Petitioners Brief — Cleveland v. Policy Management Systems Corp.

In The

Supreme Court of the United States

October Term, 1998

S

CAROLYN C. CLEVELAND,

Petitioner,

POLICY MANAGEMENT SYSTEMS CORP.; GENERAL

INFORMATION SERVICES, a Division of Policy

Management Systems Corporation;

and CYBERTEK CORP.,

Respondents.

S

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

os S

a .

BRIEF FOR PETITIONER

Sd

Joun E. Wat, Jr.

Counsel of Record

Laura EarpDiey CALHOUN

Law Orrice oF JOHN E. WALL, Jr.

5728 Prospect Avenue, Suite 2001

Dallas, Texas 75206

(214) 887-0100

Attorneys for Petitioner

QUESTIONS 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 she is a “qualified individual with a

disability” under the Americans with Disabilities Act

of 1990, 42 U.S.C. § 12101, et seq.

If it does not create such a presumption, what weight,

if any, should be given to the application for, or

receipt of, disability insurance benefits when a person

asserts she is a “qualified individual with a disabil-

ity” under the ADA?

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS «2 occcccccccctsnesccseasenes ii

TABLE OF AUTHORITIES ..........cccscccccessecs iii

BRIEF FOR PETITIONER ...........ceccsccccsseces 1

OPINIONS BRLOW. oo. 0c. actus sasdveceneccaneanen 1

JURISDICTION 0.0 ic csccccccccdédaguevhscumenveuteabes 1

STATUTES AND REGULATIONS INVOLVED ...... 2

STATEMENT OF THE CASE.......ccccoveccescnces 5

SUMMARY OF THE ABIGUBEEINE 60 siscvecduccesen 17

ARGUMENT 2.0. cvccccccvcéiecsuententen@eeseuapebes 19

I. The application for, or receipt of, disability insur-

ance benefits under the Social Security Act, 42

U.S.C. § 423, does not create a rebuttable pre-

sumption that the applicant or recipient is judi-

cially estopped from asserting that she is a

“qualified individual with a disability” under the

Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq.......cesecases Saace seven 19

ll. The weight to be given statements made in con-

nection with an application for disability benefits

should be no different than the weight given to

any other evidence, i.e., the weight the factfinder

determines is appropriate.................5006. 19

CONCLUGION 2. ncocccvecrtvccdcsestepenttbusnanar 48

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36, 94

S.Ct. 1011, 39 L.Ed.2d 147 (1974).................. 24

American Nat'l Bank v. F.D.1.C., 710 F.2d 1528 (11th

nan din din 0 6406 hain d UbeA 46 d44 00 0200008 25

Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702

CEES eB le dn ch cd abe he vussektcsccecses 28

Blanton v. Inco Alloys International, Inc., 123 F.3d

SP T PEPIC UL wth Sebbb cers cocesece cence 34, 35

Bragdon v. Abbott, 118 S.Ct. 2196 (1998)........... 28, 31

Cleveland v. Policy Management Sys. Corp., 119 S.Ct.

Peed bid eWinbaun Gibbs caceseescs cee 17, 22

Cleveland v. Policy Management Sys. Corp., 120 F.3d

a wees passim

Douglas v. Aztec Petroleum Corp., 695 S.W.2d 312

(Tex. App. - Tyler 1985, no writ) ................. 47

Ergo Science, Inc. v. Martin, 73 F.3d 595 (Sth Cir.

SPCR Sah Shines enetkeesace bactecescocecces 25

Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376 (6th

PERU SAWN adc ane db acccceccccsecccccscis 35, 38

Haschmann v. Time Warner Entertainment Co., 151

Ms aco ckcccseseeesesccens 36, 40

Hamilton v. Southwestern Bell Telephone Co., 136

i en Mien cosescdennteecsesscocecs 28

iv

TABLE OF AUTHORITIES — Continued

Page

International Brotherhood of Tea::‘ers v. United

States, 431 U.S. 324, 97 S.Ct. "83, 52 L.Ed.2d

SO PEE i 6hs Fis wincpcisepedeidsetnanchestaeseeus 24

Johnson v. Oregon Dept. of Human Resources Reha-

bilitation, 141 F.3d 1362 (9th Cir. 1998)..... 38, 39, 40

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

Ce, Be edb enins caceecedeu’ iamietiiie mies 40, 42

Levinson v. United States, 969 F.2d 260 (7th Cir.

GPU: sswedecvetoesnecandsendenehéhbeepeewe assume 25

McKennon v. Nashville Banner Publishing Co., 513 U.S.

352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)........ 24, 41

McKinnon v. Blue Cross & Blue Shield of Ala., 935

RAG ROSY CAN Cie, BORE, ocewssesdeevtieteccnseays 25

McNemar v. Disney Store, Inc., 91 F.3d 610 (3rd Cir.

1996), cert. denied, 117 S.Ct. 958 (1997) ......... 25, 40

Mohamed v. Marriott, Int'l, Inc., 944 F.Supp. 277

GREATS Oe. EGE 2 on cinnectnsconnctsedburnns aheteciee 32

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

Gee Gee WPS o cca dsastanccsuleveneabenoubindans 40

Overton v. Reilly, 977 F.2d 1190 (7th Cir. 1992)....... 35

Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d

BUDS Ges GR Ce eee ededecccvebetehetasies 34

Rascon v. U.S. West Communications, Inc., 143 F.3d

Oe ke BS Re eee 25, 39, 40

Regional Properties, Inc. v. Financial & Real Estate

Co., 752 F.2d 178 (Sth Cir. 1985) .................. 47

Swanks v. Washington Metropolitan Area Transit Author-

ity, 116 F3d 582 (D.C. Cir. 1997) ...... 24, 30, 33, 34, 47

v

TABLE OF AUTHORITIES - Continued

Page

Telavere v. School Bd. of Palm Beach County, 129 F.3d

Tre 25, 30, 37, 40

Weigel v. Target Stores, 122 F.3d 461 (7th Cir.

error OP ry or a See ee 35, 36, 40

Whitbeck v. Vital Signs, Inc., 116 F.3d 588 (D.C. Cir.

SoU Uan hast ewiselus on ndes sngectre onesnewes pagtéens 33

STATUTES AND REGULATIONS

BD Sls 1 PE On dc dcecocntccisesconcucecape 2

42 U.S.C. § 422(a)-(c) (Supp. 1998) .............0.4.. 32

42 U.S.C. § 423 (Supp. 1998)............. 17, 19, 20, 22

42 U.S.C. § 423(d)(1)(A) (Supp. 1998).......... 3, 27, 29

42 U.S.C. § 423(d)(2)(A) (Supp. 1998)................. 3

42 U.S.C. § 1381-83 (Supp. 1998).................4.. 20

42 U.S.C. § 12101(a) (1995)...........2.6.e0ee 19, 20, 21

GE TBE, Be IO ova cesidecccicccccvsccess 22

SB UBL. © TARR) (IGS). «2. cc ccccccccccccvess 2, 28

GD UB, © RRS eeee GRP ec receccscccccsecces 3, 23, 27

4B USA. | TAETAia) CIGISP. onc nccesssccccsecesecs 2, 27

20 C.F.R. § 404.1520(b) (1995) ...... 4, 22, 23, 27, 30, 31

20 C.F.R. § 404.1520(c) (1995) ...... 4, 22, 23, 27, 30, 31

20 C.F.R. § 404.1520(d) (1995) ...... 4, 22, 23, 27, 30, 31

vi

TABLE OF AUTHORITIES — Continued

20 C.F.R. § 404.1520(e) (1995) ...... 4, 22, 23, 27,

20 C.F.R. § 404.1520(f) (1995)....... 5, 22, 23, 27,

20 C.F.R. Pt. 404 Subpt. P, App. 1...............

MISCELLANEOUS

Americans With Disabilities Act of 1990 —- INFOR-

MATION, Memorandum from the Associate

| RIS me ey et <a

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

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

Social Security Practice Guide, App. Sec. 15C[9]

(SSA Guidance), at App. 15-401 (MB 1997).....

House Comm. On Ways and Means, 1996 Green

Book: Background Material and Data on Programs

Within the Jurisdiction of the Committee on Ways

and Means 16, 260 (Comm. Print 1996)........

Matthew Diller, Dissonant Disability Policies: The

Tensions Between the Americans With Disabilities

Act and Federal Disability Benefit Programs, 76

Se 2 PP ri rire

2 McCormick on Evidence Sec. 343, at 454-55 (John

ep WUE, GED GE, TSU «ove ccsvcnssoueoucseas

Page

30, 31

30, 31

BRIEF FOR PETITIONER

Petitioner, Carolyn C. Cleveland, respectfully

requests that the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit, entered in

the above-entitled proceeding on August 14, 1997, affirm-

ing the District Court below, be reversed and that this

case be remanded to the District Court for trial on the

merits.

