Opposition Brief — U-Haul Co. v. Kunkle

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No. 98-1097

IN THE

Supreme Court of the United States

OCTOBER TERM 1998

U-HAUL Co. OF CLEVELAN D,

Petitioner,

LEE KUNKLE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION TO

FETITION FOR A WRIT OF CERTIORARI

EDWARD L. GILBERT

EDWARD L. GILBERT Co., LPA

7 W. Bowery Street

Suite 706

Akron, Ohio 44308

(330) 376-8855

Counsel for Respondent

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. + 1-800-347-8208

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............2..

STATUTORY AND REGULATORY PROVISIONS

SOUND Sh OAS Shih gages rita gs

REASONS AGAINST GRANTING THE WRIT

I. This Is Not Even A Judicial Estoppel Case .

Il. Petitioner Waived Judicial Estoppel .....

SRE en Sos se Aine 2 ale

EXCERPTS FROM PETITION OF U-HAUL CO. OF

CLEVELAND FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC.

Ph Sie tickiin is «Stata ies ae

AFFIDAVIT OF RONALD J. JAMES, (as attached to

REPLY OF U-HAUL OF CLEVELAND TO

KUNKLE OPPOSITION TO U-HAUL (sic)

MOTION FOR RECALL OF MANDATE)

. A-8

TABLE OF AUTHORITIES

Page(s)

CASES

Blanton v. Inco Alloys Int'l, Inc., 123 F.3d 916 (6th

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

EDST) no eh eid ks ce ees 7

Cleveland v. Policy Management Systems Corp., 120

F.3d 513 (Sth Cir. 1997), cert. granted, 119

S.Ct. 39 (1998)(No. 97-1008) .......... 4,5, 6

Griffith v. Wal-Mart Stores, 135 F.3d 376, 382 (6th

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

3800 (U.S. June 9, 1998) (No. 97-1991) ..... 6, 7

Marrello v. Chemical Bank, 923 F.Supp. 487, 492

B.DN.Y. TRO) wo OR are eres 5

STATUTES

2 UA, GRR bs cscs 0 oe hd Ode eee 5

42 U.S.C. §423(G@)(2M(A) . 0 ee eee eee 4

2 USC. GEZEREC 0-8 es 3 oes ore e ee coe 4

REGULATIONS

OCP RR. GO. Te sie ee eee 5

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

42 U.S.C. §422(c) and 20 C.F.R. §404.1592(a) are

reproduced in the Appendix hereto. 42 U.S.C. §§423(d)(2)(A)

and 121i1(8) are reproduced in Petitioner’s Appendix H to I.

STATEMENT OF THE CASE

Respondent Lee Kunkle started working for Petitioner

U-Haui in 1963, and by 1990 he had worked his way up

through the job of foreman, all the way up to shop manager.

See Petitioner’s App. 2a. In February 1994, however,

Respondent developed lung cancer, underwent surgery, and

had a lung removed. He then went into a coma, and lay ona

respirator for two months. During this period, Kunkle’s wife

applied for disability benefits from Oxford Life. Petitioner’s

App. 2a. Kunkle’s prognosis at that point was “extremely

poor. Ninety-five percent . . . of patients in that situation

die.” Ct. App. Jt. App. p. 279, Tr. 25 (Dr. Lonsdorf).

Mr. Kunkle emerged from the coma. However, the

cancer reappeared in August. By the end of September,

Kunkle had completed the radiation treatment necessitated by

this setback. Petitioner’s App. 3a. In the interim, he applied

for social security disability benefits (May) and started

receiving them (August). Petitioner’s App. 2a.

Throughout the entire period of Respondent's illness,

Mr. White at U-Haul repeatedly promised him and his wife

that Mr. Kunkle could return to work whenever he was able.

Ct. App. Jt. App. pp. 465-66, Tr. 64-65 (White), Ct. App. Jt.

App. P. 568, Tr. 427 (Mrs. Kunkle).'

By February, Kunkle’s rehabilitation was complete and

he was raring to take White up on his promise and return to

' Also, the company policy allowed a one-year medical leave.

Ct. App. Jt. App. pp. 451, 53, 54, Tr. 39-41 (white).

work. See Ct. App. Jt. App. p. 530, Tr. 290. Accordingly,

Oxford Life stopped his disability benefits; and Social

Security, while continuing his benefits, switched him over to

its trial work program. See Petitioner’s App. 4a.

In Kunkle’s absence, Petitioner had hired Terry Mislevy

to replace Respondent as shop manager. Petitioner had also |

William Folk as shop foreman, with the understanding that |

Kunkle would bump him down if and when Kunkle ever |

returned to work. Petitioner’s App. 2a. (But see Petitioner’s

App. 5a: Instead of bringing Kunkle back as manager,

Petitioner brought him back to the more physically demanding

job of foreman in order to “set [him] up for termination.” In

fact, when Kunkle returned, Mislevy instructed Folk to keep

his shop foreman’s uniform; Folk might need it in a month.)

