IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 96-11247
__________________________
CAROLYN C. CLEVELAND,
Plaintiff-Appellant,
versus
POLICY MANAGEMENT SYSTEMS CORPORATION;
GENERAL INFORMATION SERVICES, a Division of
Policy Management Systems Corporation;
CYBERTEK CORPORATION,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
____________________________________________________
August 14, 1997
Before WIENER and PARKER, Circuit Judges, and LITTLE,* District
Judge.
WIENER, Circuit Judge:
Plaintiff-Appellant Carolyn C. Cleveland appeals the district
court’s grant of summary judgment for her former employer,
Defendant-Appellee Policy Management Systems Corporation (PMSC), on
her claim of wrongful termination under the Americans with
Disabilities Act (ADA).1 We affirm, concluding that Cleveland has
*
Chief District Judge of the Western District of Louisiana,
sitting by designation.
1
42 U.S.C. §12101 et seq. (1994).
failed to raise a genuine issue of material fact which, if proved,
would rebut the presumption that her sworn declarations of
disability submitted to the Social Security Administration (SSA)
judicially estop her from asserting that under the ADA she is a
“qualified individual with a disability.”
I.
FACTS AND PROCEEDINGS
PMSC hired Cleveland in August 1993. The following January,
Cleveland suffered a stroke while on the job and took a leave of
absence. She was unable to return to work immediately, however, as
the stroke caused aphasia, a condition that affects concentration,
memory, and language functions such as speaking, reading, and
spelling.
With her daughter’s assistance, Cleveland filed an application
for social security disability benefits. In support of her sworn
application, Cleveland certified that she had become “unable to
work because of [her] disabling condition on January 7, 1994” and
that she was “still disabled.” She acknowledged also that it is a
crime to make a false statement in an application for social
security disability benefits.
In April 1994, Cleveland’s doctor released her to return to
work and anticipated an eventual recovery for her of nearly 100%.
Cleveland alleges that when she returned to work at PMSC she
contacted the SSA and informed them that she had returned and that
she no longer needed disability benefits. PMSC concedes that she
2
informed the SSA of her return but denies that she ever withdrew
her application for disability benefits or otherwise indicated that
she was anything other than totally disabled.
Following her return, Cleveland did not perform well at PMSC.
She requested several accommodations, including computer training,
permission to take work home in the evenings, a transfer of
position, and permission for the Texas Rehabilitation Commission to
provide a counselor —— free of charge —— to assist her. PMSC
denied each of her requests. In July 1994, PMSC terminated
Cleveland for poor job performance.
Cleveland claims that as a consequence of her firing she
became depressed and that her aphasia worsened. In September 1994,
she renewed her application for social security disability benefits
by filing a “Request for Reconsideration” in which she stated, “I
continue to be disabled,” and a “Work Activity Report” in which she
stated that she was terminated “because I could no longer do the
job because of my condition.” In January 1995, Cleveland filed
another “Request for Reconsideration” and that May requested a
hearing before an Administrative Law Judge (ALJ), in both instances
representing that she was “unable to work due to my disability.”
In September 1995, the ALJ concluded that Cleveland had become
disabled on January 7, 1994 and was disabled continuously through
the date of the ALJ’s decision. Consequently, the ALJ granted her
social security disability benefits, effective retroactively to
January 7, 1994.
3
One week before the ALJ’s decision, Cleveland had filed suit
against PMSC for wrongful termination in violation of the ADA and
the Texas Labor Code. PMSC moved for partial summary judgment,
asserting that Cleveland could not establish a prima facie case
under the ADA, as her representations in her application for, and
her receipt of, social security disability benefits estopped her
from claiming that she is a “qualified individual with a
disability.” The district court granted PMSC’s motion on the ADA
claim and dismissed the state law claim without prejudice.
Cleveland timely appealed, insisting that she is not estopped
from establishing as a matter of law that she is a “qualified
individual with a disability.” Specifically, she maintains that
her position in pursuit of social security disability benefits and
her instant position under the ADA are not inconsistent, as (1) she
was disabled for purposes of social security disability benefits
when she filed the initial application; (2) when she returned to
work, she notified the SSA and withdrew her claim for benefits; and
(3) she became disabled again for purposes of social security
disability benefits only after and as a result of her termination.
Cleveland contends that, from the time she returned to work until
she was terminated, she could have performed the essential
functions of her job with a reasonable accommodation, i.e., during
that period she was a “qualified individual with a disability.”
II.