«

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit, reported at 120 F.3d 513 (5th Cir. 1997),

affirmed the decision of the United States District Court

for the Northern District of Texas, which granted sum-

mary judgment in favor of the Respondents. The Fifth

Circuit’s August 14, 1997 Opinion is printed at Appendix

A to the Petition for a Writ of Certiorari. The District

Court’s September 6, 1996 Judgment is printed at Appen-

dix B to the Petition for a Writ of Certiorari. The Fifth

Circuit’s September 15, 1997 Order denying Petitioner's

Petition for Rehearing is printed at Appendix C to the

Petition for a Writ of Certiorari.

¢

JURISDICTION

The judgment of the Fifth Circuit was entered on

August 14, 1997. Petitioner timely filed a petition for

rehearing which was denied on September 15, 1997. The

Petition for a Writ of Certiorari was timely filed on

December 15, 1997. This Court's certiorari jurisdiction is

invoked pursuant to 28 U.S.C. § 1254(1) (1993).

S

STATUTES AND REGULATIONS INVOLVED

The statutes and regulations applicable to this case

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, advance-

ment, 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 sub-

stantially 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

3

or without reasonable accommodation, can per-

form 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).

An individual shall be determined to be under a

disability only if his physical or mental impair-

ment 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. For purposes of the preceding sen-

tence (with respect to any individual), ‘work

which exists in the national economy’ means

work which exists in significant numbers either

in the region where such individual lives or in

several regions of the country. 42 U.S.C.

§ 423(d)(2)(A).

Evaluation of a Disability in General (Social Security

Administration Regulations)

If you are working. If you are working and the work you

are doing is substantial gainful activity, we will find that

you are not disabled regardless of your medical condition

or your age, education and work experience. 20 C.F.R.

§ 404.1520(b).

You must have a severe impairment. If you do not have

any impairment or combination of impairments which

significantly limits your physical or mental ability to do

basic work activities, we will find that you do not have a

severe impairment and are therefore, not disabled. We

will not consider your age, education, and work experi-

ence. However, it is possible for you to have a period of

disability for a time in the past even though you do not

now have a severe impairment. 20 C.F.R. § 404.1520(c).

When your impairment(s) meets or equals a listed

impairment in Appendix 1. If you have an impairment(s)

which meets the duration requirement and is listed in

Appendix 1 or is equal to a listed impairment(s), we will

find you disabled without considering your age, educa-

tion and work experience. 20 C.F.R. § 404.1520(d).

Your impairment(s) must prevent you from doing past

relevant work. If we cannot make a decision based on

your current work activity or on medical facts alone, and

you have a severe impairment(s), we then review your

residual functional capacity and the physical and mental

demands of the work you have done in the past. If you

can still do this kind of work, we will find that you are

not disabled. 20 C.F.R. § 404.1520(e).

Your impairment(s) must prevent you from doing any

other work. (1) If you cannot do any work you have done

in the past because you have a severe impairment(s), we

will consider your residual functional capacity anc your

age, education and past work experience to see if you can

do other work. If you cannot, we will find you disabled.

(2) If you have only a marginal education, and long work

experience (i.e., 35 years or more) where you only did

arduous unskilled physical labor, and you can no longer

do this kind of work, we use a different rule. 20 C.F.R.

§ 404.1520(f).

°

STATEMENT OF THE CASE

Cleveland’s Disability

On January 7, 1994, during the course and scope of

her employment with Policy Management Systems Cor-

poration (“PMSC”), Carolyn Cleveland suffered a stroke.

(J. App. 94).!

Steven Herzog, M.D. provided medical treatment to

Cleveland in connection with her stroke. (J. App. 94, 99).

As a result of the stroke, Cleveland suffered a condition

known as aphasia. (J. App. 100). Aphasia is a disorder

involving the cognitive input and output of language. (J.

App. 100). Aphasia impairs memory, reading ability, cal-

culation ability and the understanding and processing of

all human language function. (J. App. 100).

Consistent with stroke-induced aphasia, Cleveland’s

memory was impaired, as well as her ability to speak and

1 “J. App.” refers to the Joint Appendix in this case.

to concentrate. (J. App. 94). In fact, for a period of time

after the stroke, Cleveland could not speak at all. (J. App.

94). Additionally, Cleveland was unable to read or dial a

phone, and had trouble understanding most of what was

said to her. (J. App. 94).

The Initial Application for Social Security Disability

Benefits

After observing Cleveland’s difficulty with commu-

nication, comprehension and memory, Cleveland’s

daughter, Sheri Short, became concerned about her

mother’s condition. (J. App. 105). As a result, in January

1994, Short obtained an application for social security

disability benefits.2 (J. App. 105). Short completed the

application and her mother signed it on January 21,1994.

(J. App. 105). Short then submitted the application to the

Social Security Administration (“SSA”) for her mother. (J.

App. 105). Due to Cleveland’s debilitated condition in

January 1994, Cleveland neither recalls her daughter fil-

ing this application nor signing the form. (J. App. 95).

This initial application was followed by a “Supple-

mental Questionnaire” dated March 16, 1994, signed by

Cleveland. (J. App. 31). In this document, Cleveland

described her symptoms and limitations as they existed

at the time, i.e., only two months after the stroke. (J. App.

31-36). Cleveland had not been released to return to work

2 Short had previously worked for the Tarrant County

Adult Probation Department for approximately 14 years, and

had observed that the processing of government paperwork

was often a slow process. Therefore, Short requested the social

security application quickly in the event her mother would need

benefits. (J. App. 105).

7

at that time, and as indicated on the form, had not

returned to work. (J. App. 36, 95, 100).

Cleveland’s Efforts to Return to Work Despite Her Dis-

ability

After suffering the stroke, Cleveland diligently pur-

sued recovery. (J. App. 95). In fact, by April 1994, after

undergoing speech rehabilitation, Cleveland was able to

speak fairly well. (J. App. 95). Dr. Herzog also confirmed

that Cleveland had made significant progress in her

recovery between January and April 1994. (J. App. 100).

In light of Cleveland’s progress, Dr. Herzog released

Cleveland to return to work in April 1994. (J. App. 100).

At the time Cleveland was released to return to work, Dr.

Herzog felt Cleveland’s prognosis was positive for con-

tinued improvement and that she would eventually reach

a near 100% recovery. (J. App. 100).

Cleveland’s Notice To The Social Security Administra-

tion That Disability Benefits Were No Longer Needed

Cleveland returned to work for PMSC in April 1994

on a part-time basis. (J. App. 95). Shortly after returning

to work, Cleveland received some paperwork from the

SSA. (J. App. 95). Upon receiving this paperwork, Cleve-

land contacted the SSA and informed them that she had

returned to work and that she no longer needed social

security disability benefits. (J. App. 38, 95).

Cleveland’s Return To Work

Cleveland worked part-time for about two weeks and

then began working full time. (J. App. 95). Cleveland was

fearful about returning to work, but her supervisors,

Anthony Clark and Debra Levine, claimed they would

assist her, or, if necessary, would provide her another job.

(J. App. 95-96). This did not occur. (J. App. 96-98).

All Requests For Reasonable Accommodations Were

Denied

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.

(J. App. 96). However, as the Fifth Circuit acknowledged

in their August 14, 1997 Opinion, the Respondents denied

each of Cleveland’s requests for workplace accommoda-

tions, to wit: computer training; permission to take work

home in the evenings; a transfer of position; and permis-

sion for the Texas Rehabilitation Commission to provide a

counselor — free of charge - to assist Cleveland. (Pet.

App. 3a;* J. App. 43-44, 96-97).

The Inexcusable Ridicule

In addition to the steadfast refusal to make any rea-

sonable accommodations for Cleveland’s disability, Cleve-

land’s supervisor, Debra Levine, and other co-workers

made cruel and mocking remarks in reference to Cleve-

land’s disabled condition. (J. App. 43-44, 96). For instance,

in Cleveland’s presence, Levine and her co-workers

3 Dr. Herzog noted that it sometimes takes 6-12 months to

fully recover from a stroke. (J.App. 44).

4 “Pet. App.” refers to the Appendix to the Petition for a

Writ of Certiorari in this case.

To Cone” ON

laughed at Cleveland and belittled her by mimicking her

stroke-induced speech impediment. (J. App. 96).

The Written Warning And Cleveland’s Continued Deter-

mination To Succeed

After enduring her co-worker’s taunts and her super-

visor’s refusal to accommodate her disability, on June 3,

1994, less than two months after returning to work from

her stroke, Cleveland received her first written warning

(J. App. 97, 40). This warning, issued by Levine, criticized

Cleveland’s job performance and informed Cleveland

that if there were not “drastic changes in the quality of

work” that Cleveland would be “subject to be separated

from the company.” (J. App. 40). In response to this

written warning, Cleveland did not surrender, but rather

doubled her efforts to produce quality work, despite

Levine’s continued refusal to grant Cleveland’s requests

for accommodations. (J. App. 97). In fact, a day or two

5 In a June 21, 1994 memo, Levine (at Cleveland’s request

for an extension of time to train) agreed to extend Cleveland's

training period to August 1, 1994, and to evaluate her job

performance at that time to determine whether to terminate

Cleveland or change her status to a fee inspector. Just half way

through the promised extension period, however, Levine

retracted this extension and terminated Cleveland. (J. App. 42,

97). (Cleveland had been told in Levine’s June 3 written

warning that Cleveland had been with the company for 9

months as a “Trainee” and that most employees were trainees

for three to six months. Levine then stated that she had taken

into account that Cleveland “had been out” for three months

and informed Cleveland that on June 30, 1994 her employee

status would be subject to change to that of a fee inspector or

that Cleveland would be “separated from the company” if her

performance did not drastically improve.) (J. App. 40).

