Petition for Writ of Certiorari — King v. Herbert J. Thomas Memorial Hospital Ass'n

Supreme Court, U.S,

FIL ED

No. 28139 4 Jun og 199

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

January Term, 1999

KERMIE M. KING,

Petitioner.

Bi Petition for Writ of Certiorari to the

itt United States Court of Appeals

} For the Fourth Circuit

i PETITION FOR WRIT OF CERTIORARI

HERBERT J. THOMAS MEMORIAL

HOSPITAL ASSOCIATION,

Respondent.

DAVID S. SKEEN

Counsel of Record

144 7th Avenue

Post Office Box 8520

South Charleston, WY 25303

(304) 744-8125

QUESTION PRESENTED FOR REVIEW

A. As a matter of law is an employee judicially estopped

from pursuing a claim of age discrimination in employment

by virtue of having received Social Security Disability

Benefits sometime after having been discharged from

employment?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW PONDER, Pn) Saw | >

TABLE OF AUTHORITIES _ _ (i) (iv)

foe J Se Sa ate ea RR MEE:

PR oe ane ae

co kat O'S: 0 ESC i eee a Aa ger Same -

STATEMENT OF THE CASE ____ Exes DREW ANe

REASON FOR GRANTING WRIT ____ aS A REO ee.

I, Redress of a claim of age discrimination

committed against an employee of advanced

age Cannot be subject to a per se bar based on

the doctrine of judicial estoppel by virtue of

soley an award of Social Security Disability

Benefits.

88 RASS ATS A rc ea ie ae |

(11)

TABLE OF AUTHORITIES

Cases Page

A.F.D. Falck, S.P.A. v. L.A. Karay Co. -------- 26

131 F.R.D. 46 (S.D.N.Y., 1990)

August v. Offices Unlimited, Inc., - ---------- 21

981 F. 2d 576 (1st Cir. 1992)

Bates v. Long Island R.R., 997 F. 2d 1028 - - - - - - 27, 28

(2d Cir.) cert. denied, 510 U.S. 992 (1993)

Chrysler Credit Corp. v. Country Chrysler, Inc., - - - 26

936 F. 2d 1509, 1520 n. 10 (10th Cir. 1991)

D'Aprile v. Fleet Services Corp., - ----------- 26

92 F. 3d 1 (1996)

Dockery v. North Shore Medical Ctr., - ------- - 26

900 F. Supp. 1550, 1557-59 (S.D. Fla. 1995)

Kennedy v. Applause, Inc., 90 F. 3d 1477 ----- -- 22

(9th Cir. 1996)

SCN Y URUI, o oka 5 ko os ow oo oe 26

527 F. Supp. 570, 574 (S.D.Wis. 1993)

Lowery v. Stovall, 1996 WL 439236 --------- 18, 19

(4th Cir. Aug. 6, 1996)

McNemar v. The Disney Store, Inc.,---------- 18, 21

91 F. 3d 610 (3rd Cir., 1996)

Mishkin v. Peat, Marwick, Mitchell & Co.. - - - - - - 27

No 80 Civ. 4301, 1988 WL 391648,

#1 (S.D.N.Y., Nov. 7, 1988) (quoting

18 C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedures §4477

at 783 (1981))

Mohamed v. Marriott International, Inc., - - - - - - - 24,27

94 Civ. 2336 (S. D. NY, 1996)

Overton v. Reilly, 977 F.2d 1190 (1992) ---- - - - 26

Robinson v. Neodata Services, Inc., --------- - 26

94 F. 3d 499 (1996)

(111)

Smith v. Dovenmuehle Mortgage, Inc., - - - - - - - - 26

850 F. Supp. 1138, 1141-43

(N.D. Ill. 1994)

Wells v. North Carolina Board of ----------- 15

Alcoholic Control, 714 F. 2d 340

(4th Cir., 1983), cert. denied,

464 U.S. 1044 (1984)

iapes vo. S969 F. 26 308. 986 6 oe os 12

(9th Cir. 1993) [quoting Morris

v. California, 966 F. 2d 448,

452-53 (9th Cir. 1991)]

Statutes and Rules

Me A ee ee BIA oo 5 2 sn on es Sine ena cen a 2

28 U. S.C. $1254 --.--- 22-2 0s eee eee. 2

Pe Oh sin hos Soe 5

Be lr ae EEE) 1 8 8's ob oe eae wenn 2

42.U.3S. C. $323(G 2A) - - - +--+ eee eee 27

WEA OS os pd eee eee cess: 2

W.V8. Code §5-11+1 = + owen as ewes cece 2

In The

SUPREME COURT OF THE UNITED STATES

January Term, 1999

No.

KERMIE M. KING,

Petitioner,

v.

HERBERT J. THOMAS MEMORIAL

HOSPITAL ASSOCIATION,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The decision entered by the United States Court of

Appeals for the Fourth Circuit dated October 30, 1998,

affirming the Summary Judgment granted the Respondent by

the United States District Court for the Southern District of

West Virginia, which Order is appended as Appendix 1.

JURISDICTION

The United States District Court for the Southern

District of West Virginia held that the Court had subject

matter jurisdiction over the plaintiff’s action pursuant to 28

U.S.C. $1441 and 29 U.S.C. §1144(a). The action was

brought under the provisions of the West Virginia Human

Rights Act and alleged damages, including a loss of employee

benefits, consequent to the acts of discrimination committed

against plaintiff. The plaintiff is a resident of the State of

West Virginia. The defendant is a domestic not-for-profit

corporation which has its principal offices and hospital

facility located and situate in the State of West Virginia.

The District Court’s decision granting the defendant

hospital summary judgment was before the Fourth Circuit

Court of Appeals for review pursuant to 28 U.S.C. 1291, as

amended. It is from this decision of the United States Court

of Appeals for the Fourth Circuit that Petitioner now appeals

pursuant to 28 U.S.C. §1254(1).

LAW_INVOLVED

The law involved in this matter is predicated upon

employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 and a denial of her rights in

contravention of 42 U.S.C. $1983 and the Age Discrimination

in Employment Act (ADEA).

STATEMENT OF THE CASE

This is a civil action brought pursuant to the West

Virginia Human Rights Act for acts of age discrimination

committed against Petitioner, Kermie Marie King (hereinafter

referred to as "Mrs. King"). The Petitioner was an employee

of Thomas Hospital for twenty-five (25) years until

September 9, 1987 when she was summarily terminated for

allegedly falsifying a time card on August 29, 1987.

Thomas Hospital claimed Mrs. King was seen getting

into her vehicle at 2:26 p.m. in spite of having actually

signed out on her time card as leaving work at 2:30 p.m.

The hospital contended that this infraction of falsifying a time

card demanded immediate termination of Mrs. King’s

employment pursuant to the hospital’s personnel policy at that

time.

Mrs. King contended that the hospital gave this

pretextual reason for her termination in order to rid itself of

an older employee who had begun to encounter the expected

physical problems associated with aging and who was

approaching retirement age. Mrs. King further contended that

the hospital’s policy and procedures allowed employees a

“grace period" of five to seven minutes in arrival or departure

from work and that termination was not the Only action

possible for the hospital to have taken. Mrs. King further

contended that the hsopital unlawfully discriminated against

her on the basis of her age in contravention of the West

Virginia Human Rights Act, $§5-11-1 et seq of the West

Virginia Code.

On March 9, 1995, Mrs. King filed her Original

Complaint in the Circuit Court of Kanawha County, West

Virginia. On April 5, 1995, Thomas Hospital served a Notice

of Removal based upon an assertion that the allegation of loss

of employee benefits and interference in the subject

employee’s benefits made this cause of action colorable and

thus, totally under the control and auspices of the Employee

Retirement Income Security Act (ERISA) and, therefore,

removable to a federal jurisdiction.

On August 22, 1996, the United States Court for the

Southern District of West Virginia entered a Memorandum

Order granting in part and denying in part Thomas Hospital’s

Motion For Summary Judgment. The Court denied Thomas’

motion insofar as the same pertained to Count I, age

discrimination, and denied the motion without prejudice to

allow further development of the sole issue of judicial

estoppel as a per se bar to the claim of age discrimination.

