Petition for Writ of Certiorari — U-Haul Co. v. Kunkle

881097 sane 1999

No. 98- —— OFFICE OF THE CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1998

U-HAUL Co. OF CLEVELAND,

. Petitioner,

LEE KUNKLE,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN G. ROBERTS, JR.*

DAVID G. LEITCH

AUDREY J. ANDERSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5810

RONALD J. JAMES

PATRICIA A. LANTZY

RAYMOND KRNCEVIC

SQUIRE, SANDERS & DEMPSEY

L.L.P.

4900 Key Tower

127 Public Square

Cleveland, Ohio 44114

(216) 479-8500

* Counsel of Record Counsel for Petitioner

WILSON - Erzs PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

This petition presents the same two questions on which

the Court granted certiorari in Cleveland v. Policy Man-

agement Systems Corp., No. 97-1008:

1. Whether the application for, or receipt of, disability

insurance benefits under the Social Security Act, 42 U.S.C.

§ 423, creates a rebuttable presumption that the applicant

or recipient is judicially estcpped from asserting that he is

a “qualified individual with a disability” under the Ameri-

cans with Disabilities Act of 1990, 42 U.S.C. § 12101,

et seq.

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

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

receipt of, disability insurance benefits when a person

asserts he is a “qualified individual with a disability”

under ADA?

(i)

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner U-Haul Co. of Cleveland, a defendant in the

District Court and appellant in the United States Court

of Appeals for the Sixth Circuit, is a wholly owned sub-

sidiary of U-Haul International, which is in turn a wholly

owned subsidiary of AMERCO. Petitioner has no non-

wholly owned subsidiaries.

Respondent Lee Kunkle was plaintiff in the District

Court and appellee in the Court of Appeals.

ee

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING AND RULE 29.6

REE ERT VERE DB ae RCE Lee ii

pe ge Nig sg 5) EOC Oe ed v

I ik 1

etic a laa ae A a aaa 1

STATUTORY PROVISIONS INVOLVED ......__ 2

i eT TE ETERS “iO Naa 2

STATEMENT OF THE CASE ...................... 3

) REASONS FOR GRANTING THE WRIT ......__ 6

EES re RE 10

APPENDICES

APPENDIX A:

Opinion of the Court of Appeals for the Sixth

Circuit, dated September 16,1998... is la

APPENDIX B:

Opinion of the United States District Court for

the Northern District of Ohio on summary judg-

ment, dated June 3, 1996 13a

APPENDIX C:

Order of the United States District Court for

the Northern District of Ohio, dated June 3,1996.. 20a

APPENDIX D:

Opinion of the United States District Court for

the Northern District of Ohio on post-trial mo-

tions, dated April 4, 1997 sisciclanhiniiehaiemindisikictcianises 2la

(iii)

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX E:

Order of the United States District Court for the

Northern District of Ohio, dated April 4, 1997... 35a

APPENDIX F:

Order of the United States Court of Appeals for

the Sixth Circuit on motion to hold petition for

rehearing en banc in abeyance, dated November

SOs SE Sereadiceataiaadtineticesecticeinectencemninec dieksatt neue 36a

APPENDIX G:

Order of the United States Court of Appeals for

the Sixth Circuit denying rehearing and rehearing

en banc, dated November 24, 1998 87a

APPENDIX H:

Statutory Provisions Involved .................................. 39a

v

TABLE OF AUTHORITIES

CASES Page

Aldrich v. Boeing Co., 146 F.8d 1265 (10th Cir.

1998), pet. for cert. filed, 67 U.S.L.W. 33876

(U.S. Nov. 23, 1998) (No. 98-859) 000... 9

Blanton v. Inco Alloys Int'l, Ine., 123 F.3d 916

(6th Cir. 1997), supplementing 108 F.3d 104

Ce Ss re ics i. 5, 6, 8

Cleveland v. Policy Management Systems Corp.,

120 F.3d 513 (5th Cir. 1997), cert. granted, 119

i SA MED dcicccentah ipa Dnetedcensisoieneip ieneartteiaee ed 2.7.3

Griffith v. Wal-Mart Stores, Inc., 185 F.3d 376

(6th Cir. 1998), pet. for cert. filed, 66 U.S.L.W.

