccccesscossrescnsesescesssecssssesessesncess 19

McNemar v. The Disney Store, Inc., 91 F.3d 610

(3d Cir. 1996), cert. denied, 117 S. Ct. 958 (1997)... 4, 10

Mohamed v. Marriott, Int'l, Inc., 944 F. Supp.

QTT (S.D.N.Y. 1996) .....-ccecessorsserserereesecessessnesenenenes 4, 15

Moore v. Payless Shoe Source, Inc., 139 F.3d 1210

(Bth Cir. 19BB) .......ccercccescsssessessorssseseseseeesesssssseserenes 9, 16

Overton v. Reilly, 977 F.2d 1190 (7th Cir. 1992)... 14, 15

Pena v. Houston Lighting & Power Co., 978

F. Supp. 694 (S.D. Tex. 1997) ......ccceeceereeensennenennenens 11

Perma Life Mufflers, Inc. v. International Parts

Corp., 392 U.S. 134 (1968) .....cccceeeeeeeeesrennerennenensnes 19

Rascon vy. U.S. West Communications, Inc.,

No. 96-2194, 1998 WL 223465 (10th Cir. May 6,

BODE) cccccccnccccccecccssenseccncscndncsnosssessonsesesscsssccsssooossenss 8, 13

Rissetto v. Plumbers and Steamfitters Local 343,

94 F.3d 597 (9th Cir. 1996) .........cccceereeeeene waviete 16-17

Robertson v. Neuwromedical Ctr., 983 F. Supp. 669

(M.D. Lar. 1997) .......-ccccccccssssssnerecesscessnenennensenassenennes 11

Robinson v. Neodata Servs., Inc., 94 F.3d 499

(Bth Cir, 1996) ......cccccccscrreeeeeeeneeeeereenenennennennnnennenenen 9

Vv

Cases—Continued: Page

Ryan Operations, G.P. v. Santiam-Midwest Lumber

Co., 81 F.3d 355 (Bd Cir, 1996) ......cccccccceceeeeseeeeeees 10, 17

Simon v. Safelite Glass Corp., 128 F.3d 68

GD Cli, BORD cccececsecnsceeccasasesscnccasesccecssesssvesoczvccccceses 16

Swanks v. WMATA, 116 F.3d 582 (D.C. Cir.

OO EEA CEES EM Oa DI 9, 13, 18, 19

Talavera v. School Bd., 129 F.3d 1214 (11th Cir.

aT: TEN ete hoe WEN 9, 10, 13

Taylor v. Food World, Inc., 133 F.3d 1419 (11th

Ce, BED ccecoccenssnceesnsssansessccsncsnnnenceseanentanansesinesnscsses 13

UMWA 1974 Pension v. Pittson Co., 984 F.2d 469

(D.C. Cir.), cert. denied, 509 U.S. 924 (1993) ....... 16, 17

United States v. 49.01 Acres of Land, 802 F.2d

SBT (BGtha Clr. IGBE) ..ccccccccecsescssesccssccccccsccccesssceseese 16, 17

Whitbeck v. Vital Signs, Inc., 116 F.3d 588

ee 15

Statutes:

Americans with Disabilities Act of 1990, 42 U.S.C.

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4B UBC. IBIGRN) .ncccccceseccccccesccvcescsccsscccsveceees 17

wm BU BG. TBRIIID cececccccccvcccsccccoccccsccccecccccccsssssceee 1,14

4B UBC. UB1LLIDMB) ...22000....00cccccccccrccccesseccevereees 2

GB TUBA. TR RIIAD ccerecocccccccccevsscccsccccssceccccsnccecosess 1

Social Security Act, 42 U.S.C. 301 et seq.:

GB UBB, GERI cecceccccccccccssecscccccccsscosessscosssccsesccceves 15

QB CIGD, GID ceeescnccecctannsenccnccesesesesescccessensscoccoceses 15

Gn TEER, GI = cecnsececetesevencecesecscsescencccccsrecensevessescoccess 1,2

4B UB.C. GBMAMIND) ...200000cccccreccrcccesrccscocscsoseserees 2

42 U.S.C. 42BAMIMA) ....222.00000ccecccrrcrrerrrrrrerereseoeeees 2

4B UB.C. GRILEMEMA) ..220000ccccccccccceccccscosccsseccosscosese 3

GB UDG, GEBERID) nccecccceccrecosscccssccszcccccccccccss sccvseseees 15

20 C.F.R.:

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Bastian GOEGICE) ...eccccccccccecscsccscccsssscesesccccesevessessoes 4

Becta GOEGIUE) ..<cccccesecccccscesessescscvscscossccccscesceceses 4

Vi

Statutes—Continued: Page

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8 ne 3, 15

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a 8 Ene 3, 15

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ITE ecnttninsstinbenstinsiunstitediniaeaiiingaptatintinies 15

ete GI ccinitccncesccanicnatscnctanineneesennammanenianiess 15

Pt. 404, Subpt. P, App. 1 ............ceccceseseeneeeseeeerenssnens 3

Miscellaneous:

EEOC: Benefits Applications and ADA Claims

(issued Feb. 12, 1997) reprinted in BNA’s Ameri-

cans with Disabilities Act Manual No. 62 ........ 2, 13, 14

H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 2

CRBBID ccacanscsessnnsonsesteccascosestetsonssinssiatdartsqnesennanueeneeess 18

2 McCormick on Evidence (John W. Strong ed.,

Gis OB, BOT cccccccrcctsocncsnsnisiencctatanssninnperenneementnaninen 17

Daniel L. Skoler, Assoc. Comm’r, SSA, Disabilities

Act Info. Mem. (June 2, 1993), reprinted in 2 Social

Security Practice Guide (MB 1997) ...........000000++ 3-4, 13

18 Charles A. Wright et al., Federal Practice and

Procedure (1981 & Supp. 1996) .........ccccccceeeeeeeeeenenes 16

In the Supreme Court of the Gnited States

OcTOBER TERM, 1997

No. 97-1008

CAROLYN C, CLEVELAND, PETITIONER

v.

POLICY MANAGEMENT SYSTEMS CoRrP., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States.

STATEMENT “I

This case concerns the appropriate impact of an

employee’s application for or receipt of disability

insurance benefits under the Social Security Act, 42

U.S.C. 423, on the employee’s suit against her em-

ployer alleging that the employer discharged her in

violation of the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. 12101 et seq.

1. a. The ADA prohibits an employer from dis-

criminating against a “qualified individual with a dis-

ability” because of the disability. 42 U.S.C. 12112(a).

A “qualified individual with a disability” is “an indi-

vidual with a disability who, with or without reason-

able accommodation, can perform the essential func-

tions” of his job. 42 U.S.C. 12111(8).

(1)

2

The determination whether a person with a dis-

ability is “qualified” “requires an individualized,

case-by-case assessment of the specific abilities of the

person, the specific requirements of the position that

the person holds or desires, and the manner in which

the person may be able or enabled to meet those

requirements.” EEOC: Benefits Applications and

ADA Claims (issued Feb. 12, 1997) reprinted in

BNA’s Americans with Disabilities Act Manual

(EEOC Guidance), No. 62, at 70:1251, 70:1255. The

“definition of the term ‘qualified individual with a dis-

ability’ expressly requires consideration of whether

the individual can perform [the] essential functions

fof his job] with reasonable accommodation.” Ibid.

Reasonable accommodations may include “job re-

structuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or

modification of equipment or devices, appropriate

adjustment or modifications of examinations, training

materials or policies, the provision of qualified read-

ers or interpreters, and other similar accommoda-

tions.” 42 U.S.C. 12111(9)(B).

b. Under the Social Security Act, 42 U.S.C. 423, as

interpreted by the Social Security Administration

(SSA), an individual can have a “disability” that enti-

tles him to benefits even if he could have performed

his previous job if his employer had provided him with

reasonable accommodations. The Act provides that an

insured individual has a “disability” and is entitled to

benefits if he is unable to engage in “substantial gain-

ful activity” because of a “physical or mental impair-

ment” that is expected to result in death or that

has lasted or can be expected to last for 12 months

or more. 42 U.S.C. 423(a)(1)(D), 423(d)(1(A). The

impairment must be “of such severity that he is not

3

only unable to do his previous work but cannot, con-

sidering his age, education, and work experience,

engage in any other kind of substantial gainful work

which exists in the national economy.” 42 U.S.C.

423(d)(2)(A).

Ti.e SSA applies a five-step process to determine

whether an adult claimant qualifies for benefits. See

Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). First,

the claimant must not be engaged in “substantial

gainful activity.” 20 C.F.R. 404.1520(b). Second, the

claimant must have a medical impairment that is

severe enough to limit significantly his ability to do

basic work activities. Jd. at 404.1520(c), 404.1521.

Third, if the impairment is equivalent to one of the

impairments listed by the Secretary at 20 C.F.R.

Part 404, Subpart P, Appendix 1, benefits are awarded

without further inquiry into the claimant’s ability to

perform his prior job or any other work. (/d. at

404,1520(d), 404.1525, 404.1526; see also Yuckert, 482

U.S. at 153; Heckler v. Campbell, 461 U.S. 458, 460

(1983).

Fourth, if the claimant’s impairment is not equiva-

lent to one on the list, the claimant must be unable to

perform his “past relevant work,” ser 20 C.F.R.

