Petition for Writ of Certiorari — Wal-Mart Stores, Inc. v. Griffith

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Suprame Court, U.S.

FILED

No. BY1991 JUNO 199%

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

WAL-MART STORES, INC.

Petitioner,

VS.

CLYDE E. GRIFFITH,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ELIZABETH ULLMER MENDEL

Counsel of Record

MICHAEL A. LUVISI

ANGELA LOGAN EDWARDS

WOODWARD, HOBSON

& FULTON, L.L.P.

Attorneys for Petitioner

2500 National City Tower

Louisville, Kentucky 40202

(502) 581-8000

146486 (800) 274-3321 * (800) 359-6859 ava late

A DIVISION OF COUNSEL PRESS

ervices, inc.

QUESTION PRESENTED FOR REVIEW

1. Under the Americans with Disabilities Act, is an employer

entitled to summary judgment when the employee, in sworn

statements submitted to obtain disability benefits, has already

admitted facts that demonstrate his or her inability to perform

essential job functions?

PARTIES TO THE PROCEEDING

Wal-Mart Stores, Inc. is the legal name of the Petitioner.

Pursuant to Supreme Court Rule 29.6, Petitioner certifies that it

has no parent company. The following are nonwholly owned

subsidiaries of Wal-Mart Stores, Inc.: CIFRA S.A. de C.V.; CMA-

USA, L.C.; Quality Licensing Corp.; Temple Beverages, Inc.;

Wal-Mart Brazil Participacocs, S.A.; Wal-Mart Pharmacy of

Michigan, Inc.; Wares Delaware Corporation.

iti

TABLE OF CONTENTS

Question Presented for Review ...................

i Pe err ere rer reer

I ae

PE NS 5 EGS cant oa due he pou sks web aa s

ee tere w iw ek neceas

I OR i

Statutory Provisions Involved ....................

EN ITS ac OE et er NS CAL eM a

Reasons for Granting the Writ ..............00000;

IL.

Il.

There Is A Clear Conflict Among The Circuit

Courts Of Appeals About How To Apply The

ADA When The Claimant Has Been Awarded

Disability Benefits Under The Social Security Act

As Well As Adjudicated “Totally Disabled” Under

A State Workers Compensation Statute. ......

How To Correctly Interpret And Apply The ADA

When A Disabled Claimant Is Also Receiving

Disability Benefits Is An Important Question Of

Federal Law, Which Has Not, But Should Be,

Ot Ue GN 0 sh vn sos Cb ke 8e ns ces

Contents

Page

Ill. The Decision Below Conflicts With The Decisions

Of This Court Concerning The Proper Standards

For The Grant Of Summary Judgment And

Demonstrates Continuing Confusion Among The

Circuits As To The Proper Application Of This

Court’s Summary Judgment Standards. ...... 18

EN o's Sa ce od eee as ee oh a mate 22

TABLE OF CITATIONS

Cases Cited:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

eV s bined been ey Nobo «Ce owed ak ccr eg ee Dien 19

August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir.

hg dk ONO Te Ee ep he gue uM yO Lett ED 12, 13

Blanton v. Inco Alloys Inter., Inc., 108 F.3d 104 (6th Cir.

1997) and the supplemental opinion found at 123 F.3d

FIG COT BIE oe i ss ee Se ess 19

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....... 18, 19

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

513 (Sth Cir. 1997), petition for cert. filed, 66

U.S.L.W. 3435 (U.S. Dec. 15, 1997) (No. 97-1008)

snl «ge Wee ae aaa ae ple Ch ee eee 14, 13, 21

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

PS is KFS Sinn c 00.0 nee eee ee 13

Contents

Page

Johnson v. State of Oregon, __ F.3d __, 1998 WL

181297, No. 96-36191 (9th Cir. April 20, 1998) .. 11

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

SOE Shi waka Ka hae Ree hON Rope aunt baw bre aees 20, 21

Kocsis v. Multi-care Management, Inc., 97 F.3d 876 (6th

Ge SOR FS a oc cuca bob ON bbe Wat Oral oe ees 2

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

eh a a oie oo hk eka ek eee 12

Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574

CRE nd wk cae dewes Canes meee en sree ee reuse 20

McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558

ee Se ROD, ecco and dhe bacedeseccneeiewes 21

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

Cir. 1995), cert. denied, __ U.S.__, 1175 S. Ct. 958,

ES Ra Sis Oe Re CEOED Karas cendeaas heeccens 12

Moore v. Payless Shoe Source, Inc., __ F.3d __, 1998

WL 138851, No. 97-2110 (8th Cir. March 30, 1998)

PEE WUE SENG TASS Sas bis veers KeWaaeeneeee e322 85,21

Rascon v. U.S. West Communications, __ F.3d __, 1998

WL 223465, No. 98 CJ C.A.R. 2194 4 (10th Cir. rig

OTe PER hooks td kcwalicluss chee eee : 11

Simon v. Safelite Glass Corp., 128 F.3d 68 (2d Cir.

op f BAPE EL Es apr eprtr yy me ery eee we year 14

Contents

Page

Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir.

SEE ccs oe bd CERES SOs kale c baba eR kes 1]

Swanks v. Washington Metro. Area Transit Auth., 116

en ee Ray Ge CRETE ek eNOS Cada eee eee 1]

Talavera v. School Board of Palm Beach County, 129

Pee Bee Ch Re BONED ocwhee va paencanenres 11

Violette v. International Business Machs. Corp., 962 F.

Supp. 446 (Vt. 1996), aff’d, 116 F.3d 466 (2d Cir. ,

i 6st 15 NEA RED CARS CUS TT EER CMe 14

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

RET Ce wig beck b eo bee okies eb ob ee eb aehe eel 11

Statutes Cited:

Ky. Rev. Stat. Ann. § 342.0011(11)(c) ............. 3, 16

gE eat Bo.” 9) erage at Wee enCreey Greaney ary ahs l

MA Eh REUEE, Snc 4S CRSA ROSS Oe TED Nae ys l

Se as AE ROCO Leva ies s US e abe tuvewteweimene 2, 19

ee AI ERE co ckkacakew ned Uneven bavewes l

Pe RO RE HANKS oe HOE Ree h cade pene ba we l

ae ae eae PEMD bo coke Gabe ewvneiepenees 2

vil

Contents

Other Authorities Cited:

Rs ee REED AOU OY bedin aces be cbvercee 2

Anne E. Beaumont, This Estoppel Has Go: to Stop:

Judicial Estoppel and the Americans with Disabilities

Act, 71 N.Y.U. L. Rev. 1529 (Dec. 1996) ........ 14

Roxella T. Cavazos and Joseph R. Profaizer, Recent

Developments in Employment Law, 33 Tort & Ins. L.J.

Fe A ROT Che hk ba Givens Renee en wine ee 14

Matthew Diller, Dissonant Disability Policies: The

Tensions Between the Americans With Disability Act

and Federal Disability Benefit Programs, 76 Tex. L.

Ry Se CE, BOER a neve scdebasaccavacuce’s 14, 15

Heather Hamilton, Judicial Estoppel, Social Security

Disability Benefits and the ADA: The Circuits Diverge,

9 DePaul Bus. L.J. 127 (Fall/Winter 1996) ....... 15

Elissa Kirby, Civil Procedure — A Conflict of Interests:

Frustrating the Goals of Anti-discrimination

Legislation with the Third Circuit’s Latest Judicial

Estoppel Analysis — McNemar v. Disney Store, Inc.,

70 Temp. L. Rev. 349 (Spring 1997) ............ 15

Jorge M. Leon, Two Hats, One Head: Reconciling

Disability Benefits and the Americans with Disability

Act of 1990, 1997 U. Ill. L. Rev. 1139 (1997) .... 15

vill

Contents

Andrea Christensen Luby, Note: Estopping Enforcement

of the Americans With Disability Act, 13 J.L. & Pol.

G57 CUE HORE Mr Saseeleueheek eabeabs Fe does

Jerry L. Mashaw, Against First Principles, 31 San Diego

Lis SO Re EI RUUD os Wl ko 00 eb bles we

Robert E. Rains, The Americans with Disabilities Act &

The Social Security Act: Complementary Remedies or

Catch 22?, 43-DEC Fed. Law. 22 (November/

SPUIOE, SOOO? oi a winds Cadecwn ces Oka vaeeues

Marney Collins Sims, Estop It! Judicial Estoppel and its

Use in Americans with Disabilities Act Litigation, 34

rious. 1. Rev, S43 (Fa 1997) ii ice cce ces

Maureen C. Weston, The Road Best Traveled: Removing

Judicial Roadblocks that Prevent Workers From

Obtaining Both Disability Benefits and ADA Civil

Rights Protection, 26 Hofstra L. Rev. 377 (Winter

PIA We cgis kee cset Neca e use e es eane eR ea ee

Wendy Wilkinson, Judicially Crafted Barriers to Bringing

Suit Under the Americans With Disabilities Act, 38 S.

Fs Kes BR GE Ts EOE FA Si eins cwidg baked

Page

Contents

APPENDIX

Appendix A — Opinion Of The United States Court Of

Appeals For The Sixth Circuit Filed January 29,

1 SERUM Se Ue ea lee Raga Giy SCM Shee Wt a la

Appendix B — Opinion And Order Of The United States

District Court For The Eastern District Of Kentucky

At Covington Filed June 10, 1996 ..............

Appendix C — Order Of The United States Court Of

Appeals For The Sixth Circuit Denying Petition For

Rehearing Filed March 11, 1998 ................

Page

18a

Wal-Mart Stores, Inc. (“Wal-Mart”), respectfully requests

that a writ of certiorari be issued to review the judgment of the

United States Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Sixth Circuit (“the Sixth Circuit”), reported at 135 F.3d 376 (6th

Cir. 1998), reversed the decision of the United States District

Court for the Eastern District of Kentucky, Covington Division

(“the District Court”), which granted summary judgment in favor

of Petitioner, Wal-Mart. The Sixth Circuit’s Opinion is printed

here as Appendix A. The District Court’s Opinion, reported at

930 F. Supp. 1169 (E.D. Ky. 1996), is printed here as Appendix

B. The Order of the Sixth Circuit denying Wal-Mart’s Petition

for Rehearing, or in the alternative, for Rehearing en banc, filed

March 11, 1998, is printed here as Appendix C.

STATEMENT OF JURISDICTION

The Sixth Circuit entered its judgment on January 29, 1998.

A timely Petition for Rehearing, or in the alternative, for Rehearing

en banc, was filed. That Petition was denied on March 1 1, 1998.

This petition for certiorari is filed within ninety days thereafter.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The Americans with Disabilities Act (“ADA”), 29 U.S.C.

§ 12101 — 29 U.S.C. § 12213, prohibits discrimination in the

work place against “a qualified individual with a disability.”

29 U.S.C. § 12112(a). A “qualified individual with a disability,”

is “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.”

29 U.S.C. § 12111(8). The term “essential functions” means the

fundamental job duties of the employment position. 29 C.F.R.

§ 1630.2(n)(1) (1995).

To state a prima facie case of discrimination under the ADA,

the claimant must show that he is: (1) a disabled person within

the meaning of the ADA; (2) “qualified,” with or without

reasonable accommodation, to perform the essential functions

of the job; and (3) was subjected to an adverse employment

decision. Kocsis v. Multi-care Management, Inc., 97 F.3d 876,

882 (6th Cir. 1996).

The Social Security Act provides that an individual is

“disabled” if:

His physical or mental impairment or impairments are

of such severity that he is not only unable to do his

previous work but cannot, considering his age,

education, and work experience engage in any other

kind of substantial gainful work which exists in the

immediate area in which he lives, or whether a specific

vacancy exists for him, or whether he would be hired

if he applied for work.