10

before Cleveland’s termination, Cleveland felt encour-

aged because, despite her supervisor’s repeated refusal to

provide training, Cleveland began to receive additional

training from some of her co-workers. (J. App. 97).

In addition to finally receiving some training, Cleve-

land was experiencing fewer stroke-related problems

during the time prior to the termination. (J. App. 97, 100).

Specifically, Cleveland could more easily communicate,

her spelling had improved and the need to recheck her

work decreased.® (J. App. 97, 100). Cleveland felt positive

about her job performance. (J. App. 97). Moreover, prior

to her termination, Dr. Herzog had anticipated that

Cleveland would experience a near 100% recovery. (J.

App. 100-01).

The “Because You Will Never Be Able To Do Anything”

Termination

Regardless, on July 14, 1994, Peter Moore, the

Regional Vice President, and Debra Levine informed

Cleveland that she was terminated allegedly because of

poor job performance. (J. App. 97). Cleveland begged

Moore to let her keep her job or move to another job. (J.

App. 97). At this, Moore explained to Cleveland that his

father had previously suffered a stroke and had not been

able to do anything since. (J. App. 98). Moore then

declared that, like his father, Cleveland would not be able

to do anything either. (J. App. 98). During the initial

6 Dr. Herzog observed that Cleveland was experiencing

fewer problems with aphasia, but still needed additional time to

recover. (J. App. 100).

Net Sa oon ee

11

termination meeting, Moore did agree to review Cleve-

land’s work; however, the next day, Moore confirmed the

termination. (J. App. 98).

Cleveland’s Post-Termination Relapse And Resulting

Requests For Reconsideration For Social Security Dis-

ability Benefits (with relevant excerpts from the benefit

applications)

As a result of the humiliating manner in which she

was treated and terminated, Cleveland was devastated,

and she began to deteriorate both physically and emo-

tionally. (J. App. 98, 101, 105-06). Specifically, Cleveland

became depressed and her aphasia worsened after the

July 1994 termination. (J. App. 43-44).

For this reason, on September 14, 1994, Cleveland

renewed her prior application for social security disabil-

ity benefits by filing a “Request for Reconsideration”. (J.

App. 46, 98). In this request, Cleveland stated:

I disagree with the determination made on my

claim for disability-worker or child benefits

because I was denied because | had returned to

work and was making over $500. However, on

July 15, 1994 I was terminated due to my condi-

tion and I have not been able to work since. |

continue to be disabled.

7 The Social Security Administration confirmed that

Cleveland would not be entitled to receive disability benefits in

a letter dated July 11, 1994. (J. App. 38-39). The SSA

acknowledged that it had received notice that Cleveland had

returned to work full time and was earning more than $500 per

month. (J. App. 39). As indicated in a 4/23/94 note in

Cleveland’s SSA file, Cleveland had previously informed the

SSA that she had returned to work. (J. App. 38).

12

(J. App. 46). In connection with this request, Cleveland

also filed a “Work Activity Report” dated September 20,

1994 wherein she explained:

I had my stroke 1/7/94 and was out of work for

several months. I attempted to return to work

mid April. | worked for three months before

they terminated me because I could no longer

do the job because of my condition.

(J. App. 47). Notably, that Cleveland could not do the job

because of her condition was PMSC’s stated reason for

the termination. (J. App. 97-98).

In a “Supplemental Questionnaire” dated September

29, 1994 (signed by Cleveland and filled out by her

daughter, Sheri Short), Cleveland described her then cur-

rent symptoms and limitations. (J. App. 51-56). In

response to an inquiry about activities which Cleveland

could no longer do, she responded: “Find work related to

my experience.” (J. App. 52). Also, in response to a ques-

tion about whether she had difficulty completing tasks,

Cleveland responded: “Yes, in a timely manner due to

length of time it takes to complete the task.” (J. App. 56).

(Notably, this statement is consistent with Cleveland's

prior request to take work home with her to allow addi-

tional time to complete assignments - an accommodation

which was denied by PMSC). (J. App. 96). In response to

the SSA’s inquiry into Cleveland's daily activities, Cleve-

land stated: “Routine tasks, make and keep appointments

with government agencies, doctors; assist other stroke

victims and the stroke recovery group.” (J. App. 52).

In a notice dated November 30, 1994, the SSA

informed Cleveland that her claim for disability benefits

——— eer OE TEI En el

a

eee

.

|

|

13

was denied because she was not disabled under SSA

regulations. (J. App. 62).

In approximately December 1994, Cleveland began

seeing a psychologist, Bob L. Gant, Ph.D., for her depres-

sion and worsening condition. (J. App. 98). 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.” (J. App. 70).

On January 9, 1995, Cleveland filed another “Request

for Reconsideration” with the SSA. (J. App. 73). In this

request, Cleveland repeated, as her reason for disagree-

ing with the prior determination, the reason given by

PMSC for her termination: “I am unable to work due to

my disability.” (J. App. 73, 97-98). This request was

denied in an April 17, 1995 notice from the SSA stating

that Cleveland’s condition was not severe enough to keep

her from working. (J. App. 77-78).

Cleveland then asserted her right to appeal this deci-

sion and requested a hearing by an Administrative Law

Judge. (J. App. 79). In her May 9, 1995 “Request for

Hearing By an Administrative Law Judge”, Cleveland

again repeated, as her reason for disagreeing with prior

decision, the reason given by PMSC for her termination:

“I am unable to work due to my disability.” (J. App. 79).

In a September 29, 1995 decision by the Administra-

tive Law Judge (“ALJ”), Cleveland was granted social

security disability benefits effective retroactively to Janu-

ary 7, 1994, the date of her stroke. (J. App. 83-92). The

AL] found that Cleveland was disabled at all times subse-

quent to the date of the initial January 1994 application

and that she was entitled to “disability insurance benefits

ae

14

pursuant to the Social Security Act and the regulations

promulgated thereto.” (J. App. 84). Consistent with the

Social Security Act’s guidelines for a determination of

“disability”, the ALJ's analysis in reaching his determina-

tion that Cleveland was “disabled” did not include an

inquiry into, or consideration of, the effect reasonable

workplace accommodations would have on Cleveland’s

ability to work. (J. App. 83-92). In fact, the “Decisional

Findings of Fact” form completed by the ALJ, and used as

a tool for making his decision, inquires about Cleveland's

abilities in “usual work situations” or “routine work set-

tings”, and does not refer to accommodated work situa-

tions. (J. App. 85-87).

Procedural History Of Cleveland’s ADA Case

Approximately one week before receiving notice of

the decision from the SSA, Cleveland filed suit against

PMSC for disability discrimination, failing to accommo-

date her disability and terminating her in violation of the

Americans With Disabilities Act. (J. App. 5-8, 83-92).

PMSC moved for summary judgment on this 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. (Record

46-47).

Included in the evidence presented in opposition to

the summary judgment motion was an affidavit from

Steven Herzog, M.D., which stated that Cleveland suf-

fered from aphasia and depression. (J. App. 100-01). Dr.

Herzog confirmed tat Cleveland’s depression resulted

from her termination and that her depression over the

15

termination caused her aphasia to worsen. (J. App.

99-103). Dr. Herzog further stated, in his opinion, that

had Cleveland “been given training time and assistance

on the job, instead of being terminated, she would have

continued to recover from the stroke.” (J. App. 101). Dr.

Herzog also noted that “[w]ith time, understanding and

therapy, Cleveland has slowly begun to recover from the

post-termination relapse of her aphasia and depression.”

(Jj. App. 101).

Nevertheless, finding that Cleveland was judicially

estopped from claiming to be a “qualified individual with

a disability” because she previously declared herself “dis-

abled” to the SSA, the district court granted summary

judgment on Cleveland’s ADA claim. (Pet. App. 14a).

The Fifth Circuit’s Opinion

On appeal, in an Opinion dated August 14, 1997, the

Fifth Circuit held:

[T]he application for or the receipt of social

security disability benefits creates a rebuttable

presumption that the claimant or recipient of

such benefits is judicially estopped from assert-

ing that he is ‘a qualified individual with a

disability.’

(emphasis in original), Cleveland v. Policy Management Sys.

Corp., 120 F.3d 513, 518 (5th Cir. 1997); (Pet. App. 11a).

Although ostensibly rejecting a per se estoppel applica-

tion to ADA cases wherein the employee had applied for

or received social security disability benefits, the Fifth

Circuit determined that it would only be “under some

limited and highly unusual set of circumstances” that

16

“the two claims would not necessarily be mutually exclu-

sive....” Id. at 517; (Pet. App. 8a-9a). After announcing

its novel approach to this issue, the Fifth Circuit then

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 submitted to the Social Security

Administration (SSA) judicially estop her from asserting

that under the ADA she is a ‘qualified individual with a

disability.’ ” Id. at 514; (Pet. App. 12a).

