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

—=

=

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

ee ee

= eer

CAROLYN C,. CLEVELAND.

Petitioner

——s

: PoLICy MANAGEMENT SYSTEMS CorpP.., ef al.,

q Respondents.

1] *.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

| BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF RESPONDENTS

ANN ELIZABETH REESMAN

| McCGUINESS & WILLIAMS

4 : : 1015 Fifteenth Street, N.W.

: Suite 1200

j Washington, D.C. 20005

(202) 789-8600

: pf Attorneys for Amicus Curiae

é Equal Employment Advisory

f Council

ee

if

Wi WILSON - Eras PrinTiING Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

Loasitumanteedientiohadiontie aia

~|BEST AVAILABLE COPY

4

QUESTIONS PRESENTED

1. 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 seg.?

2. If it does not create such a presumption, what

weight, if any, should be given to the application for, and

receipt of, disability insurance benefits when a person as-

serts that she is a “qualified individual with a disability”

under the ADA?

INTEREST OF THE AMICUS CURIAE .......................

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

SUMMARY OF ARGUMENT ......

ARGUMENT.

L

Il.

JUDICIAL ESTOPPEL IS A JUST AND IM.

PORTANT EQUITABLE DOCTRINE THAT

SHOULD APPLY TO CLAIMS UNDER THE

A. Judicial Estoppel Is a Just Doctrine That Is

Necessary in Preserving the Integrity of the

EE an ee

CE ee

JUDICIAL ESTOPPEL SHOULD APPLY

WHERE THE PLAINTIFF’S APPLICATION

FOR SOCIAL SECURITY BENEFITS IS IN-

CONSISTENT WITH HER CLAIM UNDER

EEE

A. Judicial Estoppel Should Apply to Sworn

Assertions Made in Prior Administrative

Proceedings me

B. Specific Factual Assertions In Pursuit of

Page

iv

13

17

18

iv

TABLE OF CONTENTS—Continued

C. General Representations of “Total Disabil-

ity” in Connection With SSA Benefit Appli-

cations Should Presumptively Bar Subse-

quent Claims That the Individual Is Qualified

for the Purposes of the ADA nciteaaidiidiaanian

Ill. REPRESENTATIONS OF DISABILITY IN

CONNECTION WITH SSA BENEFIT APPLI-

CATIONS ARE RELEVANT TO, AND

SHOULD CARRY SUBSTANTIAL WEIGHT

FOR THE PURPOSES OF, SUMMARY JUDG-

Page

v

TABLE OF AUTHORITIES

Allen v. Zurich Insurance Co., 667 F.2d 1162 (4th

Cir. 1982)

American National Bank v. FDIC, 710 F.2d 1528

(11th Cir. 1983)

Anderson Liberty Lobby, Inc. 477 U.S. 242

(1986) ll

Astor Chauffered Limousine v. Runnfeldt Invest-

ment Corp., 910 F.2d 1540 (7th Cir. 1990) __.4, 6, 9, 10

Barrentine v. Arkansas-Best Freight System, Inc.,

CASES Page

12

6

OR FO) ee a ee 8

Bates v. Long Island R.R., 997 F.2d 1028 (2d

Cir.), cert. denied, 510 U.S. 982 (1993) _........ 5, 6,9

Bogle v. Phillips Petroleum Co., 24 F.3d 758 (5th

RN er eres. eee” ae 9

Bonnano v. Gannett Co., 934 F. Supp. 113 (S.D.

EE CS nee eee CL eee 14

Bray v. Georgetown University, 917 F. Supp. 55

(D.D.C. 1996), aff'd without op., 116 F.3d 941

SS ee ee 7

Budd v. ADT Security Systems, 103 F.3d 699 (8th

Cir. 1996) 18

Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420

Se SD centeetettectetenintinsniemeen 6, 19

Cleveland v. Policy Management System Corp.,

120 F.3d 513 (5th Cir. 1997) . . 18, 23

Data General Corp. v. Johnson, 78 F.34 1556 (Fed.

Cir. 1996) 6

Davis v. Wakelee, 156 U.S. 680 (1895) 6

DeGuiseppe v. Village of Bellwood, 68 F.3d 187

DG Fe a ne eee 18

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

NE ee Ce 26, 27

eo Aetna Life Insurance Co., 690 F.2d

595 (6th Cir. 1982) .. 9

EEOC ». Stowe-Pharr Mills, 8 AD Cas. (BNA)

ee LS 20

Ergo Science v. Martin, 73 F.3d 595 (5th Cir.

Galloway v. United States, 319 U.S. 872 (1948)... 11

vi

TABLE OF AUTHORITIES—Continued

Page

General Signal Corp. v. MCI Telecomms. Corp., 66

F.3d 1500 (9th Cir. 1995), cert. denied, 516

FF See ee 11-12

Griffith v. Wal-Mart Stores, Inc., 1385 F.3d 376

OD: > ee ae. 23, 24, 26

Harris v. Marathon Oil Co., 948 F. Supp. 27 (W.D.

Tex. 1996), aff'd without op., 108 F.3d 332 (5th

SS ee ee ee 14

Heckler v. Cambell, 461 U.S. 458 (1983) —.............. 19

Hile v. Pepsi-Cola General Bottlers, 1997 U.S. App.

LEXIS 4912 (5th Cir. Mar. 12, 1997) ................ 20

Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998) .. 20, 23,

24, 25

Keegan v. Dalton, 899 F. Supp. 15038 (E.D. Va.

1995) ....... ee a ee | RS 7

Kennedy v. Applause, 1994 U.S. Dist. LEXIS

19216 (C.D. Cal. Dec. 6, 1994), aff'd, 90 F.3d

yk | fe ee ee ee 15

Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir.

ee ea le eS 18, 26

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

LS, ES ee 22

Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996),

cert. denied, 519 U.S. 1113 (1997) ...................... 5

McKennon v. Nashville Banner Publishing Co., 513

§ BF 0 a eae See 16

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

(83d Cir. 1996), cert. denied, 519 U.S. 1115

0) a ee a ee 12, 18, 22

Myers v. Hose, 50 F.3d 278 (4th Cir. 1995) _........ 18

Parkinson v. California Co., 283 F.2d 482 (10th

> Ea ean 8, 9,11

Patriot Cinemas, Inc. v. General Cinema Corp.,

834 F.2d 208 (ist Cir. 1987) .................2............ 5

Pegues v. Emerson Electric Co., 918 F. Supp. 976

(N.D. Miss. 1996) ................. 15

Porter v. Warner Holding Co., 328 U.S. 3895

(1946) . . 18,17

Reigel v. Kaiser Foundation Health Plan, 859 F.