42 U.S.C. § 423(d)(2)(A).

STATEMENT OF THE CASE

Petitioner, Wal-Mart, owns and operates stores throughout

the United States. In September 1990, Wal-Mart employed

Respondent, Clyde Griffith (“Mr. Griffith”), as a sales associate

at its store in Florence, Kentucky. Unbeknownst to Wal-Mart,

Mr. Griffith had sustained a serious back injury in 1984 that had

resulted in the Kentucky Workers’ Compensation Board declaring

Pe ee eS

him 100% occupationally disabled.' He received full workers’

compensation benefits for that injury. Mr. Griffith also had a

history of severe depression beginning in 1988. As a result of

these conditions, Mr. Griffith was unemployed from 1984 until

1990. Mr. Griffith did not reveal on his 1990 Wal-Mart job

application that he had been adjudicated 100% disabled, nor did

he reveal that he had been unemployed for six years due to his

disability. |

Sales associates at Wal-Mart are expected to respond to

customer needs, operate the cash register as needed, respond to

price checks and “zone” their departments, which means the

employee must insure that merchandise is properly marked,

replenish the stock, clean spills, and otherwise responsibly

maintain his or her work area. The physical demands of the job

require that a sales associate be able to walk, stand, lift and move

objects weighing 25 to 50 pounds, bend, twist, squat, be able to

grasp firmly, to reach above shoulder level, and to perform

repetitive hand actions. When he was hired, Mr. Griffith was

advised of these job requirements. Mr. Griffith revealed that he

had undergone two back operations and advised that he had

restrictions on the amount of weight he could lift. However, Mr.

Griffith stated he could perform the job duties and was hired.

At his request, Mr. Griffith was originally assigned as a sales

associate in the sporting goods department at Wal-Mart. Mr.

Griffith performed only light lifting and carrying within his medical

restrictions. In April 1991, Mr. Griffith complained about having

to unload a dolly of weights being offered for sale. He brought in

a doctor’s note limiting him from repetitive bending or lifting.

1. Ky. Rev. Stat. Ann. § 342.0011(11)(c) defines “permanent total

disability” to mean “the condition of an employee who, due to an injury, has a

permanent disability rating and has a complete and permanent inability to perform

any type of work as a result of an injury.”

aire el

Consequently, Mr. Griffith was reassigned to the hardware

department as a sales associate. He was able to perform the

essential functions of that job. While working in the hardware

department, Mr. Griffith advised Wal-Mart of various additional

physical restrictions placed upon him pursuant to doctor’s orders,

all of which were accommodated by Wal-Mart.

In November 1991, Mr. Griffith reinjured his back while

working at Wal-Mart. He was off work until December 21, 1991.

Mr. Griffith returned to work for about three months with medical

restrictions prohibiting lifting over 15 pounds and long periods

of standing. According to Mr. Griffith, Wal-Mart fully

accommodated these restrictions. Mr. Griffith was off again for

another month in order to have physical therapy on his back. He

returned to work on April 20, 1992, with a medical prohibition

against heavy or repetitive lifting or carrying and extended periods

of standing. Again, upon his return, Wal-Mart accommodated

Mr. Griffith’s limitations.

In October 1992, Mr. Griffith took a week’s vacation; he

was scheduled to return to work on October 19, 1992. While on

vacation, Mr. Griffith’s car broke down. What happened next is

in dispute. Wal-Mart contends it granted Mr. Griffith’s request

for certain additional days off, but that he failed to report to

work when scheduled to do so. Mr. Griffith claims he was

unaware that he was expected to return to Wal-Mart to work on

the day specified. In any event, on October 29, 1992, Mr. Griffith

was terminated by the store manager for failing to report to work

and lack of dependability.

In May 1993, Mr. Griffith applied for Social Security

Disability Insurance Benefits (“SSDI”). In his “Application for

Disability Insurance Benefits” Mr. Griffith certified under penalty

of perjury:

LTE TOONS ONC Cee NS, TRL Om es TOT IEA Ve OO

Steed ew dae -

I became unable to work because of my disabling

condition on October 29, 1992.

Iam still disabled.

... I agree to notify the Social Security

Administration if:

— my medical condition improves so that

I would be able to work, even though I have

not yet returned to work.

In further support of his application for benefits, Mr. Griffith

stated in his “Disability Report” that his “disabling condition”

kept him from working since October 29, 1992. Mr. Griffith

further certified that the information he provided was true.

In August 1993, Mr. Griffith reported on the Social Security

Administration’s (“SSA”) “Activities of Daily Living”

questionnaire:

Question: Have you ever done any work outside

your home? /fno, what has kept you from

doing the public work? Jf yes, where and

when did you last work, for how long,

and why did you stop working?

Answer: No! With my back injury, I can only

stand for about 10 minutes at a time.

My back is getting worse.

Question: If there has been any change from the

way these chores were done before your

illness began, describe the change, when

the change first happened and the reason

for the change.

Answer: I use to do a lot of cooking, some

household chores. Since 1985 to the

present I can’t stand for a long period

of time to do these chores.

Question: If there have been any changes in how

you do “odd jobs” since your illness

began, describe what has changed, tell

when the change first happened, and

explain the reason for the change.

Answer: | use to do all my car repair and cleaning

then. Since 1985 to the present I can’t

do any odd jobs. My lower back and

my depression.

Question: If how you shop now is different from

the way it was before your illness began,

describe what has changed, tell when the

change first happened, and explain the

reason for the change.

Answer: I use to do some groceries [sic] for

myself and go into department [sic],

from 1985 to the present I can’t do it.

Because my lower back and

depression.

(Emphasis supplied.)

On August 9, 1993, Mr. Griffith completed a

“Reconsideration Disability Report” and certified that there had

been no change in his condition since April 1993:

Question: Has there been any change (for better or

worse) in you illness or injury since you

filed your claim?

Answer: No.

Question: Describe any physical or mental

limitations you have as a result of your

condition since you filed your claim.

Answer: Nolifting, standing, walking or sitting

for more than 10 [minutes] at a time.

Question: How does your illness or injury affect

your ability to care for your personal

needs? 5

Answer: There are days I don’t get out of bed,

or even care for myself. I am very

depressed & anxious all of the time.

Question: What changes have occurred in your daily

activities since you filed your claim? (If

none, show “none”).

Answer: None.

(Emphasis supplied.) Again, Mr. Griffith certified that his

statements were true.

In a November 1993 “Statement when Request for Hearing

is filed and the Issue is Disability,” Mr. Griffith asserted that he

was disabled and unable to work. In response to a question about

any change in his daily activities, Mr. Gnffith responded, “Yes.

My back pain keeps me from doing any activities. It is very

hard to take care of myself.” Once again, Mr. Griffith certified

that his statements were true.

At the administrative hearing level, at which Mr. Griffith was

represented by counsel, the SSA determined that Mr. Griffith

was totally occupationally disabled and entitled to full benefits

from October 29, 1992, “the date he became disabled.” The

Decision states:

The claimant has had a severe back impairment since

1984. He has undergone back surgery in 1985 and

1986, and a neurectomy in 1991. Thereafter, he

returned to full-time work as a retail clerk until October

29, 1992. His work ended at that time due to

exacerbation of his back pain and depression. . . .

The claimant worked in the past as an auto body

repairman, maintenance person, retail sales clerk, and

reserve police officer. All of his past relevant jobs

required an ability to perform at least light exertion

on a sustained basis. Because of his limitation to

significantly less than a full range of sedentary

work, he has been unable to engage in past

relevant work since October 29, 1992....

Essentially, his residual functional capacity

precludes all work activity on a full-time basis.

Considering the claimant’s age, education, previous

work experience, and residual functional capacity, . . .

[The SSA regulation] established that the claimant is

disabled. ...

££

The claimant has been disabled, as defined by

the Social Security Act, since October 29, 1992.

(Emphasis supplied.)

Thereafter, in 1994, Mr. Griffith filed a Complaint against

Wal-Mart alleging that Wal-Mart had discharged him in violation

of the ADA. Wal-Mart filed a Motion for Summary Judgment,

arguing that Mr. Griffith’s sworn statements made to obtain SSDI

benefits precluded him from arguing he was a “qualified individual

with a disability” under the ADA. The District Court granted Wal-

Mart’s Motion for Summary Judgment and concluded that Mr.

Griffith had not presented a genuine issue of material fact

concerning his ability to perform the essential job functions of a

sales associate at Wal-Mart. The District Court found that no

reasonable jury could conclude that Mr. Griffith was a “qualified

individual with a disability,” as defined by the ADA, because of

Mr. Griffith’s sworn statements to the SSA concerning his physical

abilities.

The Sixth Circuit reversed the decision of the District Court,

concluding that an employee’s representations about his or her

ability to work in an application for Social Security benefits is

relevant, but not conclusive, evidence of the employee’s ability

to work with reasonable accommodation for ADA purposes. The

Court remanded the case to the District Court for trial on the

issue of whether Mr. Griffith was able to perform his essential

job functions with accommodation at the time of his termination.

A timely petition for rehearing was denied.

REASONS FOR GRANTING THE WRIT

THERE IS A CLEAR CONFLICT AMONG THE

CIRCUIT COURTS OF APPEALS ABOUT HOW TO

APPLY THE ADA WHEN THE CLAIMANT HAS BEEN

AWARDED DISABILITY BENEFITS UNDER THE

SOCIAL SECURITY ACT AS WELL AS ADJUDICATED

“TOTALLY DISABLED” UNDER A STATE WORKERS

COMPENSATION STATUTE.

The Circuit Courts of Appeals are split over how to deal

with ADA claimants who have been awarded disability benefits

under the SSA, state workers compensation statutes, or by private

disability insurance carriers.

In the instant case, Mr. Griffith testified in one proceeding

that he was 100% disabled (in order to obtain state workers’

compensation benefits) and gave sworn statements in another

proceeding that he was completely incapable of working or even

taking care of himself (in order to obtain SSDI benefits). Yet in

filing his ADA claim, Mr. Griffith asserted he was capable of

working and performing his essential job functions at Wal-Mart,

i.e., he was a “qualified individual.” Under those circumstances,

the District Court granted summary judgment to Wal-Mart, in

part based on the theory of judicial estoppel.

Judicial estoppel is a common law preclusion doctrine that

allows a court to bar a party from asserting a position before it

that contradicts a position the party has taken elsewhere.

Application of the theory of judicial estoppel protects the integrity

of the judicial system by preventing a party from taking

inconsistent positions in different forums. In the ADA/SSDI

context, courts have applied judicial estoppel to prevent an

pea HOE Mba Te

individual who has sworn he cannot work in order to obtain SSDI

benefits from then suing a potential employer arguing that he can

work.

In the instant case, the Sixth Circuit refused to apply the

theory of judicial estoppel. The Court concluded that Mr. Griffith

should be allowed to have the opportunity to prove that he is

able to perform the “essential functions” of the Wal-Mart job,

despite his statements to the SSA.

The Seventh, Ninth, Tenth, Eleventh, and District of Columbia

Circuits have refused to apply judicial estoppel when an ADA

claimant has certified disability to the SSA. Johnson v. State of

Oregon, __ F.3d __, 1998 WL 181297, No. 96-36191 (9th Cir.

April 20, 1998); Smith v. Midland Brake, Inc., 138 F.3d 1304

(10th Cir. 1998)?; Talavera v. School Board of Palm Beach

County, 129 F.3d 1214 (11th Cir. 1997); Weigel v. Target Stores,

Inc., 122 F.3d 461 (7th Cir. 1997); Swanks v. Washington Metro.

