Opposition Brief — King v. Herbert J. Thomas Memorial Hospital Ass'n

| Supreme Court, U.S.

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IN THE OFEICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1998

TEE te RE RE

KERMIE M. KING,

Petitioner.

HERBERT J. THOMAS MEMORIAL

HOSPITAL ASSOCIATION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

CHARLES M. SuRBER, JR.

Counsel of Record

ERIN MAGEE CONDARAS

JACKSON & KELLY PLLC

Attorneys for Respondent

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

(304) 340-1000

151937 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

i

STATEMENT PURSUANT TO RULE 29.6

Herbert J. Thomas Memorial Hospital Association is a

non-stock, tax exempt, not for profit corporation. It has no

parent corporation, but has two sister corporations which

include Health Care Connection, Inc., a non-stock, not for

profit, taxable medical corporation, and Thomas Memorial

Hospital Foundation, a non-stock, not for profit corporation.

Herbert J. Thomas Memorial Hospital Association has two

wholly owned subsidiary corporations, Thomas Valuecare

Inc. which is a not for profit corporation, and TMH Services,

Inc. which is a for profit corporation. In turn, TMH Services,

Inc. has six nonwholly owned for profit subsidiary businesses,

which include Ashton Partners, Bennett Partners, Division

Street Partners, Homecare Connection, L.L.C., IBO Services,

THP Partners, and TriQuest, Inc.

TABLE OF CONTENTS

raterment OF fe Case os 6 i i ee eee

Steere OF FOEES ee

Reasons for Denying the Wht... oc. 6s sack vee te

Conclusion

Page

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6

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TABLE OF CITED AUTHORITIES

Page

Cases:

Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S.

PPMP RUIN plan Pie eyse ei civeecteises 7

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

RING, CES Pec we pares Vise ee P40 One we Ke 9

Budd v. ADT Sec. Systems, Inc., 103 F.3d 699 (8th Cir.

ea ay Uiaie'e'e Vis vik oo is ww ee hed 0 sss 9

Cline v. Western Horseman, Inc., 922 F. Supp. 442 (D.

ST eed Sy eek eae WARK pe oe 11

Erit v. Judge, Inc., 961 F. Supp. 774 (D.N.J. 1997) . y)

Fiast v. Cohen, 392 U.S. 83 (1968) .........2+.-. 7

Fussell v. Georgia Ports Auth., 906 F. Supp. 1561 (S.D.

Ga. 1995), aff'd, 106 F.3d 417 (11th Cir. 1997) .. 11

Gaddy v. Four B. Corp., 953 F. Supp. 331 (D. Kan.

OPP Piles ysienenctna vite secession ees 17

Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547

REDS Sk csv eevee teeeeeebes oe 9,10

Harris v. Marathon Oil Co., 948 F. Supp. 27 (W.D.

ee Se ey ee NS Cay Vale wa tee ab ee wea 9

iv

Cited Authorities

Page

Hindman vy. Greenville Hosp. Sys., 947 F. Supp. 215

AA DOOR os sea scar) depo foe senere ee we 9

Johnson vy. U.S. Steel Corp., 943 F. Supp. 1108 (D.

OSE, BOD eis oo ok 6 oe 6 ee 9

Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996), cert.

SOME SAS Tia ARES CES A 8 eRe RE 9, 10

McNemar v. The Disney Stores, Inc., 91 F.3d 610 (3d

Le Se Ps eee Rhee yea eas 9

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)

65ST eR EW pee ed Ee nae chee 17

Miller v. U.S. Bancorp, 926 F. Supp. 994 (D. Or. 1996)

PEELE TE Pee Ee Ce Ee eh ee eo 9

Nguyen v. IBP, Inc., 905 F. Supp. 1471 (D. Kan. 1995)

re EE Ue ERNE PON PET ey a OTS ns 11

Pegues v. Emerson Elec. Co., 913 F. Supp. 976 (N.D.

PERG SOE ok ek Sc bined beak wae ene 1]

Public Employees Retirement System vy. Betts, 492 U.S.

