Opposition Brief — Wal-Mart Stores, Inc. v. Griffith

lO

Supreme Couwt, U.S. |

FIDED

i i

No. 97-1991 JUL 8 1998

--OFRGE-OF THE CLERK

In The =

Supreme Court of the United States

October Term, 1997

+

WAL-MART STORES, INC.,

Petitioner,

Vs.

CLYDE N. GRIFFITH,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

:

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

*

Let HorRNBERGER

Coumsel of Record

910 Mercantile Library Bldg.

414 Walnut Street

Cincinnati, Ohio 45202-3906

(513) 723-1195

(513) 241-7863 Fax

Of Counsel

Marco Grusss

HorrMaAn, HorrMan & Gruss

98 Garvey Avenue

Elsmere, Kentucky 41018

(606) 342-9029

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (4102) 342-2831

QUESTION PRESENTED FOR REVIEW

Under the Americans with Disabilities Act, is an

employer entitled to summary judgment on the issue of

the employee's ability to perform the essential functions

of the job when the employer in documentary evidence,

sworn deposition testimony, and its Petition for Writ,

admits that the employee, who subsequently successfully

applied for and received Social Security disability bene-

fits, can do the essential functions of the job?

RR a A OR ap wore sn : —

PARTIES TO THE PROCEEDING

The Petition for Writ of Certiorari inadvertently misiden-

tifies the respondent as Clyde E. Griffith. Respondent's

correct name is Clyde N. Griffith. —

ill

TABLE OF CONTENTS

Page

Question Presented For Review.................... i

ly sce ES a ea cain

I i ad ie es Bae 4 ois 54-99 «00'S 26 0 a iii

SSO yer ee oer ane iv

i ES Re a er ae 1

WN SE US ss oie csc cicevevcs 1

I. Griffith Obtains Employment With Wal-Mart

MAS pal Geceiecle) Kinases cxdivs Won ci 1

Ii. Wal-Mart Repeatedly Gives Mr. Griffith Sat-

co Pane 2

III. Wal-Mart Admits That Mr. Griffith Was

Qualified For His Wal-Mart Employment.. 3

IV. Wal-Mart Fires Mr. Griffith In October

Ghats boat soc os i a ee 3

V. Thereafter, No Employer Would Hire Mr.

Griffith Because Of His “Condition and

TN pe IRE Te EO a eee as ae 4

VI. Mr. Griffith Was Qualified For His Wal-Mart

PES IE RI 7 EPCS Ge Se se +

Vil. Mr. Griffith Applies For Disability Benefits

From The Social Security Administration In

A Nonadversarial Proceeding.............. 5

VIII. District Court Grants Summary Judgment To

Wal-Mart And Sixth Circuit Reverses ...... 5

Reasons For Denying The Writ .................... 7

I. The Circuit Split Is More Form Than Sub-

ca a A OE PP a fe fer ae 7

[TABLE OF CONTENTS - Continued

Page

Il. The Sixth Circuit’s Holding Is Reasonable

And Appropriate. .

Conclusion

peitidheei. ee

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:

:

:

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:

Vv

TABLE OF AUTHORITIES

Page

Cases:

Blanton v. Inco Alloys Int'l, Inc, 123 F3d 916 (6th Cir

taf LESLIE LY COPEL U EP oe EEE DO eET PEON pee nee 14

Brewer v. Petroleum Suppliers, 946 F Supp 926 (ND

TR PPO Gis ths eRe We Vado kobe CARON Eee E Ss 16

Cleveland v. Policy Mgmt Sys Corp, 120 F3d 513 (5th

Cir 1997), petition for cert filed, 66 USLW 3435

(Wp Dec 19,3997) (NO 97-4008) oc oc ovens ocean. 12

D’Aprile v. Fleet Servs Corp, 92 F3d 1 (1st Cir 1996) .... 13

Dush v. Appleton Elec Co, 124 F3d 957 (8th Cir

RRR tLe OAR basi nite or eee TE ae INS ce 12

Edwards v. Aetna Life Ins Co, 690 F2d 595 (6th Cir

ite SOE EE LECCE LE SE SD LOI SARE AO 14

Edwards v. US Postal Service, 909 F2d 320 (8th Cir

she’ COME CE EE EPO ELEY Be Pee eae Seo Pea 16

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

2 eS Be SR Ee ers ip toe ar 8 ABD here ag 5

Griffith v. Wal-Mart Stores, Inc, 135 F3d 376 (6th Cir

MS hee ee ee 5, 6, 13, 14

Krouse v. American Sterilizer Co, 126 F3d 494 (3rd

Re WW ta is cae ee ee oe a 8, 9, 16

McDonald v. Union Camp Corp, 898 F2d 1155 (6th

Re BEDS eno 5 Sean dasteS i peee ee ee oe 5

McNemar v. Disney Store, Inc, 91 F3d 610 (3rd Cir

1996), cert denied, __ US __,, 117 SCt 958, 136

Renate We (NPS OP. oc accnsrwncan cone wpginnd odes 7, 8, 9

Schmitz v. St. Regis Paper Co, 811 F2d 131 (2nd Cir

eal SERN ee Te Ere Deny Te wera 1a ReeLy ee MRR 16

vi

TABLE OF AUTHORITIES —- Continued

Page

Sullivan v. Hudson, 490 US 877, 109 SCt 2248, 104

opens at adage Ee Ce DIET Oe TED! 14

Swanks v. Washington Metro Area Transit Authority,

he Fee See (OG Cie 1997) 665 oe 9,43, T2174

Talavera v. School Board of Palm Beach Cty, 129 F3d

EERO GNI SON SPRT ER ee fice te cad ta hcues cues con 13

Tinker v. Sears, Roebuck & Co, 127 F3d 519 (6th Cir

PPT Pies 4s rida d's 5 cue Reda en uae au oy a eu 16

Weigel v. Target Stores, 122 F3d 461 (7th Cir 1997) .... 13

Willis v. Sullivan, 931 F2d 390 (6th Cir 1991)........ 14

STATUTES:

Te SA DEED p's a one. wiscan'enee delat s eek eee 16

O2 USE SZAGHZMA) .. www ccc cco scwawbinvnccec 2, 10

OTHER AUTHORITIES:

20 CFR Part 404.........0..0.000.00000............... 11

20 CFR 404.1520.......... 0.0.0 cece eee. 10

20 CFR 404.1560(c) ........ 0000000 ee eee eee. 10

20 CFR 404.1567(a) and (b) ......................... 11

Vii

TABLE OF AUTHORITIES —- Continued

Page

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

Act Info Mem at 3, (June 2, 1993) (No x yee b

EEOC Enforcement Guide entitled “Effect of Rep-

resentations Made in Applications for Disability

Benefits on the Determination of Whether a Per-

son is a ‘Qualified Individual With a Disability’

Under the Americans with Disabilities Act of

1990 (ADA),” reprinted in BNA’s Americans

With Disabilities Act Manual No 62 at 70:1251;

http: //www.eeoc.gov/docs/qidreps.txt. ........... 13

INTRODUCTION

This is a unique case in which Wal-Mart admits that

Mr. Griffith can do the essential functions of his Wal-Mart

job. Petition, p 4. In spite of this admission, Wal-Mart

argues that no reasonable jury can find that Griffith can

do the essential functions of his job because Griffith has

subsequently successfully applied for Social Security dis-

ability. The Sixth Circuit correctly held that where the

defendant admits and the evidence shows that the

employee can do the essential functions of the job the

employer is not entitled to summary judgment that the

employee cannot do the essential functions of the job.

4

STATEMENT OF THE CASE

I. Griffith Obtains Employment With Wal-Mart In

1990.

Mr. Griffith worked for Wal-Mart from October 3,

1990 until his termination on Monday, October 26, 1992.

(Apx 69) He had a good work record, free from any major

disciplinary matters.