ANALYSIS
4
A. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de
novo, applying the same standards as the district court.2 Summary
judgment is proper when the evidence, viewed in the light most
favorable to the non-moving party, shows that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law.3
B. APPLICABLE LAW
The ADA prohibits an employer from discriminating against “a
qualified individual with a disability because of the disability.”4
To assert an ADA violation successfully, in the absence of direct
evidence of discrimination, a plaintiff must first make a prima
facie showing that, inter alia, he is a “qualified individual with
a disability.”5 A “disability” is “a physical or mental impairment
that substantially limits one or more of the major life activities”
of the individual.6 A “qualified individual with a disability” is
“an individual with a disability who, with or without reasonable
2
Melton v. Teachers Ins. & Annuity Assn. of America, 1997 WL
285720, at *1 (5th Cir. June 16, 1997).
3
River Production Co., Inc. v. Baker Hughes Production Tools,
Inc., 98 F.3d 857, 859 (5th Cir. 1996)(citing Fed. R. Civ. P.
56(c)).
4
42 U.S.C. §12112(a)(1994).
5
See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th
Cir. 1995).
6
42 U.S.C. §12102(2)(A)(1994).
5
accommodation, can perform the essential functions” of his job.7
The Social Security Act prescribes an individual’s eligibility
for social security disability benefits. An individual is entitled
to receive such benefits if he is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment”8 and only if that
impairment is of such severity that he is unable to do his previous
work and cannot engage in any other kind of substantial gainful
work which exists in the national economy.9
When the two statutes are read in pari materia, it seems
logically inconsistent, at first blush, for an individual to claim
that he qualifies for social security disability benefits while
simultaneously maintaining that he can perform the essential
functions of his position for purposes of asserting an ADA claim.
Herein lies the dilemma.
Several of our fellow circuits have held that a plaintiff who
represents that he is totally disabled for purposes of recovering
social security disability benefits cannot then assert that he is
a “qualified individual with a disability” for purposes of bringing
an ADA claim. Those circuits have barred the subsequent ADA claim
7
42 U.S.C. §12111(8)(1994).
8
42 U.S.C. §423(d)(1)(A)(Supp. 1997). The impairment must be
expected to result in death or to last for a continuous period of
not less than twelve months.
9
42 U.S.C. §423(d)(2)(A)(Supp. 1997).
6
under various theories of preclusion, including the equitable
doctrine of judicial estoppel.10
10
The Third, Sixth, Seventh, and Ninth Circuits have invoked
the doctrine of judicial estoppel. See McNemar v. The Disney Store,
Inc., 91 F.3d 610, 617-18 (3d Cir. 1996), cert. denied, -- U.S. --,
117 S. Ct. 958 (1997)(plaintiff estopped from arguing that he is
qualified under the ADA); Blanton v. Inco Alloys Int’l, Inc., 108
F.3d 104, 108-09 (6th Cir. 1997)(plaintiff’s previous
representations to the SSA estop him from claiming that he can
perform the essential functions of his position, but error for the
district court to apply judicial estoppel to plaintiff’s claim that
he could have performed other jobs); DeGuiseppe v. Village of
Bellwood, 68 F.3d 187, 192 (7th Cir. 1995)(plaintiff estopped from
arguing that he was anything other than actually disabled); and
Risetto v. Plumber and Steamfitters Local 343, 94 F.3d 597, 606
(9th Cir. 1996)(plaintiff estopped from claiming that she was
performing her job adequately when she had previously obtained a
favorable settlement based on her assertion that she could not
work). The First and Eighth Circuits have treated a plaintiff’s
prior representations to the SSA as binding admissions. See August
v. Offices Unlimited, Inc., 981 F.2d 576, 584 (1st Cir.
1992)(plaintiff conceded that he was totally disabled at all
relevant times and cannot now establish that he was a “qualified
handicapped person” and thus cannot make the prima facie case
required to prevail under the Massachusetts discrimination statute)
and Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768, 771
(8th Cir. 1987), cert. denied, 485 U.S. 938, 108 S. Ct. 1116
(1988)(plaintiff admitted that she cannot perform the essential
functions of the job in question and that she will be unable to do
so in the near future; therefore, she does not qualify for
protection under the federal Rehabilitation Act). The Ninth
Circuit has precluded a plaintiff’s subsequent ADA claim based on
an insufficiency of evidence to overcome plaintiff’s prior sworn
statements to the SSA. See Kennedy v. Applause, Inc., 90 F.3d
1477, 1481-82 & n.3 (9th Cir. 1996)(unnecessary to apply judicial
estoppel when there was no genuine issue of material fact that
plaintiff was totally disabled; only evidence to the contrary was
plaintiff’s self-serving and uncorroborated affidavit in support of
her ADA claim). In addition, a number of district courts have
disallowed the subsequent ADA claim. See e.g. Hatfield v. Quantum
Chemical Corp., 920 F. Supp. 108, 110 (S.D. Tex. 1996)(logically
inconsistent for plaintiff to say that he is so impaired that he
cannot care for himself while simultaneously arguing that he can go
to work and perform his job); Harris v. Marathon Oil Co., 948 F.