Supp. 953 (E.D.N.C. 1994) 15

vii

TABLE OF AUTHORITIES—Continued

Page

Rissetto v. Plumbers & Steamfitters Local 348, 94

F.3d 697 (9th Cir. 1996) .... ...6, 18, 19

Rosado v. Deters, 5 F.3d 119 (5th Cir. 1993) ........ 10

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

Co., 81 F.8d 855 (3d Cir. 1996) ......................... 9

Searene v. Central R.R. Co., 203 F.2d 510 (3d Cir.

1953) 5

Simon v. Safelite Glass Corp., 128 F.3d 68 (24 Cir.

1997) sastitlemmeeetatin dani -.-12, 18, 20

Smith v. Midland Brake, 911 F. Supp. 1351 (D.

Kan. 1995), aff'd, 188 F.3d 1304 (10th Cir.),

vacated, reh’g en bane granted 158 F.3d 1060

LR SS See ek ae La 15

Smith v. Montgomery Ward & Co., 388 F.2d 291

(6th Cir.), cert. denied, 393 U.S. 871 (1968)... 5-6, 18

Soto-Ocasio v. ~setabs st See aae 150 F.3d 14

(1st Cir. 1998) _. 26

Southern Pacific Transport Co. v. ICC, 69 F.8d

oe RE RR rE sa Sd a SE 8

Swanks v. Washington Metropolitan Area Transit

Authority, 116 F.3d 582 (D.C. Cir. 1997) ........ 8, 20, 23,

24, 26

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

FEE eT 18, 20, 23, 26

Tyndall v. National Education Centers, 31 F.3d 209

ASE TP ee 17

United States v. McCaskey, 9 F.3d 868 (5th Cir.

1993), cert. denied, 511 U.S. 1042 (1994)... 6

Waggoner v. Mosti, 792 F.2d 595 (6th Cir. 1986) .. 10

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

TIE cctishinhstisimenntiitileh tictabintehanestitaalia vhaetinaimpiicnidaiiaenbhiliaimeads 23, 26

Weinberger v. Romero-Barcelo, 456 U.S. 305

ee TT 13

Whitbeck v. Vital Signs, Inc., 159 F.3d 1369 (D.C.

Cir. 1998) 25-26

White v. York International Corp., 45 F.3d 357

(10th Cir. 1995) 18

Wyldes v. Hundley, 69 F.3d 247 (8th Cir. 1995),

cert. denied, 517 U.S. 1117 (1996) 6

viii

TABLE OF AUTHORITIES—Continued

STATUTES

Age Discrimination in Employment Act (ADEA),

es aes

Americans with Disabilities Act of 1990 (ADA),

a is te I es

ID cprctysasccesnscoctsnncnatnntmenpieiens

TARA TSS

Gy ee ND ettrrectticicenemmintomncennenes

26 U.S.C. § 3111

42 U.S.C. § 423

42 U.S.C. § 423 (d) (1) (A) vb — é saninouian ior

42 U.S.C. § 423 (d) (2) (A) 220... eeececeeeccneneeeeseennreee

MISCELLANEOUS

Administrative Office of the United States Courts,

Table C-2A, U.S. District Courts, Civil Cases

Commenced (1990, 1997) ........2....ccccccccccceeceeeeeeees

ee Report and Recommendations

Bis ite Gh MN OD viiectentresititliencaeiciteisttaninaiilieanains

ES aera nae

Fed. R. Civ. P. 56

Douglas W. Henkin, Judicial Estoppel-Beating

Shields Into Swords and Back Again, 139 U. Pa.

L. Rev. 1711, 1756-1760 (1991)

22 Mental and Physical Disabilities Law Reporter

403 (1998) :

18 Moore’s Federal Practice § 184.38[4] .....000.......

In THE

Supreme Court of the United States

OcTOBER TERM, 1998

No. 97-1008

CAROLYN C. CLEVELAND,

- Petitioner,

PoLicy MANAGEMENT SYSTEMS CorpP., et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF RESPONDENTS

The Equal Employment Advisory Council (“EEAC”)

respectfully submits this brief as amicus curiae with the

written consent of all parties. The brief urges the Court

to affirm the decision of the court of appeals.

INTEREST OF THE AMICUS CURIAE

EEAC is an asociation of employers formed in 1976

to promote sound programs to end employment discrim-

ination. Its members include more than 300 of the na-

tion’s largest private employers. Its directors and officers

include many of industry’s leading experts on equal op-

portunity and affirmative action. Their combined experi-

ence gives EEAC valuable insight into the practical and

1 Counsel for amicus Curiae EEAC authored this brief in its

entirety. No person or entity other than the EEAC made a mone-

tary contribution to the preparation of the brief.

2

legal nwications of equal employment opportunity re-

quireme ‘ts and practices.

EEAC’s members all are employers subject to the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

(ADA), as well as other equal employment statutes. In

addition, all EEAC member companies are subject to the

Social Security payroll tax imposed by 26 U.S.C. § 3111,

and provide or subsidize generous benefit packages for

their workers that include some combination of health in-

surance, long-term disability insurance, short-term disabil-

ity insurance, paid vacation and paid sick leave. More-

over, many, if not all, EEAC members also are subject

to state disability insurance taxes and workers’ compensa-

tion requirements. As a result, EEAC members are

especially concerned about the issue presented in this case

—whether employees will be permitted to claim simul-

taneously that they are “totally disabled” for the purposes

of receiving disability benefits, yet “qualified” for work for

the purposes of suing the company under the ADA.

EEAC thus has an interest in, and familiarity with, the

issues and policy concerns presented to the Court in this

case. As a result, EEAC is well situated to brief the

“ourt on implications beyond the immediate concerns of

the parties.

STATEMENT OF THE CASE

The facts of the case are set out fully in the brief for

Respondent. A summary of the facts is set out below.

Petitioner Carolyn Cleveland (Cleveland) began work-

ing for Respondent Policy Management Systems Corp.

(PMSC) in August 1993. In January 1994, Cleveland

had a stroke and took a leave of absence from the com-

pany. That same month, Cleveland filed for Social Se-

curity disability benefits (SSA benefits), representing that

she was “unable to work because of [her] disabling condi-

tion.” In April 1994, Cleveland returned to work part-

time for PMSC but did not withdraw her claim for dis-

ability benefits. On July 11, SSA denied Cleveland’s re-

3

quest for benefits. On July 15, Cleveland was terminated

by PMSC for poor performance.