The Court granted the hospital’s motion for summary

judgment in reference to Count II, wrongful discharge, Count

III, intentional infliction of emotional distress, and Count IV,

a Claim for violation of ERISA.

On August 23, 1996, Thomas Hospital filed a second

Motion For Summary Judgment. On December 12, 1996, the

Court entered its Memorandum Order and Judgment Order

granting Thomas Hospital’s Motion for Summary Judgment

on Count I, Age Discrimination, based on the Petitioner being

judicially estopped by an application for, and an award of,

Social Security Disability Benefits.

STATEMENT OF THE FACTS

Kermie Marie King was an employee at Herbert J.

Thomas Memorial Hospital for twenty-five (25) years. On

September 9, 1987, the plaintiff in this case was terminated

for alleged falsification of her time card which occurred on

August 29, 1987. The hospital asserted that two employees,

Dee Bartoe and Darlene Kestner, saw Mr. King enter her

vehicle in the parking lot at 2:26 p.m. on August 29, 1987,

after signing out on her time card as having left work at the

normal time of 2:30 p.m. This four (4) minute discrepancy

was contended by the employer to be a serious act of

4

4

—_earaaa

dishonesty and a violation of the personnel policy of the

hospital which always requires the immediate termination of

any offending employee.

The Petitioner on the other hand was unaware of such

rigid and severe enforcement of the subject hospital policy

and had on a few other occasions during her tenure with the

hospital signed out five minutes or less before her actual

quitting time without any repercussions or reprimand. Mrs.

King contended that there existed a five to seven minute

“grace period” regarding signing in or out and, further, was

aware of other employees who routinely were permitted

various degrees of latitude in signing in or out on the time

card, even beyond the few minutes difference at issue in the

instant case.

Mrs. King submitted in opposition to defendant’s

Motion For Summary Judgment evidence of the disparate

treatment of older employees in the form of an affidavit and

a sworn statement by two employees, Harry Roberts, a co-

worker, and Reba Wagner, a supervisor with thirty-five years

of service with Thomas Hospital, who attested to the

discriminatory treatment meted out to older employees who

were approaching age 55 and older.

It was discovered after filing the subject litigation that

six months prior to the incident leading to Ms. King’s

termination, the hospital, for some unknown reason, had

computed her early retirement pension rate. This calculation

of retirement benefits clearly included a comparison of the

amount of an early retirement pension in contrast to full

retirement benefits on the normal retirement date. The

calculation shows that an early retirement amount would

reduce a pension amount by more than one-half of its value.

Mrs. King did not request this computation.

Moreover, said computation was done shortly after the

director of personnel, Donna Arbogast, was made aware that

this particular employee needed an accommodation of her

work routine to allow her to sit and get off of her feet for

short periods of time rather than stand for her entire 8-hour

work shift.

Ms. Arbogast memorialized in a letter to Mrs. King’s

doctor that any such work accommodation allowing Mrs.

King to take breaks and not continually stand, was not

possible at the hospital in question. Ms. Arbogast was at the

time of Mrs. King’s termination the hospital’s personnel

director who countermanded the plaintiff's immediate

supervisors and mandated termination instead of the written

reprimand or warning as initially recommended and

undertaken by Margaret Eagloski, an eight year employee,

who was Mrs. King’s supervision. Mr. Eagloski likewise was

unaware of the mandatory termination policy despite being in

a management position as acting director of the dietary

department.

Based upon the aforementioned evidence as well as

other evidence offered by the Petitioner in support of her

allegations of age discrimination, the district court denied the

hospital’s motion for summary judgment without prejudice as

to Count I in her Complaint for Age Discrimination. The

Court proceeded on August 22, 1996, to require further

development of only the hospital’s argument that Mrs. King

was judicially estopped from pursuing this claim of age

discrimination based upon an award of Social Security

Disability Benefits fifteen (15) months after being fired,

which award was backdated to approximately the time of her

ene sialic rare oe eerie

termination from her employment. The hospital argued that

this award of disability benefits completely destroyed the

claim for age discrimination and barred it from being brought

to trial on the basis of judicial estoppel.

On December 12, 1996, the district court entered an

order ruling that Mrs. King was judicially estopped from

pursuing her claim for age discrimination and dismissed the

one remaining count in favor of the defendant hospital.

REASON FOR GRANTING WRIT

I. Redress of a claim of age discrimination

committed against an employee of advanced

age Cannot be subject to a per se bar based on

the doctrine of judicial estoppel by virtue of

soley an award of Social Security Disability

Benefits.

The District Court erroneously granted summary

judgment as a matter of law to the defendant hospital,

Thomas Memorial, by wrongly applying the doctrine of

judicial estoppel in this matter.

The Petitioner submits that the extension and

application of the legal principle of judicial estoppel, which

has been successfully utilized to bar handicapped plaintiffs

from pursuing claims for handicap discrimination based on

applications for Social Security Disability Benefits, is

inappropriate to the circumstances in this case. It is both

legally unsound and an inequitable miscarriage of justice

when applied to an older employee who was involuntarily

terminated because of age discrimination, and is unable to

secure other employment in a competitive labor market

because of multiple contributing factors, including not only

her age and physically handicapping limitations, but also an

employment record reflecting that she was terminated because

of alleged dishonesty.

The application of judicial estoppel to thwart this

older employee from proceeding to a trial on the merits of

her claim for age discrimination cannot be factually or legally

supported, primarily as the Petitioner was working without

significant complaint by this employer regarding her actual

job performance when fired by the employer/defendant.

Further, she attempted to find suitable employment for which

she was qualified for months following her termination and

only applied for benefits upon being unsuccessful in obtaining

other employment. It was Mrs. King’s intention to continue

her employment until normal retirement age even with her

physical impairments and “but for" the discriminatory acts of

the defendant would have done so.

Being “unable to work” for the purposes of eligibility

for Social Security Disability Benefits does not exclude the

reality of an individual still being able to perform the

essential functions of a particular position, both with or

without reasonable accommodation. It is legally unsound and

inequitable to apply judicial estoppel to dismiss an action for

age discrimination based on the naked award of such benefits.

The Social Security Act statutorily allows for a

combination of vocational-medical criteria to formulate the

basis for an award of disability benefits and this can not

establish prima facie evidence of an inability to perform

previous job functions, especially when a handicapped elderly

person has the desire to, and is motivated to, continue to

work.

At the time of her termination by the hospital, this

Petitioner was an older employee who was 58 years of age,

OO

and was performing her job satisfactorily for the hospital.

Mrs. King asserted that she was terminated by Thomas

Hospital for the sole reason that she was an elderly employee

who did have a handicapping condition. Mrs. King was no

longer going to be able to perform her job duties without

minor accommodations.

Mrs. King neither applied for disability retirement nor

any other disability benefits when terminated by Thomas

Hospital, nor did this hospital even consider retirement under

a disability pension pursuant to any provisions of their

employee benefits plan when terminating this employee.

Additionally, as is evidenced by the unsolicited computation

of her pension benefits, the Petitioner would have drawn a

substantially higher pension had she retired at her normal

retirement age.

Therefore, it is not in the interests of either justice or

fairness to dismiss all consideration of the material issues

between these parties pertaining to the alleged acts of age

discrimination predicated solely on an after-acquired award

for disability benefits sought months after fruitless efforts to

acquire another job, with her Social Security Disability

Insurance benefits, sometimes hereinafter referred to as

"SSDI" benefits, being granted over 15 months after the

complained of actions by this hospital against this employee.

On August 23, 1996, Thomas Hospital again renewed

a motion for summary judgment based upon an argument that

judicial estoppel barred Mrs. King’s claim for age

discrimination which had already survived a previous motion

for summary judgment by the hospital based on the argument

that no material issues existed between the parties.

Thomas Hospital’s pleading to judicially estop this

cause of action was based solely upon an award of Social

Security Disability Benefits which was granted more than a

year and three months after the hospital terminated Mrs.

King’s employment.