Area Transit Auth., 116 F.3d 582 (D.C. Cir. 1997). These courts

take the position that a finding of “disability” by the SSA is not

necessarily inconsistent with a finding that the same individual is

a “qualified individual with a disability” under the ADA, because

the ADA considers the issue of reasonable accommodation when

determining “disability” while the Social Security Act does not.

The First, Third, and Fifth Circuit Courts of Appeals have

reached the opposite conclusion. These courts hold that judicial

estoppel should be applied to preclude a claimant from claiming

he was a “qualified individual with a disability” under the ADA

where that same individual has sworn to the SSA that he was

disabled and unable to work. Moore v. Payless Shoe Source,

Inc.,__ F.3d__, 1998 WL 138851, No. 97-2110 (8th Cir. March

2. The Tenth Circuit has recently stated that it will not apply judicial

estoppel in any context. Rascon v. U.S. West Communications, oe ae

1998 WL 223465, No. 98 CJ C.A.R. 2194 (10th Cir. May 6, 1998).

30, 1998); Cleveland v. Policy Management Sys. Corp., 120

F.3d 513 (5th Cir. 1997), petition for cert. filed, 66 U.S.L.W.

3435 (U.S. Dec. 15, 1997) (No. 97-1008); McNemar v. The Disney

Store, Inc., 91 F.3d 610 (3rd Cir. 1996), cert. denied, U.S._,

1175 S. Ct. 958, 136 L. Ed. 2d 845 (1997); August v. Offices

Unlimited, Inc. , 981 F.2d 576 (1st Cir. 1992).

In McNemar, the claimant, like Mr. Griffith here, sought and

obtained SSDI benefits, based on his sworn assertions that he

was permanently and totally disabled. The Third Circuit Court of

Appeals dismissed his claim under the ADA. The Court noted

that the employee had “asserted inconsistent positions regarding

his ability to work.” McNemar, 91 F.3d at 618. Under these

circumstances, the Court estopped the claimant from “speaking

out of both sides of his mouth with equal vigor and credibility. . .”

Id.?

The Third Circuit’s analysis in McNemar supports the logical

position that it is entirely inconsistent for a Plaintiff to assert total

inability to work when seeking disability benefits, whether SSDI,

workers’ compensation, or other private insurance, while also

pursuing an ADA claim asserting ability to perform a job. The

difference between how the ADA and the Social Security Act

define “disability” is irrelevant in these circumstances. The point

is that a claimant should not be able to swear to one set of facts

in one proceeding and an entirely different set of facts in another.

The integrity of the judicial process is jeopardized when a claimant

is permitted to take contrary factual positions in order to achieve

advantageous results.‘

3. The Third Circuit has acknowledged that McNemar is controversial, but

has expressly declined to revisit the decision. Krouse v. American Sterilizer Co.,

126 F.3d 494, 498 (3rd Cir. 1997).

4. A litigant is free to make contradictory or inconsistent legal arguments.

Judicial estoppel applies only to prevent a claimant from advancing inconsistent factual

positions.

| :

The present case illustrates the point well. Mr. Griffith has

sworn to facts that establish he is completely unable to work,

with or without “accommodation.” His filings with the SSA

establish that he often cannot even get out of bed and is barely

able to take care of himself. He has repeatedly stated he cannot

stand for more than 10 minutes. Given those sworn statements,

Mr. Griffith should not be allowed to claim that he could have

done his job as a sales associate at Wal-Mart if the company had

“reasonably accommodated” him.

The Fifth Circuit Court of Appeals has applied similar

reasoning. In Cleveland, the Court held that application for or

receipt of SSDI benefits “creates a rebuttable presumption that

the claimant or recipient of such benefits is judicially estopped

from asserting that he is a ‘qualified individual with a disability.’ ”

Cleveland, 120 F.3d at 518 (emphasis in original).

The Eighth Circuit Court of Appeals has adopted this view

as well. In Moore, the Court did not invoke judicial estoppel to

bar the Plaintiff's ADA claim, but noted that she must establish

by “strong countervailing evidence” that she is qualified to perform

the essential functions of the job. Moore, 1998 WL at 138854.

The decisions from the First Circuit Court of Appeals are

somewhat inconsistent with one another creating an internal conflict

within the First Circuit. In August, the court applied judicial

estoppel, holding that an employee who claimed total disability

at the same time he was seeking relief under the Massachusetts

disability discrimination statute could not be a “qualified

handicapped person” under that state statute. August, 981 F.2d

at 578. However, in D’Aprile v. Fleet Servs. Corp., 92 F.3d 1

(1st Cir. 1996), the court reversed a lower court decision relying

on August, based on the particular facts of that case, noting that

the employee “never claimed to have been totally disabled at the

time she requested an accommodation.” Jd. at 4.

The Second Circuit Court of Appeals is undecided on this

issue. The court has expressly adopted the theory of judicial

estoppel and applied it in an Age Discrimination in Employment

Act case, but has declined to address judicial estoppel in the

ADA/SSDI context. Simon v. Safelite Glass Corp., 128 F.3d 68

(2d Cir. 1997). However, the Simon Court did affirm, without

opinion, a district court decision that applied judicial estoppel

against a plaintiff in an ADA case because he had received SSDI

benefits. Violette v. International Business Machs. Corp., 962

F. Supp. 446 (Vt. 1996), aff'd, 116 F.3d 466 (2d Cir. 1997).

The conflict among the circuits justifies the grant of certiorari

to review the judgment below. Virtually all the circuits have ruled

on this issue and the result is a confusing patchwork of

inconsistent decisions that cannot be reconciled. Employers like

Wal-Mart, who operate in all states, are left to guess what law will

be applied to the acts of the company. It is critical that important

federal statutes such as the ADA and the SSA be interpreted and

administered uniformly.

The confusion created by this split among the circuits is not

merely theoretical. Many employers are grappling with how to

appropriately interpret and apply the ADA. The Equal

Employment Opportunity Commission (“EEOC”) has filed amicus

briefs in many of the cases that discuss this issue, including the

present case. The EEOC’s presence in these cases is indicative

of the importance of this question to employers and employees

alike.

There is also a wealth of recent scholarly commentary on

this issue. See, e.g., Anne E. Beaumont, This Estoppel Has Got

to Stop: Judicial Estoppel and the Americans with Disabilities

Act, 71 N.Y.U. L. Rev. 1529 (Dec. 1996); Roxella T. Cavazos

and Joseph R. Profaizer, Recent Developments in Employment

Law, 33 Tort & Ins. L.J. 393 (Winter, 1998); Matthew Diller,

ek A th ele Pla) rt ee

Dissonant Disability Policies: The Tensions Between the

Americans With Disability Act and Federal Disability Benefit

Programs, 76 Tex. L. Rev. 1003 (April, 1998); Heather Hamilton,

Judicial Estoppel, Social Security Disability Benefits and the

ADA: The Circuits Diverge, 9 DePaul Bus. L.J. 127 (Fall/Winter

1996); Elissa Kirby, Civil Procedure — A Conflict of Interests:

Frustrating the Goals of Anti-discrimination Legislation with

the Third Circuit's Latest Judicial Estoppel Analysis — McNemar

v. Disney Store, Inc., 70 Temp. L. Rev. 349 (Spring 1997); Jorge

M. Leon, Two Hats, One Head: Reconciling Disability Benefits

and the Americans with Disability Act of 1990, 1997 U. Ill. L.

Rev. 1139 (1997); Andrea Christensen Luby, Note: Estopping

Enforcement of the Americans With Disability Act, 13 J.L. &

Pol. 415 (Spring 1997); Robert E. Rains, The Americans with

Disabilities Act & The Social Security Act: Complementary

Remedies or Catch 22?, 43-DEC Fed. Law. 22 (November/

December, 1996); Marney Collins Sims, Estop It! Judicial

Estoppel and its Use in Americans with Disabilities Act

Litigation, 34 Hous. L. Rev. 843 (Fall 1997); Maureen C. Weston,

The Road Best Traveled: Removing Judicial Roadblocks that

Prevent Workers From Obtaining Both Disability Benefits and

ADA Civil Rights Protection, 26 Hofstra L. Rev. 377 (Winter

1997); and Wendy Wilkinson, Judicially Crafted Barriers to

Bringing Suit Under the Americans With Disabilities Act, 38

S. Tex. L. Rev. 907 (July, 1997). These articles discuss the split

among the circuits and each advocates a different approach to

reconcile and implement the guals of the ADA and SSA.

Many employees are likewise unclear about their rights and

obligations under these federal statutes, particularly given the

conflicting interpretations adopted by the various courts. A worker

who has an alleged claim against an employer for violation of the

ADA needs to know if he will forfeit that claim by filing an

application for SSDI benefits. If the theory of judicial estoppel is

adopted to bar inconsistent factual statements, then workers need

to be told that what they say on an application for SSDI benefits

is binding and will be used against them.

Il.

HOW TO CORRECTLY INTERPRET AND APPLY

THE ADA WHEN A DISABLED CLAIMANT IS ALSO

RECEIVING DISABILITY BENEFITS IS AN

IMPORTANT QUESTION OF FEDERAL LAW, WHICH

HAS NOT, BUT SHOULD BE, SETTLED BY THIS

COURT. :

There are widely divergent interpretations of how to apply

the provisions of the ADA when the claimant has applied for or

received disability benefits of various kinds. The Circuit Court

decisions discussed above point out the significant and recurring

problems concerning efforts to apply the provisions of the ADA

to individuals who have applied for or been deemed entitled to

disability benefits. Mr. Griffith’s case presents not only the issue

of his application for and receipt of SSDI benefits, but also the

effect of his receipt of total disability benefits under Kentucky’s

workers’ compensation statute.

Mr. Griffith certified to the SSA that he was disabled. He

was also adjudicated totally disabled under Kentucky law. The

relevant statute is Ky. Rev. Stat. Ann. § 342.0011(11)(c). Under

that statute, a worker who has been found to have a “permanent

total disability” is defined as one who “has a complete and

permanent inability to perform any type of work as a result of an

injury.” While a litigant should be free to make contradictory or

inconsistent legal arguments, a party should not be allowed to

advance inconsistent versions of the facts. Mr. Griffith simply

cannot have it both ways. If he is completely unable to perform

any type of work, as Kentucky has found, and is unable to stand

or sit for more than ten minutes, as he has admitted, he should be

precluded from arguing that he is capable of working at

Wal-Mart.

This Sixth Circuit’s analysis of Mr. Griffith’s claim is flatly

wrong. The Griffith Court’s opinion notes, for example, that the

statements made on the SSA application and forms often are

merely check off boxes, and thus the claimant may not be able to

adequately explain his medical condition. Griffith, 135 F.3d at

382. The Griffith Court simply ignored the fact that Mr. Griffith

provided at different times several detailed explanations of his

condition to the SSA. Contrary to the Sixth Circuit’s view, Mr.

Griffith did indeed answer the “precise question of whether the

applicant could have worked with a reasonable accommodation

during the relevant period.” Jd. Unfortunately for Mr. Griffith’s

ADA claim, his answer was no.

Courts that have allowed ADA claims by individuals who

are also receiving SSDI benefits have mistakenly interpreted and

applied those statutes and distorted congressional intent. Both

statutory schemes are designed to assist disabled individuals,

but they were not intended to allow a claimant to obtain duplicate

benefits. The tortured reasoning applied by some of the Circuit

Courts of Appeals allows the same individual to collect monetary

benefits based on representations that he is totally disabled and

unable to work, yet at the same time sue an employer who declines

to hire him. The ADA was not intended to allow individuals who

are not capable of working to sue employers.