3800 (U.S. June 9, 1998) (No. 97-1991) _.......... 6, 8,9

Keever v. City of Middletown, 145 F.3d 809 (6th

Cir.), cert. denied, 119 S. Ct. 407 (1998) ........ 8

Moore V. Payless Shoe Source, Inc., 139 F.3d 1210

(8th Cir. 1998), pet. for cert. filed, (U.S. July

a —) REE Oe Oe 9

Morton v. GTE North, Inc., 922 F. Supp. 1169

(N.D. Tex. 1996), aff'd, 114 F.3d 1182 (5th

Cir.), cert. denied, 118 S. Ct. 205 (1997)... 5

Overton V. Reilly, 977 F.2d 1190 (7th Cir. 1992) 5

Rascon v. US West Communications, Inc., 148 F.8d

GR RRR RR ay aN 7

Ross Vv. Indiana State Teacher’s Ass’n Ins. ‘Trust,

159 F.3d 1001 (7th Cir. 1998), pet. for cert.

filed, 67 U.S.L.W. 3394 (U.S. Dec. 2, 1998)

Rs RE OR AE SS CO 9

Swanks v. Washington Metropolitan Area Transit

Auth., 116 F.3d 582 (D.C. Cir. 1997) .............. 6

STATUTES

Neste ce pag.) ED SNC RESID TEE TAR

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I ia is sicchtocsniiva inizsinetesaeacobaniiblonslainns

I ii aa tisiantsi iat ceding hccaneanlestibenicameass

oe Uae 6 Ghote) (2) (A)

48 UBC. § 428 (Gd) (2) (A) cnn csceseeeceneee

NNWNNW NW DN DY

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vi

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. § IR101 of eeg. ............................... 2

seed XT ME ee | 2

the | ER ETEMET OS SS Nee 2

iP AI cenit elie, ek nh wn 2

ne

In THE

Supreme Court of the United States

OCTOBER TERM, 1998

No. 98

U-HauL Co. oF CLEVELAND,

. Petitioner,

LEE KUNKLE,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner U-Haul Co. of Cleveland (“U-Haul”) respect-

fully petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Sixth Circuit

in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is unreported and

is reproduced in the appendix hereto (“App.”) at la.

The opinion of the District Court denying U-Haul’s post-

trial motions is unreported and reproduced at App. 21a.

The opinion of the District Court on U-Haul’s motion for

summary judgment is unreported and reproduced at

App. 13a.

JURISDICTION

The judgment of the Court of Appeals was entered on

September 16, 1998. App. la. A timely petition for

2

rehearing with suggestion for rehearing en banc was denied

on November 24, 1998. App. 37a. The jurisdiction of

the District Court was based on 28 U.S.C. §§ 1331, 1343,

and 1367, see App. 13a, and the jurisdiction of the Court

of Appeals was based on 28 U.S.C. § 1291. The juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The provisions of 42 U.S.C. §§ 423(d)(1)(A), 423

(d)(2)(A), 12102(2), 12111(8), and 12112(a) are

reproduced in Appendix H, beginning at App. 39a.

INTRODUCTION

In successfully seeking disability benefits under the

Social Security Act and from a private insurance com-

pany, respondent Lee Kunkle (“Kunkle”) represented

that he was totally disabled from employment. Thereafter,

however, Kunkle filed suit claiming that he was qualified

to perform the duties of his job at U-Haul and had been

discharged in violation of the Americans With Disabilities

Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The

courts below rejected U-Haul’s claims that Kunkle was

judicially estopped from pursuing his ADA action as a

result of his earlier claims of total disability and his con-

tinuing receipt of disability insurance benefits.

The question presented in this case—the effect on ADA

litigation of earlier claims of total disability in seeking

insurance benefits—is currently pending before this Court.

In Cleveland v. Policy Management Systems Corp., No.

97-1068, the Court granted certiorari to resolve the dis-

array in the courts of appeals over the appropriate impact

of an employee’s application for, or receipt of, disability

insurance benefits under the Social Security Act, 42 U.S.C.

§ 423, on the employee’s suit alleging a violation of the

ADA. Because this case presents the same issues the

3

Court will consider in Cleveland, and will likely be re-

solved by this Court’s decision in that case, the Court

should defer consideration of this petition until it issues

its decision in Cleveland, and then dispose of this petition

as appropriate in light of that decision.