Mr. Griffith initially started working for Wal-Mart in

October 1990 as a sales associate in the sporting goods

department. Because of a previously-existing back dis-

ability, Griffith was unable to do the sporting goods job.

Therefore, around January 1991, he was transferred to the

hardware department. Griffith worked in the hardware

department from 1991 until September 1992. Griffith was

able to do the essential functions of the hardware

department job. (Apx 348) Although the hardware job

may not have been a statistically noticeable job in the

economy, it was a job which Griffith could do. 42 USC

423(d)(2)(A)

In September/October 1992, Griffith was removed

from the hardware department and transferred to the

sporting goods department. The sporting goods depart-

ment job was not compatible with Griffith’s disability.

(Ibid)

II. Wal-Mart Repeatedly Gives Mr. Griffith Satisfac-

tory Appraisals.

Mr. Griffith received satisfactory appraisals because

he could do the essential functions of his job. The October

1992 review indicated under “overall performance .. . has

a good attitude and works well with customers.” (Apx

136) (Emphasis added) The October 1991 evaluation indi-

cated “had good initiative, . . . good worker, follows

instructions very well, ... has good work skills, follows

instruction with minimum follow-up, . . . good efforts-,

tries to do his best . . . very dependable . . . has good

knowledge of the department . . . works very well with

management and other associates.” (Apx 131-134)

(Emphasis added) The January 1991 evaluation indicated

“productivity is pretty good . . . attendance is very good-

. . willing to help out wherever needed - very flex-

ible . .. good customer assistance .. . friendly and helpful

associate. Very good with customers and associates.”

(Apx 124-125) (Emphasis added) The April 1991 evalua-

tion stated “very good with customers.” Regarding com-

munication and shrinkage control, “does a good job.”

“Grif is very good with customers, [and] has a sense of

pride.” (Emphasis added) (Apx 129-130)

Ill. Wal-Mart Admits That Mr. Griffith Was Qualified

For His Wal-Mart Employment

As indicated in Wal-Mart’s February 1996 Memoran-

dum [Apx 82], “[Griffith] was still capable of performing

the essential functions of his sales associate position by

obtaining assistance from another sales associate. Greer

Depo pp 19 [Apx 762], 36 [Apx 764], 37 [Apx 765])”

Wal-Mart further stated:

“There is no evidence to demonstrate Plaintiff

Griffith was ever disqualified from performing

the essential functions of a sales associate posi-

tion at Wal-Mart. Plaintiff Griffith has failed to

show he became disqualified for any type of

employment while at Wal-Mart.” (Apx 90)

(Emphasis in the original)

Wal-Mart’s Petition admits Mr. Griffith “was able to

perform the essential functions of [the hardware depart-

ment] job.” (Petition, p 4)

IV. Wal-Mart Fires Mr. Griffith In October, 1992

On September 21, 1992, Griffith’s attorney wrote a

letter to Store Manager Larry Greer indicating, in part,

that:

“As you are aware, Mr. Griffith is a hand-

icapped individual. . . . If you would like to

discuss this matter further, please give me a call

at my office or write me at any time.” (Apx

341-342)

Mr. Greer never responded to the letter. Rather, Mr.

Greer fired Griffith approximately one month later, on

October 26, 1992. (Apx 342)

Mr. Griffith was not at work during the week of

October 19, 1992. Griffith’s assistant store manager told

Griffith that he did not have to return to work until

Monday, October 26, 1992. (Apx 348) When Griffith

appeared for work on Monday, October 26, 1992, he was

discharged by Wal-Mart purportedly for not returning to

work on the prior Saturday.

V. Thereafter, No Employer Would Hire Mr. Griffith

Because Of His “Condition And Restrictions.”

As indicated by Griffith in his Social Security disabil-

ity application:

“Question 3b: Explain how your condition keeps

you from working.

