# Petition for Writ of Certiorari — Wal-Mart Stores, Inc. v. Griffith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1679%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1144 ## Text Suprame Court, U.S. FILED No. BY1991 JUNO 199% OFFICE OF THE CLERK In The Supreme Court of the United States ms 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. i 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? il 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 10 10 16 iv 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 vi 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 Bi 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 l 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 2 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 3 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 4 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 6 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.) 7 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. 8 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. ... @ a % 4 a % | <4 ® ££ ¥ a 2 | 4 9 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. 10 REASONS FOR GRANTING THE WRIT I. 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 1] 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). 12 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. | : 13 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. 14 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 15 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 16 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 VO 17 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 18 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 19 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. 20 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 21 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. 22 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 la 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. 2a 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. L 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 3a 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. 4a 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. Sa 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, 6a 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). 7a 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: 8a 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 ; ‘ 9a 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. 29a 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 30a 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. 32a 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). 33a 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, 34a 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, v. 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. 36a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1679%3A1. Public record. Not legal advice.