STATEMENT OF THE CASE

In January 1994, respondent Kunkle was Shop Man-

ager of U-Haul’s repair shop in Akron, Ohio, when he was

diagnosed with lung cancer. App. 2a. Kunkle had surgery

to remove his left lung on February 11, 1994, and it was

expected that he would miss six weeks of work. App. 2a,

14a, 23a. On February 24, 1994, Kunkle’s wife applied

on his behalf for disability benefits under a private insur-

ance policy that conditioned benefits on a finding that the

policyholder was unable to perform “every duty of [his]

occupation.” Def. Ex. J; Ct. App. J.A. at 1094. In the

application, Kunkle’s surgeon certified that he was “totally

disabled” as of February 7, 1994, App. 2a. The applica-

tion was granted and Kunkle started receiving payments

in March 1994, App. 2a.

Kunkle’s recovery from surgery did not go as smoothly

as hoped. After his surgery, Kunkle lapsed into a life-

threatening coma and remained on a respirator for the

next eight weeks. App. 14a. As the District Court ex-

plained, Kunkle “was diagnosed with adult respiratory

distress syndrome and had only a 5% chance of survival.”

App. 23a. Nevertheless, Kunkle emerged from his coma

and was eventually discharged from the hospital in late

May 1994. App. 3a, 23a. “He * * * remained in serious

condition. He was bedridden, required supplemental oxy-

gen, breathed through a trachea tube, and ate through a

stomach tube.” App. 3a. “{H]e had lost more than sixty

pounds.” App. 23a.

Three months into Kunkle’s absence from work, and

while his physical condition was stil] quite grave, U-Haul

was compelled to take steps to fill his position at the

4

Akron facility. Kunkle’s position as Shop Manager was

filled by Terry Mislevy, who had eighteen years of ex-

perience with U-Haul, and a mechanic in the shop was

named to the new position of Shop Foreman to assist

Mislevy. App. 23a.

Kunkle applied for disability insurance benefits with

the Social Security Administration at about this same time,

on May 21, 1994. App. 2a. In support of his applica-

tion, he stated that he “ ‘became unable to work because

of [his] disabling condition on February 11, 1994.’”

App. 2a. The application was granted in July 1994 and

Kunkle began receiving monthly disability benefits of

$1088 in August of that year. App. 2a, 14a. Also in

August 1994, Kunkle was diagnosed with inoperable can-

cer in his left chest wall, and underwent “a two-month

regimen of outpatient radiation and an intensive three-

month cardio-rehabilitative program.” App. 3a.

In January 1995—eleven months after he initially left

U-Haul for what was expected to be a six week absence—

Kunkle informed his supervisor, U-Haul President J.P.

White, that he was ready to return to work. At a meeting

one weck later with White and Mislevy, Kunkle was

offered the chance to return to U-Haul as Shop Manager

in its Cleveland facility, but said he was not interested

because he did not want to commute to Cleveland. App.

3a-4a. Kunkle therefore was named Shop Foreman at the

Akron facility, returning to work on February 1995 at

the same salary he had received as Shop Manager before

his year-long absence. App. 4a. He continued to receive

Social Security disability benefits despite his return to

employment with U-Haul. App. 4a.

The job of Shop Foreman to which Kunkle had returned

was more physically demanding than the Shop Manager

position he previously held, and which he had declined

when it was offered to him in January 1995. Kunkle had

difficulty performing some of the physical tasks associated

with his new position, particularly requiring assistance

5

when operating the shop’s battery changing station. App.

4a-Sa, 24a. In addition, “Kunkle experienced difficulty

breathing and occasionally went to his truck to retrieve

oxygen.” App. 9a. White discharged Kunkle on March

20, 1995, telling Kunkle that he was “not physically capa-

ble of doing th[e] job.” App. Sa.

Kunkle filed this action in August 1995, alleging, inter

alia, a violation of the ADA. U-Haul moved for summary

judgment, asserting that “Kunkle cannot prevail on his

claim because, by receiving Social Security benefits while

he returned to work, he is estopped from asserting that he

was qualified to perform his work.” App. 17a. The Dis-

trict Court rejected this argument, Stating without more

that “representations by a plaintiff that he is entitled to

disability benefits [are] not dispositive of whether he is

not qualified to work.” App. 17a (citing Overton v.

Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992); Morton v.

GTE North, Inc., 922 F. Supp. 1169 (N.D. Tex. 1996),

affd, 114 F.3d 1182 (5th Cir.), cert. denied, 118 S. Ct.