During the 15 months between being fired and being

awarded her SSDI benefits, there was clear evidence

submitted to the Court of Mrs. King’s attempts to secure

reemployment. There was further evidence submitted

showing that during said 15 month period the Petitioner had

been awarded unemployment benefits by the State of West

Virginia based upon her being both willing and able to work

and during which she was actively seeking reemployment.

Unemployment benefits cannot be awarded in West Virginia

to any individual who will not agree to seek reemployment or

accept employment if offered. This evidence was not

rebutted by Thomas Hospital.

This is a case of age discrimination which must not be

obscured and confused by any defense argument which cites

precedent which focuses on claims of disability discrimination

and the ADA and which entails very defined, but significantly

different legal issues. To involuntarily terminate an older

employee because she is of an advanced age is unlawful, and

cannot be diminished or legally justified by an after-the-fact

award of any disability benefits, particularly awarded more

than a full year after such illegal conduct occurred, which

conduct rendered the employee unemployed and quite

possibly unemployable by virtue of the nature of the

termination.

No equitable application of judicial estoppel would

factually support such a ruling in a case as is presently before

10

einai ial

this Court. Mrs. King’s age combined with a physical

impairment, together with an employment record that showed

that she was terminated involuntarily due to her alleged

dishonesty with her previous employer, significantly

interfered with successful reemployment, which in no way is

dispositive of her ability or inability to maintain and perform

her past employment.

The seeking of employment at an advanced age for

almost a full year after being fired makes the issues at hand

completely separate and totally unlike any ADA claims as

based upon a defendant’s failure to accommodate a handicap

which directly leads to a cessation of a plaintiff's

employment. Allegations that an employer did not

accommodate a handicap, thus leading to discharge, are not

the issues upon which this case was built. This case is about

wrongfully discharging an employee on a Clearly pretextual

reason to rid the defendant hospital at a bargain basement

monetary rate of the liabilities and economic responsibilities

owed to an older employee approaching full retirement, an act

which saved this hospital a significant amount of money

because of the dramatically reduced pension Mrs. King

receives, as well as the loss of the other benefits to which she

would have been entitled had she worked until her normal

retirement age.

The failure of this hospital to allow this older

employee to occasionally sit down on regularly scheduled

breaks, instead of standing throughout the full eight hours of

her work day, was evidence of the Respondent’s clear

intentions to create an intolerable work environment for this

loyal and long time employee who was known by the

Respondent to be experiencing the effects of arthritic legs and

11

feet. It was always an issue of age discrimination and

intentional harassment to hasten this employee to end her

employment before the normal retirement date.

The purpose of the doctrine of judicial estoppel is to

protect the integrity of the judicial process. Accordingly, the

doctrine of judicial estoppel is an equitable doctrine invoked

by a court at its discretion. Yanez v. U. S., 989 F. 2d 323,

326 (9th Cir. 1993) [quoting Morris v. California, 966 F. 2d

448, 452-53 (9th Cir. 1991)]. Its purpose is clearly not the

expeditious demise of meritorious age discrimination claims

by virtue of a naked defense such as the plaintiff simply

having received some type of disability benefits after the fact

must stand as a per se bar to her claim of unlawful

discrimination.

Kermie Marie King did not resign her job nor did she

seek disability benefits until long after she found herself

unemployable and without any reasonable means to secure

new employment after being fired from her job by this

Respondent. This does not, by any reasonable application of

judicial estoppel, prove a prima facie case that Mrs. King was

unwilling or unable to continue with her former employment

at Thomas Hospital at the time of her discharge over a year

earlier, nor that she was unable to perform the essential

functions of that job, it only shows that there came a point

after Mrs. King was fired that she elected to apply for

disability after unsuccessful efforts to acquire another job.

At no time did Petitioner apply for disability benefits

through the Respondent, nor seek any other disability benefits

after she was discharged. Mrs. King was terminated for

alleged fraudulent conduct, conduct which Mrs. King

contends had been tolerated and, in fact, openly permitted

1?

—

other younger employees. The facts surrounding this

discharge were not remotely dependent on issues of any

inability to perform the job at issue or an unwillingness to

continue working because of any physical problem or

condition. In fact, Mrs. King had a friend call the personnel

office the day after being fired to see when she could return

to work. She did not even understand the serious action

taken against her.

The Respondent has misused, abused, and widened the

recent defenses utilized in ADA cases and other handicap

discrimination cases to encompass and thwart this cause of

action pertaining to age discrimination. Petitioner in this

matter was not terminated by the employer because she was

not satisfactorily performing her job at Thomas Hospital.

Both of Mrs. King’s supervisors, Donna Arbogast and

Darlene Kestner, testified in their respective depositions that

Mrs. King was a valued employee with no significant

problems regarding her job performance. Petitioner in this

action has brought suit against her former employer for

terminating her upon a bogus, pretextual reason to rid itself

of an older employee. This termination occurred at a time

when reemployment would have been difficult even without

the added obstacle of being fired for "gross misconduct"

involving her honesty.

In this matter Mrs. King neither quit her job nor

voluntarily thrust herself back into the competitive labor

market in the face of her advanced age, limited education,

narrow manual labor skills, and arthritis, all to her undeniable

disadvantage and detriment in possibly being able to secure

another job. The Respondent unlawfully forced that upon

her.

Now, this employer has secured legal absolution of its

acts by argument that when Mrs. King was faced with months

of unemployability for approximately a year after being fired,

the Petitioner’s right to any relief for the wrongs done to her

by the employer were totally lost upon her mere application

for, and subsequent award of, Social Security Disability

Benefits. This application for benefits followed almost a year

of Mrs. King unsuccessfully seeking reemployment. This

unemployability was the direct result of the very

circumstances set into motion by this hospital and the claim

for benefits was decided upon grounds that do not prove that

Mrs. King could not perform her job at Thomas Hospital or

even stated that she was unable to perform that job.

"But for" the discrimination committed against this

older employee, Mrs. King would not have needed the

employment which she sought, but was unable to secure. The

Respondent offered absolutely no evidence to contradict this

fact. Whatever may have occurred for over a year following

termination cannot legally excuse this employer’s wrongful

and unlawful act in September, 1987, nor should it now

fortuitously be utilized to form a legal foundation upon which

to build a successful defense related to judicial estoppel to

defeat a meritorious claim of age discrimination.

In this instance, not only the Petitioner’s physical

condition was considered to determine her eligibility for SSDI

benefits, but also her education, lack of other marketable

skills and, most importantly, her age, al! were utilized to

establish the statutory basis for an award of disability as

defined by the Social Security Act. This fact can not cancel

out the hospital’s discriminatory actions nor stand as any

proof that this Petitioner has sworn to inconsistent positions

14

ear ct a cece omaad

es

to gain some unfair advantage. The Petitioner’s

circumstances stand as evidence of the egregious harm done

to her by virtue of an unlawful termination of her

employment, which employment she was successfully

maintaining despite all of the aforementioned conditions.

In Wells _v. North Carolina Board of Alcoholic

Control, 714 F. 2d 340 (4th Cir., 1983), cert. denied, 464

U.S. 1044 (1984), the Appellate Court held that it would not

limit the award of damages to a plaintiff who subsequently

suffered a back injury, sought light duty from an employer,

was refused, and quit. The Court held that "but for” the

employer’s discriminatory behavior the plaintiff would not

have quit his employment and suffered monetary damages.

“But for" the discriminatory acts of this Respondent, in

unlawfully terminating Mrs. King’s employment, Petitioner

would not have been out seeking employment that she could

not find.

The employer sought legal vindication for its wrongful

conduct of illegally discriminating against an older employee,

resulting in her inability to continue to support herself. It

sought this legal absolution through fortuitous judicial

estoppel argument borne of Petitioner’s after-acquired award

of SSDI benefits to ameliorate the very damages arising out

of and directly resulting from the Respondent’s own actions

the year before. The very nature of this termination on

grounds of gross dishonesty constituted a serious barrier to

any individual’s securing other employment, placing a serious

indelible black mark upon her which would be hard to

Overcome for even a younger and more desirable prospective

employee.