In disposing of Cleveland’s case, the Fifth Circuit

never addressed the “reasonable accommodation” differ-

ence between an SSA claim and an ADA claim and

declared that Cleveland “continuously and unequivo-

cally” represented to the SSA that she was “disabled and

completely unable to work”; and therefore, she could not

“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.” Id. at 518; (Pet. App.

12a). The Fifth Circuit, without addressing the SSA’s fail-

ure to consider workplace accomodations, stated: “[t]o

permit Cleveland to make such an argument in the face of

her prior, and — until now — uncontested sworn represen-

tations to the SSA would be tantamount to condoning her

advancement of entirely inconsistent positions, a factual

impossibility and a legal contradiction.” Id. at 518; (Pet.

App. 12a).

In addition to placing an inappropriately heightened

legal burden on Cleveland (i.e., to overcome a presump-

tion of judicial estoppel), the Fifth Circuit's opinion failed

to acknowledge the summary judgment evieence that

Cleveland could have performed the essential functions

of her job with reasonable accommodations. Id. at 518-19;

LS

17

(Pet. App. 12a; J. App. 7, 95-97). Likewise, the opinion

incorrectly concluded that Cleveland’s statements to the

SSA were inconsistent with her position in her ADA case.

Id. at 518; (Pet. App. 12a).

Cleveland’s timely filed Petition for Rehearing was

denied on September 15, 1997. (Pet. App. 16a).

Writ of Certiorari

Cleveland then sought certiorari. This Court granted

certiorari on two issues:

(1) Whether the application for, or receipt of,

disability insurance benefits under the Social

Security Act, 42 U.S.C. § 423, creates a rebutt-

able presumption that the applicant or recipient

is judicially estopped from asserting that she is a

“qualified individual with a disability” under

the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq.; and

(2) If it does not create such a presumption,

what weight, if any, should be given to the

application for, or receipt of, disability insur-

ance benefits when a person asserts she is a

“qualified individual with a disability” under

the ADA?

See Cleveland v. Policy Management Sys. Corp., 119 S.Ct. 39

(1998).

e

SUMMARY OF THE ARGUMENT

With a multitude of Americans receiving social secu-

rity disability benefits today, and recognizing the history

of discrimination against disabled individuals, requiring

18

social security disability applicants/recipients to over-

come the heightened legal burden of a presumption of

judicial estoppel in a disability discrimination claim is

tantamount to repealing the ADA for millions of disabled

individuals who clearly should have the benefit of its

protection.

To judicially estop an individual from claiming to be

a “qualified individual with a disability” based on repre-

sentations made in connection with an application for

social security disability benefits is inappropriate because

there is simply nothing inconsistent in the position one

takes in an ADA claim and in a claim for social security

disability benefits. As such, a presumption of judicial

estoppel has no place in determining the viability of a

disability discrimination claim. Statements made in con-

nection with an application for disability benefits should

receive no greater weight than other statements or evi-

dence; i.e., the statements should be considered in the

context in which they were made and assigned the

weight deemed appropriate by the factfinder.

When analyzing the facts in Cleveland and determin-

ing that her statements were “entirely inconsistent”, the

Fifth Circuit improperly failed to consider the context in

which the statements were made and ignored ‘he fact that

assertions made in a social security disability context do

not address the accommodation issue. Because the ques-

tion of reasonable accommodation was not raised in the

SSA proceeding, Cleveland’s statements that she was

“disabled” or “unable to work” or “unable to do [her]

job” were not inconsistent with her claim in her ADA

case that she would have been able to do her job had she

been provided reasonable accommodation.

19

Moreover, similar statements to the SSA of an inabil-

ity to work or total disability and the like, which are no

doubt made by almost all other social security disability

applicants, are not inconsistent with an ADA claim, and

likewise should not give rise to judicial estoppel. Consid-

ering the context in which such statements of “disability”

are made, and the lack of consideration of the accom-

modation issue, there is simply no inconsistency and no

basis for creating a presumption of judicial estoppel.

¢

ARGUMENT

I. The application for, or receipt of, disability insur-

ance berefits under the Social Security Act, 42

U.S.C. § 423. does not create a rebuttable presump-

tion that the applicant or recipient is judicially

estopped from asserting that she is a “qualified

individual with a disability” under the Americans

with Disabilities Act of 1990, 42 U.S.C. § 12101 et

seq. Ly

Il. The weight to be given statements made in connec-

tion with an application for disability benefits

should be no different than the weight given to any

other evidence, i.e., the weight the factfinder deter-

mines is appropriate.

At the time the Americans with Disabilities Act

(“ADA”) was enacted, Congress noted that there were

some 43 million Americans with one or more physical or

mental disabilities. See 42 U.S.C. § 12101(a)(1). Presently,

there are approximately 7.3 million disabled individuals

_—

20

who receive financial support via the social security dis-

ability benefits programs.* See House Comm. On Ways

and Means, 1996 Green Book: Background Material and

Data on Programs Within the Jurisdiction of the Committee on

Ways and Means 16, 260 (Comm. Print 1996).

The History of Discrimination Against the Disabled

When the Americans with Disabilities Act of 1990

was enacted, Congress recognized:

Individuals with disabilities are a discrete and

insular minority who have been faced with

restrictions and limitations, subjected to a his-

tory of purposeful unequal treatment and rele-

gated 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 indi-

viduals to participate in and contribute to soci-

ety.

42 U.S.C. § 12101(a). Congress confirmed that “histori-

cally, society has tended to isolate and segregate

individuals with disabilities and that despite some

8 This includes the total number of recipients receiving

benefits under the Social Security Disability Insurance (“SSDI”)

program provided for in Title II of the Social Security Act and/

or Supplemental Security Income (“SSI”) program provided in

Title XVI of the Social Security Act. Both the SSDI and the SSI

programs provide financial support to the disabled. SSDI

provides benefits to disabled workers who are considered

entitled to insurance coverage by reason of payroll tax

payments. See 42 U.S.C. § 423. SSI payments are provided to the

disabled poor. See 42 U.S.C. § 1381-83.

21

improvements, such forms of discrimination against indi-

viduals with disabilities continue to be a serious and

pervasive social problem”. Id.

Congress further concluded 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 indi-

viduals have often had no legal recourse to redress such

discrimination. Id. According to Congress, “[t]he Nation’s

proper goals regarding individuals with disabilities are to

assure equality of opportunity, full participation, inde-

pendent living, and economic self-sufficiency for such

individuals.” Id. Congress noted:

The continuing existence of unfair and unneces-

sary 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 costs the United States billions of dollars in

unnecessary expenses resulting from dependency

and nonproductivity.

(Emphasis added). Id.

The Purpose of the ADA and the Social Security Dis-

ability Insurance Program

The purpose of the ADA is:

(1) to provide a clear and comprehensive

national mandate for the elimination of discrim-

ination against individuals with disabilities;

22

(2) to provide clear, strong, consistent, enforce-

able 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 individ-

uals with disabilities; and

(4) to invoke the sweep of congressional author-

ity, 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).

The purpose of the Social Security Act in providing

Social Security Disability Insurance (“SSDI”) to disabled

individuals is to provide financial support to those indi-

viduals who are unable to engage in substantial gainful

activity due to medically determinable impairments -

without regard to whether a specific job vacancy exists or

whether he would be hired if he applied for work. (Emphasis

added), 42 U.S.C. § 423. In other words, the SSA provides

benefits to applicants meeting the definition of “dis-

abled” without regard to whether a workplace accom-

modation would enable the applicant to perform a

specific job. Id.; 20 C.F.R. § 404.1520(b-f).

A Presumption of Judicial Estoppel Confounds the Pur-

pose of the ADA and SSA

In Cleveland v. Policy Management Sys. Corp., the Fifth

Circuit held:

[T]he application for or the receipt of social

security disability benefits creates a rebuttable

23

presumption that the claimant or recipient of

such benefits is judicially estopped from assert-

ing that he is ‘a qualified individual with a

disability.’

(emphasis in original) Cleveland v. Policy Management Sys.

Corp., 120 F.3d 513, 518 (5th Cir. 1997) (Pet. App. 11a).

Although ostensibly rejecting a per se estoppel rule in

ADA cases where the employee has applied for or

received social security disability benefits, the Fifth Cir-

cuit applied a presumption of judicial estoppel, reasoning

that it would only be “under some limited and highly

unusual set of circumstances” that “the two claims would

not necessarily be mutually exclusive. ...” Id. at 517 (Pet.

App. 8a-9a).

Imposing such a presumption of judicial estoppel

erroneously assumes that individuals who apply for SSA

benefits and who also pursue their rights under the ADA

are making inconsistent claims, and thereby, compromis-

ing the integrity of the judicial system.’ In actuality,

however, there is no inconsistency. See 20 C.F.R.