SOG LEETE, eek Ok ease aea Chee res 17

Reigel v. Kaiser Foundation Health Plan of North

Carolina, 859 F. Supp. 963 (E.D.N.C. 1994) .... 10, 16

Cited Authorities

Page

Ross v. Indiana State Teacher's Ass'n., 955 F. Supp.

SUES CN. Eos Bc RAO) ie cw ae SERS ee eae ee eee 9

Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 274

(GG ir. SFTP ora ik once sea eee Wa eee veces: 17

Simo v. Home Health & Hospice Care, 906 F. Supp.

FUGUE: BOT saps be aed nee be ais hed 16

Smith v. Midland Brake, Inc., 911 F. Supp. 1351 (D.

DME: SOR AE sion bk bo abs ee ae De ee 9

Taylor v. Food World, Inc., 946 F. Supp. 937 (N.D.

ft b. -) Reena ee Te aa 9

United States v. Evans, 213 U.S. 297 (1909) ...... 7

Wells v. North Carolina Bd. of Alcohol Control, 714

FG S40 (40s Cit. FFG SD) x tk ohio eb eenaes 15

Williams v. Channel Master Satellite Sys., Inc., 101 F.3d

Se CORA SSR i he koe nc Kah Gera cen) 17

Statutes:

5 Rea ee Be Oe NE ono wig etn 604 + Oh Ede a

Pe Gee es Re OCU. 0d i a's 0 ee Ooh 2

SUBS RAIA ee 11

vi

Cited Authorities

Page

AZ UGE6 TORS 85. ei RCS ee eS hie

Re Spies. ROO OE MOG. is 6.0 aa 5 oR od eee L,<

W.Va. Come 6 5-1 1-9 ef. 200i: oe oe ive ches tes Pe

WE VG OGG S SPADE) scien is 6 ie eee es 2 PS Fy

Rules:

BO GAs TD) ocak scien tb casedye sae eae ones 8

Se. 0, BR EES) i a eee ee eee 4

Other Authorities:

yi eee Re eS al) Serre ne re wy ae 14

20 RP 8 406.703 CSRS) ii ie ke eee 14

a CPs SROs CUR Oo) ik i eae ieee 14

er es RD LAST OE oc eis etree seas 14

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LAW INVOLVED

The law involved in this matter is the application of the

doctrine of judicial estoppel to a claim of age discrimination

under the West Virginia Human Rights Act, W. Va. Code

§ 5-11-9 et seg. This case does not involve, nor has petitioner

ever pled, a violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., the Age Discrimination In

Employment Act, 29 U.S.C. § 621 et seq., or 42 U.S.C. § 1983.

STATEMENT OF THE CASE

The petitioner, Kermie Marie King (“King”), was

discharged from employment with respondent, Herbert J.

Thomas Memorial Hospital (“Thomas”), on September 9,

1987. King was discharged because she falsified entries on

her time card in violation of Thomas’ written policies.

On November 2, 1987, King filed a charge of age

discrimination with the West Virginia Human Rights

Commission. The Commission investigated the charge and

on April 5, 1988, issued a determination that there was no

probable cause to believe that King was discharged because

of her age. For reasons unknown, the Commission issued

another determination six years later. On September 15, 1994,

the Commission again found no probable cause to believe

that King had been discriminated against on the basis of

her age. On September 22, 1994, King requested an

administrative review of the no probable cause determination,

which review was held on December 14, 1994. On January

15, 1995, the Commission affirmed the no probable cause

determination and provided King with a notice of right to

sue.

2

On March 15, 1995, King instituted a lawsuit against

Thomas in the Circuit Court of Kanawha County, West

Virginia. King asserted several causes of action, including

age discrimination under the West Virginia Human Rights

Act, W. Va. Code § 5-11-9 et seqg., wrongful discharge, and

intentional infliction of emotional distress, but raised no

claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seg., the Age Discrimination In

Employment Act, 29 U.S.C. § 621 et seqg., or 42 U.S.C.