Thus, when Kunkle returned to work on February 15,

199%, he returned as shop foreman, albeit at his previous rate

of pay. Petitioner’s App. 4a. The shop foreman’s job was

more physical, requiring, according 1o the job description,

lifting minimum 50 pounds. Petitioner’s App. 3a.

Five weeks later, on March 20, 1995, Mr. White fired

Mr. Kunkle. White articulated what he repeatedly insisted

was the sole reason for the discharge: Kunkle was not

physically capable of moving batteries, and he was not

physically capable of moving tires, particularly “JH” tires that

weighed 150 pounds. Petitioner’s App. Sa.

Kunkle was dumbfounded. The foreman’s job did not

require, nor had anyone ever asked him to move a tire.

Petitioner’s App. 9-10a. True, if the job had required it,

Kunkle — with only one lung — could not have lifted it

singlehandedly. But each tire weighed 150 pounds. So no

one could lift a tire singlehandedly! (See Ct. App. Jt. App.

p. 575, Tr. 447, where Mrs. Kunkle recounted asking White

if he could lift a tire. When White said no, Mrs. Kunkle

Suggested that he go on disability.)

White’s battery charge (!) requires more explanation.

Previously, batteries had been charged with portable chargers.

Under a new system, instituted while Kunkle was on medical

leave, batteries would be brought to a central battery charging

Station. Petitioner’s App. 10a.

Thus, under the new procedure, the job of job foreman

entailed moving batteries. But over the five weeks Kunkle was

back at work, batteries needed to be moved only once or

twice. And Kunkle was able to do it, with Mr. Banks’ help —

it only took 10-15 minutes of Banks’ time. Petitioner’s App.

9-10a.

Respondent thus protested that he was physically able to

perform the essential duties of his job, albeit that he needed

minor accommodation to lift batteries. When his protests

proved ineffective to win his job back, he filed a lawsuit

alleging he was discharged in violation of the Americans with

Disabilities Act and comparable Ohio law, and alleging also

intentional infliction of emotional distress.

Respondent moved for summary judgment. The trial

court granted the motion as to intentional infliction of

emotional distress but overruled it as to Kunkle’s other two

Claims. Petitioner’s App. 13a-19a.

The case then went to trial, and the jury returned a

verdict in Kunkle’s favor for $950,000. The trial court

overruled U-Haul’s post-trial motion for judgment as a matter

of law. (Petitioner’s App. 35a), and U-Haul appealed to the

Sixth Circuit. The Sixth Circuit affirmed (Petitioner’s

App.la-12a) and subsequently denied U-Haul’s petition for

rehearing with suggestion for rehearing en banc. Petitioner’s

App. 37a.

REASONS AGAINST GRANTING THE WRIT

I. This Is Not Even A Judicial Estoppel Case

A person is “disabled” under the Social Security Act if

he “cannot engage in amy . . . kind of substantial gainful work

. . .” 42 U.S.C. §423(d)(2)(A) (emphasis added). A

“qualified individual with a disability” under the Americans

with Disabilities Act, in contrast, is “an individual with a

disability who, with or without reasonable accommodation,

can perform the essential function of the employment position

that such individual holds . . .” 42 U.S.C. §12111(8). The

judicial estoppel issue arises in cases like Cleveland v. Policy

Management Systems Corp., No. 97-1008, because it can be

inconsistent for a disabled person to represent that he can

perform the essential functions of his position, for purposes

of the ADA, if he has previously sworn that he cannot engage

in any kind of substantial gainful employment for purposes of

the Social Security Disability program.

This court has granted certiorari in the Cleveland case.

According to petitioner U-Haul, this court should also grant

certiorari here because “this case presents the same issues.”

Petition, pp. 2-3.

In fact, however, respondent Kunkle did not make the

kinds of contradictory representations about his disability that

were at issue in Cleveland. Therefore this Court should not

grant certiorari here.

Lee Kunkle’s wife applied for private disability

insurance benefits on Lee’s behalf in February of 1994; Lee

himself was lying in a two-month long coma after losing one

lung to lung cancer. Those benefits began in March of 1994.

In July, Kunkle’s application for Social Security disability

benefits was approved. In August, his cancer recurred, and

he started radiation treatments. He continued receiving both

private disability and Social Security disability benefit until

mid-February, 1995, when he recovered to the degree that he

could return to work. At that point, his private disability

insurance stopped; and while his Social Security benefits

continued, they did so under Social Security’s “trial work”

program.

Carolyn Cleveland’s case was very different. She

applied for Social Security disability benefits representing that

she was totally disabled as of January 7, 1994. Even when

she returned to work in April of 1994, she never withdrew

her application or otherwise indicated to the Social Security

Administration (SSA) that she was anything other than totally

disabled and unable to work. Under those circumstances, the

Fifth Circuit determined that she was estopped from asserting

that she was a qualified individual with a disability under the

ADA when she was fired in July of 1994. Cleveland vy.

Policy Management Systems Corp., 120 F.3d 513 (Sth Cir.

1997).

What distinguishes Kunkle’s case from Cleveland’s is

the fact that once Kunkle recovered to the point in February

1995, that he could return to work, he told the SSA so. The

SSA itself then switched Kunkle to the “trial work” program

under 42 U.S.C. §422(c) and 20 C.F.R. §404.1592(a).