In September 1994, Cleveland filed a request for recon-

sideration of her SSA benefit determination stating that

she “disagree[d] with the determination made on [her]

disability.” that she “continue[d] te be disabled,” that she

“worked 3 months or less and stopped because of [her]

injury or illness,” and that she “could no longer do the

job because of [her] condition.” In support of her posi-

tion, Cleveland’s neurologist stated that she had a “com-

plete disability” and was “100% disabled.” Cleveland

continued to maintain this position through September

1995, at which time she was granted SSA benefits. That

same month, Cleveland sued PMSC alleging unlawful ter-

mination under the ADA.

The district court dismissed Cleveland’s claim, conclud-

ing, based on her own sworn assertions, that she could not

perform the essential function of her job. The U.S. Court

of Appeals for the Fifth Circuit affirmed the district

court’s ruling, holding that Cleveland’s prior application

for, and receipt of, disability benefits presumptively es-

topped her from claiming that she was qualified for her

job under the ADA. The court of appeals further con-

cluded that Cleveland could not overcome this presump-

tion of judicial estoppel after carefully considering her

specific, unqualified assertions of total disability in pur-

suit of those benefits.

SUMMARY OF ARGUMENT

The court of appeals correctly concluded that Cleve-

land’s prior and contemporaneous representations of dis-

ability in connection with her application for SSA bene-

fits judicially estopped her from asserting that she was

“qualified” for the purposes of the ADA.

Judicial estoppel is a just and important doctrine that

is necessary in preserving the integrity of the courts. The

doctrine prevents a party from recovering, twice, on two

different versions of the “truth” that cannot co-exist. “The

4

principle is that if you prevail in Suit #1 by representing

that A is true, you are stuck with A in all later litigation

growing out of the same events.” Astor Chauffered Limo-

sine v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1547 (7th

Cir. 1990).

Today, the viability of equitable doctrines such as judi-

cial estoppel is more important than ever. In recent years,

filings in the federal courts—especially employment-related

filings—have increased dramatically. Not surprisingly, the

filing of meritless lawsuits against companies has increased

as well—at least proportionally. In light of these fac-

tors, permitting claimants to swear to any convenient and

inconsistent set of facts in multiple proceedings in the

hope that some, or all, claims might “stick”—the ap-

proach urged by Petitioner and her amici—is poor judicial

policy that should rejected by this Court.

As the court of appeals recognized, that a plaintiff

brings one of her inconsistent claims under the ADA does

not render judicial estoppel inappropriate. Although such

claims otherwise might serve the public interest as well as

the private interests of the plaintiff, the public interest can

never be served by an abuse of the judicial process. The

majority of district courts—those bodies especially sensi-

tive to the truth-finding role of the courts—have recog-

nized the systemic danger posed by allowing double re-

covery based on inconsistent positions—even where one

of the claims is brought under the ADA.

Accordingly, this Court should recognize the doctrine

of judicial estoppel and apply it to appropriate cases under

the ADA. Where ADA plaintiffs previously or contempo-

raneously have applied for, and received, SSA benefits,

such plaintiffs should be estopped from proceeding under

the ADA to the extent that their applications are incon-

sistent with their claims under the ADA. Highly specific

factual representations made in connection with SSA bene-

fit applications should bar contrary factual assertions

under the ADA. Moreover, as the court of appeals prop-

erly concluded here, general and unqualified assertions of

5

complete disability should presumptively estop a plaintiff

from establishing that she is “qualified” under the ADA—

a presumption that can, in some cases, be rebutted by the

particular facts of the case.

In any event, whether or not doctrine of judicial es-

toppel applies in such cases, a plaintiff's prior factual as-

sertions in pursuit of SSA benefits should be given great

weight at summary judgment. Prior, specific factual asser-

tions should be given controlling weight, absent the most

unusual circumstances, while general, unqualified asser-

tions of disability should create a strong evidentiary pre-

sumption that the plaintiff is not qualified for the pur-

poses of the ADA.

ARGUMENT

I, JUDICIAL ESTOPPEL IS A JUST AND IMPOR-

TANT EQUITABLE DOCTRINE THAT SHOULD

APPLY TO CLAIMS UNDER THE ADA

A. Judicial Estoppel Is a Just Doctrine That Is Nec-

essary in Preserving the Integrity of the Judicial

System

Judicial estoppel is a just and important equitable doc-

trine that should be recognized by this Court. Judicial

estoppel, also known as the doctrine of preclusion of in-

consistent positions, bars a party from asserting a factual

position in a legal proceeding that is contrary to a position

taken by that party in a prior proceeding.

Although this Court has never specifically addressed the

question, the overwhelming majority of courts of appeals

—namely the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Eleventh and Federal Circuits—

have recognized the doctrine. See, e.g., Patriot Cinemas,

Inc. v. General Cinema Corp., 834 F.2d 208 (1st Cir.

1987); Bates v. Long Island R.R., 997 F.2d 1028 (2d

Cir.), cert. denied, 510 U.S. 992 (1993); Scarano v. Cen-

tral R.R. Co., 203 F.2d 510 (3d Cir. 1953); Lowery v.

Stovall, 92 F.3d 219. (4th Cir. 1996), cert. denied, 519

U.S. 1113 (1997); Ergo Science v. Martin, 73 F.3d 595

(Sth Cir. 1996); Smith v. Montgomery Ward & Co., 388

6

F.2d 291 (6th Cir.), cert. denied, 393 U.S. 871 (1968);

Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420 (7th

Cir. 1993); Wyldes v. Hundley, 69 F.3d 247, 251 n.5

(8th Cir. 1995), cert. denied, 517 U.S. 1117 (1996);

Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d

597 (9th Cir. 1996): American Nat'l Bank v. FDIC, 710

F.2d 1528 (11th Cir. 1983); Data Gen. Corp. v. John-

son, 78 F.3d 1556 (Fed. Cir. 1996).

As the Second Circuit has explained, the doctrine is

necessary because it “protects the sanctity of the oath and

the integrity of the judicial process.” Bates, 997 F.2d at

1038. Judicial estoppel prevents a party from making a

“mockery of [the] justice system” by recovering on two

versions of the same facts that cannot co-exist. American

Nat'l Bank, 710 F.2d at 1536. As the Seventh Circuit

succinctly explains, “the principle is that if you prevail in

Suit #1 by representing that A is true, you are stuck with

A in all later litigation growing out of the same events.”