§ 1983. Based upon allegations in the complaint that Thomas

discharged King for the purpose of interfering with the

attainment of retirement benefits, Thomas removed the matter

to the United States District Court for the Southern District

of West Virginia on April 5, 1995, upon the grounds that

the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1101 et seq., preempted King’s state

law claims.

By Memorandum Order dated August 22, 1996, the

District Court granted in part Thomas’ Motion for Summary

Judgment. The court ruled that King’s claims of wrongful

discharge, intentional infliction of emotional distress, and

ERISA violations were barred by the applicable statutes of

limitations (Petitioner’s Supplemental Appendix A). The

court denied Thomas’ motion as it related to King’s age

discrimination claims, and denied without prejudice Thomas’

motion based on the doctrine of judicial estoppel, pending

further briefing (/d.).

On December 11, 1996, the District Court revisited the

issue of whether King’s age discrimination claim was barred

by the doctrine of judicial estoppel. By Memorandum Order

of that date, the District Court found that King was terminated

from employment on September 9, 1987; that she applied for

disability benefits from the Social Security Administration;

3

that on December 12, 1988, she was notified that she was

eligible to receive those benefits retroactive to September 2,

1987, one week prior to her discharge; that she continues to

date to receive those benefits; that in order to prevail upon

her age discrimination claim under the West Virginia Human

Rights Act she must prove that at the time of the alleged

discriminatory action she was able and competent to perform

the services required of her employment; and that the doctrine

of judicial estoppel bars her from claiming that she was able

to work at the same time she claimed to the Social Security

Administration that she was unable to work. Thus, the District

Court granted summary judgment to Thomas upon King’s

claims which had survived the August 27, 1996 order

(Petitioner’s Supplemental Appendix B).

King then appealed the latter decision to the United States

Court of Appeals for the Fourth Circuit. By order dated

October 30, 1998, the Fourth Circuit Court of Appeals ruled

that the doctrine of judicial estoppel barred King from

asserting in court that she was able and competent to perform

the services required of her job at Thomas, a necessary

prerequisite to an age discrimination claim under the West

Virginia Human Rights Act, while at the same time

successfully asserting to the Social Security Administration

that she was disabled and thus unable to do her previous work

at Thomas (Petition Appendix, pp. 5-9). Moreover, the Fourth

Circuit Court of Appeals further ruled on the merits of King’s

age discrimination claim, concluding that no reasonable jury

could find that King’s discharge was the result of age

discrimination on the part of Thomas (Petition Appendix,

pp. 9-11).

King now seeks a writ of certiorari as to the Fourth Circuit

Court of Appeals’ application of the doctrine of judicial

4

estoppel, but not as to that court’s decision on the merits of

her age discrimination claim (see, e.g., Petition, p. 1). The

case was placed on this Court’s docket on March 2, 1999;

however, to date petitioner has not complied with the

notification requirements of the Rules of the Supreme Court

of the United States, Rule 12(3).

STATEMENT OF FACTS

King was hired by Thomas in 1962. Her entire

employment was in the Dietary Department where she

performed duties such as working on the food tray line,

delivering food trays to patients, filing cards in the office,

etc. Also during the entirety of her employment her hours of

work were 6:00 a.m. to 2:30 p.m.

On Saturday, August 27, 1987, King left the Dietary

Department at 2:20 p.m., although she was scheduled to work

until 2:30. King was seen by her supervisor, Darlene Kestner,

getting into a truck and leaving the premises at approximately

2:26 p.m. Ms. Kestner then reviewed King’s time card, upon

which King had entered that she worked until 2:30.

On September 8, 1987, Ms. Kestner and the Department

Head, Margaret Eagloski, met with King concerning her

falsification of her time card. At that time, King was warned

that any further such falsifications would result in a three-

day suspension. This discipline, however, was not in

accordance with established Hospital policy, which required

termination for such an infraction.