Answer: No employer will hire me because of

my condition and restrictions.” (Apx 551)

VI. Mr. Griffith Was Qualified For His Wal-Mart

Employment

Wal-Mart had an opportunity, from 1990 to 1992, to

constantly evaluate Griffith’s work performance. Wal-

Mart consistently evaluated plaintiff’s work perfor-

mance as, at least, satisfactory.

Wal-Mart’s consistently good evaluations of Mr.

Griffith’s job performance and Store Manager Greer’s

testimony confirm that Griffith was performing his job

“ ‘at a level which met his employer’s legitimate expecta-

tions.’ “ McDonald v. Union Camp Corp, 898 F2d 1155, 1160

(6th Cir 1990). See generally, Petition for Writ, p 4.

Vil. Mr. Griffith Applies For Disability Benefits From

The Social Security Administration In A Nonad-

versarial Proceeding.

Mr. Griffith applied for Social Security Administra-

tion benefits in May 1993. (Apx 550) Without a hearing

and in a nonadversarial proceeding, a Social Security

administrative law judge determined in July 1994 that

Griffith was entitled to benefits. (Apx 567-570)

VIII. District Court Grants Summary Judgment To

Wal-Mart And Sixth Circuit Reverses

The United States District Court for the Eastern Dis-

trict of Kentucky granted summary judgment to Wal-Mart

on Griffith’s claims under the ADA. The district court

held that Griffith was precluded from showing that he

was capable of performing the essential functions of the

job because he had represented that he was totally dis-

abled in order to obtain disability benefits. 930 F Supp

1167 (ED Ky 1996)

On appeal, the Sixth Circuit gave several reasons

why judicial estoppel should not apply.

“The precise question of whether the applicant

could have worked with a reasonable accom-

modation during the relevant period is not

asked in a Social Security context because . . . it

would not necessarily bar receipt of those bene-

fits.” 135 F3d 376, 382 (6th Cir 1998)

Statements made in SSA applications “are open to

interpretation,” Id, and should be considered in context,

the Sixth Circuit said. Because applicants are asked to

check off boxes without comment or fill in blanks with

little room for elaboration, “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.” Id.

The court added that applying judicial estoppel, an

equitable doctrine,

“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 with-

out an evidentiary hearing. . . . We believe these

prior statements should not be the subject of

judicial estoppel or a theory of ‘super admis-

sions,’ but rather should be analyzed under tra-

ditional summary judgment principles.” Id at

382-383.

The court concluded that summary judgment was

improperly granted to Wal-Mart because Griffith raised a

genuine issue of material fact as to whether he was

capable of performing the essential functions of his job

with reasonable accommodation. The company admitted

that Griffith was able to perform his job in the hardware

department and that it was able to accommodate his

physical restrictions, the court pointed out. Griffith

argued that his seemingly inconsistent statements were

made ten months after he was fired, when his condition

had worsened.

——_

we

REASONS FOR DENYING THE WRIT

The Courts of Appeal which have considered the

issue before the Court unanimously agree that a claim-

ant’s sworn assertions made to the Social Security

Administration (“SSA”) are relevant in assessing whether

the claimant is a qualified individual with a disability

under the Americans with Disabilities Act (“ADA”).

Regardless of whether the court applies judicial estoppel

or simply uses a traditional summary judgment analysis,

the Circuits uniformly make their decisions based upon

the claimant's assertions in light of all of the available

evidence. Thus, review by this Court of the present case

will not eradicate the need in the future for the case-by-

case factual analysis employed to resolve this and similar

claims.

I. The Circuit Split Is More Form Than Substance

The Third Circuit initially held that a plaintiff who

certifies total disability on an application for benefits is

judicially estopped from bringing an ADA claim.

McNemar v. Disney Store, Inc, 91 F3d 610 (3rd Cir 1996),

cert denied, ___ US ___, 117 SCt 958, 136 LEd2d 845 (1997).