§ 404.1520(b-f); 42 U.S.C. § 12111(8). Rather than main-

taining the integrity of the courts, the Fifth Circuit's

judicial estoppel presumption instead precludes legiti-

mate ADA claims asserted by disabled individuals who

were doing nothing more than exercising their rights

under two Federal Acts designed specifically to protect

the disabled. In essence, the Fifth Circuit’s opinion places

° Typically, a presumption in the law arises when proof of a

certain fact renders the existence of another fact sufficiently

probable such that “it is sensible and time saving to assume the

truth of [the other fact] until the adversary disproves it.” See 2

McCormick on Evidence Sec. 343, at 454-55 (John W. Strong, 4th ed.

1992).

24

a uniquely onerous burden on SSDI recipients and reaf-

firms the position of political powerlessness of the dis-

abled in our society.

Further, in applying this presumption, disabled indi-

viduals will essentially be forced to chose between an

ADA claim and SSA benefits. See Swanks v. Washington

Metropolitan Area Transit Authority, 116 F.3d 582, 586 (D.C.

Cir. 1997). Thus, such a presumption would confound the

pro-employment purpose of the ADA and further

increase the number of disabled individuals resorting to

reliance on SSA disability benefits.!° See also, Id. Surely,

the ADA was not intended to relegate disabled persons to

only one scheme of governmental assistance.

Moreover, in McKennon v. Nashville Banner Publishing

Co., this Court noted that the ADA, the Age Discrimina-

tion in Employment Act and Title VII of the Civil Rights

Act of 1964 constituted part of a wide statutory scheme

designed to protect employees in the workplace. See

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,

356, 115 S.Ct. 879, 884, 130 L.Ed.2d 852 (1995). This Court

found that a litigant who pursues a claim under the anti-

discrimination statutes, “not only redresses his own

injury, but also vindicates the important congressional

policy against discriminatory employment practices.”

McKennon, 115 S.Ct. at 884, citing, Alexander v. Gardner-

Denver Co., 415 U.S. 36, 45, 94 S.Ct. 1011, 1018, 39 L.Ed.2d

147 (1974) and International Brotherhood of Teamsters v.

1 Combined, the SSI and SSDI programs cost

approximately 60 billion dollars a year, with the SSDI program

accounting for approximately 40.9 billion dollars each year. See

House Comm. On Ways and Means, 1996 Green Book:

Background Material and Data on Programs Within the Jurisdiction

of the Committee on Ways and Means, 17, 291 (Comm. Print 1996).

25

United States, 431 U.S. 324, 364, 97 S.Ct. 1843, 1869, 52

L.Ed.2d 396 (1977).

Clearly, a presumption that an SSDI applicant/recip-

ient is judicially estopped from claiming to be a “quali-

fied individual with a disability” is inappropriate because

it would override the statutory schemes which were spec-

ifically designed to prevent discrimination, regardless of

the egregiousness of the discriminatory conduct.

The Doctrine of Judicial Estoppel Is Inapplicable

Whether there is a “presumption” or not, the doc-

trine of judicial estoppel is inappropriate in an ADA case.

Judicial estoppel is an equitable doctrine which has

been given differing definitions by the various Circuit

Courts. For instance, the Fifth Circuit has held that judi-

cial estoppel applies to prevent a party from asserting a

position in a legal proceeding that is contrary to a posi-

tion taken in the same or some earlier proceeding. See

Cleveland, 120 F.3d at 517, citing, Ergo Science, Inc. v.

Martin, 73 F.3d 595, 598 (5th Cir. 1996). According to the

Cleveland court, the clear purpose of the doctrine is “to

protect the integrity of the judicial system.” Id.

The Eleventh Circuit has held:

[Jjudicial estoppel ‘is applied to the calculated

assertion of divergent sworn positions. The doc-

trine is designed to prevent parties from making

a mockery of justice by inconsistent pleadings.’

See Talavera v. School Bd. of Palm Beach County, 129 F.3d

1214, 1217 (11th Cir. 1997), quoting, McKinnon v. Blue Cross

& Blue Shield of Ala., 935 F.2d 1187, 1192 (11th Cir. 1991)

(quoting, American Nat'l Bank v. F.D.1.C., 710 F.2d 1528,

26

1536 (11th Cir. 1983)). The Seventh Circuit has applied

judicial estoppel where (1) a latter asserted position was

clearly inconsistent with an earlier position; (2) the facts

at issue were the same in each case; and (3) the party to

be estopped must have convinced the first court to adopt

its position. See Levinson v. United States, 969 F.2d 260 (7th

Cir. 1992). The Tenth Circuit finds: “Judicial estoppel bars

a party from adopting inconsistent positions in the same

or related litigation.” See Rascon v. U.S. West Communica-

tions, Inc., 143 F.3d 1324, 1330 (10th Cir. 1998). The Third

Circuit broadly directs that judicial estoppel is applied at

the court’s discretion, on a case by case basis, to preserve

the integrity of the judicial system by preventing parties

from “playing fast and loose” with the judicial system in

taking inconsistent positions. See McNemar v. Disney Store,

Inc., 91 F.3d 610, 617 (3rd Cir. 1996), cert. denied, 117 S.Ct.

958 (1997).

Although the definitions of estoppel vary'!, common

to most definitions is the requirement that the individual

must have asserted a position in a prior proceeding that

is “inconsistent” with the individual's position in the

current proceeding. It is this element of “inconsistency”

that, at first glance, appears obvious when comparing an

individual's declaration to the SSA that they are “dis-

abled” and “unable to work” with that same individual’s

claim in an ADA case that they are “disabled” and “able

to work”. This apparent inconsistency vanishes; however,

‘1 It appears that this Court has not adopted the doctrine of

judicial estoppel in the context of employment discrimination /

civil rights cases, nor in other cases outside the context of patent

law.

27

upon closer review of the context in which such state-

ments are made, the distinct definitions of “disability”

under each Act, and the differing importance each Act

places upon the impact of workplace accommodations

and the ability to work.

There is No Inconsistency

It is clear that with the distinctions between the two

Acts, it is entirely consonant to be “disabled” under the

SSA and also be a “qualified individual with a disability”

under the ADA.’ After all, to invoke protection under

each Act, one must first prove to be “disabled”. See 42

U.S.C. §§ 12112(a), 12111(8); 42 U.S.C. § 423(d); 29 C.F.R.

§ 404.1520(b-f). Only then, and only under the ADA, must

the individual address whether she could work with rea-

sonable accommodations, i.e., whether she is a “qualified

individual with a disability” under the ADA. Id.

Specifically, to prevail in an ADA case, the plaintiff

must first establish a prima facie case by demonstrating

that (1) she has a disability; (2) she is otherwise qualified

for the job in question; and (3) an adverse employment

action was taken against her because of her disability. See

12 See also, Matthew Diller, Dissonant Disability Policies: The

Tensions Between the Americans With Disabilities Act and Federal

Disability Benefit Programs, 76 Tex. L. Rev. 1003, 1006-07 (1998)

(“There is no inherent contradiction between the idea that some

individuals should receive income support as a response to

their disabilities and the notion that our society should remove

obstacles faced by persons with disabilities in the job market

and the workplace. Indeed, income support and civil rights

protection can be seen as two essential parts of a comprehensive

disability policy.”)

28

Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047,

1050 (5th Cir. 1998); Barber v. Nabors Drilling U.S.A., Inc.,

130 F.3d 702, 706 (5th Cir. 1997). In Hamilton, the Fifth

Circuit expressly recognized that the threshold issue in

an ADA case is a showing that the plaintiff is “dis-

abled.”?

Once it is established that a plaintiff has a “disabil-

ity” under the ADA, the question then becomes whether

the plaintiff is an “otherwise qualified individual with a

disability”, i.e., can the individual perform the essential

functions of a job either with or without reasonable

accommodation. See Barber, 130 F.3d at 706; 42 U.S.C.

§ 12111(8). The Barber court found that a determination of

whether a plaintiff is “otherwise qualified” depends upon

the resolution of two corollary questions: (1) what are the

essential functions of the job in question; and (2) are any

proposed accommodations reasonable. Id. at 706. As

noted in Barber, the second question would become irrele-

vant only if the jury determined that the plaintiff could

have performed the essential functions of her job without

reasonable accommodation. Id. As such, in an ADA claim,

the pivotal issues are whether the plaintiff is “disabled”

under the ADA, and if so, can she, despite the disability,

perform the essential functions of her job either with or

without reasonable accommodation.

13 The Hamilton Court pointed out that the ADA confers the

following “special meaning” on the term “disability”:(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. Hamilton at 1050; see also, Bragdon v. Abbott, 118

S.Ct. 2196, 2202 (1998); 42 U.S.C. § 12102(2).

29

Conversely, the SSA’s determination of eligibility for

SSDI benefits never makes an inquiry into reasonable

workplace accommodation or the essential functions of a

specific job. Specifically, in the context of an SSDI appli-

cation, an applicant must demonstrate that they are “dis-

abled” as defined by the SSA, i.e., that they are unable to

engage in any substantial gainful activity by reason of

any medically determinable physical or mental impair-

ment 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). In making this determination, the SSA

utilizes a five-step evaluation process:

(1) The SSA determines whether the claim-

ant is currently engaged in “substantial gainful

activity”. If so, the application is denied. If not,

the SSA proceeds to step two.