Normally, the supervisor or department head writes up

the infraction and the discipline, and brings it to the personnel

aerated

5

director for approval prior to presenting it to the employee.

In this case, the discipline was given to King prior to approval

by Donna Arbogast, the Personnel Director, and subsequently

given to Ms. Arbogast. At that time, Kestner was new in her

supervisory position and Eagloski was in an acting capacity

as the Director of the Dietary Department. Moreover, Kestner

and Eagloski were not employees of the Hospital, but rather

were employees of ARA, a company which provided a

management contract for dietary services at the Hospital.

When the disciplinary action was presented to Ms.

Arbogast, she immediately changed it to conform with

Hospital policy. The Employee Handbook issued to all

employees, including King, specifically provides that the first

offense of falsification of a time card carries the penalty of

discharge. Furthermore, the Hospital’s Policy for Recording

Time Worked and Instructions for Time Card Recording

provides in pertinent part: “RECORD THE ACTUAL TIME

WHEN COMMENCING WORK AND THE ACTUAL TIME

WHEN CONCLUDING WORK. (FALSIFICATION OF TIME

CARD WILL RESULT IN TERMINATION)” (emphasis in

original). This policy was kept in the front of every time card

book in the Hospital, and was in the time card book upon

which King signed her time out on August 27, 1987.

Consequently, Ms. Arbogast met with King, Kestner, and

Eagloski on September 9, 1987. At that meeting, Ms.

Arbogast confronted King, who admitted that she had left

prior to 2:30 but marked her time card as if she had left at

2:30. Moreover, King admitted that she had done this on other

occasions. Therefore, Ms. Arbogast informed King that there

had been a falsification of her time card and that immediate

termination was proper at that point. King was fully aware

6

that falsifying a time card was grounds for discharge, and

she was in fact discharged solely for this reason.’

King became physically unable to work while she was

still employed at Thomas or shortly thereafter. She filed a

claim for disability benefits with the Social Security

Administration, which claim was approved on December 12,

1988. At that time, the Social Security Administration

determined that King became disabled on September 2, 1987,

one week prior to her discharge. King has continued to receive

Social Security disability benefits to the present.

REASONS FOR DENYING THE WRIT

A. The Fourth Circuit Court of Appeals decided this case

of alleged age discrimination on two separate bases: (a) the

application of the doctrine of judicial estoppel to a claim of

age discrimination arising under the West Virginia Human

Rights Act, which King asserts to be error (Petition Appendix,

pp. 5-9); and (b) King’s failure to produce sufficient evidence

to give rise to an inference of age discrimination under West

Virginia law, or to produce sufficient evidence that Thomas’

asserted valid nondiscriminatory reason for King’s discharge

was pretextual (Petition Appendix pp. 9-11), which King does

not raise as an assignment of error (see, e.g., Petition, p. i).

1. Not only was King discharged for falsification of her time

card, every other individual who committed this infraction of Hospital

policy has likewise been discharged. These include, in addition to

King, Tamalena Stover (age 19), Roberta Mann (age 25), Chery]

Miller (age 23), Allan Gurley (age 35), Paul Newman (age 31), Nila

Bird (age 35), George Baria (age 33), Kristina Riffee (age 22), Ann

Taylor (age 32), Leigh Roberts (age 28), Bonita Chapman (age 22),

Wendy Ashley (age 23), Joyce Wick (age 41), Amanda Skeens (age

18) and Carole Morton (age 36).

7

Consequently, King’s request for a review of the application

of the doctrine of judicial estoppel, even if granted, would

not change the outcome of the case, which was decided on

its merits.

Essentially, King seeks an advisory opinion from the

Court on a nondispositive issue, when there is no existing

justiciable controversy. In Aetna Life Ins. Co. of Hartford v.

Haworth, 300 U.S. 227 (1937), this Court defined a justiciable

controversy as one that

must be definite and concrete, touching the legal

relations of parties having adverse legal interests.

It must be a real and substantial controversy

admitting of specific relief through a decree of a

conclusive character, as distinguished from an

opinion advising what the law would be upon a

hypothetical state of facts.