These courts err in not reading the two statutes together and

harmonizing them where appropriate. The Social Security statutes

can and should be construed in light of the adoption of the ADA.

That is, in order to recover SSDI benefits, a claimant should be

required to prove that he or she cannot work even with the ADA

in place. Applying the law in this fashion results in SSDI benefits

being reserved for those who are truly unable to work,’ while

preserving the rights of disabled individuals who are capable of

working to sue employers who refuse to accommodate their

disabilities under the ADA.

These are important and recurring issues that are pending in

a substantial number of cases. Because the Circuit Courts of

Appeals have resolved these questions in many different ways,

and in some cases, in a way clearly not intended by Congress,

this Court should take the opportunity to settle the important

question of interpretation of the ADA in concert with the SSA,

both significant federal statutes.

IT.

THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF THIS COURT CONCERNING THE

PROPER STANDARDS FOR THE GRANT OF

SUMMARY JUDGMENT AND DEMONSTRATES

CONTINUING CONFUSION AMONG THE CIRCUITS AS

TO THE PROPER APPLICATION OF THIS COURT’S

SUMMARY JUDGMENT STANDARDS.

A review of the decisions cited above demonstrates that not

only do the Circuit Courts of Appeals disagree about how or

whether to apply the doctrine of judicial estoppel, but that many

of the Circuits, including the Sixth Circuit in the case at bar, have

misinterpreted and misapplied this Court’s directives regarding

summary judgment. In Celotex Corp. v. Catrett, 477 U.S. 317

(1986), this Court held that summary judgment must be granted

5. The total cost of SSDI benefits is staggering and has been growing. In

1991 those costs were $28.5 billion and they were expected to grow to over

$38 billion by 1997. Jerry L. Mashaw, Against First Principles, 31 San Diego

L. Rev. 211, 226 (Winter 1994).

Ee ee

against a party who fails to make a showing sufficient

to establish the existence of an element to that party’s

case, and on which that party will bear the burden of

proof at trial.

Id. at 322.

In order to prevail on a claim under the ADA, the claimant

bears the burden to prove at trial that he or she is a “qualified

individual with a disability.” This is defined by the ADA 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.

29 U.S.C. § 12111(8). Accordingly, in the present controversy, it

is Mr. Griffith’s burden to establish that he can perform the

_ “essential functions” of the job at Wal-Mart.

The Sixth Circuit concluded that Mr. Griffith’s

representations to the SSA about his ability to work were relevant,

but not conclusive, evidence concerning his ability to work with

reasonable accommodation. Thus, the Court held, there were

questions of “material fact” that precluded the entry of summary

judgment. The case was remanded to allow Mr. Griffith to develop

evidence contradicting his prior sworn statements that

unequivocally establish his complete inability to perform the Wal-

Mart job. This conclusion is wrong and at odds with Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) which requires

that a party present more than a mere “scintilla of evidence” to

defeat a properly supported motion for summary judgment.®

6. The decision under review is also completely inconsistent with a decision

by another panel of the Sixth Circuit. See Blanton v. Inco Alloys Inter., Inc.,

108 F.3d 104, 108-109 (6th Cir. 1997) and the supplemental opinion found at

123 F.3d 916, 917 (6th Cir. 1997). Therefore, the Sixth Circuit, like the Third

Circuit, has an internal conflict as to the correct resolution of this issue.

This Court has made clear that summary judgment should

be granted unless there is a “genuine” issue of material fact. “Some

metaphysical doubt as to the material facts” is insufficient.

Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 586

(1986). When a claimant has committed to a set of facts in sworn

statements and the only way for the claimant to overcome summary

judgment is to contradict those prior statements there is no genuine

issue for trial.

Here, the Sixth Circuit erred. The Court should have held,

as a matter of law, that no reasonable jury could find Mr. Griffith

capable of performing the essential functions of the Wal-Mart

job. As the District Court concluded:

The inconsistencies between these job requirements

and Griffith’s representations about his disability

preclude Griffith from raising an issue of fact as to

whether, on the date he was terminated by Wal-Mart,

he was a qualified individual under the ADA...

Because he is precluded from proving that he was

‘otherwise qualified’ to perform the essential functions

of his position at Wal-Mart, Griffith cannot make out

a prima facie case under the ADA. Wal-Mart is thus

entitled to summary judgment on this claim.

Griffith, 930 F. Supp. at 1173-74.

Unlike the Sixth Circuit in the instant case, the Ninth Circuit

Court of Appeals has correctly applied this Court’s summary

judgment standards in a similar case. In Kennedy v. Applause,

Inc., 90 F.3d 1477 (9th Cir. 1996), an employee asserted in

applying for SSDI benefits and state disability benefits that she

was “totally disabled.” Weighing that assertion against the

Pawan ie aye een geen Rp eee eT Teel

si SEAR a

ib nie tissioalyie

Plaintiff's “uncorroborated and self-serving” deposition testimony

in the ADA case that she was not totally disabled, left “no genuine

__ issue that she could have performed her job with the proposed,

or any other, accommodation.” Jd. at 1481-82. Thus, summary

judgment for the employer was required.

Likewise, the Fifth Circuit Court of Appeals has concluded

that an employee whose claims of total disability were

“unambiguous and previously uncontroverted . . . cannot now

be heard to complain that she could perform the essential

functions of her job.” Cleveland, 120 F.3d at 518 (summary

judgment for employer). See also, McConathy v. Dr. Pepper/

Seven Up Corp., 131 F.3d 558, 562 (Sth Cir. 1998) (summary

judgment for employer affirmed when ADA claimant stated in

application for SSDI benefits stated that she couldn’t “hold a

management position or any position even on a part-time basis”)

and Moore, ___F.3d__, 1998 WL 138851 at 138853 (affirming

summary judgment for employer when employee’s only evidence

to contradict her sworn statements to the SSA that she was unable

to work was a self-serving affidavit saying she could perform

essential job functions).

Regardless of the theory of judicial estoppel, the Sixth

Circuit’s decision to reverse the summary judgment granted to

Wal-Mart by the District Court was erroneous. Summary judgment

should have been entered for Wal-Mart, where the only way Mr.

Griffith could overcome Wal-Mart’s proof on this issue was to

flatly contradict previous sworn statements. Under controlling

Supreme Court precedent, such self-serving evidence is not

sufficient to create a “genuine issue of material fact.” Many of

the other circuits that have considered this issue have likewise

applied the wrong summary judgment analysis. These decisions

reflect that the circuit courts are simply ignoring this Court’s

directive to enforce the summary judgment rule as written and

are creating jury issues when there are no legitimate issues of

genuine fact.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

ELIZABETH ULLMER MENDEL

Counsel of Record

MICHAEL A. LUVISI

ANGELA LOGAN EDWARDS

WOODWARD, HOBSON

& FULTON, L.L.P.

Attorneys for Petitioner

2500 National City Tower

Louisville, Kentucky 40202

(502) 581-8000

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED JANUARY 29, 1998

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CLYDE N. GRIF FITH,

Plaintiff-Appellant,

‘ No. 96-6361

WAL-MART STORES, INC.,

Defendant-Appellee. .

Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 94-001 17--William O. Bertelsman, District Judge.

Argued: October 30, 1997

Decided and Filed: January 29, 1998

Before: RYAN and BATCHELDER, Circuit Judges;

CAMPBELL, District Judge

“The Honorable Todd J. Campbell, United States District Judge for the

Middle District of Tennessee, sitting by designation.

Appendix A

COUNSEL

ARGUED: Lee Homberger, Cincinnati, Ohio, for Appellant.

Michael A. Luvisii, WOODWARD, HOBSON & FULTON,

Louisville, Kentucky, for Appellee. ON BRIEF: Lee

Hornberger, Cincinnati, Ohio, for ae: Elizabeth U.

Mendel, Kathryn A. Quesenberry, WOODWARD, HOBSON

& FULTON, Louisville, Kentucky, for Appellee. Paul Bogas,

EQUAL EMPLOYMENT OPPOR COMMISSION,

OFFICE OF GENERAL COUNSEL, Washington, D.C., for

Amicus Curiae.

OPINION

CAMPBELL, District Judge. Plaintiff appeals the district

court’s grant of summary judgment in favor of Defendant on

Plaintiff's claim that Defendant violated the Americans With

Disabilities Act, 42 U.S.C. §§ 12101, ef seg. (“ADA”).

Specifically, the district court held that Plaintiff was

precluded from showing he was a “qualified individual with

a disability” under the ADA because Plaintiff previously

made certain representations regarding his disability in an

application for Social Security disability benefits. For the

reasons discussed below, we REVERSE the judgment of the

district court.

Plaintiff Clyde Griffith, a former employee of Defendant

Wal-Mart Stores, Inc., ae this action alleging that Wal-

Mart discriminated against him by discharging him because

of his disability, in violation of the ADA and the Kentucky

Equal Opportunities Act, Ky. Rev. Stat. Ann. §§ 207.130, e/

seq. Plaintiff also brought state law claims of promissory

estoppel, and fraud and deceit.

ree

ee ee

Appendix A

Plaintiff began working in a Wal-Mart store in Florence,

Kentucky on October 3, 1990. In his Wal-Mart employment

application, Plaintiff revealed that he had injured his back in

1984 and had undergone back surgery in 1985 and 1986. As

a result of the 1984 injury, Plaintiff resigned from the City of

Covington Police Department, and was awarded workers’

compensation benefits. Plaintiff applied to work at Wal-Mart

six years later when his doctor lifted his “no work” restriction.

Plaintiff's first assignment at Wal-Mart was a sales

associate position in the Sporting Goods Department. Three

to four months later, after Plaintiff complained to

management that the heavy lifting in the Sporting Goods

Department caused him back pain, Wal-Mart transferred

Plaintiff to the Hardware Department. While in the Hardware

Department, Wal-Mart accommodated the various physical

restrictions placed on the Plaintiff by his doctor. Accordin

to Wal-Mart, Plaintiff was able to perform the essentia

functions of his job in the Hardware Department.

' During November, 1991, the store manager ordered

Plaintiff tp move certain heavy items, and Plaintiff reinjured

his back. Pursuant to the orders of his doctor, Plaintiff

missed a couple months of work over the next six months.

Upon his return to work, Plaintiff was subject to restrictions

on heavy lifting and long periods of standing. Wal-Mart

accommodated those restrictions in the Hardware

Department.

In September, 1992, Wal-Mart transferred Plaintiff back to

the Sporting Goods Department. On October 26, 1992, Wal-

Mart discharged Plaintiff for failing to report to work and lack

of dependability. Plaintiff contends he was given permission

to be absent from work during this time to take care of car

trouble.

‘plaintiff filed a workers’ compensation claim as a result of this injury,

which the parties subsequently settled.

Appendix A

Plaintiff subsequently filed a charge with the Equal

Employment Opportunity Commission (“EEOC”), alle lepig

that Wal-Mart discriminated against then because his

disability by firing him due to his back problems. The EEOC

issued a “right to sue” letter in April, 1993.

During the next four months, Plaintiff received

unemployment benefits while unsuccessfully seeking various

jobs. In April, 1993, Plaintiff applied for disability insurance

benefits from the Social Secunty Administration (“SSA”)

based on his back ailment. It is the statements made by the

Plaintiff in the SSA application forms that led the district

court to reject Plaintiff's ADA claim.