(2) The SSA determines whether the claim-

ant has an impairment which is “severe” enough

to significantly limit his ability to perform basic

work activities. If not, the application is denied.

If so, the SSA proceeds to step three.

(3) The SSA determines whether the

impairment is equivalent to an impairment

which is listed as presumptively disabling in the

regulations.['4] If the claimant’s condition

matches one of the listed impairments, the SSA

awards disability benefits without making fur-

ther inquiry. If the condition is not “listed”, the

SSA proceeds to step four.

14 See 20 CFR Pt. 404 Subpt. P, App. 1.

30

(4) The SSA determines whether the claim-

ant is able to perform his “past, relevant work.”

If so, benefits are denied. If not, the SSA pro-

ceeds to step five.

(5) The SSA determines whether the claim-

ant can perform “other work”, i.e., jobs “that

exist in significant number in the national econ-

omy.” In making this determination, the SSA

considers the claimant's age, education, past

work experience and residual functional capac-

ity. If so, the SSA denies the application. If not

the SSA awards disability benefits.

See 20 C.F.R. § 404.1520(b-f); Talavera v. School Bd. of Palm

Beach County, 129 F.3d at 1218-19.

In clear contrast to the ADA, nowhere in their anal-

ysis does the SSA consider the impact of possible work-

place accommodations on the individual's ability to

work. See Talavera, 129 F.3d at 1219, citing, Swanks v.

Washington Metropolitan Area Transit Authority, 116 F.3d at

585. For instance, at step three of the SSA evaluation, an

applicant, who is not engaged in substantial gainful activ-

~ ity and has a “listed” disability, automatically receives

benefits without inquiry into the applicant's actual ability

to work. Talavera, at 1219; Swanks, at 585. Also, regardless

of which evaluation step is considered, “[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” in determining eligibility for social security

disability benefits. (Emphasis added). See Daniel L.

Skoler, Assoc. Comm’r SSA, Disabilities Act Info. Mem.

(June 2, 1993), reprinted in 2 Social Security Practice Guide,

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

1997); see also, Swanks, 116 F.3d at 585.

—E —

31

Although the same threshold terminology is used in

the context of both an ADA case and an SSA claim (e.g.,

“I am disabled”), coverage under each Act turns on a

distinct and specific set of definitions and analysis. Thus,

beyond the threshold question of “disability”, the requi-

sites for coverage under each Act are distinct. See Swanks,

116 F.3d at 583-84. The ADA focuses on an individual's

ability to perform the essential functions of a job, either

with or without accommodation. In contrast, the SSA

relies on a variety of factors (including age, education,

ability to perform work widely available in the national

economy), none of which take into account the accom-

modation issue. 20 C.F.R. § 404.1520(b-f); Swanks, at

583-85. It is this inherent distinction that fundamentally

renders the application of a presumption of judicial

estoppel inappropriate in an ADA case.

Rejection of Judicial Estoppel by the SSA and EEOC

The application of a rebuttable presumption of judi-

cial estoppel has been expressly rejected by the Equal

Employment Opportunity Commission and the Social

Security Administration: the two government agencics

responsible for administering the ADA and the SSDI

program.'® (U.S. Amicus Brf. at 13)'*. Both the EEOC and

8 This guidance from the SSA and EEOC is significant

because, as this Court recognized in Bragdon v. Abbott, 118 S.Ct.

2196 (1998), “the well-reasoned views of the agencies

implementing a statute ‘constitute a body of experience and

informed judgment to which courts and litigants may properly

resort for guidance.’ ” Id. at 2206.

16 “U.S. Amicus Brf.” refers to the Brief for the United

States as Amicus Curiae filed in support of the Petition for a

Writ of Certiorari in this case.

32

the SSA 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 U.S. Amicus Brf. at 13, citing, EEOC Guidance

at 70:1251-1252, 70:1254-1257, 70:1259-1266; Pet. App.

36a-50a; SSA Guidance App. 15-400-402; Pet. App.

18a-35a.

The SSA specifically stated in a June 2, 1993 mem-

orandum that eligibility standards under the ADA and

SSA have “no direct application to one another”; there-

fore, 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. See Americans With Disabilities

Act of 1990 - INFORMATION, Memorandum from the

Associate Commissioner, SSA at 1, 3. Also, as confirmed

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 “many persons with

listed impairments, for example, amputations, in fact are

able to wu.ck quite successfully, even though SSA would

find them ‘disabled’ if they decided not to work and

instead sought benefits.” (Pet. App. 26a).

Moreover, an SSDI recipient may engage in a period

of “trial work” and still remain eligible for benef’ 's. See

42 U.S.C. § 422(a)-(c). This trial work program -learly

reflects the SSA’s intent to encourage disabled individ-

uals to work. See Id.; Mohamed v. Marriott, Int'l, Inc., 944

F.Supp. 277 (S.D.N.Y. 1996). A person’s ability to receive

Social Security disability benefits while working demon-

strates that judicial estoppel would contravene the

ee ee ee? a —— —

33

intended purpose of “trial work” if ADA employers

could patently refuse to participate in “trial work.”

Rejection of Judicial Estoppel by A Majority of the

Circuit Courts of Appeals; Adoption of a Case by Case

Analysis with No Greater Weight Assigned to State-

ments of Disability to the SSA.

A majority of the Circuit Courts have rejected appli-

cation of judicial estoppel in ADA cases, and have instead

resolved that statements made in connection with a SSDI

application are to be considered on a case by case basis in

the context in which they were made, enjoying no greater

exalted weight than any other evidence.

Specifically, the United States Court of Appeals for

the District of Columbia issued two opinions holding 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. The

D.C. Circuit in Swanks and Whitbeck recognized that in

determining eligibility for social security disability bene-

fits, the critical issue in an ADA case - reasonable work-

place acc. ~modation — is not considered. Swanks, 116 F.3d

at 583-87; Whitbeck, 116 F.3d at 591. The D.C. Court noted

that nowhere in the SSA’s five step eligibility determina-

tion process is the question of reasonable workplace

accommodation considered. See Swanks, 116 F.3d at

34

584-85. The Swanks Court further held that an SSA “deter-

mination that the claimant cannot do past work says

nothing about the claimant's ability to perform his or her

former job.” See Id. at 585.

In Swanks, the court also noted that in reaching its

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. For example, keeping with the

position that SSA determinations do not consider

whether a claimant could work with reasonable accom-

modations, the Swanks court noted that statements to the

SSA of an inability to perform the essential functions of

the job even with accommodation could bar the claimant

from asserting in an ADA claim that an accommodation

would have enabled the claimant to perform that same

job.!7 Swanks, at 587.

Following Swanks, the Sixth Circuit in Blanton v. Inco

Alloys International, Inc., 123 F.3d 916, 917 (6th Cir. 1997)

17 In providing this example, the Swanks court cited

Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.

Cir. 1991) (holding that parties’ prior sworn statements must be

given “controlling weight” at summary judgment unless “the

shifting party can offer persucsive reasons for believing the

supposed correction.”). In Swanks, there was no evidence before

the court of Swank’s statements made to the SSA; therefore, the

court did not analyze the facts or otherwise assign weight to the

statements. Swanks at 587. This reference to a “controlling

weight” assessment is inappropriate, however, because it

assumes that there is some “correction” being made, when in

fact, in the majority of cases, there is no “correction” because

there is no inconsistency. Indeed, the Swanks example of the

applicant who claims to be unable to work even with reasonable

accommodations is a rare case, but nonetheless should be

evaluated on its particular facts.

35

rejected application of judicial estoppel. The Blanton

Court found that the receipt of social security disability

benefits does not preclude an ADA claim and that prior

sworn statements are only considered as a material factor

in analyzing the case.'® Id. In Griffith v. Wal-Mart Stores,

Inc., 135 F.3d 376 (6th Cir. 1998), the Sixth Circuit con-

firmed that “statements made in an application for Social

Security disability benefits, while relevant, do not result

in judicial estoppel.” Id. at 382.

Likewise, the Seventh Circuit determined 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).19 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 plain-

tiff is a ‘qualified individual with a disability’ ”. Id. at

466-68. The Court further held that, in the absence of

18 In Blanton, the court emphasized that it rejected judicial

estoppel, and instead, simply found that “in light of the

overwhelming weight of the medical evidence, as well as

Blanton’s own admissions” that Blanton was unable to perform

his former position. Blanton, 123 F.3d at 917.

19 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.

36

evidence that the individual could have performed her

prior job with reasonable accommodation, such state-

ments along with other evidence could support summary

judgment. Id.

However, the Weigel court, also observed that decla-

rations of being ” ‘wholly unable to work,’ or some other

variant to the same effect” are not conclusive on the issue

of whether that same individual is a “qualified individual

with a disability” under the ADA. Id. at 466-67. Therefore,

the court found that the apparent incongruity between an

ADA claim and an SSA claim 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.” Id. at 466.