300 U.S. at 240-41 (citations omitted). Indeed, “the oldest

and most consistent thread in the concept of justiciability is

that the federal courts will not give advisory opinions.” Flast

v. Cohen, 392 U.S. 83, 95 (1968). Thus, in cases such as the

one at bar, this Court routinely refuses to give advisory

opinions on questions that cannot affect the relations of the

parties. United States v. Evans, 213 U.S. 297 (1909).

Accordingly, because the Fourth Circuit Court of Appeals

has decided this case on its merits on grounds other than those

asserted by King to be error, the Court should refuse to grant

the petition for writ of certiorari.

8

B. This case does not present any of the considerations

the Court utilizes in exercising its broad discretion to grant a

petition for writ of certiorari. Sup. Ct. R. 10(a). This case

involves the application of the federal common law

procedural doctrine of judicial estoppel to a claim asserted

under West Virginia substantive state law. Given the very

nature of this case, it cannot be contended that the Fourth

Circuit Court of Appeals has entered a decision in conflict

with the decision of another United States Court of Appeals

on the same issue.

Nor has the Fourth Circuit Court of Appeals decided an

important federal question in a way which conflicts with a

decision of the Supreme Court of Appeals of West Virginia.

Indeed, the West Virginia Supreme Court has not issued a

published opinion on the application of the doctrine of judicial

estoppel to cases arising under the West Virginia Human

Rights Act, and King has not asserted that the Fourth Circuit

Court of Appeals’ decision in the case sub judice is in conflict

with such a decision.

Finally, the Fourth Circuit Court of Appeals has not

departed from the accepted and usual course of judicial

proceedings, or sanctioned the same by the United States

District Court for the Southern District of West Virginia.

King’s petition does not assert that such a departure occurred

in either court. Therefore, none of the considerations

identified in the Rules of the Supreme Court of the United

States, Rule 10(a) are present in this case, and the Court

should, therefore, deny King’s request for a writ of certiorari.

ee

9

C. The lower courts properly ruled that King is judicially

estopped from pursuing her claim of age discrimination under

the West Virginia Human Rights Act because: (1) she adopted

a position before the courts that she is able and competent to

perform her job duties, while she maintained before the Social

Security Administration that she was totally disabled from

performing that job; (2) the Social Security Administration

accepted King’s prior inconsistent position by instituting

payments and ruling that she was disabled one week prior to

her discharge; and (3) King intentionally attempted to mislead

the lower courts to gain an unfair advantage in this litigation.

These findings comport with the standards of judicial estoppel

announced in Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996),

cert. denied, 519 U.S. 1113 (1997).

The law is well-established that plaintiffs will not be

permitted to claim to the Social Security Administration that

they are so impaired they cannot work and, at the same time,

claim in a discrimination lawsuit that they can go to work

and perform their jobs. These claims are mutually exclusive,

and plaintiffs are judicially estopped from taking these

diametrically opposed positions. Budd v. ADT Sec. Systems,

Inc., 103 F.34-699 (8th Cir. 1996); McNemar v. The Disney

Stores, Inc., 91 F.3d 610 (3d Cir. 1996); August v. Offices

Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992); Erit v. Judge,

Inc., 961 F. Supp. 774 (D.N.J. 1997); Ross v. Indiana State

Teacher's Ass’n., 955 F. Supp. 1025 (N.D. Ind. 1997); Harris

v. Marathon Oil Co., 948 F. Supp. 27 (W.D. Tex. 1996);

Hindman v. Greenville Hosp. Sys., 947 F. Supp. 215 (D.S.C.

1996); Taylor v. Food World, Inc., 946 F. Supp. 937 (N.D.

Ala. 1996); Johnson v. U.S. Steel Corp., 943 F. Supp. 1108

(D. Minn. 1996); Miller v. U.S. Bancorp, 926 F. Supp. 994

(D. Or. 1996); Smith v. Midland Brake, Inc., 911 F. Supp.