In McNemar, the plaintiff was terminated from his posi-

tion as assistant manager for theft after divulging that he

was HIV positive. McNemar then applied for SSD bene-

fits and stated on the standardized application form that

he was totally disabled and unable to work as of five

weeks prior to his discharge. He made similar statements

on applications for forbearance of student loan payments

and state disability benefits. Shortly thereafter, McNemar

brought disability claims against Disney under the ADA

and state law. The district court dismissed the disability

claims on judicial estoppel grounds. The Third Circuit

affirmed. According to the Third Circuit “[c]learly

McNemar has asserted inconsistent positions regarding

his ability to work.” Id at 618. He certified in his applica-

tions for benefits that he was totally and permanently

disabled and unable to work and earn money; but in his

disability claims he stated he could perform the essential

functions of his job. Id. Accordingly, the court held that

the district court properly applied the doctrine of ‘udicial

estoppel.

In Krouse v. American Sterilizer Co, 126 F3d 494 (3rd

Cir 1997), Judge Becker, writing for a panel of the Third

Circuit, responded to the “considerable criticism” of the

McNemar decision and indicated that McNemar articu-

lated a relatively fact-specific holding. Id at 502 n3 and

503 n5. The district court in Krouse granted summary

judgment on the ground that the plaintiff was judicially

estopped from establishing the qualifications element of

his ADA claim. Although the Third Circuit affirmed on

different grounds, the court stated in a footnote that

“district courts in this circuit are misapplying McNemar

without first considering the unique facts of that case.” Id

at 503 n5. The court instructed that “[c]lourts should not

assume that McNemar always bars an individual’s ADA

claims merely because prior representations or deter-

minations of disability exist in the record.” Id. Another

footnote stated that “Judge Becker is persuaded .. . that

McNemar was wrongly decided, and believes that the

court should reconsider it at its first opportunity.” Id at

503 n4.

Taking into consideration the Krouse court’s discus-

sion of McNemar, it appears that no court of appeals has

adopted the position that a plaintiff who has claimed

total disability on a benefits application is per se

estopped from claiming he or she could work with rea-

sonable accommodations under the ADA. This is espe-

cially the case where the employer has admitted that the

empioyee can do the essential functions of the job.

Petition for Writ, p 4.

The District of Columbia Circuit has held that repre-

sentations on an application for disability benefits are

merely one piece of evidence that an ADA plaintiff is not

“qualified,” rather than an absolute bar. See Swanks v.

Washington Metro Area Transit Authority, 116 F3d 582 (DC

Cir 1997). In Swanks, the plaintiff, who suffered from

spinal bifida, sought and received SSD benefits after he

was fired from his job as a police officer with the Transit

Authority. Swanks then filed an ADA claim alleging that

the Authority refused to accommodate his disability and

then fired him because of it. The district court entered

summary judgment for the Authority because Swanks’

“disability determination renders [him] unqualified for

the position which he held either as it was or with a

reasonable accommodation ... .” Id at 584. The court of

appeals reversed.

The court of appeals began by outlining the SSD

application process. Id at 584-85. Under the Social Secu-

rity Act, an individual is entitled to disability benefits if

the claimant’s physical or mental impairment or impair-

ments are of such severity that the claimant is not only

unable to do the claimant’s previous work but cannot,

considering his age, education, and work experience,

10

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.

42 USC 423(d)(2)(A). The Social Security Act does not

address the effect of a reasonable accommodation on a

claimant’s disability status. In administering the Act, the

SSA has developed a five-step procedure for evaluation

of disability claims. 20 CFR 404.1520. The five steps are as

follows:

I. The SSA ascertains whether the claimant is

currently engaged in “substantial gainful activ-

ity.” If so, the agency denies the application. If

not, it proceeds to step two.

II. The agency determines whether the claim-

ant has a “severe” impairment. If not, the appli-

cation is denied. If so, the agency proceeds to

step three.

III. The agency checks whether the impairment

is listed as presumptively disabling in the regu-

lations. If the claimant’s condition is listed, the

agency awards with no further inquiry. If the

condition is not listed, the agency proceeds to

step four.