Astor Chauffered Limousine Co. v. Runnfeldt Inv. Corp.,

910 F.2d 1540, 1547 (7th Cir. 1990). Judicial estoppel

is a just and prudent doctrine that prevents parties from

playing “fast and loose” with the courts, United States v.

McCaskey, 9 F.3d 368, 378 (Sth Cir. 1993), cert. de-

nied, 511 U.S. 1042 (1994), and “gaining an advantage

by taking one position, and then seeking a second advan-

tage by taking an incompatible position.” Rissetto, 94

F.3d at 600.

Although this Court has never directly ruled on judi-

cial estoppel, the Court recognized more than a century

ago the fundamental wisdom of the policy.

It may be laid down as a general proposition that,

where a party assumes a certain position in a legal

proceeding, and succeeds in maintaining that posi-

tion, he may not thereafter, simply because his in-

terests have changed, assume a contrary position,

especially if it be to the prejudice of the party who

has acquiesced in the position formerly taken.

Davis v. Wakelee, 156 U.S. 680, 689 (1895). Thus, ju-

dicial estoppel is well-grounded in the traditional equit-

7

able concepts of fairness, judicial integrity, and justice,

and should be recognized by this Court.

There are also practical reasons why judicial estoppel

should remain a viable principle in the federal courts. In

recent years, cases filed in the federal courts have in-

creased dramatically. During this decade, total annual

filings in the federal courts have increased by more than

60,000 cases.2 Employment-related filings—such as the

complaint at issue here—have risen even more dramatic-

ally, from 8,297 in 1990 to 24,174 in 1997—a 190%

increase.* Moreover, the public perceives, and statistics

bear out, that many if not most of these claims are en-

tirely without merit. 22 Mental and Physical Disabilities

Law Reporter 403 (1998) (ABA study of over 1200

ADA cases indicated that 92 percent of the claims ulti-

mately were determined to be without merit. )*

Statistics with respect to the federal agencies are no

better. According to the Social Security Administration,

2 Statistics from the Administrative Office of the United States

Courts indicate that 273,212 cases were filed in the district courts

in 1997 compared with 211,748 in 1990. Administrative Office of

the United States Courts, Table C-2A, U.S. District Courts, Civil

Cases Commenced (1990, 1997).

3 Administrative Office of the United States Courts, Table C-2A,

US. District Courts, Civil Cases Commenced (1990, 1997).

#The courts also have begun to take note of the propensity of

meritless employment claims.

This Court has observed too many cases where an individual

who has been rejected for a job or who has been fired from a

position will make totally unsupported claims of discrimination.

Indeed, some persons make multiple, non-substantiated claims,

ie., race, religion, gender, age, in the same case in the hope

that maybe one of the claims will “stick.”

Bray v. Georgetown Univ. 917 F. Supp. 55, 60 (D.D.C. 1996),

aff'd without op., 116 F.3d 941 (D.C. Cir. 1997).

This case is just another entrant in a tiresome parade of merit-

less discrimination cases. Again and again, the Court’s re-

sources are sapped by such matters, instigated by implacable

parties and prosecuted with questionable judgment by their

counsel. It is high time for this to stop.

Keegan v. Dalton, 899 F. Supp. 1608, 1515 (E.D. Va. 1995).

that agency receives approximately 2 million claims for

disability benefits annually, one-half of which are fully

denied. As the Commission on the Future Worker-

Management Relations (Dunlop Commission) observed:

court litigation has become a less-than-ideal method

of resolving employees’ public law claims. As spelled

out in the Fact-Finding Report, employees bringing

public law claims in court must endure long waiting

periods as governing agencies and the overburdened

court system struggle to find time to properly investi-

gate and hear the complaint.

Dunlop Commission, Report and Recommendations 3

(1994). The ever-increasing litigious nature of our so-

ciety has led one member of this Court to exclaim with

exasperation that “people’s patience with the judicial sys

tem is wearing thin.” Barrentine v. Arkansas-Best Freight

Sys., Inc., 450 U.S. 728, 752 (1981) (Burger, C.J.,

dissenting ).

In light of these statistics, permitting claimants to swear

to any convenient and inconsistent set of facts in multiplé

proceedings in the hope that some or all claims will

“stick”—the approach urged by Petitioner and her amici

—is poor judicial policy that this Court should reject.

Only the Tenth Circuit has explicitly rejected the doc-

trine of judicial estoppel, and the reasoning of that court

is less than persuasive. See Parkinson v. California Co.,

233 F.2d 432, 437-38 (10th Cir. 1956).° First, that

court relied on the erroneous proposition that judicial

estoppel had not been accepted by a majority of courts.

5Source: Social Security Administration Office of the Chief

Actuary.

6 The D.C. Circuit also has indicated hostility toward the doctrine

but that court’s approach has not been conclusive. Southern Pac.

Transp. Co. v. ICC, 69 F.3d 583, 591 n.8 (D.C. Cir. 1995) (dicta

indicating that judicial estoppel is disfavored by that court);

Swanks v. Washington Metro Area Transit Auth., 116 F.3d 582,

587 (D.C. Cir. 1997) (dicta indicating that plaintiff who had made

prior, specific factual assertions “could well be barred” from main-

taining a subsequent inconsistent position).

Parkinson, 233 F.2d at 438. In truth, however, the doc-

trine has been accepted by the overwhelming majority of

state and federal courts."

Moreover, the Tenth Circuit's principal objections to

judicial estoppel—which are embraced by amici National

Employment Lawyers Association (NELA) and the Asso-

ciation of Trial Lawyers of America (ATLA)—are fun-

temporary

son, 233 F.2d at 438. Both of these concerns are illusory,

however, in light of one of the doctrine’s principal con-

siderations—success in the prior legal proceeding.’

With the prior success factor, judicial estoppel in no

way can be construed as inconsistent with the judiciary’s

truth-finding function. When a court applies judicial estop-

pel, it does not cease to look for the truth, but rather,

accepts as true the claimant's prior, successful version of

the facts and bars recovery based on her subsequent, and

above, eleven of the thirteen federal circuits have

accepted and applied the doctrine in appropriate cases. A survey

of the states reveal that at least thirty-one jurisdictions have recog-

nized the principle, while only six states have rejected the doctrine.

Douglas W. Henkin, Judicial Estoppel-Beating Shields Into Swords

and Back Again, 189 U. Pa. L. Rev. 1711, 1756-1760 (1991).