Supp. 27, 29 (W.D. Tex. 1996), aff’d, 108 F.3d 332 (5th Cir.
1997)(impossible for plaintiff to have been totally disabled under
7
Judicial estoppel prevents a party from asserting a position
in a legal proceeding that is contrary to a position previously
taken in the same or some earlier proceeding.11 The doctrine serves
a clear purpose: to protect the integrity of the judicial process.12
We decline, however, to adopt a per se rule that automatically
estops an applicant for or recipient of social security disability
benefits from asserting a claim of discrimination under the ADA.13
social security law and able to perform the essential functions of
his position under the ADA); Johnson v. Hines Nurseries, Inc., 950
F. Supp. 175, 178 (N.D. Tex. 1996)(plaintiff should be judicially
estopped from claiming that he is a qualified individual with a
disability after representing himself as totally disabled to the
SSA, but noting that plaintiff’s representations of total
disability are at a minimum factors to consider in determining if
a fact question exists as to whether plaintiff could have performed
his job); Johnson v. City of Port Arthur, 892 F. Supp. 835, 842 n.1
(E.D. Tex. 1995)(plaintiff’s pursuit of social security disability
benefits is a position at odds with his ADA claim); and Reigel v.
Kaiser Foundation Health Plan of North Carolina, 859 F. Supp. 963,
970 (E.D.N.C. 1994)(plaintiff “cannot speak out of both sides of
her mouth with equal vigor and credibility”).
11
Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir.
1996).
12
United States v. C.I.T. Constr. Inc. of Texas, 944 F.2d 253,
258 (5th Cir. 1991).
13
See D’Aprile v. Fleet Services Corp., 92 F.3d 1, 4-5 (1st
Cir. 1996)(plaintiff’s application for disability benefits may not
have constituted a broad admission of incapacity; genuine issue of
material fact existed as to whether plaintiff could have continued
to work with a reasonable accommodation); Blanton, 108 F.3d at 109-
10 (plaintiff’s previous representations to the SSA did not estop
him from claiming that he could have performed other jobs); Shirley
v. Westgate Fabrics, Inc., 1997 WL 135605, at *3 (N.D. Tex. Mar.
17, 1997)(“There is no rigid rule that receipt of disability
benefits precludes recovery on an ADA claim. Courts that have
considered the issue have concluded that the receipt of disability
benefits is a factor to be considered by the court.”); Morton v.
GTE North Inc., 922 F. Supp. 1169, 1182 (N.D. Tex. 1996), aff’d,
8
It is at least theoretically conceivable that under some limited
and highly unusual set of circumstances the two claims would not
necessarily be mutually exclusive, as the SSA’s determination of an
applicant’s entitlement to social security disability benefits
would not be synonymous with a determination that a plaintiff is or
is not a “qualified individual with a disability” under the ADA.14
First, while the ADA requires an individualized inquiry into
the ability of a particular person to meet the requirements of a
particular position, the SSA permits general presumptions about an
individual’s ability to work. The SSA considers some conditions to
be presumptively disabling. If a claimant has an impairment that
114 F.3d 1182 (5th Cir. 1997)(strict estoppel approach has no
support in the case law); Hughes v. Reinsurance Group of America,
957 F. Supp. 1097, 1100 (E.D. Mo. 1996)(evidence demonstrates that
plaintiff was representing that she could not perform her
particular job, not that she was totally disabled); and Smith v.
Dovenmuehle Mortgage, Inc., 859 F. Supp. 1138, 1142 (N.D. Ill.
1994)(“Defendant’s position would place plaintiff in the untenable
position of choosing between his right to seek disability benefits
and his right to seek redress for an alleged violation of the
ADA.”).
14
Robinson v. Neodata Services, Inc., 94 F.3d 499, 502 n.2 (8th
Cir. 1996)(SSA determination of eligibility for benefits is not
synonymous with determination whether plaintiff is a qualified
individual for purposes of the ADA; at best, social security
determination is evidence for trial court to consider in making its
own independent determination); Weiler v. Household Finance Corp.,
101 F.3d 519, 523-24 (7th Cir. 1996)(“Because the ADA’s
determination of disability and a determination under the Social
Security disability system diverge significantly in their
respective legal standards and statutory intent, determinations
made by the Social Security Administration concerning disability
are not dispositive findings for claims arising under the ADA.”);
and Pegues v. Emerson Electric Co., 913 F. Supp. 976, 980 (N.D.