The district court noted the following statements made by

the Plaintiff in his application for benefits:

... | became unable to work because of my disabling

condition on October 29, 1992. I am still disabled.

... [have not been able to work since Lwas let go by

Wal-Mart in [sic] October 29, 1992.

***

I know that anyone who makes or causes to be made

a false statement or representation of material fact in

an application or for use in determining a night to

payment under the Social Security Act commits a

crime punishable under federal law by fine,

imprisonment or both. I affirm that all information

I have given in connection with this claim is true.

Griffith v. Wal-Mart Stores, Inc., 930 F.Supp. 1167, 1168-69

(E.D.Ky. 1996). These typewritten statements, along with

several others, are included in a form generated by the SSA,

which is signed by Plaintufé

Wal-Mart terminated Plaintiff on October 26, 1992. The district court

assumed that Plaintiff used this later date in his application by mistake.

Appendix A

The district court also noted that in the accompanying

Disability Report, the Plaintiff was asked when his disabling

condition first bothered him, and Plaintiff answered:

“November 21, 1991," and explained that he reinjured his

back on that day while working at Wal-Mart. Plaintiff was

also asked when his condition finally made him stop working,

and he answered: “October 29, 1992.” 930 F.Supp. at 1169.

The district court also noted that in the “Activities Of Daily

Living” questionnaire, completed by the Plaintiff four months

later, on August 26, 1993, in answer to various questions,

Plaintiff described the limitations caused by his back problem,

as follows:

I can only stand for about ten minutes at a time. My

back is getting worst [sic].

** +

From 1985 to the present I need help to get out of

the [bath] tub and sometime to get help to get off the

couch.

Since 1985 to the present, I can’t do any odd jobs.

***

[F]rom 1985 to the present I can’t [do grocery

shopping].

Id. Plaintiff also stated that the only household chore he

could perform was folding clothes. Ja.

In a subsequent statement filed with the SSA on November

5, 1993, Plaintiff stated: “My back pain keeps from doing any

activities. It is very hard to take care of myself.” Jd.

Although the Plaintiff was initially denied SSA benefits, an

Administrative Law Judge issued a decision on July 22, 1994,

Appendix A

without holding a hearing, that Plaintiff was entitled to

disability benefits retroactive to October 29, 1992. In

reaching his decision, the ALJ stated:

The claimant worked in the past as an autobody

repairman, maintenance person, retail sales clerk,

and reserve police officer. All of his past relevant

jobs meas an ability to perform at least light

exertion on a sustained basis. Because of his

limitation to significantly less than a full range of

sedentary work, he has been unable to engage in past

relevant work since October 29, 1992.

** *

Essentially his residual functional capacity precludes

all work activity on a full-time basis. Considering

the claimant’s age, education, previous work

experience, and residual functional capacity, [the

SSA regulation] establishes that the claimant is

disabled.

** *

The claimant has been disabled, as defined in the

Social Security Act, since October 29, 1992.

Id.

Following what it considered to be the majority view, the

district court held that an individual is precluded from

showing that he is capable of performing the essential

functions of his job for purposes of an ADA claim, if that

erson has represented that he is disabled in order to obtain

ong term disability benefits.” 930 F.Supp. at 1170-71.

* Among the cases cited by the district court are Reige! v. Kaiser

Foundation Health Plan N.C., 859 F. Supp. 963 (E.D.N.C. 1994); Simo

v. Home Health and Hospice Care, 906 F. Supp. 714 (D.N.H. 1995).

Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 555 n.4 (D. Kan.

1995).

Appendix A

Applying that view in this case, the district court held “the

inconsistencies between [Wal-Mart’s Sales Associate] job

requirements and Plaintiff's representations about his

disability preclude Plaintiff from raising an issue of fact as to

whether, on the date he was terminated by Wal-Mart, he was

a qualified individual under the ADA.” 930 F.Supp. at 1173.

II.

We review the district court’s grant of summary judgment

de novo. Birgel v. Board of Comm'rs of Butler Co., Ohio, 125

F.3d 948, 950 (6th Cir. 1997). Accordingly, we view the

evidence and the record in the light most favorable to the

Plaintiff to determine whether a genuine issue of material fact

exists. /d.; Fed. R. Civ. P. 56(c). Summary judgment was

appropniately granted to the Defendant if the evidence shows

there is no genuine issue of material fact and that the

Defendant is entitled to judgment as a matter of law. Jd

The ADA prohibits discrimination against “a qualified

individual with a disability because of the disability of such

individual” with regard to hiring, compensation, ischarge,

and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). A “qualified individual with a

disability” is “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 USC § 12111(8). Reasonable

accommodation may include job restructuring, part-time or

modified work schedules and reassignment to vacant

positions. 42 U.S.C. § 12111(9). The relevant time for

determining whether the plaintiff is a “qualified individual

with a disability” is at the time of discharge. Kocsis v. Multi-

Care Mgr., Inc., 97 F.3d 876, 884 (6th Cir. 1996).

By contrast, the Social Security Administration does not

consider whether an individual is able to work with

reasonable accommodation in determining entitlement to

disability benefits. A person is disabled under the Social

Security Act:

Appendix A

. if his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot,

considering his age, education, and work experience,

engage in any other kind of substantial gainful work

which exists in the national economy, regardless of

whether such work exists in the immediate area in

which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he

applied for work. For purposes of the preceding

sentence (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).

Il.

Although the district court ruled that Plaintiffs ADA claim

was “precluded” by virtue of the statements Plaintiff made in

his SSA application, it did not specify the theory by which it

reached this conclusion. As the district court noted, some

courts have reached this conclusion based on the doctrine of

judicial estoppel. The doctrine of judicial estoppel “forbids a

party ‘from taking a position inconsistent with one

successfully and unequivocally asserted by the same party in

a prior proceeding.” Teledyne Indus., Inc. v. Nat'l Labor

Relations Bd., 911 F.2d 1214, 1217 (6th Cir. 1990). Courts

apply judicial estoppel i in order to “ reserve[] the integrity of

the courts by preventing a party from abusing the judicial

process throu ‘teampens gamesmanship, achieving success on

one position, the opposing to suit an exigency of

the moment.” Teledyne, 911 F.2d at 1218. The doctrine

applies only when a party shows that his opponent: (1) took

a contrary position; (2) under oath ina | pa ———s and

(3) the prior position was accepted by

aril: ee se NN lg

;

‘

Appendix A

_ Although the federal courts have divergent opinions on the

issue , the most recent decision of this court on the issue

holds that the doctrine of judicial estoppel does not operate to

Sin a 1996 decision, the Third Circuit held that a plaintiff who made

representations of disability in a disability benefit application was

judicially estopped from recovering on an ADA claim. AMdcNemar vy. The

Disney Store, Inc., 91 F.3d 610 (3rd Cir. 1996). In a more recent

decision, however, the court suggested that A¢cNemar should not be

applied as a per se rule: “Courts should not assume that McNemar always

bars an individual’s ADA claims merely because prior representations or

determinations of disability exist in the record.” Krouse v. American

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

The Second Circuit has held that an employee’s statements to the

Social Security Administration that he was “unable to work” judicially

estopped him from claiming he was qualified under the ADA. Simon v.

Safelite Glass Corp., 128 F.3d 68, 73 (2d Cir. 1997).

The Fifth Circuit has held that an application for or receipt of social

security disability benefits “creates a rebuttable presumption that the

claimant or — of such benefits is judicially estop om asserting

that he is a ‘qualified individual with a disability."". Cleveland v. Policy

Afgt. Sys. Corp., 120 F.3d 513, $18 (Sth Cir. 1997).

The Eleventh Circuit does not apply a per se rule of judicial estoppel,

but does hold that a plaintiff:

. .. is estopped from denying the truth of any statements made in

her disability application. Our basis for this holding is that an

ADA plaintiff Should not be permitted to disavow any

Statements she made in order to obtain SSD benefits.

Talavera v. School Bd. of Palm Beach Co., 129 F.3d 1214, 1220 (11th

Cir. 1997).

The issue remains open in the Eighth Circuit. See Robinson v.

Neodata Services, Inc., 94 F.3d 499, 502 n. 2 (8th Cir. 1996)(“Social

Security determinations, however, are not synonymous with a

determination of whether a a weg is a ‘qualified person’ for purposes

of the ADA.”); Budd v. ADT Sec. Sys., 103 F.3d 699, 700 (8th Cir.

1996)(per curiam)(court affirmed district court’s opinion based on

estoppel theory, and alternatively, determined plaintiff's evidence was

i cient to withstand summary judgment); Dush v. Appleton Electric

Co., 124 F.3d 957, 962 n.8 (8th Cir.1997)(estoppel issue “remains open

in our Circuit.”)

10a

Appendix A

preclude ADA relief to an individual based on that

individual’s application for and/or receipt of social security

disability benefits. In Blanton v. Inco Alloys Inter., Inc., 108

F.3d 104, 108-09 (6th Cir. 1997), a panel of this court, like

the district court in this case, held that plaintiff's admission in

his application for Social Security disability benefits that he

was unable to perform his job prevented him from claiming

in his subsequent state law disability discrimination suit that

he was able to perform the essential functions of his job.

After the Blanton opinion was issued, the District of

Columbia Circuit issued an opinion rejecting the judicial

estoppel theory. In Swanks v. Washington Metro. Area

Transit Auth., 116 F.3d 582 (D.C. Cir. 1997), the court

reversed the district court’s grant of summary judgment for

the employer holding that plaintiff's application for and

receipt of Social Security disability benefits barred ADA

relief. In reaching its decision, the court pointed out that a

finding of disability under the Social Security Act gives no

consideration to a claimant’s ability to work with reasonable

accommodation, which is required to be considered under the

ADA:

The contrary view -- that Social Security disability

benefits preclude ADA relief -- would force disabled

individuals into an ‘untenable’ choice between

receiving immediate subsistence benefits under the

Social Security Act or pursuing discrimination

remedies. . . . Forcing such a choice would

undermine the pro-employment and §anti-

discrimination purposes of the two statutes... .

Nothing in either statute requires disabled

individuals to make this choice.

Swanks, 116 F.3d at 586.

The Swanks Court noted that individual statements m an

application for disability benefits could well be relevant in an

ADA lawsuit, but explained that the record in that case

contained no evidence of Swanks’ statements to the Social

Security Administration. 116 F.3d at 587.

lla

Appendix A

After the Swanks opinion was issued, the parties in Blanton

sought a rehearing. As a result, the panel issued a

supplemental opinion which stated:

The panel’s opinion should not be read to endorse

judicial estoppel in this context. We simply held that

‘{iJn light of the overwhelming weight of the

medical evidence, as well as Blanton’s own

admissions, we find that Blanton was unable to

= his former position of extrusion press crew

eader as a matter of law.’ We agree with the D.C.

Circuit’s opinion in Swanks v. Washington Metro.

Area Trans. Auth., F.3d 1997 WL

335143 (D.C. Cir. June 20, 1997), that holds that the

receipt of disability benefits does not preclude

subsequent ADA relief and rejects the doctrine of

judicial estoppel, but does allow the consideration of

ae sworn statements by the parties as a material

actor.

Blanton v. Inco A lloys Inter. Inc., 123 F.3d 916, 917 (6th Cir.

1997)(“Blanton IT’).

An individual’s application for and receipt of Social

Security disability benefits, as the Swanks Court points out,

gives no consideration to that person’s ability to work with

reasonable accommodation, which is required to be

considered under the ADA. Furthermore, we note that the

Social Security Act and implementing regulations establish

certain work incentive programs for individuals receiving

disability benefits. For example, beneficiaries may engage in

a tnal work period that allows them to work for nine months

while their benefit levels remain unchanged. 42 U.S.C.