404.1520(e) and (f), and, fifth, he must be unable to

perform any other work in the national economy, see

404.1560(c). “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

that inquiry. See Daniel L. Skoier, Assoc. Comm’r,

SSA, Disabilities Act Info. Mem. (June 2, 1993),

reprinted in 2 Social Security Practice Guide, App. §

15C[9] (SSA Guidance), at App. 15-401 (MB 1997),

cited in U.S. Amicus Br. at 8, in Swanks v. WMATA,

4

No. 96-7078 (D.C. Cir.) (Swanks Brief), reprinted at

Pet. App. 43a-44a.

SSA regulations state that, if a person “believe[s]”

he “may be entitled to benefits,” he “should file an

application,” 20 C.F.R. 404.603, on forms prescribed by

the SSA. IJd. at 404.610(a), 404.611(a). The forms, of-

ten generated by SSA’s computerized application sys-

tem, contain standard language asserting that the ap-

plicant is “unable to work” and “disabled.” See, ¢.g.,

McNemar v. The Disney Store, Inc., 91 F.3d 610, 615

nn. 2 & 3 (3d Cir. 1996), cert. denied, 117 S. Ct. 958

(1997); Mohamed v. Marriott, Int'l, Inc., 944 F. Supp.

277, 279 (S.D.N.Y.°1996); Griffith v. Wal-Mart Stores,

Inc., 930 F. Supp. 1167, 1168-1169 (E.D. Ky. 1996), rev'd

on other grounds, 135 F.3d 376 (6th Cir. 1998), petition

for cert. pending, No. 97-1991. The forms do not sug-

gest that a claimant may qualify the statements at-

testing to his disability and inability to work by not-

ing that he would be able to work if he were provided

reasonable accommodation. See Griffith, 135 F.3d at

382.

2. Petitioner Carolyn Cleveland began working for

respondent Policy Management Systems Corporation

in August 1993. Pet. App. 2a. Petitioner suffered a

stroke in January 1994 and took a leave of absence

from work. Ibid. On January 26, 1994, she signed an

application for Social Security disability benefits

prepared by her daughter in which she certified,

using the standard language on forms generated by

SSA’s computerized applicat’ n system, that she was

“‘unable to work because of ,ner] disabling condition

on January 7, 1994’ and that she was ‘still disabled.’”

Ibid. (quoting application).

In April 1994, petitioner’s physician released her to

return to work. Pet. App. 2a. Petitioner resumed her

5

job with respondent, notifying the SSA of the change

in her condition. Jd. at 2a-3a. Petitioner encountered

difficulties performing her job on her return to work

and asked for several accommodations to assist her.

Id. at 3a. Respondent denied all of petitioner’s re-

quested accommodations and, in July 1994, terminated

her employment. [bid.

On September 14, petitioner renewed her applica-

tion for disability benefits by filing a “Request for

Reconsideration.” Pet. App. 3a. Again using the

standard language contained on forms generated by

the SSA, petitioner represented that she “continue[d]

to be disabled,” ibid. (quoting Request for Reconsid-

eration Sept. 14, 1994). Petitioner also stated that her

employer terminated her because she “could no

longer do the job because of [her] condition.” Ibid.

(quoting Work Activity Report submitted in conjunc-

tion with the Request for Reconsideration). Peti-

tioner filed a second “Request for Reconsideration”

in January 1995, reaffirming that she was “unable to

work,” ibid., again using the standard language in

SSA forms.

Petitioner made no statement about her ability to

perform her prior job with reasonable accommoda-

tions in any of her submissions to the SSA, and she

was not asked to make such a statement. The matter

was subsequently referred to an administrative law

judge (ALJ), who, in September 1995, awarded peti-

ioner disability benefits effective retroactively to

January 7, 1994. Ibid.

3. a. One week before the ALJ’s decision, petitioner

brought this suit under the ADA. Pet. App. 3a-4a.

She claimed that respondent terminated her employ-

ment because of her disability. Complaint 4 7. Peti-

6

tioner further alleged that respondent unlawfully

failed to accommodate her disability. [bid.

Respondent moved for summary judgment, arguing

that petitioner “could not establish a prima facie case

under the ADA, as her representations in her applica-

tion for, and her receipt of, social security disability

benefits estopped her from claiming that she is a

‘qualified individual with a disability.” Pet. App. 4a.’

In response to the motion, petitioner submitted an

affidavit detailing various accommodations that she

had requested and alleging that all of the accommoda-

tions were denied. See Affidavit of Carolyn C.

Cleveland 3. Petitioner’s affidavit also alleged that

her condition worsened as a consequence of her

firing. Jbid. Petitioner also submitted an affidavit

from her physician stating, “[p]rior to [petitioner’s]

termination, I had anticipated that [she] would

ultimately reach a near 100% recovery” but, following

her termination, “she became depressed and her apha-

sia became worse.” Affidavit of Steven P. Herzog,

M.D. 2. Petitioner’s physician opined that “had [peti-

tioner] been given training time and assistance on the

job, instead of being terminated, she would have con-

tinued to recover from the stroke.” Jbid. The district

court granted summary judgment for respondent.

