# Opposition Brief — Wal-Mart Stores, Inc. v. Griffith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1679%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1144 ## Text 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 ‘ : : : ' $ : 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1679%3A2. Public record. Not legal advice.