§ 422(c); 20 C.F.R. § 1592(a). Obviously, the definition of

“disability” under the Social Security Act does not require a

finding that the individual cannot perform any job under any

circumstances.

Under Blanton JJ, statements made in an application for

Social Security disability benefits, while relevant, do not

result in judicial estoppel.

12a

Appendix A

First, judicial estoppel does not apply because the answers

given in a Social Security disability benefit application are not

necessarily inconsistent with a plaintiff's claim that he could

have worked at his job, during the relevant period, with a

reasonable accommodation. The precise question of whether

the applicant could have worked with a reasonable

accommodation during the relevant period is not asked in a

Social Security context because, as discussed above, it would

not necessarily bar receipt of those benefits.

Furthermore, the statements made in the SSA application

and forms are open to interpretation. In determining precisely

what the plaintiff “admitted” in the application, one must

consider the context in which the statements were made.

Portions of the SSA application and other forms require the

applicant merely to check off boxes without comment, or

require the applicant to fill in blanks with little room given for

elaboration. In short, the employee may not have a fair

opportunity to accurately explain the details of the employee’s

medical condition and his ability or inability to work for

purposes of the ADA.

Moreover, judicial estoppel is an equitable doctrine, and “is

applied with caution to avoid impinging on the truth-seeking

function of the court because the doctrine precludes a

contradictory position without examining the truth of either

statement.” Teledyne, 911 F.2d at 1218 (footnote omitted).

Applying judicial estoppel under the circumstances presented

here would be inappropriate given that the truth-seeking

function of the court would be supplanted by an agency

administrative decision rendered without an evidentiary

hearing. For these reasons, the district court’s decision cannot

be sustained based on the doctrine of judicial estoppel.

Nor can the district court’s decision be supported by a

theory of “binding admissions.” In reaching its decision, the

district court cited the First Circuit’s decision in August v.

Offices Unlimited, Inc., 981 F.2d 576, 580-84 (1st Cir.1992),

and indicated that the court precluded ADA relief in similar

circumstances by treating the plaintiff's prior representations

as “binding admissions.” In August, the plaintiff had made

sei sa oc 7

13a

Appendix A

representations in applying for his em loyer’s disability

benefits that he was totally disabled and did not know when

he could return to work. 981 F.2d at 579. The employer later

discharged the plaintiff because he would not specify when he

would be able to return to work. Jd. In granting summary

judgment to the defendant on plaintiff's state law disability

discrimination claim, the First Circuit held that plaintiff had

presented no evidence indicating that he was able to perform

his job with reasonable accommodation at the time in

question. 981] F.2d at 580-83.

In reaching its decision, the August Court did not create a

new theory of “super admissions” whereby _ prior

representations in disability benefit applications are

considered to outweigh all other contrary evidence in the

record. Instead, the court held that there was no other

evidence in the record to the contrary. Thus, the court simply

applied well-established principles of summary judgment in

rejecting plaintiff's claim. See D'Aprile v. Fleet Services

Corp., 92 F.3d 1, 4-5 (Ist Cir. 1996)(distinguishes prior

decision in August, and holds that genuine fact issue exists as

to disability discrimination claim despite plaintiff's prior

application for disability insurance benefits; and states that

August “simply stands for the proposition that the plaintiff s

ability to work with reasonable accommodation is an element

of a handicap employment discrimination case under

Massachusetts law.”)

*The district court’s decision also cannot be Supported through

application of issue preclusion or equitable estoppel. Issue preclusion

recludes relitigation of the same issue that was raised and actually

litigated in a prior suit. Aircraft Braking Systems Corp. v. Local 856,

Inter. Union, nited Automobile, Aerospace and Agricultural Implement

Workers, UAW, 97 F.3d 155, 161 (6th Cir. 1996). As discussed above,

the issue of whether Plaintiff could have worked with a reasonable

accommodation at the time in question was not decided by the ALJ in the

Social Security proceeding.

Equitable estoppel requires that the party claiming estoppel show he

relied to his detriment on the Opposing party’s position in a prior

proceeding. Teledyne, 911 F.2d at 1220. Defendant has not made this

14a

Appendix A

We believe these prior statements should not be the subject

of judicial estop 4 or a theory of “super admissions,” but

rather should be analyzed under traditional summary

judgment principles. Straightforward summary judgment

analysis, rather than theories of estoppel or “super

admissions,” has also been applied to similar fact situations

by other circuits. Dush v. Appleton Electric Co., 124 F.3d at

963-65 (court decides case on summary judgment grounds,

leaving open the question of whether judicial estoppel should

be applied in this context); Kennedy v. Applause, Inc., 90 F.3d

1477, 1480-81 n. 3 (9th Cir. 1996) (court found application of

judicial estoppel unnecessary because plaintiff did not

—— sufficient evidence to withstand summary judgment). ~

ut see Rissetto v. Plumbers and Steamfitters Local 343, 94

F.3d 597, 605-06 (9th Cir. 1996) (plaintiff in age

discrimination action estopped from claiming she was

performing her job well when she had previously obtained a

favorable workers’ compensation settlement).

The Seventh Circuit has outlined this approach as follows:

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

factfinders are entitled to take them at their word;

and, such representations are relevant evidence of

the extent of a plaintiff's disability, upon which an

employer may rely in attempting to establish that an

ADA plaintiff is not a ‘qualified individual with a

disability.’ At the same time, because the SSA’s

definition of disability -- as well as those of most

disability insurance plans -- differs materially from

the ADA’s definition of a ‘qualified individual with

a disability,’ these representations are not conclusive

as to the ADA issue. When a defendant in an ADA

action relies on such representations as the basis for

showing.

oo i ai

15a

Appendix A

contending that a plaintiff is not a ‘qualified

individual,’ the olaintiff is free to come forward with

additional evidence that shows she could perform

the essential duties of a desired position with or

without reasonable accommodation notwithstanding

the fact that she might have been deemed disabled

under some other Statutory or contractual

framework. ... As a general matter .. . absent some

such affirmative showing . . . the employer will be

entitled to judgment as a matter of law.

Weigel v. Target Stores, 122 F.3d 461, 467-68 (7th Cir.

1997)(footnote omitted).

IV.

Applying this approach to the facts presented here, the court

finds that summary judgment was improperly granted to

Defendant because there are genuine issues of material facts

on the issue of whether Plaintiff was capable of performing

the essential functions of his job at Wal-Mart with a

reasonable accommodation at the time in question. Plaintiff

offered proof that he had performed the sales associate job for

approximately two years and had received favorable

evaluations. In addition, Defendant admits that Plaintiff was

able to perform the sales associate function in the Hardware

Department, and that it was able to accommodate Plaintiff s

physical restrictions.’ Indeed, Defendant’s store manager

testified that Plaintiff had no job performance problems while

in the Hardware Department.

Plaintiff contends that his prior statements in his

application for disability benefits do not contradict this proof.

In the application, Plaintiff stated he was unable to work

*This evidence conflicts with Defendant's contention that the essential

functions of the sales associate position should be determined by the job

description in the employee handbook, which states that the tasks a sales

associate must perform include: frequently lifting objects weighing at

least 25 Tbs. and regularly walking or standing.

l6a

Appendix A

because “no emplo er will hire me because of my condition

and restrictions.” Plaintiff argues that this statement is not

inconsistent with his position that he could have, and actually

had, worked at his former job with reasonable

accommodation. In addition, Plaintiff contends that the

statements in “Daily Living Report” are not inconsistent with

his position because they relate to Plaintiff's non-work

activities and were made some ten months after Plaintiff was

discharged, a time when Plaintiff contends his condition had

worsened. Similarly, Plaintiff argues that his statement in his

request for hearing that his back pain kept him from engaging

in any activities was made over a year after he was

terminated, at a time when his condition had worsened and he

was severely depressed.

- Although a jury may ultimately decide that the Plaintiff's

explanation of his prior statements is not credible, Plaintiff

has presented sufficient proof to establish a genuine issue of

material fact as to whether he was a “qualified individual with

a disability.” Accordingly, the district court erred in granting

summary judgment to the Defendant.

¥,

Plaintiff also appeals the district court’s dismissal of his

state law claims. After granting summary judgment to the

Defendant on the ADA claim, the district court declined to

exercise supplemental jurisdiction under 28 U.S.C. § 1367

over Plaintiff's state law claims. In ruling on the parties’

motions to reconsider its judgment, the district court

concluded that Plaintiff had not sufficiently alleged the

existence of diversity jurisdiction.

We find it unnecessary to reach this issue given the

reinstatement of Plamtiffs ADA claim. The ADA claim, of

course, confers federal question jurisdiction on the district

court. 28 U.S.C. § 1331. Under these circumstances,

Plaintiff's state law claims are remanded to the district court

to determine whether the district court should exercise

supplemental jurisdiction over the state law claims pursuant

to 28 U.S.C. é 1367.

—— aE

17a

Appendix A

V1.

The court concludes that the district court erred in awarding

summary judgment to Defendant on Plaintiff's ADA claim,

and REVERSES that judgment. The court REMANDS the

Plaintiff's state law claims to the district court to determine

whether the district court should exercise supplemental

jurisdiction over the state law claims.

18a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF KENTUCKY AT COVINGTON

FILED JUNE 10, 1996

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF KENTUCKY AT COVINGTON

CIVIL ACTION NO. 94-117

CLYDE N. GRIFFITH,

PLAINTIFF

VS.

~ WAL-MART STORES, INC.,

E DEFENDANT

OPINION AND ORDER

This is an employment discrimination action alleging

violations of the Americans with Disabilities Act (“the ADA”),

42 U.S.C. § 12102 et seg., the Kentucky Equal Opportunities

Act (““KEOA”), KRS 207.130 et seg., and the common law of

Kentucky. For the reasons set forth below, Wal-Mart’s motion

for summary judgment is granted on Griffith’s ADA claim.

FACTUAL BACKGROUND

Clyde N. Griffith (“Griffith”) worked for Wal-Mart Stores,

Inc. (“Wal-Mart”) at its Florence, Kentucky location from

October 3, 1990 until October 26, 1992. On his Wal-Mart

employment application, Griffith indicated that he injured his

back in 1984 and underwent surgery for the resulting problems

19a

Appendix B

in 1985 and 1986. Griffith was initially assigned to the sporting

goods department at Wal-Mart, where he worked for three to

four months. He was subsequently transferred to the store’s

hardware department, where he worked for over a year and a

half. At the time of his dismissal, Griffith had been transferred

back to sporting goods.

Griffith’s termination arose out of a series of events

following a vacation in October 1992, during which he

experienced automobile problems. Griffith was scheduled to

return to work on Monday, October 19, 1992, but he telephoned

the store that day to tell them of his car trouble. Griffith’s

Assistant Manager, Richard Ostendorf (“Ostendorf”) was off

that day, so Griffith spoke with another Assistant Manager, Steve

Kissabeth (“Kissabeth”). Griffith was absent from work over

the next several days, during which time he continued to speak

with Ostendorf and Kissabeth about his transportation problems.

The parties disagree as to whether Ostendorf or Kissabeth

excused Griffith from work during this week and, if so, for

which days.

Griffith returned to the store on Saturday, October 24, 1992

to pick up his pay check and speak with Ostendorf. Again, the

parties disagree as to what was discussed at that time and whether

Griffith was supposed to work that day. Griffith worked briefly

on Sunday, but was told to leave and return the following day

to speak with Store Manager, Larry Greer (“Greer”). On Monday,

October 26, 1995, Greer terminated Griffith.