205 (1997)).

After trial, a jury returned a verdict against U-Haul in

the amount of $950,000. U-Hau' filed a motion for judg-

ment as a matter of law, asserting as the “primary basis”

for that motion its argument that “Kunkle is estopped

from being a ‘qualified individual with a disability’ by

statements that he and his physician made to the Soc’ al

Security Administration and his private insurance carrier.”

App. 25a. The District Court again rejected U-Haul’s

estoppel argument. App. 25a-26a.

U-Haul appealed to the Sixth Circuit, and again raised

its argument that Kunkle was judicially estopped from

claiming to be a qualified individual in light of his earlier

claims of total disability and his continued receipt of dis-

ability benefits. While the case was on appeal, the Sixth

Circuit issued its decisions in Blanton v. Inco Alloys Int'l,

Inc., 123 F.3d 916 (6th Cir. 1997,, supplementing 108

F.3d 104 (6th Cir. 1997), and Griffith v. Wal-Mart Stores,

6

Inc., 135 F.3d 376 (6th Cir. 1998), pet. for cert. filed,

66 U.S.L.W. 3800 (U.S. June 9, 1998) (No. 97-1991).

In Blanton, the Court of Appeals noted its agreement with

the D.C. Circuit’s decision in Swanks v. Washington

Metropolitan Area Transit Auth., 116 F.3d 582 (D.C.

Cir. 1997), which it viewed as holding that “the receipt

of disability benefits does not preclude subsequent ADA

relief,” and “reject[ing] the doctrine of judicial estoppel,

but * * * allow[ing] the consideration of prior sworn

Statements by the parties as a material factor.” 123 F.3d

at 917. Griffith reiterated that, under Blanton, “state-

ments made in an application for Social Security disability

benefits, while relevant, do not result in judicial estop-

pel.” 135 F.3d at 382. Instead, the court held, such

statements should be “analyzed under traditional summary

judgment principles.” Jd. at 383.

Thus, by the time this case was argued in the Sixth

Circuit, that court had squarely rejected U-Haul’s claim

that Kunkle’s action was barred by judicial estoppel, and

U-Haul recognized at oral argument that Sixth Circuit

case law was now against this position. Based on this

“concession,” the Sixth Circuit found that it “need not

address the merits of U-Haul’s argument that Kunkle

should be judicially estopped from asserting that he is

‘otherwise qualified’ within the meaning of the ADA.”

App. Ila. The court did not address U-Haul’s argument

that, under Blanton and Griffith, Kunkle’s statements con-

cerning his disability were nonetheless pertinent to U-Haul’s

claim that it was entitled to judgment as a matter of law.

U-Haul’s timely petition for rehearing with suggestion

for rehearing en banc was denied on November 24, 1998.

App. 37a.

REASONS FOR GRANTING THE WRIT

There is no dispute that the issue involved in this case

is the subject of substantial conflict among the courts of

appeals. As the Solicitor General said in response to this

Court’s invitation to provide the views of the United

7

States on the petition in Cleveland, “{t\he courts of ap-

peals are in considerable disarray over the impact that an

employee's application for or receipt of Social Security

disability benefits should have on the employee's claim

under the ADA.” Brief for the United States as Amicus

Curiae at 7-8, Cleveland v. Policy Management Systems

Corp., No. 97-1008 (filed July 1998)... The Solicitor

General noted the existence of at least four different

views in the courts of appeals on this issue, id. at 8-10,

and urged the Court to grant the petition. Jd. at 7. The

Court did just that. The case is now being briefed and

has been set for argument on February 24, 1999.

The conflict that will be resolved in Cleveland is

squarely presented in this case. At each step of the pro-

ceedings below, U-Haul asserted that Kunkle was judi-

cially estopped from pursuing his ADA action by the

claims of total disability he made when successfully pur-

suing disability insurance benefits. See, e.¢., App. 10a-

Ila; 17a; 25-26a. Uaul also claimed that, even if

judicial estoppel disi not operate as a per se bar to Kunkle’s

action, Kunkle’s assertions that he was totally disabled

demonstrated (J-Haul’s entitlement to judgment as a mat-

ter of law. See, e.g., Final Brief of Defendant-Appellant

at 18-22; Final Reply Brief of Defendant-Appellant at

2-3.2, While there may be some confusion in the Sixth

1 See, e.g., Rascon v. US West Communications, Inc., 142 F.3d

1324, 1330-32 (10th Cir. 1998) (recognizing “varying views of

other circuits” on ADA judicial estoppel question).