An application for disability benefits in this case in no

way proves that this plaintiff stated she could not perform

any work in September, 1987, nor was there any underlying

cause for this termination in September, 1987, based upon

any allegations of deficient work performance or inability to

perform in Thomas’ dietary department. In fact, for almost a

full year, Mrs. King actively sought reemployment, received

unemployment benefits based upon her capability and

availability for work, and never by word, deed or action

indicated that she could not work. Whatever statements were

made by Mrs. King after a year of unemployment and

inability to secure a new job can not contradict, diminish, or

legally excuse this employer for unlawfully discharging Mrs.

King the year before and causing the very harm inflicted

upon her by the repeatedly documented false allegations that

she was dishonest and had been fired for "gross misconduct"

which ultimately contributed to the need to apply for

disability benefits.

This is neither similar to any precedent as was

previously cited by Thomas Hospital in its memorandum in

support of summary judgment, nor is it equitable in the eyes

of any fair interpretation of the anti-discrimination laws. The

circumstances in this case are far removed from the defenses

being utilized by defendants to defeat ADA causes of action

wherein a plaintiff seeks damages for loss of a particular job

that he could not, or chose not to, perform at the very time of

the termination of that job. Mrs. King had no such option of

working or not working and, in truth and fact, was

performing her job satisfactorily when fired based upon a

pretext of gross misconduct.

The fact that Mrs. King could not overcome the

adverse circumstances created by being discharged for

16

dishonesty, her advanced age, limited work experience,

limited job skills, and physical problems after a year of

seeking employment, should not be permitted to be the legal

foundation for dismissal of this action on behalf of the

hospital who caused such hardship and losses which

ultimately forced Mrs. King to apply for benefits. Such a

ruling, wherein age is a central material issue and also a

determining factor in possible eligibility for benefits,

eviscerates the legal core of the majority of age

discrimination actions and reduces them to a point of being

ineffectual and legally meaningless.

Employers could simply illegally terminate older

employees and then await the economic realities and hardship

of being fired at a time close to retirement, which are

inevitably created by forcing the older employee back into the

labor market at such time, to require that employee to apply

for particular benefits, such as employer sponsored disability

benefits or SSDI benefits. In essence, the very damages

created by the employer’s wrongful acts and the hardship

they create would serve to free the employer from any

liability for such unlawfully conduct. The cost and penalties

for employment discrimination against the older employee

would simply be passed along to some other source besides

the employer at fault by simply waiting for the possible

application for certain benefits and related financial relief.

In the majority of the precedents wherein a defendant

has invoked judicial estoppel to bar actions for handicap

discrimination, the plaintiffs at issue, either before or

immediately upon cessation of their job, sought total and

permanent disability benefits of one kind or another. These

plaintiffs, each and every one, either by action, application,

17

Or sworn statement clearly avowed the inability to perform

any work at the very same time that they were litigating the

employer’s failure to accommodate their handicaps so that

they could presumably work. Many courts have invoked

judicial estoppel to bar such causes of actions brought under

ADA because of what these courts deem to be these

inconsistent positions as taken by plaintiffs.

Regardless of the validity of such argument or the

equity in such court rulings, it is absolute that each case must

be carefully decided upon a thorough review of the particular

circumstances and facts intrinsic to each specific case.

“Application of the doctrine of judicial estoppel always is

factually driven." McNemar v. The Disney Store, Inc., 91 F.

3d 610 (3rd Cir., 1996).

It is, therefore, incumbent in adjudicating any matter

potentially invoking judicial estoppel to bar a cause of action

to carefully examine very closely every relevant fact and

circumstance surrounding and underlying the subject action

to determine if, in fact, an inconsistent position has been

taken by the plaintiff to deliberately thwart the purposes of

justice and equity in that particular matter. It has been

consistently followed by each court that careful consideration

be given each individual case.

As cited in Lowery v. Stovall, 1996 WL 439236 (4th

Cir. Aug. 6, 1996), "[J]udicial estoppel is properly defined as

a bar against the alteration of a factual assertion that is

inconsistent with a position swom to and benefitted from in

an earlier proceeding.” Mark J. Plumer, Note, Judicial

Estoppel: The Refurbishing of a Judicial Shield, 55 Geo.

Wash. L. Rev. 409, 435 (1987).

In Lowery certain necessary elements that must be

18

3

met before applying judicial estoppel were set forth by the

Appellate Court. These elements are as follows:

1) The party sought to be estopped must be

seeking to adopt a position that is inconsistent with a stance

regarding a factual matter taken in a previous litigation.

2) The prior inconsistent position must have been

relied upon and accepted by the court.

3) Finally, the party sought to be estopped must

have intentionally misled the court to gain unfair advantage.

This precludes the application of judicial estoppel in any

matter where it is determined by the Court that a party’s prior

position was based on mere inadvertence or mistake.

Petitioner submits that there is no evidence supportive

of any inconsistent stance taken by her in this matter

remotely justifying a bar to her cause of action for age

discrimination, nor can any deliberate intent to mislead or

gain unfair advantage be attached to this plaintiff as

contemplated by Lowery, supra. Petitioner’s award of Social

Security Disability Benefits fifteen (15) months after being

fired is evidence of the Petitioner’s year of unemployability

due to her age, limited work skills, education, and

| incapability due to arthritic feet and legs, and an employment

| record that reflects that she was terminated for gross

| misconduct involving her being dishonest. The application

for disability benefits occurred many months after being fired

and seeking reemployment. It is evidence of the harm done

the plaintiff, and does not stand as any inconsistency in the

positions she has taken in any forum.

Mrs. King, actively sought employment and was

herself both clearly willing and available for work by virtue

of the acceptance and receipt of unemployment benefits. By

19

neither her actions nor her statements at the time of

discharge, or for any substantial time thereafter, did she ever

take the position that she could not perform the essential

functions of her job. Almost a year following discharge by

this hospital, and finding herself still without employment and

income at that late date, Mrs. King did seek disability

benefits upon advice of her sister. Petitioner testified to this

in her deposition of April 24, 1996.

Moreover and legally most importantly, this after-

acquired benefit is not awarded on disability alone, but is

statutorily determined on physical impairment in light of such

vocational/medical criteria as age, work skills, and reasonable

employability in the local competitive labor market. It would

be impossible to sever the affect of an individual’s age upon

compensability under Social Security, particularly ir this case,

and to deny that age adversely diminished the ability to

acquire and sustain gainful work activity as defined by Social

Security.

The Social Security Act has long recognized this basic

reality which the district court dismissed and overlooked in

this matter to grant its dismissal of this action. The

Petitioner’s arthritic limbs did not, in and of themselves,

determine this award of SSDI benefits, but rather the totality

of the vocational/medical criteria determined the award. This

in no way relegates the likelihood of her continued successful

employment at her previous job inconsistent to Mrs. King’s

position in obtaining SSDI benefits over a year later.

The Respondent presented not one scintilla of

evidence to show that Mrs. King was not satisfactorily

performing her job at Thomas Hospital at the time the

defendant fired her. Upon the record, it is abundantly clear

20

8 ag

a ae

eee La FR PE Ne rea * FF

from Respondent’s own disclosures that Mrs. King was

receiving satisfactory evaluations all the way up to and

including the time of her termination.

Mrs. King certainly never uttered one statement upon

discharge that she could not work. In fact, upon being

terminated as previously cited, she requested a friend call the

personnel office to see when she might return to work, not

comprehending that she had been fired. This has been placed

in evidence by virtue of the testimony of plaintiff’s friend at

the Unemployment Hearing.

In McNemar_v. Disney Stores, supra, plaintiff

McNemar, immediately upon his dismissal, applied for and

received New Jersey state disability benefits, Social Security

disability benefits, and an exemption from repayment of a

student loan because of a stated inability to maintain gainful

employment. More importantly, plaintiff McNemar and his

doctors, under penalty of perjury, swore that McNemar had

been totally and permanently disabled for at least five weeks

before he was discharged by Disney.

This case was a cause of action brought under ADA

by a young man who alleged, under oath, he was totally

unable to work even before he was discharged. This case is

as dissimilar from the instant matter as legally and factually

possible and in no way parallels the case at hand.