In November 1992, Griffith filed a disability discrimination

charge with the Equal Employment Opportunity Commission

(“EEOC”) in which he alleged that Wal-Mart fired him because

of his back problems, and the EEOC ultimately issued a Notice

of Right to Sue.

20a

Appendix B

In April 1993, Griffith applied for Disability Insurance

Benefits from the Social Security Administration (“SSA”). In

his application, Griffith stated:

¢ I became unable to work because of my disabling

condition on October 29, 1992. I am still disabled.

¢ Ihave not been able to work since I was let go by

Wal Mart in [sic] October 29, 1992.'

¢ I know that anyone who makes or causes to be

made a false statement or representation of material

fact in an application or for use in determining a

right to payment under the social security act

commits a crime punishable under federal law by

fine, imprisonment or both. I affirm that all

information I have given in connection with this

claim is true.

Id. -

In an accompanying Disability Report, Griffith indicated

~ that his disabling condition first bothered him on November

21, 1991, when he reinjured his back while working at

Wal-Mart, and that the condition finally made him stop working

as of October 29, 1992. In the “Activities of Daily Living”

questionnaire completed by Griffith on August 26, 1993,

Griffith described the limitations caused by his back problem,

including that:

* he could only stand for about 10 minutes at a time;

1. Wal-Mart actually terminated Griffith on October 26, 1992. The

difference in dates appears to be an error on Griffith’s part and, as noted

infra, does not affect the outcome of the pending motion.

2la

Appendix B

* he has needed help getting out of the bath and off

the couch since 1985;

* he has been unable to do any odd jobs around the

house since 1985;

* he could not do any household chores except

folding clothes;

* he has been unable to do the grocery shopping

since 1985.

In a further statement to the SSA on November 5, 1993,

Griffith stated: “My back pain keeps me from doing any

activities. It is very hard to take care of myself.”

Griffith was initially denied SSA benefits, but after he

pursued his claim and filed a request for a hearing, an ALJ

determined on July 22, 1994 that Griffith met the SSA’s

definition of a disabled individual and qualified for benefits

retroactive to October 29, 1992. The ALJ’s decision includes

the following discussion:

The claimant has had a severe back impairment since 1984.

He has undergone back surgery in 1985 and 1986, and a

neurectomy in 1991. Thereafter, he returned to full-time

work as a retail clerk until October 29, 1992. His work

ended at that time due to exacerbation of his back pain

and depression.” . . .

2. Apparently, the ALJ was not aware that Griffith had actually been

terminated by Wal-Mart.

The depression to which the ALJ refers began in September 1988 when

Griffith’s mother died.

22a

Appendix B

The limitations placed on the claimant by [his

doctors] restrict him to significantly less than a full

range of sedentary work... .

The claimant worked in the past as an auto body

repairman, maintenance person, retail salesclerk, and

reserve police officer. All of his past relevant jobs

required an ability to perform at least light exertion

on a sustained basis. Because of his limitation to

significantly less than a full range of sedentary work,

he has been unable to engage in past relevant work

since October 29. 1992... .

Essentially, his residual functional capacity

precludes all work activity on a full-time basis.

Considering the claimant’s age, education, previous

work experience, and residual functional capacity, .

. . [the SSA regulation] establishes that the claimant

is disabled... .

The claimant has been disabled, as defined by the

Social Security Act, since October 29. 1992.

(emphasis added).

On July 5, 1994, Griffith initiated suit in this court. On

March 5, 1996, this court held a final pretrial conference and

heard argument on defendant’s original motion for summary

judgment. The court denied defendant’s motion for summary

judgment; however, in view of the above information concerning

Griffith’s application for Social Security disability benefits —

not available to Wal-Mart when its original motion for summary

judgment was filed — the court continued the trial date and

23a

Appendix B

ordered the parties to file briefs addressing the possible preclusive

effect of the Social Security proceedings on Griffith’s ADA

claim. Those briefs are now before the court.

Finding that Griffith’s representations in his applications

for social security disability benefits preclude him from satisfying

the elements of a prima facie ADA claim, this court now grants

Wal-Mart’s renewed motion for summary judgment.

ANALYSIS

The Americans With Disabilities Act (“ADA”)

1. Griffith Must Establish That He Has Otherwise

Qualified to Perform the Essential Functions of His Job.

Title I of the ADA, governing actions for employment

discrimination against the disabled, prohibits discrimination

against “a qualified individual with a disability because of the

disability of such individual in regard to job application

procedures, . . . hiring, advancement, or discharge. . . ,

compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a).

A “qualified individual with a disability,” is “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). The term “essential functions” means the

fundamental job duties of the employment position. 29 C.F.R.

§ 1630.2(n)(1) (1995).

In addition, the plaintiff must establish that he was qualified

at the time of the job action in question. Parker v. Metropolitan

24a

Appendix B

Life Ins. Co., 875 F. Supp. 1321, 1326 n.5 (W.D. Tenn. 1995)

(citation omitted). It is irrelevant whether the plaintiff could

perform the essential functions at some later date. Cheatwood

v. Roanoke Indus., 891 F. Supp. 1528, 1537 (N.D. Ala. 1995).

2. This Court Adopts the View that a Plaintiff’s

Representations in Applications for Long-Term

Disability Benefits May Have a Preclusive Effect on His

ADA Claim.

The majority of federal courts faced with the issue have

ruled that an ADA plaintiff who has represented that he or she

is disabled in order to obtain benefits under Long-Term

Disability (“LTD”) insurance, social security, or workers’

compensation is not a “qualified individual” under the ADA as

a matter of law. These courts reason that when an individual

represents under oath in benefits applications that he or she was

unable to perform the duties of his or her former job’, the

individual should be precluded from arguing in an ADA suit

that he or she was capable of performing the essential functions

of that job for the same period of time. As the court in Reigel v.

Kaiser Foundation Health Plan of N.C., 859 F. Supp. 963

(E.D.N.C. 1994), stated, in these circumstances, a plaintiff

“cannot speak out of both sides of [his] mouth with equal vigor

and credibility before this court.” Jd. at 970.

3. A person is disabled under social security law if “his physical or

mental impairment or impairments are of such severity that he is not only

unable to do his previous work but cannot, considering his age, education,

and work experience engage in any other kind of substantial gainful work

which exists in the immediate area in which he lives, or whether a specific

vacancy exists for him, or whether he would be hired if he applied for work.”

42 U.S.C. § 423(d)(2)(A).

25a

Appendix B

Similarly, the district court in Simo v. Home Health &

Hospice Care, 906 F. Supp. 714 (D.N.H. 1995), explained at

length its rationale for barring a Rehabilitation Act plaintiff’s

claim:

The plaintiff has made multiple factual

representations to the SSA concerning her disabling

condition and inability to work. The plaintiff attested

to the veracity of each representation, knowing they

would be relied upon in the context of a government

benefits application process, a quasi-judicial

administrative proceeding. Finding that plaintiff is

“totally disabled” and “unable to work”, the SSA

approved the application and to date she has collected

over five years worth of government benefits.

The plaintiff, who continues to receive funds from

the SSA, now seeks to recover under a civil rights

statute which, by its express language, requires a

showing that she is otherwise qualified to perform

her former job as a homemaker. The very filing of

the instant lawsuit . . . is totally inconsistent with

the position she took before the SSA... . The

integrity of the judicial system is jeopardized when

litigants are permitted to assume contrary factual,

not legal, positions for the purpose of achieving

advantageous results. The plaintiff, having already

reaped the benefits of her past representations of

total disability, may not now advance before this

court any claim necessarily based on a contrary

factual representation.

Id. at 721 (internal quotations omitted) (emphasis added).

26a

Appendix B

The treatment of such representations in ADA cases varies.

Some courts invoke principles of strict judicial estoppel or treat

the plaintiff’s representations as binding admissions. See, e.g. August

v. Offices Unlimited. Inc., 981 F.2d 576, 581-84 (ist Cir. 1992)

(plaintiff’s statements to disability insurers were binding admissions

that he could not perform the essential duties of his job, thus he

was not a “qualified handicapped person” under Massachusetts

disability law*); Simo v. Home Health & Hospice Care, 906 F.

Supp. 714 (D.N.H. 1995) (invoking judicial estoppel doctrine to

hold that plaintiff is barred from alleging facts necessary to make

“otherwise qualified” showing on account of positions she took

before SSA in disability proceeding); Garcia-Paz v. Swift Textiles,

Inc., 873 F. Supp. 547, 555 n.4 (D.Kan. 1995) (plaintiff with

multiple sclerosis who on benefits applications affirmed that she

was disabled from her former work was “estopped from claiming

otherwise” in ADA suit).°

4. The Massachusetts statute at issue in August defined a “qualified

handicapped individual” in language nearly identical to the ADA.

5. See also Beauford v. Father Flanagan's Boys’ Home, 831 F. 2d 768,

770-71 (8th Cir. 1987), cert. denied, 485 U.S. 938 (1988); Cline v. Western

Horseman, Inc., No. 94-D-1624, at *4 (D. Colo. 1996); Reiff v. Interim

Personnel Inc., 906 F. Supp. 1280, 1290-91 (D. Minn. 1995); Smith v. Midland

Brake. Inc., 911 F. Supp. 1351 (D. Kan. 1995); Nguyen v. IBP, Inc., 905 F.

Supp. 1471 (D. Kan. 1995); Cheatwood v. Roanoke Indus., 891 F. Supp.

1528, 1537-38 (N.D. Ala. 1995); McNemar v. The Disney Store. Inc., No.

94-6997, 1995 WL 390051, at *3-4 (E.D. Pa. June 30, 1995); Harden v. Delta

Air Lines, Inc., 900 F. Supp. 493, 496-97 (S.D. Ga. 1995); Berry v. Norfolk

Southern Corp., No. 94-0075-R, 1995 WL 465819 (W.D. Va. June 23, 1995);

Kennedy v. Applause. Inc., No. 94-5344 SVW, 1994 WL 740765, at *3-*6

(C.D. Cal. Dec. 6, 1994). Cf. Fussell v. Georgia Ports Authority, 906 F.

Supp. 1561, 1575-76 (agreeing with cases adopting strict estoppel theory

and stating that the court is inclined to grant summary judgment to defendant

on plaintiff’s ADA claim, but allowing more discovery because record lacked

direct evidence of substance of plaintiff’s representations to SSA).

27a

Appendix B

Indeed, this court indicated in Hankins v. The Gap, Civil Action

No. 93-172 (E.D. Ky. 1995), aff’d, 1996 WL 279575 (6th Cir.

May 29, 1996), that a plaintiff determined to be permanently and

totally disabled for the purpose of receiving social security disability

benefits would be unable to recover under the ADA for the time

period during which she claimed to be disabled. See id. slip op. at

6 (“Plaintiff’s current status as permanently and totally disabled,

however, does not preclude plaintiff from seeking redress for

disability based discrimination between . . . the effective date of

the ADA. . . and [the date] she was medically determined to be

permanently disabled.”) (emphasis added).°

6. A similar approach has also been applied in actions involving other

types of claims, where courts find that a plaintiff is estopped by prior

representations of total disability from seeking any relief premised on his or

her ability to work. See, e.g., Brown v. National Railroad Passenger Corp.,

No. 86C 10284, 1990 WL 119558 (N.D. Ill. 1990 Aug. 14, 1990) (holding

that Title VII/ADEA plaintiff who represented to SSA and to Railroad

Retirement Board that he could no longer work at his job is judicially estopped

from seeking reinstatement and back pay).