1351 (D. Kan. 1995); Garcia-Paz vy. Swift Textiles, Inc., 873

10

F. Supp. 547 (D. Kan. 1995); Reigel v. Kaiser Foundation

Health Plan of North Carolina, 859 F. Supp. 963 (E.D.N.C.

1994),

The doctrine of judicial estoppel is designed to protect

the integrity of the judicial process by “prevent[ing] a party

from playing fast and loose with the court.” Lowery, 92 F.3d

at 223 (citations omitted). “[The doctrine] precludes a party

from adopting a position that is inconsistent with a stance

taken in prior litigation.” Jd.

In Lowery, the Fourth Circuit Court of Appeals identified

three elements necessary for the application of the doctrine.

The Court explained:

First, the party sought to be estopped must be

seeking to adopt a position that is inconsistent with

a stance taken in prior litigation.

* * *

Second, the prior inconsistent position must have

been accepted by the court.

* * *

Finally, the party sought to be estopped must have

intentionally misled the court to gain unfair

advantage.

Lowery, 92 F.3d at 224 (citations and quotations omitted).

Both the District Court and the Fourth Circuit Court of

Appeals correctly found all of these elements to be present

in the instant case.

i i a eel

11

Initially, King is taking a factual position which is

contrary to a position she took before the Social Security

Administration in her pursuit of Social Security disability

benefits. Disability under the Social Security Act is defined

as an inability to engage in any substantial gainful activity,

by reason of any medically determinable physical

or mental impairment which can be expected to

result in death or which has lasted or can be

. expected to last for a continuous period of not less

than twelve months.

See Cline v. Western Horseman, Inc., 922 F. Supp. 442, 446

(D. Col. 1996), citing 42 U.S.C. § 423(d)(a)(A). The Act’s

underlying regulations explain,

[t]o meet this definition, you must have a severe

impairment, which makes you unable to do your

previous work or any other substantial gainful

activity which exists in the national economy.

Id., citing 20 C.F.R. § 404.1505 (1995). Thus, the very

definition of disability within the meaning of Social Security

law is directly contrary to the concept that an individual is

able to perform her job. See also Pegues v. Emerson Elec.

Co., 913 F. Supp. 976 (N.D. Miss. 1996); Fussell v. Georgia

Ports Auth., 906 F. Supp. 1561 (S.D. Ga. 1995), aff'd, 106

F.3d 417 (11th Cir. 1997); Nguyen v. IBP, Inc., 905 F. Supp.

1471 (D. Kan. 1995). On the other hand, the West Virginia

Human Rights Act expressly states that an employment action

is an unlawful discriminatory practice if an employer

discriminates against an individual who is “able and

competent to perform the services required.” W.Va. Code

§ 5-11-9(1).

a.

12

In order to obtain disability benefits, King had to assert

before the Social Security Administration that she was unable

to perform her job at Thomas or any other job. In fact, King

admitted that she was physically unable to work at the time

of her discharge from the Hospital. However, in order to

maintain a claim for damages under the West Virginia Human

Rights Act, King must demonstrate that she was able to work

after her discharge. Thus, she has asserted contradictory

factual allegations in two forums of litigation.

Next, the Social Security Administration accepted King’s

factual assertion that she was unable to work after her

discharge from Thomas on September 9, 1987, and she has

received Social Security disability benefits since that time.

In fact, the Administration found that King was disabled as

of September 2, 1987 — one week before her discharge.

Consequently, the prior forum accepted King’s earlier

inconsistent factual assertion.

Finally, King’s attempt to assert a position in this lawsuit

contrary to her position before the Social Security

Administration effectively misleads the courts in an attempt

to recover damages to which she is not entitled. King has

taken one position before the Social Security Administration

and the opposite position before the courts. Her position

before the Social Security Administration was not accidental

or inadvertent. She wanted to obtain disability benefits;

therefore, she had to assert that she was unable to work after

her September 1987 discharge from the Hospital. On the other

hand, to maintain a claim for age discrimination under the

West Virginia Human Rights Act, King must demonstrate

that she was able to perform the required functions of her

job. However, King cannot make one factual assertion to have

the advantage of collecting disability benefits, then make the

0 AD ot Seite

13

opposite assertion to have the advantage of collecting

damages for employment discrimination. Consequently, the

lower courts found that all the necessary elements for the

application of judicial estoppel are present in this action.