Receipt of benefits under the trial work program —

unlike receipt of Social Security disability benefits otherwise

— does not require an individual to be unable to work in order

to qualify as disabled (Cleveland, supra, at 518); and it would

materially threaten the “policy concerns and implications” of

the trial work program to bar a worker who receives benefits

under this program from seeking the protection of the ADA.

See Marrello v. Chemical Bank, 923 F. Supp. 487, 492

(S.D.N.Y. 1996). The representations that individual makes

to qualify under the trial work program — disabled, but able

to work — thus do not, and should not, estop him from

claiming he is a “qualified individual with a disability” under

the ADA. See also, e.g., Griffin v. Wal-Mart Stores, 135 F.

3d 376, 382 (6th Cir. 1998) (also distinguishing the trial work

program).

This is thus not a case like Cleveland. Ms. Cleveland’s

representations of total inability to work on account of her

disability, made to the SSA, were totally at odds with her

representations, made under the ADA, that she was able to

work despite her disability. These inconsistencies in Ms.

Cleveland’s representations made Cleveland ripe for a grant

of Certiorari, so this court can refine the role judicial estoppel

should play in ADA eligibility. But there are no analogous

inconsistencies here. Therefore, whereas it made sense to

grant certiorari in Cleveland, it would add nothing to the

debate over judicial estoppel’s role in ADA eligibility to grant

certiorari in this case.

II. Petitioner Waived Judicial Estoppel

U-Haul is petitioning for certiorari on the judicial

estoppel issue. In fact, however, Petitioner waived this issue

during oral argument before the Sixth Circuit.

In the course of upholding the lower court’s denial of

judgment as a matter of law, the Sixth Circuit recounted this

waiver as follows:

“(U]Haul is not entitled to judgment as a matter of

law, and the district court properly denied its

post-judgment motion for the same.

In so holding, we note that U-Haul initially

asserted that Kunkle should have been judicially

estopped from claiming that he is “otherwise

qualified” in light of representations that he and

his physicians made to the SSA and Oxford

[Insurance Company] regarding his physical

condition . . . At oral argument, however, U-

Haul conceded that its argument concerning the

applicability of judicial estoppel in this context

has been foreclosed by this court’s 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,

Inc., 135 F. 3d 376 (6th Cir. 1998).

Accordingiy, we 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.”

U-Haul should not be permitted to resurrect, here upon

petition for certiorari, an issue it waived below.

U-Haul argues, however, that it waived only judicial

estoppel per se, and that it did not intend to waive its

argument that Kunkel’s representations of disability to the

SSA was evidence entitling U-Haul to judgment as a matter of

law. But even if judicial estoppel could be subdivided into

two arguments (i.e., judicial estoppel per se vs.

representations of disability entitling U-Haul to judgment as

a matter of law) so that a waiver somehow applied to one

argument but not the other, the supposed distinctions between

the two arguments are distinctions without a difference in this

case. For it is clear that the Sixth Circuit did factor in

Kunkle’s representations of disability, along with all the other

evidence, when it considered whether U-Haul was entitled to

judgment as a matter of law.’

Judgment as a matter of law “may be rendered only

when no reasonable juror could find in favor of the non-

~ moving party.” See Petitioner’s App., 7a. Here, in contrast,

a reasonable juror could find in Kunkle’s favor. On one

hand, U-Haul presented evidence of Kunkle’s representations

to the SSA to establish that Kunkle could not have been a

qualified individual under the ADA. But on the other hand,

Kunkle countered this evidence with evidence establishing that

Kunkle was a qualified individual under the ADA.

A reasonable juror was entitled to conclude from

Kunkle’s evidence, and despite U-Haul’s evidence, that

Kunkle was indeed “perfectly capable of performing” despite

having a “disability” under the ADA. Petitioner’s App. 10a,

9a. And therefore, the trial court and the Sixth Circuit

properly overruled U-Haul’s motion for judgment as a matter

of law.

Thus there was no misinterpretation of the scope of

petitioner’s waiver which justifies relief here.

To the contrary — U-Haul waived the issue; U-Haul

intended to waive the issue; the panel interpreted the scope of

the waiver correctly; and the court, in denying U-Haul’s

See the Sixth Circuit’s Order of November 24, 1998, denying U-

Haul’s petition for rehearing, Petitioner's App. 37a. U-Haul had

petitioned for rehearing on the grounds that the Sixth Circuit had

misinterpreted the scope of its waiver, i.e., that U-Haul meant only to

waive judicial estoppel per se and not whether Kunkle’s prior

representations of disability entitled U-Haul to judgment as a matter of

law. The Sixth Circuit denied the motion, “conclud(ing) that the issues

raised on the petition were fully considered upon the original submission

and decision of the case.”

Petitioner for Rehearing, impliedly agreed that the panel had

interpreted the scope of the waiver correctly. Accordingly, the

issue of judicial estoppel must be deemed waived here upon

petition for certiorari.

CONCLUSION

For the foregoing reasons, this Court should deny

U-Haul’s Petition for a Writ of Certiorari.