Miss. 1996)(a finding of disability by the SSA does not necessarily
foreclose an ADA claim).
9
is medically equivalent to a listed impairment, the SSA presumes
that the disorder is so severe as to prevent the claimant from
doing any substantial gainful activity, without considering his
age, education or past work experience.15 Thus, an individual can
have a “disability” under the SSA definition and still be able to
work.
Second, the SSA does not consider whether the individual can
work with reasonable accommodation. An SSA interpretative guidance
addressing the SSA’s disability determination process states,
The fact that an individual may be able to return to
a past relevant job, provided that the employer makes
accommodations, is not relevant to the issues to be
resolved. . . . [H]ypothetical inquiries about whether an
employer would or could make accommodations that would
allow return to a prior job would not be appropriate.16
Thus, a person may be unable to do any work which exists in the
national economy even though he can work with a reasonable
accommodation. In those instances, the person is both a person
with a “disability” under the SSA and a “qualified individual with
a disability” under the ADA. Accordingly, a person claiming to be
disabled under the SSA may still be entitled to protection under
the ADA.
Third, even the SSA recognizes that an individual may be able
to qualify as SSA “disabled” and still be able to work in a
15
20 C.F.R. §404.1520(d) (1997).
16
See “Americans with Disabilities Act of 1990 -- INFORMATION,”
Memorandum from the Associate Commissioner, Social Security
Administration 1 (June 2, 1993).
10
particular position. For example, the SSA has a trial work period
that allows beneficiaries to work for nine months while their
benefit entitlement and payment levels remain unchanged.17
Similarly, the SSA provides individuals who return to work with
benefits in any month in which earnings fall below a statutory
level.18
We hold therefore that the application for or the receipt of
social security disability benefits creates a rebuttable
presumption that the claimant or recipient of such benefits is
judicially estopped from asserting that he is a “qualified
individual with a disability.” We thus leave open the possibility
that there might be instances in which the nature and content of
the disability statement submitted to the SSA, in the context of
the particular facts of the case, would not absolutely bar a
plaintiff from attempting to demonstrate that despite his total
disability for Social Security purposes he is a “qualified
individual with a disability.” Conceivably, such a plaintiff might
be able to rebut this presumption if he were able to present
credible, admissible evidence —— such as his social security
disability benefits application, other sworn documentation, and his
allegations relevant to his ADA claim —— sufficient to show that,
even though he may be disabled for purposes of social security, he
17
20 C.F.R. §404.1592(a) (1997).
18
Id.
11
is otherwise qualified to perform the essential functions of his
job with a reasonable accommodation and thus not estopped from
asserting an ADA claim.
C. IS CLEVELAND ESTOPPED FROM ASSERTING HER ADA CLAIM?
We conclude that, on the facts before us —— particularly her
sworn statements to the SSA that she was disabled —— Cleveland has
not raised a genuine issue of material fact to rebut the
presumption that, while she remains disabled for purposes of Social
Security, she is estopped from asserting that she is a “qualified
individual with a disability.” Cleveland continuously and
unequivocally represented to the SSA that she is totally disabled
and completely unable to work. As her statements are unambiguous
and previously uncontroverted, she cannot now be heard to complain
that she could perform the essential functions of her job during
the time between her return to work and her termination. To permit
Cleveland to make such an argument in the face of her prior,
consistent, and —— until now —— uncontested sworn representations
to the SSA would be tantamount to condoning her advancement of
entirely inconsistent positions, a factual impossibility and a
legal contradiction.19
19
Pegues, 913 F. Supp. at 980-81 (ADA claim not necessarily
foreclosed, but when plaintiff previously represented in
administrative proceedings that she was unable to work, she cannot
now argue that she could have performed the essential functions of
her job with a reasonable accommodation); Morton, 922 F. Supp. at
1182-83 (under these facts, plaintiff has no standing to assert ADA
claim, as she has continuously represented that her disability
prevented her from performing her job); and Garcia-Paz v. Swift
12
III.
CONCLUSION
As Cleveland consistently represented to the SSA that she was
totally disabled, she has failed to raise a genuine issue of
material fact rebutting the presumption that she is judicially
estopped from now asserting that for the time in question she was
nevertheless a “qualified individual with a disability” for
purposes of her ADA claim. For the foregoing reasons, the district
court’s grant of summary judgment for PMSC is
AFFIRMED.
Textiles, Inc., 873 F. Supp. 547, 555 (D. Kan. 1995)(on this
record, plaintiff is estopped from asserting ADA claim; having
collected substantial benefits and based on these unambiguous and
seemingly informed representations, plaintiff cannot now claim that
she could perform the essential functions of her job).
13