Pet. App. 4a.

b. On appeal, the Fifth Circuit affirmed the dis-

trict court’s grant of summary judgment. Pet. App.

! “Judicial estoppel 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.”

Pet. App. 8a. The doctrine seeks “to protect the integrity of

the judicial process” by preventing a party from “speak[ing]

out of both sides of her mouth with equal vigor and credibil-

ity.” Id. at 8a & n.10 (internal quotation marks omitted).

7

la-13a. The court 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.” Id. at 8a.

The court recognized that, because of the different

legal standards involved, claims under the Social

Security Act and the ADA “would not necessarily be

mutually exclusive.” Jd. at 9a. The court nonetheless

adopted a standard that calls for the application of

estoppel in the vast majority of cases in which an indi-

vidual applies for or receives Social Security disabil-

_ ity benefits.

Specifically, the court 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.’” Pet. App. lla. The court opined that an

individual would be able to overcome that presump-

tion, if at all, only “under some limited and highly

unusual set of circumstances.” Jd. at 9a. Applying

that standard, the court ruled that petitioner had not

“raised a genuine issue of material fact to rebut the

presumption that, while she remains disabled for pur-

poses of Social Security, she is estopped from assert-

ing that she is a ‘qualified individual with a disabil-

ity.’” Id. at 12a.

Petitioner sought rehearing. The Equal Employ-

ment Opportunity Commission (EEOC) filed a brief as

amicus curiae in support of petitioner. Pet. App. 18a-

35a. The panel denied the petition for rehearing with-

out explanation. Jd. at 16a.

DISCUSSION

The Court should grant the petition for certiorari.

The courts of appeals are in considerable disarray

8

over the impact that an employee’s application for or

receipt of Social Security disability benefits should

have on the employee’s claim under the ADA. More-

over, the rule stated by the Fifth Circuit in this case

has been adopted by no other circuit, is inconsistent

with the position of the EEOC and the SSA, the

agencies which administer the two statutes at issue,

and is incorrect. For those reasons, and because the

issue is important to the effective enforcement of the

ADA, review by this Court is warranted.

1. The Fifth Circuit’s decision is inconsistent

with the views of every other court of appeals that has

addressed the question presented by this case. No

other court of appeals has held that an employee’s

application for or receipt of Social Security disability

benefits creates a presumption that the employee is

judicially estopped from asserting that she is a

“qualified individual with a disability” under the

ADA. No other court of appeals has limited a Social

Security applicant’s ability to establish her qualifica-

tion to raise an ADA claim to a “limited and highly

unusual set of circumstances.” Pet. App. 9a.

a. The courts of appeals have divided several ways

over the proper legal effect to accord application for

or receipt of Social Security disability benefits in a

subsequent ADA action. The largest group has re-

jected estoppel and held that statements made in

support of a benefit claim should be analyzed “under

traditional summary judgment principles” as relevant

evidence bearing on the qualification issue. See

Griffith, 1385 F.3d at 383; accord Rascon v. U.S. West

Communications, Inc., No. 96-2194, 1998 WL 223465,

at **6-10 (10th Cir. May 6, 1998); McCreary v. Libbey-

Owens-Ford Co., 182 F.3d 1159, 1164-1165 (7th Cir.

9

1997); Swanks v. WMATA, 116 F.3d 582, 584-587 (D.C.

Cir. 1997).

One circuit, although rejecting estoppel, has im-

posed a heightened burden of proof on ADA plaintiffs

who previously claimed Social Security disability

benefits. See Moore v. Payless Shoe Source, Inc., 139

F.3d 1210, 1213 (8th Cir. 1998) (plaintiff must produce

“strong countervailing evidence” to overcome prior

sworn statements of disability).

Still other courts of appeals have ruled that estop-

pel may be appropriate in certain circumstances but

that, in most cases, an application for Social Security

disability benefits and an ADA claim will be reconcil-

able. See Johnson v. Oregon, 141 F.3d 1361, 1366-1370

(9th Cir. 1998); Talavera v. School Bd., 129 F.3d 1214,

1217-1220 (11th Cir. 1997); Krouse v. American Ster-

ilizer Co., 126 F.3d 494, 501-503 & nn.3-5 (3d Cir.