8

The majority wi federal courts that have adopted judicial! estop-

pel consider the extent of the claimant's success in the prior pro-

not necessary, factor in the application

of the doctrine. See Bates, 997 F.2d at 1088; Lowery, 92 F.3d at

224; Bogle v. Phillips Petroleum Co., 24 F.3d 758, 761 (Sth Cir.

); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir.

1982); Astor Chauffered Limousine Co., 910 F.2d at 1548. Ap-

parently only the Third Circuit has applied the doctrine in the

absence of prior success. Ryan Operations G.P. v. Santiam-M !west

Lumber Co., 81 F.3d 355, 361 (3d Cir. 1996). The Henkin survey

courts likewise indicates that 17 of the 18 jurisdiction that

gS

:

10

contrary version of the “truth.” In fact, it is the Tenth

Circuit’s approach—which permits a claimant to success-

fully swear, under oath, to two different sets of facts that

cannot co-exist—that makes a mockey of the court's

truth-finding function. Under such circ we tances, no truth

can be found—and no factual issues can be resolved—

but rather, the claimant simply is allowed to recover re-

gardless of the truth. As the Seventh Circuit explains, “the

[claimant's] offense is not so much taking inconsistent

positions so much as it is winning, twice, on the basis of

incompatible positions.” Astor Chauffered Limousine Co.,

910 F.2d at 1548. Thus, rather than impeding the court's

truth-finding role, the doctrine is necessary in preserving

that role.

The prior success factor also renders the alternative

pleading concern meritless. Federal Rule of Civil Proce-

dure 8(e)(2) permits a party to plead facially inconsist-

ent positions in the same proceeding. This rule is part

of the federal courts’ liberal pleading process, which is

designed to allow parties to plead potentially inconsistent

factual and legal theories so that such theories are not

foreclosed prior to discovery. This liberal pleading sys-

tem, however, does not permit, let alone contemplate, the

possibility that a plaintiff may recover on two contradic-

tory factual assertions. On the contrary, it is well-settled

that inconsistent factual findings may not be sustained.

See, e.g., Fed. R. Civ. P. 49(b); Rosado v. Deters, 5 F.3d

119, 124-25 (Sth Cir. 1993); Waggoner v. Mosti, 792

F.2d 595, 596-97 (6th Cir. 1986).

In short, in light of the consideration of success in the

prior proceeding, the Tenth Circuit’s concerns that judi-

cial estoppel runs afoul of the court’s truth-finding func-

tion and the liberal federal pleading rules are without

merit.

It is important to note that the Tenth Circuit’s Parkinson deci-

sion—the principal authority against the application of estoppel—

did not address the doctrine in light of the

In that case, the defendant sought to estop

prevents a plaintiff from demonstrating that its prior

subsequent positions are not actually inconsistent, in

courts will look only to facial inconsistencies. This,

ever, is a patent misinterpretation of existing law.

General Signal Corp. v. MCI Telecomms. Corp., 66

7

a

12

505 (9th Cir. 1995) (mere “threshold” incon-

E

Corp., 128 F.3d 68, 72-73 (2d Cir. 1997) (“there must

be a true inconsistency between the statements in the two

proceedings”).

Thus, judicial estoppel is a just and necessary doctrine

that should be recognized by this Court.™

11 NELA and ATLA also devote a significant portion of their

brief to what they term judicial "s history of “conflict and

confusion.” While there are some divisions among the circuits in

this area, NELA and ATLA demonstrate a fundamental lack of

understanding of the issue. Like any equitable doctrine, the appli-

cation of judicial estoppel in any given case must be decided based

on all the relevant facts and circumstances of that case. McNemar

v. The Disney Store, Inc., 91 F.3d 610, 617 (3d Cir. 1996), cert.

denied, 519 U.S. 1115 (1997). As a result, “the circumstances

under which judicial estoppel may appropriately be invoked are

probably not reducible to any general formulation of principle.”

Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982).

NELA and ATLA misconceive the nature of equity when they

assert that there are no uniform rules for applying judicial estoppel.

Unlike law, equity deals in the weighing of factors, not in the

satisfaction of elements. Consequently, circumstances such as the

type and extent of the claimant’s prior success, honest mistake, the

extent of any reliance by, or prejudice to, the defendant, the

intent of the plaintiff (i.e. bad faith), and the context in which

the prior assertion was made, all are relevant factors in the in-

quiry—but none are prerequisite. For example, success in the prior

proceeding may be a highly significant factor in the balance, but

where the claimant clearly is misusing the judicial process or

otherwise is acting in bad faith, prior success may not be an

absolute prerequisite. See, e.g. 18 Moore’s Federal Practice

§ 134.33[4] (“Most of the cases can be read as saying that judicial

estoppel is most appropriate when the party succeeded in the prior

proceeding, but not as establishing prior success on the issue as an

absolute prerequisite for judicial estoppel.” )

jurisdiction is not to be denied or limited in the

absence of a clear and valid legislative command.

Unless a statute in so many words, or by a necessary

and inescapable inference, restricts the court's juris-

diction in equity, the full scope of that jurisdiction

is to be recognized and applied.

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)

(citations omitted). See also Weinberger v. Romero-

Barcelo, 456 U.S. 305, 313 (1982). Quite simply, the

ADA does not place any limitations, clear or otherwise,

on the courts’ equitable powers. See generally 42 U.S.C.

§ 12101 et seg. On the contrary, the statute reaffirms

court deems appropriate. See 42 U.S.C. § 12117(a) (in-

the enforcement provisions of

|

14

arising under the ADA—a question that also must be

answered in the affirmative.

As demonstrated supra, section LA, the doctrine of

judicial estoppel is necessary in preserving the integrity of

the judicial process. Permitting claimants to recover,

twice, on two versions of the “truth” that cannot co-exist

clearly is repugnant to any sense of justice. That a claim-

ant may have presented one of her claims under the ADA

does not alter the proper focus of this issue—that it is

fundamentally wrong to permit an individual to recover,

twice, on two sets of facts that cannot co-exist.

The majority of district courts that have addressed this

question under the ADA have recognized the impropriety

of allowing such “double dipping.”

To allow [the plaintiff] to assert that he was able to

perform the duties of his employment with Marathon

at the same time he collected disability benefits,

awarded as a result of his representations that he

could no longer work, would countenance a fraud

either on this court or on the federal agency that

awarded him those benefits.

Harris v. Marathon Oil Co., 948 F. Supp. 27, 29 (W.D.