In August v. Offices Unlimited, Inc., 981 F. 2d 576

(Ist Cir. 1992), the plaintiff was a salesman who suffered

from severe clinical depression. As a result of his severe

depression, he asked for and received a six week leave of

absence from his job. August requested and received another

two weeks sick leave to more fully recuperate.

After eight weeks of paid sick leave, August requested

21

to return to work on only a parttime basis. His employer

refused this request and suggested he apply for company

disability benefits if he could not return to work full-time.

The plaintiff August before his scheduled return to work did

apply for a claim under the company’s disability plan. He

asserted in the application for this benefit that he was totally

and continuously disabled at the precise same time he was

presumably seeking to return to work. By his own admission

before even attempting a return to work, August asserted he

could not maintain any employment. In August, the court

held "the record [was] fatally bereft of indication that August

possessed the ability to perform his job." Id. at 581.

This is completely dissimilar to the instant action

wherein plaintiff King sought employment, was willing and

able to work after discharge, and only received “after

acquired” benefits following an inability to acquire

employment, which "but for" the actions of the defendant at

hand would not have been necessary.

In Kennedy v. Applause, Inc., 90 F. 3d 1477 (9th Cir.

1996), plaintiff was diagnosed as suffering from chronic

fatigue syndrome. While on medical leave for this disabling

condition, Kennedy and her physician submitted evidence to

support that she was unconditionally unable to perform any

work whatsoever in order to obtain for Kennedy state

disability benefits and Social Security benefits.

Kennedy and her doctor offered sworn statements that

she was totally unable to perform any work before she was

even discharged from her employment. With both Kennedy

and her physician attesting to Kennedy’s complete inability

to perform any job before she was even fired, the Court

found her later statements in her civil suit that she was fully

99

ee

capable of performing her former job inconsistent and

irreconcilable with the facts surrounding her application for

disability benefits while still employed.

The employer in the instant case cannot in any fair or

reasonable manner present even a scintilla of evidence which

Supports Mrs. King was not satisfactorily performing her job

and arriving faithfully each day at work at the precise time

she was terminated. Thomas Hospital neither offered

disability benefits nor was asked by Mrs. King to provide

disability benefits at the time of discharge. More to the

point, Respondent cannot rationally ask any Court to simply

ignore and disregard the months that Mrs. King sought

employment in the local labor market before applying for

disability benefits, which unemployment was rooted in being

fired by this employer at an advanced age with known

physical limitations.

“But for" the employer’s unlawful actions, Kermie

Marie King could have continued in her employment with the

hospital for a number of years, possibly even until full

retirement age. Given the circumstances and issues material

to this discharge, the SSDI benefits awarded a year or more

after the employer’s wrongful conduct cannot stand as

remotely having reasonable affect or bearing upon the facts

of this case to unfairly alter or color this claim of

discriminatory acts.

Thomas Hospital not only fired this employee

illegally, but clearly at a time in her life when reemployment

would be difficult even under the best of circumstances. The

award of disability benefits fifteen months after the firing of

this woman and based upon the permissible vocational-

medical criteria contained in the Social Security Act, can not

equitably dispense with the illegal actions committed by this

blameworthy employer nor stand as inconsistent with any

assertion made by Mrs. King.

At the time of her termination, Mrs. King was

approaching sixty years of age, had limited work skills, was

absolutely functioning in full-time employment despite

arthritic legs, but after being fired, was inextricably marked

by the employer with a work history marred by accusations

of gross dishonesty and misconduct. This certainly did not

insure reemployment. Thomas Hospital argued this

undeniable harm and damage which is totally its sole

responsibility, both legally and morally, be simply washed

clean and disposed of because the Social Security Act

recognized all of these vocational-medical conditions as

disabling to a sixty year old employee who following

discharge could not acquire substantial gainful work activity

in her local community.

The Social Security benefits applied for and awarded

to Mrs. King were earned solely by her. The benefits were

after acquired benefits arising from and made necessary by

the tortious acts of the employer the year before in firing an

almost sixty year old woman with no skills and having

physical limitations related to aging. Petitioner submits that

Thomas Hospital should not now be rewarded for its actions

by virtue of the very fruits of the harm and damage it caused.

In Mohamed _v. Marriott International, Inc., 94 Civ.

2336 (S. D. NY, 1996), a very thorough and relevant opinion

was issued discussing the issues and clear distinctions

between the ADA standards and Social Security standards for

determining disability. This has significance in consideration

of the instant matter. In Mohamed, the Court emphasized

24

5

q

a

:

that "disability" for the purposes of receiving Social Security

benefits are based on different legal standards, different

forums and levels of formality, different goals, and very

different definitions of “disability”. It was clear from such

discussions by this Court that "unable to work" has very

broad and far-reaching meanings pursuant to Social Security

guidelines and purposes, even to the extent of holding an

individual unable to work for purposes of providing benefits

while the individual is actually working. For this reason, the

Court held that statements on an application for benefits

would not bar an ADA claim or be dispositive of the material

issues intrinsic to claims of discrimination by an employer.

Instead, that Court clearly held that "[I]t would be

inappropriate to invoke the . . . doctrine of judicial estoppel

tO erect a per se bar to ADA protection for individuals who

have also applied for and/or received SSDI benefits".

Petitioner states it is no less inappropriate to erect such a per

se bar to the legul protections for older workers under ADEA

Or state anti-discrimination laws. It is factually possible for

an older employee to be able to function at a particular job

but upon termination, become unemployable and pursuant to

the definition of "disability" eligible for Social Security

disability benefits.

Additionally, EEOC has issued a Guidance as of

February 12, 1997. This Guidance has Clearly established

that a plaintiff can proceed with a cause of action under ADA

even though he or she has applied for disability benefits,

including Social Security Disability Benefits. EEOC states

that an employee can be both "qualified" under ADA and

“totally disabled" for purposes of Social Security, workers’

compensation or disability insurance because of the clearly

25

varying definitions utilized by each. Further, the EEOC holds

that, in general, the effect of any disability application is a

factual issue requiring consideration by a jury and rendering

summary judgment inappropriate.

Courts have rejected judicial estoppel as a bar to

causes of action for handicap discrimination under either

ADA or the Rehabilitation Act when the plaintiff has sought

disability benefits. Overton v. Reilly, 977 F.2d 1190 (7th

Cir., 1992); Kupferschmidt v. Runyon, 527 F. Supp. 570, 574

(S.D. Wis. 1993); Smith v. Dovenmuehle Mortgage. Inc., 850

F. Supp. 1138, 1141-43 (N.D. Ill. 1994); Robinson _v.

Neodata Services, Inc., 94 F. 3d 499 (8th Cir., 1996); and,

D'Aprile v. Fleet Services Corp., 92 F. 3d 1 (1st Cir., 1996).

In D’Aprile, the court held as follows, "{S]ince D’ Aprile

never claimed to have been totally disabled during the time

she requested her accommodation, and demonstrated her

ability to work with the accommodation she requested” her

claims are totally consistent and cannot be barred by

application of judicial estoppel.

Judicial estoppel has only been applied with extreme

caution by courts and has been openly criticized by some.

See e.g., Chrysler Credit Corp. v. Country Chrysler. Inc., 936

F. 2d 1509, 1520 n. 10 (10th Cir. 1991); A.F.D. Falck, $.P.A.

v. E.A. Karay Co., 131 F.R.D. 46 (S.D.N.Y., 1990); and

Dockery _v. North Shore Medical Ctr., 900 F. Supp. 1550,

1557-59 (S.D. Fla. 1995).

[It has further been clearly held by courts that there

may exist legitimate reasons for a plaintiff to take what may

appear to be inconsistent positions in different proceedings

that certainly do not prove the intent of that plaintiff to play

fast and loose with either proceeding.

26

“As with other principles of fairness, care must be

taken that this approach not lead to undue moralizing that

may Overlook reasonable grounds for Changing positions on

the basis of new information. Mishkin vy. Peat, Marwick.

Mitchell & Co., No 80 Civ. 4301, 1988 WL 391648, #1

(S.D.N.Y., Nov. 7, 1988) (quoting 18 C. Wright, A. Miller,

& E. Cooper, Federal Practice and Procedures §4477 at 783

(1981)).