2 The Eighth Circuit's views are somewhat unclear. The

Moore panel cited Dush v. Appleton Electric Co., 124 F.3d 957,

963 (8th Cir. 1997), in support of a heightened evidentiary stan-

dard. Although Dush indeed imposed a “particularly cumber-

some” “burden,” ibid., the opinion reserved “the question of

whether and to what extent judicial estoppel, or some other

form of estoppel, will operate to prohibit someone who has

formerly claimed to be ‘totally disabled’ from making out a

prima facie ADA case.” Id. at 962 n.8. The Dush panel noted

that prior opinions of the Eighth Circuit conflicted on the

applicability of estoppel. See ibid. (citing Robinson v. Neodata

Servs., Inc., 94 F.3d 499, 501-502 (1996) (rejecting estoppel);

Eback v. Chater, 94 F.3d 410, 412 (1996) (noting lack of direct

relationship between ADA and Social Security standards); and

Budd v. ADT Sec. Sys., Inc., 103 F.3d 699 (1996) (per curiam)

(affirming applicat‘on of estoppel)). The panel concluded that

“the issue, at least for the time being, remains open in our

Circuit.” Dush, 124 F.3d at 962 n8.

10

1997). In those courts, “in most cases, * * *

‘{s]traightforward summary judgment analysis,

rather than theories of estoppel,’ will be appropriate.”

See Johnson, 141 F.3d at 1369; accord Talavera, 129

F.3d at 1220 (estoppel applies only to prevent dis-

avowal of specific statements that are actually incon-

sistent with current claim); Krouwse, 126 F.3d at 503

n.5 (courts should not apply estoppel without first ~

applying two-part test of Ryan Operations G.P. v.

Santiam-Midwest Lumber Co., 81 F.3d 355 (8d Cir.

1996), which requires that two positions be actually

inconsistent and that either or both of the inconsis-

tent positions have been taken in bad faith).

Only the Fifth Circuit has adopted a presumption

that an employee is estopped from maintaining an

ADA claim whenever he or she has applied for or

received Social Security disability benefits. By that

court’s own lights, that presumption, although “theo-

retically” rebuttable, results in dismissal of ADA

claims in most cases in which there has been an ap-

plication for benefits. See Pet. App. 8a-9a; page 7,

supra. Other courts have acknowledged that repre-

% In McNemar v. The Disney Store, Inc., 91 F.3d 610 (1996),

cert. denied, 117 S. Ct. 958 (1997), the Third Circuit initially

seemed to adopt an almost per se estoppel rule. In Krouse,

however, the Third Circuit explained that McNemar was tied

to its “unique facts” and admonished district courts in the

Circuit not to assume that “McNemar always bars an individ-

ual’s ADA claims merely because prior representations or

determinations of disability exist in the record.” 126 F.3d at

503 n.5. Although the Third Circuit. conjectured that the

court, sitting en banc, might “revisit the issue of judicial

estoppel in this type of case,” id. at 503, it continues to be the

position of the Third Circuit that estoppel can be applied, in at

least some cases, to bar an otherwise viable claim of disability

discrimination.

11

sentations made to support a benefits claim may be

relevant to the issue of qualification in an ADA case;

but none of those courts has burdened every plaintiff

who has applied for benefits with a legal presumption

of estoppel. Consequently, the ability of a disability

applicant or beneficiary to maintain an ADA claim

will be substantially affected by the circuit in which

the claim is brought.

b. Contrary to respondent’s assertion (Br. in Opp.

9), the disagreement among the courts of appeals is

not “more form than substance.” A survey of the

reported cases confirms that there are practical con-

sequences to the difference between the Fifth Cir-

cuit’s rule and the standards applied by other courts

of appeals. Since the Fifth Circuit issued its opinion

in this case, several district courts in that Circuit

have applied judicial estoppel to bar ADA claims. See,

e.g., Graf v. Wal-Mart Stores, Inc., No. CIV. A. G-97-

410, 1998 WL 244263, at *2 (S.D. Tex. May 12, 1998);

Lefler v. E-Sys., Inc., No. CIV. A. 3:96-CV_ 1007, 1998

WL 61908, at **2-4 (N.D. Tex. Feb. 6, 1998); Bailey v.

Teachers’ Retirement Sys., No. CIV. A. 96-2339, 1998

WL 4484, at **3-4 (E.D. La. Jan. 6, 1998); Robertson v.

Neuromedical Ctr., 983 F. Supp. 669, 672-673 (M.D.

La. 1997); Pena v. Houston Lighting & Power Co., 978

F. Supp. 694, 698-699 (S.D. Tex. 1997); Bazile v. AT &

T-Bell Labs., Inc., No. CIV. A. 3:96-CV-2652-G, 1997

WL 600702, at *3 (N.D. Tex. Sept. 19, 1997), aff’d, 142

F.3d 1279 (5th Cir. 1998) (Table). Those courts have

read the circuit court’s opinion in this case as pre-

cluding ADA claims in most cases in which an

individual has applied for Social Security disability

benefits. See also McConathy v. Dr. Pepper/Seven

Up Corp., 131 F.3d 558, 562-563 (5th Cir. 1998) (dis-

missing ADA claim).