Tex. 1996), aff'd without op., 108 F.3d 332 (Sth Cir.

1997).

{H]ere plaintiff effectively seeks to disavow his prior

representations and to claim that he has a lesser dis-

ability meeting the ADA standards. Such gamesman-

ship and blatant inconsistency cannot serve as a basis

to defeat summary judgment.

Bonnano v. Gannett Co., 934 F. Supp. 113, 115

(S.D.N.Y. 1996).

Plaintiff . . . cannot speak out of both sides of her

mouth with equal vigor and credibility before this

court. Plaintiff now seeks money damages from [the

employer] on her assertion that she was physically

willing and able to work during the same time that

she was regularly collecting disability payments based

15

co Dat cnaetions Giant she wee piysteslly unstie t

WOrk.

Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963,

970 (E.D.N.C. 1994).

{T]}he plaintiff in this case may be precluded, inde-

pendent of any estoppel doctrine, from arguing “what-

ever state of facts seems at a point in

time, and a contradictory state self-interest

may dictate a change.”

Smith v. Midland Brake, 911 F. Supp. 1351, 1357 (D.

Kan. 1995) (citations omitted), aff'd, 138 F.3d 1304

(10th Cir.), vacated, reh’'g en bane granted 158 F.3d

1060 (10th Cir. 1998).

The Court finds that plaintiff's present assertion that

she could perform the essential activities of her job. . .

is completely belied by her admission [to the con-

trary on her Social Security documents}

[T]jhe Court finds that the plaintiff is guilty of doing

what plaintiffs in the cases discussed above did—i.e.

speaking out of both sides of the mouth.

Kennedy v. Applause, 1994 U.S. Dist. LEXIS 19216, at

*15-16 (C.D. Cal. Dec. 6, 1994), aff'd, 90 F.3d 1477

(9th Cir. 1996).

16

nized the propriety of the doctrine of judicial estoppel in

claims under the ADA.

Amici NELA and ATLA, as well as amicus United

States, mistakenly rely on this Court’s decision in McKen-

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

(1995), to support a contrary result. Amici contend that

McKennon stands for the broad proposition that equitable

preclusionary doctrines never are appropriate in civil

rights cases, because such cases serve a public interest in

addition to the interests of the individual. This position,

however, is based on a misreading of McKennon, and a

misconception of equity.

McKennon involved a lawsuit under the Age Discrim-

ination in Employment Act (ADEA), 29 U.S.C. § 621

et seq. In the course of discovery in that case, the em-

ployer learned that the plaintiff engaged in misconduct

while employed which, if previously known, independently

would have justified her discharge. The employer sought

to bar the plaintiff's suit based on the equitable doctrine

of “unclean hands.” This Court concluded, however, that

it was inappropriate to apply that doctrine to bar the

plaintiffs ADEA claim completely, because such claims

serve the important public interest of deterring unlawful

discrimination in addition to the plaintiff's private interest

in obtaining relief. McKennon, 513 U.S. at 360. The

Court did explain, however, that the doctrine generally

would bar the private claim for front-pay, reinstatement,

and an appropriate portion of backpay. /d.

McKennon, therefore, simply reaffirms the paradig-

matic approach to equity—that equitable doctrines (pre-

clusionary or otherwise) are applied to the extent that

they are just and equitable. The preclusionary doctrine

of “unclean hands” serves no public interest. It merely

prevents one party from obtaining relief from another

where that party, itself, has acted reprehensibly during

the transaction in question. See id. Thus, while it applies

to civil rights cases, its scope in those cases properly is

17

limited to the plaintiff's relief, and it cannot bar the pub-

lic nature of the claim.

This limitation, however, is not present with respect to

judicial estoppel. That doctrine serves the important

public interests of preserving the integrity of the judicial

system and preventing misuse of the courts. As this Court

has noted, where “the public interest is involved .. .

equitable powers assume an even broader and more flex-

ible character than when only a private controversy is at

stake.” Porter, 328 U.S. at 398. Consquently, where

properly invoked, judicial estoppel bars claims regardless

of whether they otherwise would serve the public interest

—precisely because abuse of the judicial process can never

serve the public interest.

For the foregoing reasons, the doctrine of judicial

estoppel should be recognized by this Court and it should

be applied, where appropriate, to claims under the ADA.

II, JUDICIAL ESTOPPEL SHOULD APPLY WHERE

THE PLAINTIFF’S APPLICATION FOR SOCIAL

SECURITY BENEFITS IS INCONSISTENT WITH

HER CLAIM UNDER THE ADA

Judicial estoppel should apply where a plaintiff's pre-

vious application for SSA benefits cannot be reconciled

with her claim under the ADA.

The ADA prohibits discrimination in employment

against a “qualified individual with a disability.” 42

U.S.C. § 12112(a). “Under the ADA, only [those] who

are ‘qualified’ for the job in question may state a claim

for discrimination.” Tyndall National Educ. Ctrs., 31

F.3d 209, 212 (4th Cir. 1994).

A qualified individual with a disability is defined by

the statute as “an individual with a disability who, with

or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8).

Consistent with the plain language of the Act, courts

18

uniformly have held that plaintiffs must prove that they are

able, with or without reasonable accommodation, to per-

form the essential functions of the job in question. Budd

v. ADT Sec. Sys., 103 F.3d 699, 700 (8th Cir. 1996);

Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.

1996); Myers v. Hose, 50 F.3d 278 (4th Cir. 1995);

White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.

1995). Where ADA plaintiffs previously have applied

for, and received, SSA benefits, such plaintiffs should be

estopped from proceeding under the ADA fo the extent

that their applications are inconsistent with their claims

under the ADA.

A. Judicial Estoppel Should Apply to Sworn Asser-

tions Made in Prior Administrative Proceedings

The doctrine of judicial estoppel should apply to asser-

tions made in prior administrative, as well as judicial,

proceedings. The courts of appeals that have confronted

this issue, namely the Second, Third, Fifth, Sixth, Seventh,

Ninth, and Eleventh Circuits, all have applied the doc-

trine to representations made in the administrative con-

text. See, e.g., Simon v. Safelite Glass Corp., 128 F.3d

at 72 (applying judicial estoppel to statements made in

the SSA benefit context); McNemar, 91 F.3d at 618

(same), cert. denied, 519 U.S. 1115 (1997); Cleveland

v. Policy Mgmt. Sys. Corp., 120 F.3d 513, 514 (Sth Cir.