IV. The agency determines whether the claim-

ant is able to perform his past work. If so, bene-

fits are denied. If not, the agency proceeds to the

final step.

V. Considering the claimant’s age, educational

experience, past work experience, and residual

functional capacity, the agency determines

whether the claimant can do “other work,” i.e.,

jobs “that exist in significant number in the

national economy.” 20 CFR 1560(c). If so, the

seanemesiaiiiiiiiiiiiiiiiaaiiiiiias

11

agency deries the application. If not, the agency

awards benefits. In fact, under the fifth step, for

a claimant who has shown that he or she cannot

perform past relevant work, the SSA will find

that claimant disabled for Social Security bene-

fits even if the claimant can perform the full

range of unskilled sedentary and light work, as

defined under 20 CFR 404.1567 (a) and (b), if the

claimant is over 55 years old and has less than a

high school education and has done unskilled

work. See Rules 201.01 and 202.01, Appendix 2,

20 CFR Part 404. In addition, under 20 CFR

404.1592(a), a beneficiary of SSD benefits may

engage in a trial work period for up to nine

months, to see if the person is capable of work-

ing, while still receiving full Social Security dis-

ability benefits.

The SSA has issued an Information Memorandum

explicitly stating that, for the purpose of the fifth step

assessment, “[w]hether or how an employer might be

willing (or required) to alter job duties to suit the limita-

tions of a specific individual would not be relevant.”

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

Mem at 3, (June 2, 1993) (No SG3P2). The Memorandum

also stresses that “[h]ypothetical inquiries about whether

an employer would or could make accommodations that

would allow return to a prior job would not be appropri-

ate.” Id.

The Swanks court pointed out that “[nJowhere in this

five-step process does the Social Security Administration

take account of the possible effect of reasonable accom-

modation on a claimant's ability to work.” Swanks, 116

F3d at 585. A claimant can be found disabled at the third

step if she has a “listed” impairment, with no inquiry into

12

her actual ability to work. In addition, a claimant can be

deemed eligible for benefits at the fifth step, where the

inquiry focuses on the general availability of particular

types of work and not on whether a reasonable accom-

modation would enable a claimant to work. In short, an

individual can meet the requirements for SSD eligibility

and still be a “qualified individual with a disability”

under the ADA. The Swanks court recognized that there is

no inherent inconsistency. Both the SSA and the EEOC

have taken the position that there is no inherent inconsis- |

tency. See Swanks, id at 586. |

gc entree OR AE SERN lena

The Swanks court declined to apply estoppel in all

such cases in favor of a case-by-case inquiry that exam-

ines the specific statements a disability discrimination

plaintiff makes in connection with applications for dis-

ability benefits.

In Cleveland v. Policy Mgmt Sys Corp, 120 F3d 513 (5th

Cir 1997), petition for cert filed, 66 USLW 3435 (US Dec 15,

1997) (No 97-1008) the Fifth Circuit held that there is a

“rebuttable presumption” that an applicant for or recip-_

ient of SSD benefits is not a “qualified individual with a

disability.” Id at 518. (Emphasis added) The court stopped

short of holding that all SSD applications should create

an estoppel. “It is at least theoretically conceivable that

under some limited and highly unusual set of circum-

stances the two claims would not necessarily be mutually

exclusive ...” Id at 517. In Dush v. Appleton Elec Co, 124

F3d 957 (8th Cir 1997), the Eighth Circuit ruled that an

ADA plaintiff who had characterized herself as “totally

disabled” in a previous workers’ compensation proceed-

ing failed to present evidence showing she was a “quali-

fied individual with a disability.” The court declined to

A AEE

i tt,

Pt RM TT OME er pee ee |

13

hold that judicial estoppel precluded all such plaintiffs

from proceeding with an ADA claim.