King argues that the lower courts merely mechanically

applied the doctrine of judicial estoppel to act as a per se bar

to her claim of age discrimination (see Petition, p. 7). This is

clearly not the case. Rather, both the District Court and the

Fourth Circuit Court of Appeals looked carefully at the

specific facts of this case and determined that, under the

particular circumstances of this case, the doctrine of judicial

estoppel should apply to preclude King from asserting a

necessary element of her West Virginia age discrimination

case.

King implies that she was not disabled until 15 months

after her discharge, when she was awarded Social Security

disability benefits. Her claim is ingenuine for several reasons.

First, the Social Security Administration found that King was

disabled as of September 2, 1987 — one week before her

discharge. Therefore, King unquestionably has represented

to the Social Security Administration that she has been

disabled from that date. Indeed, it is her continuing

representation that she cannot work, rather than the actual

date of the award, which invokes judicial estoppel.

Furthermore, in her deposition, King asserted that she

became disabled in 1987, while she was employed or shortly

after her discharge. Her assertion now that the onset of her

disability was delayed 15 months is contrary to her own

testimony. In fact, King’s assertion that she sought a job or

wanted to work for nearly 15 months after her discharge is

wholly unsupported by the record. Those unsupported

14

allegations are exactly the type of statements that judicial

estoppel would prohibit King from asserting in light of her

representations to the Social Security Administration.

Moreover, King asserts numerous times in her petition

that she did not receive Social Security benefits for fifteen

months subsequent to her termination (see Petition, pp. 9,

10, 14, 30), implying that her application for those benefits

was in close proximity to the receipt of those benefits.

However, if such were actually the case, she would have

received her disability benefits on approximately the same

day that she applied for them. This is simply not possible.

In order to apply for Social Security benefits, a person

must submit an application for benefits to the Social Security

Administration. 20 C.F.R. § 404.603 (1995). Once an

application has been submitted, the applicant must submit

evidence to the Social Security Administration that the

applicant is, in fact, eligible for the benefits. 20 C.F.R.

§ 404.703 (1995). The type of evidence needed will be

determined by the Administration, and the applicant is given

enough time to collect the evidence requested. 20 C.F.R.

§ 404.705 (1995). Once the applicant has taken all the

necessary administration steps, the Administration then

reviews all the evidence and the application to determine if

the applicant is eligible for the benefits requested. 20 C.F.R.

§ 404.900 (1995).

Obviously, all of these steps take quite some time, so it

would be impossible for the applicant to receive benefits

within such a short time of applying for benefits. Clearly,

based upon the procedures that must be followed to receive

benefits, King’s implications to the contrary are virtually

impossible.

15

Next, King asserts that her Social Security award was

not based solely upon her physical inability to work but

instead considered her age, limited work skills and education,

as well as her physical condition. This statement is also

ingenuine and is entirely unsupported by the record. King’s

Social Security award states that her medical providers

believed her physical condition might improve and, therefore,

that the Administration would reevaluate her entitlement to

disability benefits in the future. That provision indicates that

the Social Security Administration based its award solely

upon King’s physical condition. Additionally, King testified

under oath that she became physically unable to work while

she was still employed or shortly thereafter. Furthermore,

her physical condition obviously has not improved because

she has continued to receive disability benefits.

King relies upon the Fourth Circuit’s decision in Wells

v. North Carolina Bd. of Alcohol Control, 714 F.2d 340 (4th

Cir. 1983), to support her assertion that judicial estoppel is

inapplicable here. However, her reliance is misplaced. The

plaintiff in Wells never asserted that he was totally disabled

from working. Instead, he claimed only that he was no longer

able to perform a job which required frequent heavy lifting.