1997) (same); Talavera v. School Bd., 129 F.3d 1214,

1220 (11th Cir. 1997) (“we do hold that an ADA plain-

tiff is estopped from denying the truth of any statement

made in her [social security] disability application.”);

Smith v. Montgomery Ward & Co., 388 F.2d 291, 292

(6th Cir. 1968) (applying the doctrine to statements

made in workers’ compensation context); Rissetto v.

Plumbers & Steamfitters Local 343, 94 F.3d 597, 604

(9th Cir. 1996) (same); DeGuiseppe v. Village of Bell-

wood, 68 F.3d 187, 191 (7th Cir. 1995) (applying the

doctrine to statements made in a police pension board

hearing).

As the Ninth Circuit explains:

19

Unsurprisingly, given its name, judicial estoppel is

often articulated as applying to judicial proceedings.

However, many cases have applied the doctrine where

the prior statement was made in an administrative

oceeding, and we are not aware of any case re-

using to apply the doctrine because the prior pro-

ceeding was administrative rather than judicial.

Rissetto, 94 F.3d at 604. The Seventh Circuit has con-

cluded likewise:

Though called judicial estoppel, the doctrine has been

applied, rightly in our view, to proceedings in which

a party to an administrative proceeding obtains a

favorable order that he seeks to repudiate in a subse-

quent judicial proceeding.

Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427

(7th Cir. 1993).

As this Court has recognized, the adjudication of rights

no longer is the exclusive province of the courts, but has

been assigned in many cases to specialized agencies. See

Heckler v. Cambell, 461 U.S. 458, 461 (1983) (noting

that the Social Security Administration may be the

adjudicative agency in the world). Judicial estoppel is

especially appropriate in such proceedings because these

agencies normally serve as the fact-finding body—the

traditional role of the trial court. As the Second Circuit

recently observed:

A growing number of disputes are adjudicated before

What is important is that the record reflect that the

“party intended the triers of fact to accept the truth

of the facts alleged in support of the party’s position.”

20

Simon, 128 F.3d at 72 (citations omitted). Thus, judicial

estoppel should apply to representations made in the ad-

ministrative context.

B. Specific Factual Assertions In Pursuit of Social

Security Disability Benefits Should Bar Contrary

Assertions in Subsequent Claims Under the ADA

Judicial estoppel should bar an ADA plaintiff from

making specific factual assertions that are inconsistent

with prior, specific assertions made in pursuit of SSA

benefits.

For example, a plaintiff who previously asserted, for the

purposes of obtaining social security benefits, that she is

“blind,” should be estopped from subsequently claiming

that she is not blind for the purposes of the ADA. Every

court to consider such specific assertions of fact has barred

contradictory assertions in later litigation. See Talavera,

129 F.3d at 1229 (“an ADA plaintiff is estopped from

denying the truth of any statements made in [SSA benefit

applications]”; Johnson v. Oregon, 141 F.3d 1361, 1369

(9th Cir. 1998) (“an ADA plaintiff should not be per-

mitted to disavow any statements she made in order to

obtain disability benefits”); Hile v. Pepsi-Cola General

Bottlers, 1997 U.S. App. LEXIS 4912, at *13-14 (Sth

Cir. Mar. 12, 1997) (plaintiff who previously asserted

that lifting 20 pounds was an essential function of his

job for the purposes of obtaining workers’ compensation

benefits, could not subsequently assert that lifting was not

an essential function of his job for the purposes of the

ADA); EEOC vy. Stowe-Pharr Mills, 8 AD Cas. (BNA)

1529, 1530 (W.D.N.C. 1998). See also Swanks v.

Washington Metropolitan Area Trans. Authority, 116

F.3d 582, 587 (D.C. Cir. 1997) (“ADA plaintiffs who

in support of claims for disability benefits tell the Social

Security Administration they cannot perform the essential

functions of a job even with reasonable accommodation

could well be barred from asserting, for ADA purposes,

that accommodation would have allowed them to perform

that same job.”)

21

In any given case, the preclusive effect of such specific

assertions may vary, depending on the particular circum-

stances of the case. For example, in the case of the claim-

ant who asserted that she was blind, the social security

assertion would foreclose a claim that she was “qualified”

for a job as a pilot, although it would not necessarily dis-

qualify her as an attorney. In the latter case, a claimant

could demonstrate that she could perform the job despite

her disability, while in the former, she could not. Never-

theless, judicial integrity requires that, in either case, she

be precluded from Claiming that she was not “blind”—

even if, in fact, she was not.

In this case, Petitioner Cleveland’s specific factual

assertions, made under penalty of perjury in successful

pursuit of SSA benefits, preclude her from maintaining

her claim under the ADA. Petitioner repeatedly and con-

sistently represented for SSA benefit purposes that she was

completely unable to perform her job with PMSC. Spe-

cifically, Cleveland stated that she “worked 3 months or

less and stopped because of [her] injury or illness,” and

that she “could no longer do the job because of [her]

condition.” At the same time as she was making these

representations, Cleveland sued PMSC asserting that she

could satisfactorily perform the functions of the very

same job.

12 While amicus United States acknowledges that “specific factual

representatiuns in connection with a benefits application that are

indeed inconsistent with later assertions in support of an ADA

claim would be relevant evidence in the ADA action,” (Br. Amicus

Curiae of the United States at 28), it contends that such assertions

should not be given preclusive effect. According to the United

States, “whether the [ADA plaintiff] prevails . . . should depend

on whether the statements made in support of the ADA claim are

determined to be true or false, not on the invocation of a legal

bar...” Id. We respectfully disagree. The United States’ position

is perverse and troubling, as it would permit an ADA plaintiff to

use the federal courts to establish that she previously lied, under

penalty of perjury, in order to obtain federal benefi and

reward her for doing so. oy end

22

Cleveland’s specific SSA benefit assertions are unequiv-

ocal, unambiguous, and mutually exclusive with respect to

her claim under the ADA. Her representations in pursuit

of SSA benefits were not terms of art; they were clear

Statements that Cleveland could not do her job, and

stopped working, because of her disability. The court be-

low carefully considered these assertions and correctly con-

cluded that they could not be reconciled with the theory

of her ADA case—that she really could perform her job.

C. General Representations of “Total Disability” in

Connection With SSA Benefit Applications Should

Presumptively Bar Subsequent Claims That the

Individual Is a Qualified for the Purposes of the

ADA

The mere act of applying for SSA disability benefits

should not preclude a subsequent suit under the ADA.

