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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1098

## Text

| Supreme Court, U.S.
waa, eB D |

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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1]

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
Ge ee OUR OO) he eee ev beeen be ewes 1]

l
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1352%3A3. Public record. Not legal advice.