Following Weigel, the Seventh Circuit left no doubt

that it does “not apply judicial estoppel to foreclose ADA

claims when the claimant has applied for disability bene-

fits.” See Haschmann v. Time Warner Entertainment Co., 151

F.3d 591, 603 (7th Cir. 1998). In Haschmann, the court

maintained this anti-estoppel position in recognition of

the distinctions between the ADA and the SSA, including

the ADA’s consideration of the impact of reasonable

accommodations. Id. As in Weigel, the court again held

that, while not dispositive, the receipt of disability bene-

fits may be relevant to the issue of whether an individual

is a qualified individual with a disability. Haschmann, 151

F.3d at 603. In upholding the finding that Haschmann

was a “qualified individual with a disability”, the court

analyzed Haschmann’s statements in the context and

time frame in which they were made. Id. at 603-04. This

analysis revealed that although Haschmann was awarded

benefits, her statements to the SSA were not inconsistent

with her position in her ADA case. Id.

37

In Talavera v. School Board of Palm Beach County, 129

F.3d 1214 (11th Cir. 1997), the Eleventh Circuit Court of

Appeals also rejected application of judicial estoppel in

ADA cases. The court specifically held that “a certifica-

tion of total disability on an SSD [social security disabil-

ity] application is not inherently inconsistent with being a

‘qualified individual with a disability’ under the ADA.”

Talavera, 129 F.3d 1220. When analyzing the interplay

between a claim for social security disability benefits and

a claim of being a “qualified individual with a disability”,

the Eleventh Circuit recognized that the Fifth Circuit’s

opinion in Cleveland exuded an “obvious skepticism” and

uisplayed a reluctance to find that individuals who are

“totally disabled” for social security disability purposes

are covered by the ADA.” Id. at 1219.

Rejecting the “skeptical” position of the Fifth Circuit,

the Eleventh Circuit held that: “A certification of total

disability on a SSDI application does mean that the appli-

cant cannot perform the essential functions of her job

without reasonable accommodation. It does not neces-

sarily mean that the applicant cannot perform the essen-

tial functions of her job with reasonable accommodation.”

Talavera, 129 F.3d at 1220. After examining the particular

facts of the case, including the claims of total disability to

the SSA, the Talavera court determined that based on the

evidence, there was a dispute of fact as to whether Ms.

Talavera’s disability rendered her unable to perform the

20 Indeed, as noted by the Solicitor General’s amicus brief

in support of a writ in this case, countless ADA cases in the Fifth

Circuit have been barred based on the “essentially all cases are

barred” directive from Cleveland. (See U.S. Amicus Brf. at 11).

38

essential functions of her job with accommodation. Id. at

1221.

Likewise, the Ninth Circuit rejected judicial estoppel

in ADA cases in Johnson v. Oregon Dept. of Human

Resources Rehabilitation, 141 F.3d 1362 (9th Cir. 1998). The

court observed:

[W]hat may be considered a disability or total

disability under legal precepts of certain federal

or state disability statutes or private instruments

conferring disability benefits may differ under

provisions of other federal or state legislation or

other private instruments. Therefore, a state-

ment averring a legal conclusion in a previous

application or proceeding as to disability may

not always preclude eligibility in subsequent

applications or proceedings. Having said this,

however, we emphasize that material factual

statements made by an individual in prior dis-

ability applications or proceedings may be bind-

ing in subsequent claims.

Johnson, 141 F.3d at 1368. However, the court further

expounded and said:

[T]he law does not require plaintiffs to choose

between applying for benefits and pursuing an

ADA claim. They may do both.

(Emphasis added) Id. at 1370.

The Johnson court further observed that such repre-

sentations may constitute useful evidence, and that a

“ ‘straightforward summary judgment analysis, rather

than theories of estoppel’ will be appropriate in most

cases.” Id. at 1369; citing, Griffith v. Wal-Mart Stores, Inc.,

135 F.3d 376, 382-83 (6th Cir. 1998). After reviewing the

statements of disability made by Johnson to the SSA, the

39

court held that there was no inconsistency with her ADA

claim. Johnson, 141 F.3d at 1369-70. Specifically, the court

noted that the description of her disability in her applica-

tions matched that in her ADA case and that she did not

tell the SSA that she could not work even with accom-

modation. Id. The court therefore found that her repre-

sentations of disability were not irreconcilable, and that

there was no evidence that Johnson “acted in bad faith or

was playing fast and loose with the courts.” Id. at 1370.

As with the majority of Circuits, the Tenth Circuit

likewise rejected application of judicial estoppel to ADA

cases where the plaintiff has applied for or received social

security disability benefits. See Rascon v. U.S. West Com-

munications, Inc., 143 F.3d 1324 (10th Cir. 1998). The Ras-

con court held that statements made in connection with

an application for social security disability benefits can-

not be an automatic bar to an ADA claim, but may

constitute evidence relevant to a determination of

whether the plaintiff is a “qualified individual with a

disability.” Id. at 1332. The Rascon court also noted that

despite Rascon’s representations in his application for

disability benefits that he did not ever plan to return to

work, there was no evidence that he could not have

performed the essential functions of the job with reason-

able accommodation. (Emphasis added) Id.

In sum, the EEOC, the SSA and a majority of the

Circuit Courts of Appeals, reject a strict application or

presumption of judicial estoppel and have resolved that

statements made in an SSDI application may be relevant

(as with any other type of evidence in an ADA case), but

are not dispositive on the “qualified individual with a

40

disability” issue.24 As was done in Talavera, Johnson,

Rascon, Haschmann and Weigel, the weight to be given

statements made in connection with an application for

SSDI benefits should be determined on a case by case

21 Cf., McNemar v. The Disney Store, Inc., 91 F.3d 610, 617-18

(3d Cir. 1996), cert. denied, 117 S.Ct. 958 (1997) (plaintiff was

judicially estopped from claiming to be “qualified” under the

ADA; plaintiff's statements made on his disability benefits

application that he was “totally disabled” and “unable to work”

were “unconditional assertions as to his disability” and he

should not be permitted to “qualify” such statements); Moore v.

tayless Shoe Source, Inc., 139 F.3d 1210, 1213 (8th Cir. 1998)

(“prior representations of total disability carry sufficient weight

to grant summary judgment against the [ADA] plaintiff” absent

“strong countervailing evidence that the employee is in fact

qualified”; affirming summary judgment on ground that

affidavit of plaintiff stating she could have performed her job

with reasonable accommodations was not sufficient evidence to

countervail her on-going representations to the SSA that she

was “unable to work”; but also, stating that a less strict standard

may have applied had plaintiff specified to the SSA that she

requested reasonable accommodations). These cases, like

Cleveland, essentially divide the disabled into two groups, i.e.,

those who can work and those who cannot. In addition to

deviating from the position of the EEOC, the SSA and a majority

of the Circuit Courts, this approach is erroneous because it is

not possible to make meaningful determinations about whether

a disability can be reasonably accommodated under the ADA

outside the context of a specific job - a context which the SSA

does not consider. See also, Matthew Diller, Dissonant Disability

Policies: The Tensions Between the Americans With Disabilities Act

and Federal Disability Benefit Programs, Tex. L. Rev. 1003, 1007

(1998).

Notably, the Third Circuit in Krouse v. American Sterilizer

Co., 126 F.3d 494 (3rd Cir. 1997) observed that McNemar had

come under considerable criticism, some of which might be

well-founded. Id. at 502-03.

41

basis after an evaluation by the factfinder of the context

in which the statements were made.??

A presumption of judicial estoppel in ADA cases is

wrong because of the obvious differences in each Act,

many individuals could meet the criteria for benefits

under both Acts, and could do so legitimately without

compromising their integrity or the integrity of the courts

or the administrative system. Accordingly, there should

be no presumption of, or any, judicial estoppel in an ADA

case, nor should declarations of disability to the SSA be

given greater weight than any other evidence.

22 The statements made in connection with an SSA

pplication will no doubt vary from case to case; therefore, a

case by case analysis of the weight to be given such statements

is proper. See McKennon v. Nashville Banner Publishing Co., 115

S.Ct. at 886 (in cases involving after-acquired evidence issues,

“the factual permutations and equitable considerations” will

vary from cases to case, and therefore, the proper remedial relief

should be addressed by the judicial system in the ordinary

course of further decisions).

23 Although an ADA claimant who has previously sworn to

the SSA that she is “unable to work either with or without

reasonable accommodations” may have an “inconsistency”

issue sufficient to constitute a bar, in light of the distinctions in

the Acts, even such specifically inconsistent statements should

be evaluated on a case by case basis in the context in which they

were made. In other words, statements to the SSA, whether they

address the issue of reasonable accommodation or not, should

be treated the same as any other evidence presented in an ADA

case. If in fact, upon evaluation there is an inconsistency, the

impact of such, as with any other credibility assessment, should

be determined by the factfinder.