2 See also Final Brief of Defendant-Appellant at 22 (“Regardless

of whether one applies the rule that a totally disabled plaintiff is

precluded from bringing an ADA claim because as a matter of law

he is not a ‘qualified individual’ or instead applies the rule that

representations of disability are merely ‘material factors,’ it is

illogical and inconsistent with all the authorities cited * * * to

permit the plaintiff in this case to prevail on these facts.”)-: Peti-

tion of U-Haul Co. of Cleveland for Rehearing and Suggestion for

Rehearing En Banc (“Reh. Pet.”) at 6 (arguing that, while per se

Circuit’s cases about the weight to be given such claims

of disability,’ there can be no dispute that U-Haul has

consistently maintained that Kunkle’s admissions—even if

not controlling—were entitled to some weight.

It is also clear that the outcome of this case is likely

to be affected by the Court's disposition of Cleveland.

The respondent in Cleveland has defended the Fifth Cir-

cuit’s holding that “the application for or the receipt of

social security disability benefits creates a rebuttable pre-

sumption that the claimant or recipient is judicially

estopped from asserting that he is a ‘qualified individual

with a disability.” Cleveland vy. Policy Management

Systems Corp., 120 F.3d 513, 518 (Sth Cir. 1997) (em-

phasis in original). See, e.g., Brief in Opposition at 7-8,

Cleveland v. Policy Management Systems Corp., No. 97-

1008. Petitioner in Cleveland, along with the United

States and EEOC as amici curiae, have argued against a

rebuttable presumption, but recognize that statements

concerning disability may be considered as evidence in a

subsequent ADA action.*

No matter which of these views—or some other view—

is adopted in Cleveland, the Sixth Circuit's decision will

likely have to be reconsidered in light of this Court’s guid-

ance on the question. The Sixth Circuit's opinion below

rejected application of a per se rule of judicial estoppel,

judicial estoppel was foreclosed by prior Sixth Circuit decisions,

“(t]he trial court, and the panel, should * * * have granted U-Haul

judgment as a matter of law based upon plaintiff’s continued claims

of total disability”).

3 See Reh. Pet. at 7-8 ( discussing various standards articulated

in Blanton, Griffith, and Keever v. City of Middletown, 145 F.2d

809, 813 (6th Cir.), cert. denied, 119 S. Ct. 407 (1998) ).

* Brief for Petitioner at 18, Cleveland v. Policy Management

Systems Corp., No. 97-1008; Brief for the United States and the

Equal Employment Opportunity Commission as Amici Curiae Sup-

porting Petitioner at 6, Cleveland v. Policy Management Systems

Corp., No. 97-1008.

9

and—although it did not expressly address the evidentiary

effect on an ADA action of prior statements of disability—

rejected U-Haul’s argument that giving such statements

appropriate evidentiary weight required judgment in

U-Haul’s favor as a matter of law. Once this Court has

established the proper evidentiary effect of such statements

in Cleveland, the Court should dispose of the petition in

this case by granting the petition, vacating the decision

below, and remanding the case for further consideration in

light of the Court’s opinion in Cleveland.

In the meantime, the Court should defer consideration

of this petition. That appears to be the course the Court

is following with respect to other petitions that also present

the questions at issue in Cleveland 5

5 See, ¢.g., Griffith, supra (cert. petition filed June 9, 1998);

Moore v. Payless Shoe Source, Inc., 139 F.3d 1210 (8th Cir. 1998),

pet. for cert. filed (U.S. July 20, 1998) (No. 98-5286). See also

10

CONCLUSION

For the foregoing reasons, this Court should defer con-

sideration of this petition until it issues its decision in

Cleveland v. Policy Management Systems Corp., and then

dispose of this petition as appropriate in light of that

decision.

Respectfully submitted,

JOHN G. ROBERTS, JR.*

DAVID G. LEITCH

AUDREY J. ANDERSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5810

RONALD J. JAMES

PATRICIA A. LANTZY

RAYMOND KRNCEVIC i

SQUIRE, SANDERS & DEMPSEY

L.L.P.

4900 Key Tower

127 Public Square

Cleveland, Ohio 44114 ;

(216) 479-8500

* Counsel of Record Counsel for Petitioner :