Still other courts of appeals presented with this ques-

tion have limited themselves to the facts of their cases,

without articulating any broad rules. See D’Aprile v. Fleet

Servs Corp, 92 F3d 1, 4, (1st Cir 1996) (ADA plaintiff’s

statements on application for disability benefits “may not

have constituted [a] broad admission of incapacity,” so

the ADA claim was not automatically barred); Weigel v.

Target Stores, 122 F3d 461, 466-67 (7th Cir 1997) (explain-

ing that an SSA total disability determination, while rele-

vant, is not dispositive of the issue of an ADA claimant's

status as a “qualified individual with a disability”). See

EEOC Enforcement Guide entitled “Effect of Representa-

tions Made in Applications for Disability Benefits on the

Determination of Whether a Person is a ‘Qualified Indi-

vidual With a Disability’ Under the Americans with Dis-

abilities Act of 1990 (ADA),” reprinted in BNA’s

Americans With Disabilities Act Manual No 62 at 70:1251;

http:/ /www.eeoc.gov/docs/qidreps.txt.

II. The Sixth Circuit’s Holding Is Reasonable And

Appropriate

The Sixth Circuit Griffith decision is completely con-

sistent with the holdings of its sister circuits that a certi-

fication of total disability on an SSD benefits application

is not inherently inconsistent with being a “qualified

individual with a disability” under the ADA. See Talavera

v. School Board of Palm Beach Cty, 129 F3d 1214 (11th Cir

(997). This is especially the case where the employer, as

Wal-Mart did in this case, has admitted that the employee

14

can do the essential functions of the job. Petition, p 4.

Indeed, it is difficult to understand how, in a reasoned

legal environment, a corporation can admit, as Wal-Mart

has repeatedly done in this case, that an employee can

do the essential functions of the job and yet try to argue

with a straight face that it is entitled to summary judg-

ment on the purported basis that there is no genuine

issue of material fact that the employee can do the

essential functions of the job.

The Griffith decision is completely consistent with

and mandated by Sixth Circuit law. The issue of judicial

estoppel had already been decided in Mr. Griffith’s favor.

In Blanton v. Inco Alloys Int'l, Inc, 123 F3d 916, 917 (6th Cir

1997), the Sixth Circuit held:

“We agree with the DC Circuit’s opinion in

Swanks v. Washington Metropolitan Area Transit

Authority, 116 F3d 582 (DC Cir 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 prior sworn statements by the

parties as a material factor.”

Judicial estoppel does not apply where the prior pro-

ceeding was an uncontested nonadversarial administra-

tive proceeding. Edwards v. Aetna Life Ins Co, 690 F2d 595,

598 (6th Cir 1982). Social Security administrative proceed-

ings are not adversarial. Sullivan v. Hudson, 490 US 877,

891, 109 SCt 2248, 2257, 104 LEd2d 941 (1989); Willis v.

Sullivan, 931 F2d 390, 400 (6th Cir 1991).

The issue in the Griffith case is whether there is a

genuine issue of material fact that Mr. Griffith could do

his Wal-Mart hardware department job. Wal-Mart says he

15

could. Larry Greer was Mr. Griffith’s Store Manager.

Store Manager Greer confirms that:

“Q. Were there any problems with Mr. Griffith's

job performance in the Hardware Department?

A. No, sir.” (Apx 763°

Store Manager Greer further testified that:

“QO. Were there ever any complaints of Mr.

Griffith while he worked in the Hardware

Department?

A. Not that I can remember at this point, no.”

(Apx 768)

* + a

“A. He could do the Hardware job as I under-

stand it, the way we modified it, he had no

problem doing it the way we had modified the

job.” (Apx 768) (Emphasis added)

“Q. So Mr. Griffith always gave what you were

looking for?

A. Yes, sir.

Q. You never received any complaints about

Mr. Griffith’s job performance?

A. I personally did not, no, sir.

Q. Or heard of any complaints?

A. About his job performance?

©. Yes, sir.