It is also noted that courts have taken cognizance of

the potential conflict existing between the underlying

principle of judicial estoppel and the Federal Rules of Civil

Procedure regarding pleading. Circumspection in the use of

judicial estoppel is warranted because of a concem for

oftending the liberal spirit of the federal pleading rules.

Mohamed, supra. Judicial estoppel is in tension with the

alternative pleading provisions of Federal Rules of Civil

Procedure, Rule 8(e)(2). Bates v. Long Island R.R., 997 F,

2d 1028 (2d Cir.) cert. denied, 510 U.S. 992 (1993),

CONCLUSION

Under the Social Security Act, an individual may be

deemed totally disabled pursuant to various criteria or such

criteria in combination with one another which does not

necessarily establish absolute prima facie evidence of an

inability to perform the essential functions of a previous job

or the intent of a plaintiff to alter facts to gain some

undeserved advantage in litigation. Under 42 U.S.C.

$423(d)(2)(A), consideration of age, education and work

experience, as well as availability of work in the national

economy or in a particular region, is equally determinant of

27

eligibility for benefits. This can not, by any legal or

equitable measure, form the foundation for a per se bar to a

claim of discrimination for any plaintiff who is required to

apply for and receives Social Security Disability Benefits,

particularly following a year of unemployability after being

wrongly discharged and by such discharge, having been

falsely branded a dishonest employee who committed an

egregious act of gross misconduct.

In this matter, the Petitioner was almost sixty years

old with limited education, no transferable work skills, and

had arthritis of the legs and feet which affected her functional

capacities to walk quickly or stand continuously. Despite

these limitations, plaintiff satisfactorily maintained her job

with Thomas Hospital. The hospital discharged her in the

face of such conditions.

It is neither inconsistent nor unreasonable for such a

plaintiff to seek disability benefits to support herself in light

of her permanent physical impairment and the continuing

inability to find gainful employment following an involuntary

discharge. This does not prove that plaintiff was unable to

perform the essential functions of her previous job,

particularly as she was satisfactorily performing her job duties

when she was fired. No issue was raised by the employer or

the employee at the time of discharge, or at any reasonable

time thereafter, that the plaintiff was not performing all of the

essential functions of her job, despite having the arthritic

condition while employed.

It was held in Bates, supra, that judicial estoppel

serves two objectives, which are as follows: (1) preserving

the sanctity of the oath by requiring consistency in sworn

positions, and (2) protecting judicial integrity by avoiding

28

inconsistent results in two proceedings.

In this matter, Mrs. King alleged her employer

discharged her on the pretextual reason of dishonest conduct

which constituted gross misconduct, when in fact, the

employer intentionally ended her employment solely because

she was advanced in age. Approximately one year after

being discharged, plaintiff remained unemployed and

consequently applied for Social Security Disability Benefits

at age sixty with diagnosed arthritis of her legs and feet. The

award of benefits was backdated to the approximate last date

on which plaintiff worked. These claims are not mutually

exclusive and do not reach any remote level of proof that

Mrs. King either falsely swore to inconsistent positions or

that she intentionally misled any Court to unjustly create an

advantage in either one of these two independent forums.

Certainly, the severely preclusive legal effect of this

doctrine demands a stronger foundation in fact and some

assurance that its application followed, and is a direct product

of, a fair judgment on the merits of the issues and some

presentation of relevant evidence, and is not merely an empty

per se bar technically invoked by a defendant to deny justice

tO a wronged plaintiff.

Kermie Marie King was tossing salads, carrying food

trays, and performing her assigned tasks in the dietary

department at Thomas Hospital on the very day she was

Openly discharged for alleged dishonest conduct and

humiliated by being led out of the hospital in which she had

faithfully worked for twenty-five years. She had bee

performing these job functions despite her arthritic legs and

feet. In fact, this hospital allowed Mrs. King to complete her

entire work shift before telling her at the very end of the

29

work day that she was fired and must clean out her locker.

Mrs. King was degraded and defamed by an allegation

by Thomas Hospital. At age sixty, she found herself

suffering from arthritis, unemployable for months following

her termination, and consequently applied for Social Security

Disability Insurance Benefits because she could not yet

qualify for Social Security Old Age benefits. In applying for

these disability benefits months after being fired, Mrs. King

could neither diminish nor enhance any of the material issues

relevant to the actions taken by her employer. The central

issues of age discrimination and wrongful discharge for a

pretextual reason were central to this case and should have

remained unaffected by an award of SSDI benefits. No fact

was altered and no truth shaded by Mrs. King’s application

for the same to survive having been fired.

Judicial integrity is not threatened by the award of the

SSDI benefits in this case but rather is more than directly

attacked by the dismissal of this action by the district court

in the face of all of the compelling evidentiary facts

necessitating that this matter be brought to trial.

Respectfully submitted by:

DAVID S. SKEEN

Counsel of Record

144 7th Avenue

Post Office Box 8520

South Charleston, WV 25303

(304) 744-8125

Dated: January 28, 1999

aera

fee yt

PSs)

SS

a Oe

Ce AAS ss RM

eres.

a eee saieeeeeeaeereemeeee neue

a ae ES ee gin SSE ER gl a ae ne Ce

AE NS

APPENDIX

OPE Re PORN Ee i a a a a a Pa Re ns egg ie eat ke Reet ee

{ah ’ — _ a os Se ny OA

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

qen

KERMIE M. KING,

Plaintiff-Appellant,

vi

HERBERT J. THoMAS MEMORIAL ' No. 97-1075

HospiraL, a non-profit West

Virginia corporation,

Defendant-Appellee.

J

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CA-95-252-2)

Argued: March 2, 1998

Decided: October 30, 1998

Before ERVIN and NIEMEYER. Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Ervin and Judge Broadwater joined.

COUNSEL

ARGUED: David Stephen Skeen, South Charleston, West Virginia,

for Appellant. Charles MacKinley Surber, Jr.. JACKSON & KELLY,

Charleston, West Virginia, for Appellee.

eee

2 Kinc v. Herserr J. THOMAS MEmorIAL HospPitac

OPINION

NIEMEYER, Circuit J udge:

Kermie M. King’s long-time employment as a dietary aide at the

Herbert J. Thomas Memorial Hospital in South Charleston, West Vir-

ginia, was terminated on April 9, 1987, because she falsified her time

card. Following her termination, King filed this action, claiming,

among other things, that Thomas Memorial Hospital discriminated

against her by reason of her age in violation of the West Virginia

Human Rights Act. That Act requires King to establish that at the

time of the defendant’s allegedly discriminatory action, she was "able

and competent to perform the services required" of her employment.

W. Va. Code § 5-11-9(1). -

In addition to filing this action, King applied for and was awarded

disability benefits by the Social Security Administration, retroactive

her discharge, the district court granted summary judgment for

Thomas Memorial Hospital on the grounds that King was judicially

estopped from asserting that she was "able and competent” to perform

her previous job, as required by West Virginia law.

Because we agree with the district court that King should be judi-

cially estopped from maintaining that she was "able and competent”

to perform her previous job and because, in addition, we conclude

that she has failed to present sufficient evidence to show that she

would not have been terminated "but for" her age, we affirm.

I

King’s employment as a dietary aide at Thomas Memorial Hospital

required her to assist in such food production tasks as tossing salads

and delivering food trays to patients. Before her discharge on Septem-

ber 9, 1987, she had worked in this Capacity for 25 years.

King’s employment at the hospital was regulated by published pol-

icies and an employee handbook. The six-page "Policy for Recording

KinGc v. HerBerT J. THoMAS MEMoRIAL HosprraL 3

Time Worked and Instructions for Time Card Recording" included

the following instruction, printed in all capitals and underlined:

"RECORD THE ACTUAL TIME WHEN COMMENCING WORK

AND THE ACTUAL TIME WHEN CONCLUDING WORK.