The Brown court’s reasoning is equally applicable in the ADA context:

Brown’s representations to the SSA and the RRB, coupled with

his continued acceptance of disability benefits from both

agencies, are irreconcilable with his position before this court.

To allow Brown to assert that he was and is able to perform the

duties of his employment with Amtrak at the same time that he

is collecting disability benefits — awarded as a result of his

representations that he could no longer work at his job or any

other — would countenance a fraud, either on this court or on

the two federal agencies that awarded him those benefits.

Brown simply cannot play “fast and loose with the courts” or

with administrative agencies acting in quasi-judicial capacities.

This case falls squarely within the doctrine of judicial estoppel.

dd. at *6.

28a

Appendix B

Other courts, however, consider prior representations of

disability as only one factor to be weighed in determining

whether the plaintiff is “otherwise qualified.” See. e.g. Pegues

v. Emerson Electric Co., 913 F. Supp. 976, 980-81 (N.D. Miss.

1996) (holding that although a finding of disability for workers’

compensation or social security purposes does not necessarily

foreclose an ADA claim, the advancement of plaintiff’s clearly

inconsistent positions “is not legally proper”).’ Nevertheless,

in all but one of these cases the evidence of the plaintiffs’

statements was so persuasive that the courts granted defendants’

motions for summary judgment.®

The cases that do not appear to give any preclusive effect

to the receipt of disability benefits in a subsequent disability

discrimination suit are factually distinguishable from the majority

approach and from the case at bar. In Overton v. Reilly, 977

F.2d 1190 (7th Cir. 1992), for instance, the plaintiff suffered

from an emotional illness and was found eligible for social

7. See also Morton v. GTE North Inc., No. 3:94-CV-0424-P, 1996

WL 84830, at *7-8 (N.D. Tex. Jan. 23, 1996); Dockery v. North Shore

Medical Center, 909 F. Supp. 1550, 1559 (S.D. Fla. 1995); Anzalone v.

Allstate Insurance Co., No. 93-2248, 1995 WL 35613 (E.D. La. Jan. 30,

1995); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F. Supp. 963

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

8. In Anzalone, supra, the court denied the employer’s motion for

summary judgment on the grounds that the plaintiff, an insurance claims

adjuster, had “not unambiguously characterized himself as totally and

completely disabled.” /d. at *1. Specifically, the court relied on the fact that

plaintiff and his doctor had consistently taken the position that the plaintiff

could work with certain restrictions (such as working from home) and that

he had “presented sufficient evidence of his ability to perform the essential

functions of an insurance claims adjuster to withstand summary judgment as

a matter of law.” /d. at *2.

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Appendix B

security disability benefits even before he was hired by the

defendant, the EPA. When the EPA terminated the plaintiff, he

sued, alleging that the EPA fired him on account of his disability.

In reversing the grant of summary judgment to the EPA, the

Seventh Circuit rejected the district court’s reliance on the

finding of the SSA that the plaintiff was entitled to disability

benefits:

Further, even if a finding of disability could have

preclusive effect in a private lawsuit, such a finding

is consistent with a claim that the disabled person is

“qualified” to do his job under the Rehabilitation

Act. First, the SSA may award disability benefits on

a finding that the claimant meets the criteria for a

listed disability, without inquiring into his ability to

find work within the economy. . . . As it turns out,

the SSA granted benefits to [the plaintiff] on this

basis. Second, even if the SSA had looked into

Overton’s ability to find work in the national

economy, its inquiry would necessarily be

generalized. The SSA may determine that a claimant

is unlikely to find a job, but that does not mean that

there is no work the claimant can do. In sum, the

determination of disability may be relevant evidence

of the [plaintiff’s] handicap, but it can hardly be

construed as a judgment that [the plaintiff] could

not do his job at the EPA.

Id. at 1196 (emphasis added).

Thus, the Overton court’s refusal to give preclusive effect to

the plaintiff’s receipt of social security benefits was based on its

recognition that the criteria employed by the SSA in that particular

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Appendix B

case — the plaintiff's automatic qualification for benefits based on

the nature of his disability and the resulting limited inquiry into

his employability — were not dispositive, particularly in the face

of evidence that the plaintiff had performed many of his job duties

at the EPA satisfactorily. Jd.

Importantly, Overton did not involve representations by

the plaintiff that he was disabled and unable to perform his job.

The case is thus distinguishable from those where the estoppel

or admission theory precludes an ADA plaintiff from taking a

position absolutely at odds with prior (sometimes even

simultaneous) representations to government agencies or

insurance carriers. See Smith v. Midland Brake Inc., 911 F. Supp.

1351, 1359 (D. Kan. 1995) (“The case law is clear that it is the

plaintiff’s inconsistent representations which have preclusive

effect.”); Reiff v. Interim Personnel, Inc., 906 F. Supp. 1280,

1290-91 (D. Minn. 1995) (distinguishing Overton from facts

before it where plaintiff “by his own statements and through

his authorized physician” represented that he could not perform

the duties of his job); Kennedy v. Applause, Inc., No. 94-5344

SVW, 1994 WL 740765, at *6 n.6 (C.D. Cal. Dec. 6, 1994)

(“The cases relied upon by the Court place more emphasis on

the statements made by a plaintiff for the purposes of obtaining

disability benefits as opposed to the decisions of the relevant

agencies regarding provision of benefits.”).

Other cases relied on by Griffith declining to give preclusive

effect to the receipt of disability benefits are similarly

distinguishable. In Smith v. Dovenmuehle Mortgage, Inc., 859

F. Supp. 1138 (N.D. Ill. 1994), the court denied defendant’s

motion for summary judgment, finding that judicial estoppel

did not apply because an issue of fact existed as to whether or

not the position taken by the plaintiff in front of the SSA was

3la

Appendix B

inconsistent with his position in his ADA suit. Important to

this outcome, however, was the fact that both the plaintiff and

his doctor argued that he had since recovered from his disability;

thus, the court found that “plaintiff has offered a plausible

explanation for the divergence between his representation to

the SSA and the arguments he is making now.” Id. at 1142.°

Similarly, in Kupferschmidt v. Runyon, 827 F. Supp. 570

(E.D. Wisc. 1993), the court simply held that the receipt of

social security disability benefits, per se, did not preclude the

plaintiff from proving that she could perform the essential

function of her job. Jd. at 574."° Lastly, in Lawrence v. United

States I.C.C., 629 F. Supp. 819 (E.D. Pa. 1985), the court

found no contradiction between the plaintiff’s representations

to the SSA and his ADA claim because the former consisted

only of his assertion that he could not perform all the functions

of his prior job, not that his disability prevented him from

working at all. Jd. at 822.

9. The Smith court’s focus on whether the plaintiff was qualified to

perform his job at the time of the suit appears erroneous because the clear

language of the ADA makes the relevant inquiry whether or not the plaintiff

was “otherwise qualified” at the time of the employment action in question,

not at some later date. See Parker v. Metropolitan Life Ins. Co., 875 F. Supp.

1321, 1326 n. 5 (W.D. Tenn. 1995).

10. The Kupferschmidt court noted that the record did not include

evidence of the essential functions of the plaintiff's job or the administrative

record from her social security case. Thus, the court had no way to compare

any representations made by the plaintiff with the actual requirements of the

job for which she argued that she was otherwise qualified.

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Appendix B

3. Griffith’s Representations of Disability Preclude Him

From Asserting That He Has Otherwise Qualified to

Perform the Essential Functions of His Position at

Wal-Mart.

As described earlier in this opinion, the ALJ’s decision

awarding Griffith social security disability benefits reflects

extensive reliance on Griffith’s own representations of the

limitations caused by his back condition. There is, however, an

irreconcilable inconsistency between those representations and

Griffith’s current claim that at the time Wal-Mart terminated him,

he was “otherwise qualified” to perform the essential functions

of his job.'' The physical demands of the Wal-Mart Sales

Associate position, described in a Wal-Mart employee booklet,

include:

¢ The Associate is regularly required to walk or

stand.

* The Associate must frequently lift and/or move

objects weighing at least 25 and up to 50 pounds

(Ibs.).

¢ The Associate will occasionally be required to

bend, twist or squat.

11. Although Griffith stated in his SSA application that he was “let

go” by Wal-Mart on October 29, 1992, he was actually terminated on October

26, 1992. This discrepancy appears to be a mistake. Nevertheless, even if

Griffith were to argue that the SSA only found him to be disabled as of the

29th rather than the 26th, the difference would be immaterial for the purposes

of this suit because Griffith offers no evidence “that remotely suggests

anything happened [between the two dates which would explain why [he]

was disabled as of the later date but not the earlier date.” Nguyen v. IBP. Inc.,

905 F. Supp. 1471, 1485 n. 7 (D. Kan. 1995).

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Appendix B

* The Associate will be required to reach above

shoulder height and below waist level.

The inconsistencies between these job requirements and

Griffith’s representations about his disability preclude Griffith from

raising an issue of fact as to whether, on the date he was terminated

by Wal-Mart, he was a qualified individual under the ADA. See

Kennedy v. Applause, Inc., No. 94-5344 SVW, 1994 WL 740765,

at *5-*6 (C.D. Cal. Dec. 6, 1994) (describing plaintiff’s responses

on SSA “Daily Activities Questionnaire” and concluding that were

incompatible with ADA claim). Moreover, the fact that Griffith

himself never used the phrase “totally disabled” is immaterial. See

Brown v. National Railroad Passenger Corp., No. 86C 10284, at

*6 (N.D. Ill. 1990) (“In the Disability Report [the plaintiff]

represented that she had disabling conditions, that the conditions

stopped her from working. That she never used the term ‘totally

disabled’ is of no consequence. Total disability is a necessary

inference from the numerous ailments and consequences she

recites.”).

Because he is precluded from proving that he was

“otherwise qualified” to perform the essential functions of his

position at Wal-Mart, Griffith cannot make out a prima facie

case under the ADA. Wal-Mart is thus entitled to summary

judgment on this claim.

CONCLUSION

Therefore, the court being advised, it is ORDERED as

follows:

(1) Defendant’s renewed motion for summary judgment

on plaintiff's ADA claim (doc. #87) be, and it is hereby,

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Appendix B

GRANTED. Plaintiff’s ADA claim is dismissed with

prejudice.

(2) Plaintiff’s motion for partial summary judgment and

adjudication of noncontroverted facts (doc. #91) be, and it is

hereby, DENIED.

(3) The court declines to exercise its discretion under 28

U.S.C. § 1367 to assert supplemental jurisdiction over plaintiff’s

state law claims raised under the Kentucky Equal Opportunities

Act, KRS 207.130 et seqg., and the common law of Kentucky.

These claims, therefore, are dismissed without prejudice.

(4) Defendant’s motion to dismiss plaintiff’s state law

claims (doc. #92) is DENIED AS MOOT.

A separate judgment shall enter concurrently herewith. This

10th day of June, 1996.

s/ William O. Bertelsman

WILLIAM O. BERTELSMAN, CHIEF JUDGE

35a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

DENYING PETITION FOR REHEARING

FILED MARCH 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

96-6361

CLYDE N. GRIFFITH,

Plaintiff-Appellant,

WAL-MART STORES, INC.,

Defendant-Appellee.

ORDER

BEFORE: RYAN and BATCHELDER, Circuit Judges; and

CAMPBELL’, District Judge.

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this court,

and no judge of this court having requested a vote on the

suggestion for rehearing en banc, the petition for rehearing has

been referred to the original panel.

* Hon. Todd J. Campbell, United States District Judge for the Middle

District of District of Tennessee, sitting by designation.

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Appendix C

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.