There are an unlimited number of scenarios in which the

assertions on such applications would not be inconsistent

with a later claim that the individual was “qualified” under

the ADA. No court has held, and we agree, that the mere

application for SSA benefits estops a subsequent claim

under the ADA.

Nevertheless, general, unqualified representations of

“total disability” or “complete inability to work” in con-

nection with benefits applications should, under most cir-

cumstances, preclude subsequent claims that the individual

is “qualified” for the purposes of the ADA.

We recognize that there are divisions on this issue in

the various federal circuits. The Third Circuit has held

that general, unqualified assertions of total disability are

unambiguous on their face and inconsistent with any claim

that the plaintiff is “qualified” under the ADA—with or

without reasonable accommodation. See McNemar, 91

F.3d at 618 (unqualified assertions of total disability bar

subsequent claims under the ADA); Krouse v. American

Sterilizer Co., 126 F.3d 494, 503 n.5 (3d Cir. 1997)

(noting that McNemar involved “unconditional assertions

as to disability and work”).

2d at ;

Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 382

(6th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461,

467, 467 n.6 (7th Cir. 1997); Talavera, 1

1220; Johnson, 141 F.3d at 1366.

‘qualified individual with a disability’” for the purposes

of the ADA. Cleveland, 120 F.3d at 518.

the term “disability” to mean the “inability to engage in

any gainful activity by reason of any medically determin-

able physical or mental impairment. . . .” 42 U.S.C. § 423

(d)(1)(A) (emphasis added). Furthermore, an individ-

ual may be determined to be “disabled” under the SSA:

only if his physical or mental impairment [is] 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 sub

stantial gainful work which exists in the national

economy .. . regardless of . . . whether he would be

hired if he applied for work.

42 U.S.C. § 423(d)(2)(A) (emphasis added).

The court of appeals was correct in —_ that

cannot—except in the rarest of circumstances—also main-

tain that she can, with or without reasonable accommoda-

tion, perform the essential functions of the job.

24

Working without reasonable accommodation unques-

tionably is gainful activity. So too, however, is

with reasonable accommodation. Thus, one who has the

capacity to work with reasonable accommodation—an ac-

commodation required by law—necessarily cannot also be

unable to engage in any gainful activity. The two claims

are mutually exclusive.

Amicus United States, relying on several of the cases

cited above, contends that, notwithstanding the clear stat-

utory definitions, representations of total “disability” for

the purposes of the SSA are not inconsistent with asser-

tions that the individual is “qualified” under the ADA.

See (Br. of the United States at 8-16); Swanks, 116 F.3d

at 585; Griffith, 135 F.3d at 382; Johnson, 141 F.3d at

1366. The argument goes that because reasonable accom-

modation is “never” considered in SSA determinations, the

term disability becomes a term of art that excludes the

ability to work with reasonable accommodation. As a

result, an individual may “consistently” assert that they

are unable to work for the purposes of the SSA yet quali-

fied under the ADA. While this proposition has facial

appeal, it is, in fact, an illusion.

The fatal flaw in this reasoning is its necessary, but

false, underlying premise. Because of its otherwise clear

statutory definition, “disability,” for SSA purposes, can

become a term of art (i.e. disregarding reasonable accom-

modation) only if reasonable accommodation never is

considered in the SSA process. A simple example, taken

from the first step in that process, however, demonstrates

that such accommodation always is a consideration in the

SSA finding.

The very first stage in the SSA benefit process is

“determining whether the claimant is engaged in ‘substan-

tial gainful activity.” Swanks, 116 F.3d at 584-585

(quoting 20 C.F.R. § 404.1520(b)). If the claimant is

engaged in gainful activity, the individual is not “disabled”

for the purposes of the SSA. Under amicus United States’

theory, an individual who is working solely because of an

to

g” would

lie.” Johnson, 141 F.3d at 1368, citing McNemar, 91

under i

In cases where a claimant's representations in pursuit

of SSA benefits do not serve as a bar to a subsequent

ADA action, any assertions of disability made in that

context nonetheless are relevant for the purposes of sum-

Pay Judgment and should be given considerable weight.

representations of disability in the SSA benefit context are

relevant to the plaintiff's ADA claim. Whitbeck v. Vital

26

Signs, Inc., 159 F.3d 1369, 1372 (D.C. Cir. 1998); Soto

Ocasio v. Federal Express Corp., 150 F.3d 14, 20 (Ist

Cir. 1998); Griffith, 135 F.3d at 383; Weigel, 122 F.3d

at 467: Dush v. Appleton Elec. Co., 124 F.3d 957 (8th

Cir. 1997); Kennedy, 90 F.3d at 1479; Talavera, 129

F.3d at 1220.

The weight accorded these prior, sworn statements

should vary depending on the particular facts of the case.

For example, highly specific factual assertions made for

the purposes of obtaining SSA benefits should be given

controlling weight, unless the plaintiff can give persuasive

reasons for the change in position such as changed cir-

cumstances or honest mistake. Swanks, 116 F.3d at 587,

quoting Pyramid Sec. Ltd. v. IB Resolution, Inc., 924

P.2¢ 114, 1123 (D.C. Cir. 1991).

The effect of general assertions of “total disability” in

pursuit of SSA benefits should be two-fold. First, such

assertions should shift the burden to the plaintiff to make

an affirmative showing that they can perform the essen-

tial functions of the job. F

The point here is a simple one: When employees

(and/or their physicians) represent that they are

“totally disabled,” “wholly unable to work,” or some

other variant to the same effect, employers and fact-

finders are entitled to take them at their word .. .

Absent some affirmative showing of the plaintiff's

ability to perform the essential functions of the posi-

tion, there will be no genuine issue of material fact

as to whether the plaintiff is a “qualified individual”

funder the ADA] and the employer will be entitled to

judgment as a matter of law.

Weigel, 122 F.3d at 467-68. Accord Soto-Ocasio, 150

F.3d at 20; Griffith, 135 F.3d at 383.

In addition, these g. eral assertions of disability should

be given considerable weight in determining whether there

exists a genuine issue of material fact for the purposes

of summary judgment.

Dush, 124 F.3d at 963.

In this case, the court below carefully considered the

Petitioner’s prior assertions of disability along with any

evidence that she could marshal to establish that she was

qualified under the ADA, and properly concluded that

there was no genuine issue of material fact regarding her

inability to perform the essential functions of her job.

CONCLUSION

ae oe , the decision of the court of

appeals should be

Respectfully submitted,

ANN ELIZABETH REESMAN

McGUINEss & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council