42

Cleveland was not “inconsistent”

Employers such as PMSC should not be exempt from

ADA compliance because a disabled individual, who at

some point in time applied for or received social security

disability benefits, is required to overcome a heightened

legal burden which is not only unwarranted, but also,

under the Cleveland Opinion, virtually impossible to

rebut. The misguided impact of a presumption of judicial

estoppel is particularly evident on closer review of Car-

olyn Cleveland’s statements to the SSA. Upon consider-

ation of the context in which the statements were made,

there is nothing inconsistent between these statements

and her position in her ADA case.

Cleveland is a perfect representative of the type of

individual who should have been able to invoke the

protection of the ADA to redress the disability-based

discrimination she suffered. Yet under the Fifth Circuit's

“rebuttable presumption” application of judicial estoppel,

the merits of her ADA claim were not even considered.

Instead, after summarizing selected statements from

Cleveland’s applications for social security disability ben-

efits, and without considering the fact that the SSA does

not inquire about (or even consider) the issue of reason-

able accommodations, the Fifth Circuit determined that

Cleveland’s statements to the SSA precluded her from

rebutting “the presumption that while she remains dis-

abled for purposes of Social Security, she is estopped

from asserting that she is a ‘qualified individual with a

disability.’ ” Cleveland, 120 F.3d at 518; Pet. App.12a. Had

Cleveland’s statements been evaluated in their entirety in

the context in which they were made, and in the absence

of a presumption that she was judically estopped to claim

she was “otherwise qualified” under the ADA, an alleged

43

inconsistency would never have materialized in the first

place.

Specifically, in Cleveland, the Fifth Circuit’s opinion

focused on the following excerpts from the SSA file: (1)

an initial application filed with the assistance of her

daughter, where Cleveland certified 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”

wherein Cleveland stated she was terminated “because |

could no longer do the job because of my condition”; (4) a

January 1995 “Request for Reconsideration” and a May

1995 request for hearing before an ALJ wherein she stated

she was “unable to work due to my disability”. (Pet. App.

3a; Cleveland, at 514-15, 518).

In arriving at the conclusion that Cleveland’s state-

ments were “inconsistent”, the Fifth Circuit failed to

acknowledge the context in which these selected state-

ments were made. First, as previously pointed out in this

Brief, the statements themselves are not inconsistent with

her claim to be a “qualified individual with a disability”

because they were made in a forum which does not

consider the effect that reasonable workplace accom-

modations would have on the ability to work. Addi-

tionally, if the statements are examined in the time period

in which they were made, they are each accurate state-

ments. For instance, in January 1994 when the application

was originally submitted, Cleveland had just suffered her

stroke and was unable to work. (J. App. 94-95, 100,

104-05). Additionally, in asserting that Cleveland “contin-

uously and unequivocally represented to the SSA that she

44

is totally disabled and completely unable to work”4, the

Fifth Circuit ignored the fact that Cleveland notified the

SSA in April 1994 that she had returned to work and no

longer needed benefits. (J. App. 38, 95). In fact, it was the

notice to the SSA that Cleveland had returned to work

that prompted the initial denial of SSDI benefits. (J. App.

38-39). Although not noted by the Fifth Circuit, Cleveland

explained in her September 1994 Request for Recon-

sideration:

I disagree with the determination made on my

claim for disability-worker or child benefits

because I was denied because I had returned to

work and was making over $500. However, on

July 15, 1994 I was terminated due to my condi-

tion and I have not been able to work since. I

continue to be disabled.

(J. App. 46). Notably, from this explanation, the Fifth

Circuit in claiming that Cleveland was being less than

honest, excised and showcased only the “I continue to be

disabled” statement. Likewise, the Fifth Circuit ignored

the summary judgment evidence demonstrating that but

for PMSC’s refusal to accommodate Cleveland’s disability

and ultimate termination, Cleveland would not have

requested reconsideration of the initial denial of benefits.

(J. App. 95-98, 100-01). The court also failed to consider

the evidence submitted by Cleveland and her doctors

which demonstrated that, as a direct result of her termi-

nation, Cleveland’s medical condition worsened to the

point that she was unable to work. (J. App. 64-65, 69-72,

98, 100-101).

24 Cleveland, at 518; Pet. App. 12a.

wan

45

In examining the “Work Activity Report”, the Fifth

Circuit again considered only part of the statement, as

opposed to her entire explanation:

I had my stroke 1/7/94 and was out of work for

several months. ' attempted to return to work

mid April. I worked for three months before

they terminated me because I could no longer

do the job because of my condition.

(J. App. 47). Although the Fifth Circuit insinuated that

Cleveland was being less than forthright when she stated

that she was terminated because she could not do the job

(the only sentence of this excerpt that the Court focused

on), Cleveland only repeated what PMSC had told her,

i.e., that she could no longer do the job because of her

condition. (J. App. 97-98). Recall, in terminating Cleve

land for poor job performance, Peter Moore informed

Cleveland that his father had never been able to do

anything after having a stroke and neither would Cleve-.

land. (J. App. 97-98). In concluding that Cleveland was

advancing inconsistent positions, the Fifth Circuit com-

pletely discounted this fact, and likewise ignored Cleve-

land’s evidence that had she been accommodated, she

could have continued employment. (J. App. 95-98).

The Fifth Circuit also disregarded the fact that rea-

sonable job accommodation is not an issue for the SSA

and bears no relevance to the SSA’s inquiry into Cleve-

land’s “disabled” status. See Swanks at 583-87. As such,

reasonable workplace accommodation is not relevant nor

considered by the SSA.?5 Nevertheless, additional state-

ments made by Cleveland to the SSA confirm that she

25 Similarly, Cleveland’s belief that PMSC discriminated

against her because of her disability is not an issue for the SSA

46

needed accommodations such as additional time to per-

form tasks. Specifically, in a September 1994 “Supplemen-

tal Questionnaire” Cleveland explained her difficulty

completing tasks as follows: “Yes, in a timely manner due

to length of time it takes to complete the task.” (J. App.

56). Although ignored by the Fifth Circuit, this statement

is consistent with Cleveland’s prior request to take work

home with her to allow additional time to complete the

assignment — an accommodation which was denied by

PMSC. (J. App. 96).

Likewise, Cleveland’s statements that “I am unable

to work due to my disability” made in her January and.

May 1995 reconsideration requests were true at the time,

and were not inconsistent with her position in her ADA

claim. In these non-specific statements, Cleveland did not

reference (nor was she asked or required to reference)

whether she could have worked had PMSC accommo-

dated her, rather than terminating her and causing her

condition to deteriorate. Whether pre- or post-termina-

tion, there is nothing inconsistent in Cleveland’s various

statements which would warrant a presumption of judi-

cial estoppel, much less, a holding that Cleveland failed

(and was not raised in her SSA application). As with a claim of

disability discrimination, a claim of an ability to work with

reasonable accommodations, is properly voiced in an ADA

lawsuit - a forum which, unlike the SSA, considers such issues

relevant. That Cleveland, or any other SSA applicant, informs

the SSA that they are unable to work, without specifying

whether they could work with reasonable accommodations,

simply does not create an inconsistency with an ADA claim and

does not warrant application of a presumption of judicial

estoppel.

47

to rebut the presumption. Cleveland’s summary judg-

ment evidence plainly established genuine issues of

material fact which precluded summary judgment.

Clearly, Cleveland’s statements regarding her disabil-

ity are not inconsistent and do not invoke the application

of a presumption of judicial estoppel.?© In applying a

presumption of judicial estoppel, the Fifth Circuit not

only erroneously saddled Cleveland with a heightened

legal burden, but created a burden which is simply

antithetical in the context of an ADA case. After all,

Congress surely did not intend for the ADA’s protection

to be unavailable to 7.3 million SSDI recipients in this

Country who might otherwise return to gainful employ-

ment.

26 Even if this Court were to determine that judicial

estoppel applies in ADA cases (which Petitioner asserts that it

should not) and that Cleveland’s statements were inconsistent

(which they are not), PMSC, as a result of its own unlawful

conduct, is not entitled to benefit from this doctrine because “it

[estoppel] is for the protection of the innocent, and only the

innocent may invoke it.” See Douglas v. Aztec Petroleum Corp.,

695 S.W.2d 312, 317 (Tex. App. — Tyler 1985, no writ); See also,

Regional Properties, Inc. v. Financial & Real Estate Consulting Co.,

752 F.2d 178, 183 (5th Cir. 1985). The Douglas court further held

that “[a] person my not predicate an estoppel theory in his favor

on, or assert such estoppel for the purpose of making effective,

obtaining the benefit of, or shielding himself from the results of

his own fraud .. . dereliction of duty, violation of the law,

wrongful act or other inequitable conduct in the transaction in

question.” Id. At 317-18.

48

CONCLUSION

For the above reasons, Petitioner, Carolyn C. Cleve-

land, respectfully requests that this Court reverse the

judgment of the Fifth Circuit and remand this case to the

District Court for trial on the merits.

Respectfully submitted,

Joun E. Watt, Jr.

Counsel of Record

Laura Earpitey CALHOUN

Law Orrice oF JOHN E. WALL. Jr.

Attorneys for Petitioner

5728 Prospect Avenue, Suite 2001

Dallas, Texas 75206

(214) 887-0100