12

The approach of the district courts reflects the

manner in which the court of appeals applied the

p*esumption in petitioner’s case. The court of appeais

failed to discuss the evidence that might have rebut-

ted the presumption that petitioner’s award of dis-

ability benefits conflicted with her claim that she was

qualified, at the time of her discharge, to perform the

essential functions of her job with reasonable accom-

modation. Specifically, the court of appeals did not

discuss the evidence that petitioner requested and

was denied accommodations, might have recovered

from the stroke had respondent made those accom-

modations, but instead became more disabled as a

result of her discharge. Instead, the court of appeals

focused exclusively on petitioner’s use of standard

language contained on SSA forms that asserted her

disability and inability to work, without even consid-

ering what that language means in the context of the

Social Security disability program. Pet. App. 12a. As

a result, the Fifth Circuit’s ruling effectively treats

an application for Social Security disability benefits

as an absolute legal bar to the assertion of an ADA

claim. We have not found any decision issued in the

Fifth Cireuit subsequent to the opinion in this case

that permits an ADA claim when the claimant pre-

viously applied for or received Social Security dis-

ability benefits.

In those circuits with a different rule, the picture

is decidedly different. For example, the Sixth, Sev-

enth, Ninth, and Eleventh Circuits have all reversed

district court decisions granting summary judgment

to employers in cases in which the plaintiffs applied

for Social Security disability benefits and asserted

that they were “unable to work.” See Griffith, 135

F.3d at 378-384; McCreary, 132 F.3d at 1163-1165;

13

Johnson, 141 F.3d at 1370; Taylor v. Food World, Inc.,

133 F.3d 1419, 1422-1423 (11th Cir. 1998); Talavera,

129 F.3d at 1217-1220. The D.C. Circuit kas similarly

reversed a district court’s grant of summary judg-

ment based on the theory that application for or

receipt of Social Security disability benefits bars an

ADA claim. See Swanks, supra. Finally, the Tenth

Circuit has upheld judgment for an ADA plaintiff who

had stated to the SSA that he was “disabled and un-

able to work,” as those terms are used by the SSA.

See Rascon, 1998 WL 223465, at **5, 15. Clearly, the

standard that a court applies to assess the effect on an

ADA claim of statements made in support of a claim

for disability benefits has a profound impact on the

plaintiff's ability to maintain his ADA claim.

2. The Fifth Circuit’s presumption of judicial es-

toppel not only conflicts with the holdings of the

- other courts of appeals, but it is also inconsistent

with the views of the two agencies that administer

the relevant statutes and is, incorrect. Both the SSA

and the EEOC have concluded that, although

statements made in applying for Social Security

disability benefits may be relevant evidence in a

subsequent ADA suit, application for or receipt of

benefits is not by itself inconsistent with being a

“qualified individual with a disability” under the

ADA. See EEOC Guidance at 70:1251-1252, 70:1254-

1257, 70:1259-1266; Swanks Brief, Pet. App. 36a-50a;

SSA Guidance App. 15-400-402; Pet. App. 18a-35a.

The majority of the courts of appeals have correctly

held that application for or receipt of benefits alone

neither supports judgment as a matter of law for the

defendant nor creates a presumption that the plaintiff

is estopped from establishing that she is a “qualified

individual with a disability.”

14

a. Application for or receipt of Social Security

disability benefits is often fully consistent with a

valid ADA claim, because the determination whether

someone is eligible for disability benefits differs

in several material ways from the determination

whether that person is a “qualified individual with a

disability.” First, an individual is “qualified” under

the ADA if he can do the essential functions of his job

with reasonable accommodation. See 42 U.S.C.

12111(8). In contrast, when the SSA, at step four of

the sequential evaluation process, considers whether

an individual can perform his “past relevant work,”

see 20 C.F.R. 404.1520(e) and (f), the SSA does not

consider potential accommodations that his prior em-

ployer did not actually make. Nor does the SSA

speculate whether other employers might be required

by the ADA to make specific accommodations, when,

at step five, the SSA determines whether the

claimant could perform other work that exists in

significant numbers in the national economy. See

Swanks Brief, Pet. App. 43a-44a; Pet. App. 10a. Be-

cause many ADA cases, including this one, turn on

disputes over reasonable accommodations rather than

whether the plaintiffs could work without any accom-

modations, that difference between Social Security

and ADA claims is very significant.

Second, although a person may qualify for Social

Security disability benefits by the application of gen-

eralized presumptions about his inability to work, the

determination whether someone is “qualified” under

the ADA must be an individualized decision about his

ability to perform the essential functions of a particu-

lar job. See Overton v. Reilly, 977 F.2d 1190, 1196 (7th

Cir. 1992); EEOC Guidance at 70:1251. Because of

the reliance on generalized presumptions, a finding

15

that a person is disabled for purposes of Social Secu-

rity benefits does not mean that there is no job that

he or she can actually perform. For example, at step

three of the Social Security determination process,

an individual with an impairment listed in the

regulations is conclusively presumed to be “disabled”

and “unable to work” without any inquiry into his

ability to do his past work. See 20 C.F.R. 404.1520(d),

404.1525, 404.1526; Swanks Brief, Pet. App. 39a, 44a-

45a; see also Whitbeck v. Vital Signs, Inc., 116 F.3d

588, 591 (D.C. Cir. 1997); Pet. App. 10a.