(FALSIFICATION OF TIME CARD WILL RESULT IN TERMI-

NATION)." Similarly, the employee handbook listed 30 offenses for

which disciplinary action was specified, including “falsification of

time card,” for which the specified sanction for the first offense was

discharge. King acknowledged that she had been aware of these poli-

cies before August 1987.

On August 28, 1987, King’s immediate supervisor observed King

leaving work at 2:20 p.m. and, a few minutes later, getting into her

husband’s car and exiting the hospital grounds. On her time card,

King had signed out as of 2:30 p.m. King’s supervisor and her depart-

ment head subsequently counseled King, who acknowledged leaving

early, and issued her a written warning. The warning noted that

King’s job responsibilities included "deliver{ing) all late trays up to

2:30 p.m." and that the department had "received several complaints

about late trays not being delivered at this time." The warning further

notified King that any additional occurrences would result in her sus-

pension and would require her to check in with her supervisor before

Signing out each day.

On review of this written warning, the hospital’s director of per-

sonnel questioned King about the incident. During the course of this

interview, King acknowledged that she had left early on August 28,

as well as on several other occasions. She also acknowledged that in

each case she had falsified her time card. While King admitted that

she knew of the hospital’s time card policy and the mandated sanction

for falsifying entries, she explained, "I felt others had done the same

thing and that is why I did it." The director of personnel changed the

sanction on the incident form to “discharge,” as required by hospital

policy, and then terminated King’s employment.

On November 3, 1987, King filed an age discrimination claim with

the West Virginia Human Rights Commission, alleging, "I was dis-

criminated against because of my Age, 58, in that . . . [dJue to a

reduction in Patient Census, the [hospital] reportedly plans to reduce

the workforce by deleting certain positions." The Human Rights

4 KinG v. Hersert J. THomas MemMoriAL Hospirat

Commission investigated the charge, and on April 5, 1988, issued a

finding of no probable cause to believe that Thomas Memorial Hospi-

tal had engaged in unlawful discrimination.

After her discharge, King also applied for Social Security disability

benefits based on her physical condition which had manifested itself

almost a year earlier. During the yeai before her discharge, King’s

doctor had written to Thomas Memoria’ Hospital on King’s behalf,

urging that the hospital provide King with a job where she was not

required to spend eight hours a day on her feet because she was mani-

festing early symptoms of “talonavicular osteoarthritis." The hospital

responded that it did not have any positions open at that time “that

would limit the number of hours on her feet" but that jobs would be

posted as they opened. In deposition testimony given in this case,

King explained that she made her application for disability benefits

because she had become "physically unable there at the hospital" or,

as she corrected her statement, "Well, I guess it was after I was dis-

charged from the hospital. . . . I guess it was about in ’87, because

my legs was giving me problems."

While the record does not contain King’s application for Social

Security disability benefits, the Social Security Administration

awarded disability benefits to her in December 1988, determining that

she had been disabled as of September 2, 1987, a week before the ter-

mination of her hospital employment. In its notice of award, the

Social Security Administration explained that "(t]he decisions we

made on your claim are based on information you gave us” and that

these decisions were made by "doctors and other trained personnel."

It also advised King that her health might improve and that therefore

her case would be reevaluated in three years. King continues to

receive Social Security disability benefits, as well as a pension for

early retirement from Thomas Memorial Hospital.

After the West Virginia Human Rights Commission provided King

with a right to sue notice, she filed this action in a West Virginia state

court, and the hospital removed the case to federal court. In her

amended complaint, King alleged (1) age-based employment discrim-

ination in violation of the West Virginia Human Rights Act, (2)

breach of contract, (3) intentional infliction of emotional distress, and

(4) interference with retirement benefits in violation of the federal

Kinc v. HERBERT J. THoMAS MEMORIAL HosprraL 5

Employee Retirement Income Security Act (ERISA). The district

court dismissed the last three counts because they were barred by the

Statute of limitations. On the age discrimination claim, the court

applied judicial estoppel to bar King’s assertion of a necessary ele-

ment of her claim. The court concluded that King’s "representa-

tion{s]" to the Social Security Administration concerning her disabled

condition estopped her from maintaining her age discrimination

claim, a claim which required her to prove that she was "able and

competent to perform the services required" of her employment. W.

Va. Code § 5-11-9(1). While King’s application for Social Security

benefits was not before the court, the court noted that in order to

establish her Social Security claim, King had to represent that she had

"a severe impairment that made her unable to do her previous work

as of September 2, 1987." Moreover, the award itself indicates that it

was based on information and medical evidence submitted by King.

The court reasoned that King could not make the showing under the

West Virginia Human Rights Act that she was "able and competent

to perform the services required” and at the same time present a claim

for disability benefits that she was “unable to perform her previous

work,” and noted, "(T]he circumstances of this case strongly suggest

| that plaintiff is merely ‘blowing hot and cold as the occasion

| demands.’”

| This appeal followed, challenging only the district court’s entry of

summary judgment against King on her West Virginia age discrimi-

nation claim.

Ul

To establish a claim for unlawful age discrimination under West

Virginia law, a claimant must demonstrate, among other matters, that

she "is able and competent to perform the services required” of her

employment with or without accommodation. W. Va. Code § 5-11-

9(1); see also Morris Memorial Convalescent Nursing Home, Inc. v.

West Virginia Human Rights Comm'n, 431 S.E.2d 353, 357-58 (W.

Va. 1993). This requirement is consistent with the West Virginia

Human Right Act’s preference for injunctive relief and reinstatement.

See W. Va. Code § 5-11-13(c). In this case, the district court deter-

mined that King was judicially estopped from satisfying the "able and

competent to perform" requirement because she took the inconsistent

—— Ee

6 Kinc v. Hersert J. THomas MEMORIAL Hosprrac

position before the Social Security Administration that she was dis-

abled and could not perform her previous job. The court inferred,

based on the Social Security Administration’s decision, that “plaintiff

not only made the representation that she had a severe impairment

that made her unable to do her previous work as of September 2,

1987, but that she also submitted medical evidence in support of that

representation.”

Challenging that ruling on appeal, King contends that the district

court erred because it failed to recognize that a Social Security dis-

ability finding reflected not her inability to perform her job as a

dietary aide, but rather her “unemployability due to her age, limited

work skills, education, and incapability due to arthritic feet and legs."

She argues that there is nothing factually or legally inconsistent about

her asserting both that she was able to meet the requirements of her

job at the time of her termination, as required under the West Virginia

Human Rights Act, and also that she became disabled one week prior

to her termination for purposes of receiving Social Security disability

benefits.

Before addressing whether King in fact took inconsistent positions

before the Social Security Administration and in her state discrimina-

tion claim in this case, we should review the applicable principles of

judicial estoppel, upon which the district court relied.

Judicial estoppel, an equitable doctrine that prevents a party who

has sucessfully taken a position in one proceeding from taking the

Opposite position in a subsequent proceeding, is recognized to protect

the integrity of the judicial system. See Lowery v. Stovall, 92 F.3d

219, 223 (4th Cir. 1996) ("‘The purpose of the doctrine is . . . to pro-

tect the essential integrity of the judicial process’" (quoting John S.

Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir.

1995)); McNemar v. Disney Store, Inc., 91 F.3d 610, 616 (3d Cir.

1996) ("The doctrine . . . serves a consistently clear and undisputed

jurisprudential purpose: to protect the integrity of the courts");

DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191-92 (7th Cir.

1995) ("[C]ourts are under no compulsion to heed the shifting theo-

ries of ‘chameleonic litigants’"). Acting on the assumption that there

is only one truth about a given set of circumstances, the courts apply

judicial estoppel to prevent a party from benefiting itself by maintain-

Kinc v. HERBERT J. THOMAS MEmoRIAL HosprraL 7

ing mutually inconsistent positions regarding a particular situation. As

we have previously observed, the doctrine is invoked to prevent a

party from "playing fast and loose with the courts," from “blowing hot

and cold as the occasion demands," or from attempting "to mislead

the [courts] to gain unfair advantage." Lowery, 92 F.3d at 223, 225

(citations omitted). As an equitable doctrine, judicial estoppel is

invoked in the discretion of the district court and with the recognition

that each application must be decided upon its own specific facts and

circumstances. See, e.g., McNemar, 91 F.3d at 617.