Furthermore, he never made any assertions about his ability

to work before an earlier forum. Therefore, Wells is not

applicable to this case.

In anticipation of Thomas’ arguments, King attempts to

distinguish factually the legal authority cited previously

herein in support of the application of judicial estoppel. The

minute factual details that King distinguishes, however, are

not relevant to the issue of whether judicial estoppel should

be invoked. The crucial point in all the cited cases is the fact

that each plaintiff, like King, asserted before the Social

16

Security Administration or another judicial forum that he or

she was unable to work. The various courts then used that

earlier assertion to prohibit each plaintiff from making a

contradictory assertion in the later judicial proceeding. As

the Reigel court explained:

Plaintiff in the case sub judice cannot speak out

both sides of her mouth with equal vigor and

credibility before this court. Plaintiff now seeks

money damages from [her employer] on her

assertion that she was physically willing and able

to work during the same period that she was

regularly collecting disability payments on her

assertions that she was physically unable to work.

859 F. Supp. at 970. In Simo v. Home Health & Hospice Care,

906 F. Supp. 714 (D.N.H. 1995), the court emphasized:

The integrity of the judicial system is jeopardized

when litigants are permitted to assume contrary

factual, not legal, positions for the purpose of

achieving advantageous results. The plaintiff,

having already reaped the benefits of her past

representations of total disability [before the Social

Security Administration], may not now advance

before this court any claim necessarily based on

contrary factual representation.

906 F. Supp. at 721. As in Reige/ and Simo, King’s identical

attempt to assert diametrically opposed factual allegations is

barred by the doctrine of judicial estoppel.

Finally, King attempts to rely, in part, on the recent Equal

Employment Opportunity Commission (“EEOC”) guidelines

iil

17

in order to circumvent the application of the doctrine of judicial

estoppel. This reliance is misplaced because the EEOC

guidelines are not applicable to the present action. This is a case

brought under the auspices of the West Virginia Human Rights

Act, not the Age Discrimination in Employment Act. The EEOC

has jurisdiction over the latter actions, not the former.

Although courts may resort to the EEOC guidelines for

guidance, they are not controlling. Shafer v. Preston Memorial

Hosp. Corp., 107 F.3d 274 (4th Cir. 1997) citing Williams v.

Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 n.2 (4th

Cir. 1996). See also Meritor Sav. Bank, FSB vy. Vinson, 477 U.S.

57, 65 (1986). Rather, they may be given deference unless the

interpretation is in direct conflict with the language of the statute.

Public Employees Retirement System v. Betts, 492 U.S. 158,

171 (1989). See also Gaddy v. Four B. Corp., 953 F. Supp. 331

(D. Kan. 1997),

In the instant case, the EEOC guidelines are in direct conflict

with the plain language of the West Virginia Human Rights Act.

The Act states that it is unlawful for an employer to discriminate

against a person “if the individual is able and competent to

perform the services required.” W.Va. Code § 5-11-9(1)

(emphasis added). On the other hand, the EEOC guidelines state

that an individual may be totally disabled for purposes of

obtaining Social Security benefits, yet still be able to perform

the services required. To allow an individual to claim to the

Social Security Administration that he or she is unable to do the

previous work or any other work in order to obtain benefits, and

then to allow the same individual to claim that he or she is able

and competent to perform a job is the essence of contradiction.

Consequently, the EEOC guidelines are in direct conflict with

the plain language of the West Virginia Human Rights Act and,

thus, are entitled to no deference by this Court.

18

CONCLUSION

For the foregoing reasons, respondent, Herbert J. Thomas

Memorial Hospital, prays that this Court deny King’s petition

for writ of certiorari.

Respectfully submitted,

CHARLES M. SurBER, JR.

Counsel of Record

ERIN MAGEE CONDARAS

JACKSON & KeLLy PLLC

Attorneys for Respondent

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

(304) 340-1000