Similarly, at step five of the determination process,

the SSA can award disability benefits to an individual

who is able to perform sedentary, light, or even

medium work, based on generalized presumptions that

his age, education or lack of transferrable skills from

past employment make it unlikely that he could adjust

to other work for which he is qualified. See Heckler

v. Campbell, 461 U.S. at 460-462. An award of benefits

at step three based on a claimant’s possession of a

listed impairment or an award of benefits at step five

may well have little relevance to an ADA claim.

Third, the Social Security Act and SSA regulations

allow disability insurance benefit recipients a trial

work period of up to nine months during which their

benefit entitlement and payment levels remain un-

changed. See 42 U.S.C. 422(c), 423(e)(1); 20 C.F.R.

404.1592; Overton, 977 F.2d at 1192. Individuals can

also remain entitled for a further period of time to

benefits in any month in which their earnings fall

below a statutory level. See 20 C.F.R. 404.1592a.

Those work incentives reflect both the Social Secu-

rity Act’s purpose to encourage individuals with

disabilities to work whenever possible, see 42 U.S.C.

422(a); Mohamed, 944 F. Supp. at 284, and the fact that

16

a person’s disability status frequently changes over

time, see, ¢.g., D’Aprile v. Fleet Servs. Corp., 92 F.3d

1, 4 (1st Cir. 1996) (receipt of disability benefits under

private plan not inconsistent with state law discrimi-

nation claim because plaintiff claimed disability devel-

oped after, and as a result of, discharge). The work

incentives demonstrate that Congress has recognized

that persons who legitimately apply for and receive

Social Security disability benefits may nonetheless

be or become able to work.

b. Because a “qualified individual with a disability”

will often be entitled to Social Security disability

benefits, the Fifth Circuit erred in holding that an

employee’s application for or receipt of - benefits

creates a presumption that she is judicially estopped

from asserting she is “qualified.” Judicial estoppel is

properly invoked only when a litigant seeks to ad-

vance a position that conflicts with a prior position.’

See 18 Charles A. Wright et al., Federal Practice and

Procedure § 4477 (1981 & Supp. 1996); cf. Davis v.

Wakelee, 156 U.S. 680, 689-691 (1895) (upholding

equitable estoppel when defendant had asserted in

prior litigation a contrary position on which plaintiff

had relied).° Presumptions, in turn, are appropriate

4 The doctrine of judicial estoppel has not been universally

embraced. At least two courts of appeals have refused to

recognize the doctrine, see UMWA 1974 Pension v. Pittston

Co., 984 F.2d 469, 477-478 (D.C. Cir.), cert. denied, 509 U.S. 924

(1993); United States v. 49.01 Acres of Land, 802 F.2d 387, 390

(10th Cir. 1986), as have many other jurisdictions. See

Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C. Cir. 1980).

This Court, however, need not decide whether judicial estoppel

may be applied in the federal courts in order to resolve the

question presented by this case.

5 See also, e.g., Moore, 139 F.3d at 1212; Simon v. Safelite

Glass Corp., 128 F.3d 68, 72-73 (2d Cir. 1997); Rissetto v.

17

only when proof of a particular fact makes the

existence of another fact sufficiently probable that “it

is sensible and timesaving to assume the truth of

{that other fact] until the adversary disproves it.” 2

McCormick on Evidence § 343, at 454-455 (John W.

Strong ed., 4th ed. 1992).

The fact that an individual has applied for or

received Social Security disability benefits hardly

makes it probable that the disability and ADA claims

are in conflict. The two statutes serve persons with

mental and physical impairments in complementary

ways. Social Security disability benefits provide in-

come replacement for a person during a period when

he is prevented from working because of a disability,

and the ADA provides a mechanism for that person to

obtain workplace accommodations that will permit a

return to work. There is simply no inherent conflict

between the two claims.

3. This case warrants this Court’s review because

use of judicial estoppel to bar otherwise meritorious

claims frustrates effective enforcement of the ADA.

Congress enacted the ADA because individuals who

experienced discrimination on the basis of a disability

“often had no legal recourse to redress such discrimi-

nation.” 42 U.S.C. 12101(a)(4). The Act seeks “to pro-

vide a clear and comprehensive national mandate for

the elimination of discrimination against individuals

with disabilities.” 42 U.S.C. 12101(b)(1). In enacting

the ADA, Congress assumed that many individuals on

the disability benefit rolls could, with assistance or

Plumbers and Steamfitters Local 343, 94 F.3d 597, 600 (9th

Cir. 1996); Ryan Operations, 81 F.3d at 361; UMWA 1974 Pen-

sion, 984 F.2d at 477; Astor Chauffewred Limousine Co. v.