A. No, sir.” (Apx 759, District Manager Jim

Coln)

“He did the things that he was supposed tc

be doing in the Hardware Department.” (Apx

16

849; Asst. Store Manager Steve Kissabeth)

(Emphasis added)

In September 1992, Wal-Mart transferred Mr. Griffith ~

from the hardware department to the sporting goods

department. Wal-Mart has given inconsistent reasons for

this transfer. Wal-Mart told the EEOC on March 15, 1993:

“Charging Party moved to Sporting Goods in

October [1992] to help during the hunting/fish-

ing seasons .. . .” (Apx 355)

Wal-Mart's district manager Jim Coln testified:

“Q. So basically Mr. Greer told you that Mr.

Griffith was being transferred to Sporting

Goods, department nine, to accommodate Mr.

Griffith because of the lifting restrictions?

A. Yes. Mr. Griffith had doctor’s restrictions on

what he could lift.” (Apx 752)

The “inconsistency” of these statements and reasons

are evidence of discrimination. Tinker v. Sears, Roebuck &

Co, 127 F3d 519, 523 (6th Cir 1997), Edwards v. US Postal

Service, 909 F2d 320, 324 (8th Cir 1990), Schmitz v. St. Regis

Paper Co, 811 F2d 131, 132-133 (2nd Cir 1987).

ede Gone SOB Main A ar ir At Riko aw en bet eat armen —

After the discriminatory transfer to the sporting

goods department, Mr. Griffith’s attorney protested this

disability discrimination to Store Manager Larry Greer on

September 21, 1992. (Apx 148-149) Hardly a month later,

Wal-Mart fired Mr. Griffith for pretextual reasons. A per-

son's status as a “qualified individual with a disability” is

not relevant in assessing the person’s claim for retaliation

under the ADA. Krouse v. American Sterilizer Co, 126 F3d

494 (DC Cir 1997); Brewer v. Petroleum Suppliers, 946 F

Supp 926 (ND Al 1996); 42 USC 12203(a).

chet toe

ili alia

17

After the discharge, Mr. Griffith attempted to get

vocational training. (Apx 538)

When Mr. Griffith finally applied for Social Security

disability the Disability Report indicated:

“DISABILITY REPORT:

Explain how your condition now keeps you

from working?

No employer will hire me because of my condi-

tion and restrictions.” (Apx 551)

The Remarks Section indicated:

“Due to my back condition, I would like to

claim benefits until I finish my education at

Northern Kentucky University. With all of my

restrictions, no employer will hire me. I have

apply at least thirty employers and somebody

else got hire, who was in excellent health and

have no limitation.” (Apx 556)

The Social Security Administration indicated on

August 30, 1993:

“The claimant said his problems with depres-

sion began in September of 1988 when his

mother died. He said his condition has wors-

ened in the past 3-4 months because he can’t

find a job. He said people have turned him

down because of his lower back injury. He said

he has applied for jobs he felt he could do then

never heard anything or he has been told he

would be a liability to them.” (Apx 571)

Based on Wal-Mart’s admissions that Mr. Griffith

could do the hardware department job and Mr. Griffith’s

statements in his Social Security documents that he was

18

looking for work and was unable to work because

employers turned him down, a reasonable jury could find

that Mr. Griffith was qualified for his hardware depart-

ment job.

A reasonable jury could find that Mr. Griffith was

qualified to do the essential functions of his Wal-Mart job

for the simple reason that Wal-Mart admits that Mr.

Griffith could do the job. The Sixth Circuit did nothing

other than comply with Civil Rule 56 in holding that

there were genuine issues of material fact in light of Wal-

Mart’s consistent admissions that Mr. Griffith could do

the essential functions of his Wal-Mart job.

+

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Lee HorRNBERGER

Counsel of Record

910 Mercantile Library Bldg.

414 Walnut Street

Cincinnati, Ohio 45202-3906

(513) 723-1195

(513) 241-7863 Fax

Of Counsel

Marco GRuBBS

HorrMAN, HOFFMAN & GruBBS

98 Garvey Avenue

Elsmere, Kentucky 41018

(606) 342-9029

Attorneys for Respondent