We have recognized the necessity of establishing at least three ele-

ments to apply the doctrine: (1) The party to be estopped must be

asserting a position that is factually incompatible with a position

taken in a prior judicial or administrative proceeding; (2) the prior

inconsistent position must have been accepted by the tribunal; and (3)

the party to be estopped must have taken inconsistent positions inten-

tionally for the purpose of gaining unfair advantage. See Lowery, 92

F.3d at 224; John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d

26, 29 (4th Cir. 1995); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-

67 (4th Cir. 1982). But judicial estoppel will not be applied where the

party’s inconsistent positions resulted from inadvertence or mistake.

See Lowery, 92 F.3d at 224; Clark Co., 65 F.3d at 29.

In this case, West Virginia law requires King to establish as part

of her age discrimination case that she was "able and competent” to

perform the services required of her employment as a dietary aide at

Thomas Memorial Hospital. The question presented, therefore, is

whether she was properly estopped from establishing that element by

reason of the position she took before the Social Security Administra-

tion in making a claim for disability benefits.

The record reveals that during the year before her discharge from

the hospital, King was suffering from early stages of osteoarthritis,

making it difficult for her to stand for long periods of time, as was

necessary in performing her work as a dietary aide. The hospital

advised her that it could not accommodate her claimed need to spend

less time on her feet, but it suggested she could apply for a suitable

position when one became available. Following her discharge in Sep-

tember 1987, King filed a claim with the Social Security Administra-

tion for disability benefits based on this disability, and the Social

8 Kinc v. Hersert J. THomas MemoriAL Hosprrac

Security Administration awarded her benefits based on the informa-

tion King provided, effective one week before her discharge.

The Social Security Administration’ s finding of disability necessar-

ily meant that it had found, based on information supplied by King,

that King was unable "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impair-

ment." 42 U.S.C. § 423(d)(1)(A). More specifically, the Social Secur-

ity Act directs that "[a]n individual shall be determined to be under

a disability only if [her] physical or mental impairment or impair-

ments are of such severity that [she] is not only unable to do [her]

previous work but cannot, considering [her] age, education, and work

experience, engage in any other kind of substantial gainful work

which exists in the national economy." 42 U.S.C. 423(d)(2)(A)

(emphasis added). The burden of proof lies with the claimant, who

“shall not be considered to be under a disability unless [she] furnishes

such medical and other evidence of the existence thereof as the Com-

missioner of Social Security may require. . . . Objective medical evi-

dence of pain or other symptoms established by medically acceptable

clinical or laboratory techniques . . . must be considered in reaching

a conclusion as to whether the individual is under a disability." 42

U.S.C. § 423(d)(5)(A).

King makes the argument that a Social Security Administration

finding of disability could be based on a more general finding of

unemployability due to her age, limited work skills, education, and

incapacity due to her arthritic feet and legs. The age, skills, and edu-

cation factors, however, relate only to whether King could engage in

"any other kind of substantial gainful work which exists in the

national economy." To award King disability benefits, the Social

Security Administration would necessarily have had to conclude first

that King was “unable to do [her] previous work," either because of

a physical or a mental impairment.

Moreover, in this case, there is no mystery about the basis of

King’s disability. She explained in deposition the position she took

before the Social Security Administration, testifying that she was dis-

abled because of arthritis in her legs at the time of her discharge. She

Stated repeatedly that she was not "physically able to work,” that "I

really become physically unable there at the hospital,” and that she

Kinc v. HERBERT J. THoMAS MEMORIAL HospPITrAL 9

became "unable to work from a physical standpoint . . . after I was

discharged from the hospital." In addition, even though the Social

Security Administration’s award to King provided for a review of her

condition after three years, at the time of her deposition eight years

after her discharge from the hospital, King was still receiving disabil-

ity benefits.

The pertinent facts may thus be summarized: (1) King has taken

the position before the Social Security Administration that she was

physically unable to do her previous job as a dietary aide; (2) she

claimed that she became so disabled around the time of her discharge

in September 1987; (3) the Social Security Administration necessarily

determined that she was "unable to do her previous work" at Thomas

Memorial Hospital; (4) based on her representations, she benefited

herself by obtaining from the Social Security Administration an

award of disability benefits; and (5) she continues to assert under oath

that she was disabled and she continues to receive disability benefits,

which indicate that her position was deliberately and not inadvertently

taken. Upon these facts, we agree with the district court that King is

judicially estopped from asserting, as required for her West Virginia

age discrimination claim, that she was “able and competent” to per-

form her previous work at the hospital at the time of her discharge.

See W. Va. Code § 5-11-9(1). To allow King to obtain benefits from

two sources based on two incompatible positions, simply because the

positions aid her claims for remuneration, would reduce truth to a

mere financial convenience and would undermine the integrity of the

judicial process. In the factual circumstances of this case, we con-

clude that the district court was well within its discretion in applying

judicial estoppel to preclude King from asserting a necessary element

of her West Virginia age discrimination case.

Il

In addition to the requirement that King demonstrate that she was

"able and competent" to work at her employment to prove an age dis-

crimination case under West Virginia law, she must establish that "but

for" her age (58), she would not have been fired. See Conaway v.

Eastern Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va. 1986).

To satisfy this requirement, and thereby shift the burden of production

to the hospital, she would have to "show some evidence which would

10 Kinc v. HERBERT J. THomas MemoriAL Hosprrac

sufficiently link the employer’s decision and the plaintiff's status as

a member of a protected class so as to give rise to an inference that

the employment decision was based on an illegal discriminatory crite-

rion." Id. at 429-30 (footnote omitted); see also Barefoot v. Sundale

Nursing Home, 457 S.E.2d 152, 161 (W. Va. 1995) (explaining that

"but for" test is "merely a threshold inquiry, requiring only that a

plaintiff show an inference of discrimination").

The only evidence on this issue that King offered was a paper in

longhand from her personnel file on which calculations were made in

March 1987 showing that the amount of her pension at her early

retirement date of May 1, 1987, was less than half of the pension that

she would receive at her normal retirement date on May 1, 1994. King

states that she did not request that information and that it was pre-

pared without her knowledge. The inference she seeks to draw from

the existence of these calculations is that the hospital discharged her

six months later because it wanted to reduce its future pension liabili-

ties.

We fail to appreciate how these calculations, made in March 1987,

are linked through any evidence to the decision to fire King in Sep-

tember 1987. But even if this evidence shifted the burden to the hos-

pital to produce a valid, nondiscriminatory reason for terminating

King, see Conaway, 358 S.E.2d at 430, the hospital presented evi-

dence that it discharged King for falsifying her time card on August

27, 1987, a fact that King admitted and which required, as a matter

of preestablished policy, that she be discharged. When confronted

with this evidence, King had to meet the ultimate burden of proving

that the reason given by the hospital was "merely a pretext for dis-

criminatory motive." Conaway, 358 S.E.2d at 430 (footnote omitted).

King argues that the affidavit of a former co-worker, which she

offered in opposition to summary judgment, established that it was

hospital policy to allow employees a "grace period” of five to seven

minutes at the start and finish of each workday and that therefore

there must have been some other reason for her discharge. This affi-

davit reported that the former employee had observed food production

employees sign out and leave work five to ten minutes earlier than the

scheduled quitting time, and stated that this grace period was pro-

vided as part of a “long standing formal and later informal hospital

KinG v. HERBERT J. THoMAS MEMORIAL HosPITAL 11

and dietary department policy." This affidavit, however, does not

indicate that Thomas Memorial Hospital tolerated the falsification of

time records. On the contrary, the evidence showed that the falsifica-

tion of time records was a serious violation, requiring dismissal of the

falsifying employee. Moreover, the hospital presented uncontradicted

testimony that at least 15 other employees who had falsified their time

records were discharged from their employment at the hospital, and

only one of these other discharged employees was 40 years of age or

older.

In short, we conclude that no reasonable jury could find that King’s

termination was the result of unlawful age-based discrimination on

the part of the hospital.

For the reasons given herein, the judgment of the district court is

hereby affirmed.

AFFIRMED