Runnfeldt Inv. Corp., 910 F.2d 1540, 1547-1548 (7th Cir. 1990);

49.01 Acres of Land, 802 F.2d at 390; Pet. App. 8a.

18

accommodation, obtain employment. See H.R. Rep.

No. 485, 101st Cong., 2d Sess. Pt. 2, at 32-33 (1990).

Congress envisioned the ADA’s reasonable accom-

modation requirement as a device for alleviating the

“staggering levels of unemployment and poverty”

among the approximately “8.2 million people with

disabilities [who] want to work but cannot find a job,”

the majority of whom are dependent upon “insurance

payments or government benefits for support.” Ibid.

Thus, Congress envisioned that the ADA would

provide a cause of action for many individuals receiv-

ing Social Security benefits that would enable them

to overcome discrimination and to return to work.

The Fifth Circuit’s estoppel rule impedes the objec-

tives of the ADA by depriving most applicants for and

recipients of Social Security disability benefits of

their right to pursue claims of discrimination under

the ADA. Individuals with potentially meritorious

ADA claims frequently apply for disability benefits

following their discharge from employment in order

to support themselves. They apply for (and often

properly receive) benefits because they face real-

world barriers to employment, even though they could

work with reasonable accommodations. ~- They are

therefore “qualified individuals with disabilities”

under the ADA, who may have a right to accommoda-

tions that will enable them to return to work, as.

Congress envisioned. The rule adopted by the Fifth tin,

Circuit, however, improperly bars them from main-

taining actions under the ADA and thus increases the

likelihood that they will remain on the benefit rolls.°

6 Some ADA defendants have argued that permitting a

disability beneficiary to maintain a suit under the ADA would

lead to an improper “double recovery.” See Swanks, 116 F.3d

at 587. That argument lacks merit. First, the court passing on

19

That result frustrates the purposes of the ADA not

just in individual cases but on a broader level as well.

As this Court has recognized, “the private litigant

{suing under anti-discrimination statutes like the

ADA] not only redresses his own injury but also vin-

dicates the important congressional policy against

discriminatory employment practices.” Alexander v.

Gardner-Denver Co., 415 U.S. 36, 45 (1974). The

Court has therefore rejected application of equitable

bar doctrines to private actions under federal statutes

that serve “important public purposes.” McKennon

v. Nashville Banner Publ’g Co., 513 U.S. 352, 360

(1995) (quoting Perma Life Mufflers, Inc. v. Interna-

tional Parts Corp., 392 U.S. 134, 138 (1968)). Because

the objectives of the anti-discrimination statutes are

furthered “when even a single employee establishes

that an employer has discriminated against him or

her,” courts may not “bar all relief for an earlier vio-

lation of the Act” because the employee has engaged

in wrongdoing. McKennon, 513 U.S. at 358-360.

Judicial estoppel is precisely the kind of equitable bar

that this Court has criticized. See Griffith, 135 F.3d

the ADA claim may consider whether the possibility of a

double recovery warrants offsetting the amount of disability

benefits that the plaintiff received against any make-whole

relief the court awards in the ADA suit. See ibid.; ef.

McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360-

363 (1995) (courts should limit relief under Title VII to take

into account after-acquired evidence of employee wrong-

doing); Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 n.14

(1974) (Gudicial relief under Title VII can be structured to

avoid possible windfall gains when employee prevails in

contract arbitration and also brings court action). Second, if an

individual is reinstated to a job as a remedy for an ADA

violation, the individual will lose his or her disability benefits at

the end of the trial work period, see page 15, supra.

20

at 382 (judicial estoppel undermines the “truth-seek-

ing function of the court” by pretermitting poten-

tially meritorious claims).

Invocation of judicial estoppel is particularly inap-

propriate in cases like this one, because there is no

reason to believe that petitioner, or other applicants

for disability benefits who later bring ADA claims,

have sought to mislead or have otherwise engaged in

any wrongdoing. Because receipt of disability bene-

fits is generally fully consistent with a meritorious

ADA claim, the Fiftn Circuit’s rule improperly bars

potentially legitimate claims and poses a substantial

threat to the effective enforcement of the ADA.

‘CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

ARTHUR J. FRIED BARBARA D. UNDERWOOD

rae C come Deputy Solicitor General

OCIES SCUTHY MATTHEW D. ROBERTS

Administration Assistant to the Solicitor

C. GREGORY STEWART General

General Counsel

PHILLIP B. SKLOVER

Associate General Counsel

LORRAINE C, DAVIS

Assistant General Counsel

ROBERT J. GREGORY

Attorney

Equal Employment

Opportunity Commission

JULY 1998