14‐941‐cv
Sebrena Robinson v. Concentra Health Services,Inc.
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2014
No. 14‐941‐cv
SEBRENA ROBINSON,
Plaintiff‐Appellant,
v.
CONCENTRA HEALTH SERVICES, INC.,1
Defendant‐Appellee.
________
Appeal from the United States District Court
for the District of Connecticut.
No. 3:11‐cv‐843 (MPS) ― Michael P. Shea, Judge.
________
Argued: February 4, 2015
Decided: March 24, 2015
________
Before: PARKER, HALL, and LOHIER, Circuit Judges.
________
Appeal from a final judgment of the United States District
Court for the District of Connecticut (Michael P. Shea, Judge)
granting summary judgment in favor of appellee. The district court
held that appellant was judicially estopped from showing that she
1
The Clerk of Court is directed to amend the caption as set forth above.
No. 14‐941‐cv
was qualified for her position at the time she was terminated, which
is an element of discriminatory discharge claims brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”) and 42 U.S.C. § 1981 (“Section 1981ʺ), because she applied for,
and received, Social Security disability benefits based on her
statement that she was fully disabled as of a date prior to her
termination. Because appellant has failed to proffer a sufficient
explanation for the contradictory statements, we AFFIRM.
________
THOMAS W. BUCCI, Willinger, Willinger & Bucci,
P.C., Bridgeport, CT, for Plaintiff‐Appellant Sebrena
Robinson.
RACHEL REINGOLD MANDEL (Nicole S. Corvini, on
the brief), Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Boston, MA, for Defendant‐Appellee
Concentra Health Services, Inc.
________
BARRINGTON D. PARKER, Circuit Judge:
BACKGROUND
Plaintiff‐Appellant Sebrena Robinson worked for Concentra
Health Services, Inc. (“Concentra”) as a medical assistant from June
2003 until she was terminated on September 23, 2010. Robinson
applied for Social Security disability benefits on September 27, 2010,
four days after being terminated, on the ground that she had
multiple sclerosis that rendered her disabled and unable to work.
The initial application was denied by the Social Security
Administration (“SSA”). On May 5, 2011, Robinson filed an appeal
of the SSA’s denial of benefits and requested a hearing before an
2
No. 14‐941‐cv
Administrative Law Judge (“ALJ”). Robinson, who was represented
by counsel, appeared and testified at a hearing held on April 3, 2012.
On June 12, 2012, the ALJ reversed the SSA, concluding that
Robinson was entitled to benefits because she had been fully
disabled since June 14, 2010 due to her multiple sclerosis. In
relevant part, the ALJ summarized Robinson’s statements about her
disability as follows:
• “The claimant is alleging disability since June 14, 2010.”
Joint App’x 297.
• “The claimant alleges that multiple sclerosis interferes with
her ability to engage in basic work activities. Specifically,
she testified at [the] hearing that [she] must use a cane to
walk because of numbness in her legs. Her multiple
sclerosis affects her vision, and she has poor vision in her
left eye. The claimant’s hands frequently cramp and she
has difficulty holding objects. She needs help with all
household chores.” Joint App’x 300.
• “After considering the evidence of record, the undersigned
finds that the claimant’s medically determinable
impairment could reasonably be expected to produce the
alleged symptoms, and that the claimant’s statements
concerning the intensity, persistence and limiting effects of
these symptoms are generally credible.” Joint App’x 300‐
301.
On May 23, 2011, Robinson filed this lawsuit against
Concentra. In an amended complaint, Robinson brought claims
under Title VII, 42 U.S.C. § 1981, and the Family and Medical Leave
Act (ʺFMLAʺ). As relevant here, Robinson claimed that she had
been terminated on the basis of her race and color and in retaliation
for filing a complaint with the U.S. Equal Employment Opportunity
3
No. 14‐941‐cv
Commission and taking FMLA leave. Robinson also claimed that
Concentra had interfered with her ability to take FMLA leave.
Concentra moved for summary judgment on all claims,
arguing that Robinson was judicially estopped from showing that
she was qualified for her position at the time she was terminated in
September 2010, because she applied for, and received, Social
Security disability benefits based on her statement that she was fully
disabled as of June 2010. The district court agreed and granted
summary judgment in favor of Concentra. Robinson appeals the
grant of summary judgment on her Title VII and Section 1981 claims
based on her race and color, but she does not appeal the dismissal of
her FMLA or retaliation claims.2
STANDARD OF REVIEW
This Court reviews summary judgment decisions de novo,
“viewing the record in the light most favorable to the non‐moving
party.” Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007). For a court
to grant summary judgment, the movant must “show[ ] that there is
no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
While it is true that a court is “required to resolve all
ambiguities and draw all factual inferences in favor of the”
nonmovant, Nationwide Life Ins. Co. v. Bankers Leasing Ass’n., 182
F.3d 157, 160 (2d Cir. 1999) (citation omitted), a plaintiff may not
survive summary judgment merely by conjuring a hypothetical issue
of material fact. “Where the moving party demonstrates the absence
of a genuine issue of material fact, the opposing party must come
forward with specific evidence demonstrating the existence of a
2
Robinson Br. 14 n.1 (ʺThe plaintiff does not appeal from the district courtʹs
judgment on her FMLA claim to the extent it relies on the plaintiff failing to prove a
violation of the federal FMLAʺ). See id. at 10‐11.
4
No. 14‐941‐cv
genuine dispute of material fact. More specifically, it must do more
than simply show that there is some metaphysical doubt as to the
material facts, and may not rely on conclusory allegations or
unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347,
358 (2d Cir. 2011) (internal citations and quotation marks omitted).
DISCUSSION
Title VII makes it unlawful for an employer “to discharge any
individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individualʹs race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e‐2(a)(1). To overcome a motion
for summary judgment under Title VII, a plaintiff must first satisfy
an initial burden of ʺproving by the preponderance of the evidence a
prima facie case of discrimination.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252‐53 (1981). Accordingly, the plaintiff must
demonstrate that: (1) she fell within a protected class under Title VII;
(2) she was qualified for the position she held; (3) she was subjected
to an adverse employment action; and (4) the adverse action
occurred under circumstances giving rise to an inference of
discrimination. See Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.
2012).
Section 1981 provides, in pertinent part, that “[a]ll persons
within the jurisdiction of the United States shall have the same right
. . . to make and enforce contracts . . . as is enjoyed by white citizens .
. . .” 42 U.S.C. § 1981(a). “This section thus outlaws discrimination
with respect to the enjoyment of benefits, privileges, terms, and
conditions of a contractual relationship, such as employment . . . .”
Patterson v. Cnty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004) (citation
omitted). To the extent relevant here, the same “core substantive
standards that apply to claims of discriminatory conduct in violation
5
No. 14‐941‐cv
of Title VII are also applicable to claims of discrimination in
employment in violation of § 1981 . . . .” Id. at 225.
To qualify for Social Security disability benefits, a claimant
must show she has a disability, defined, as relevant here, as the
“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 12 months.”
42 U.S.C. § 423(d)(1)(A). Further, the impairment must be “of such
severity that [the claimant] is not only unable to do h[er] previous
work but cannot, considering h[er] age, education, and work
experience, engage in any other kind of substantial gainful work
which exists in the national economy.” Id. § 423(d)(2)(A).
At issue in this case is whether Robinson’s application for, and
receipt of, Social Security disability benefits on the ground that she is
fully disabled due to multiple sclerosis, renders her unable to make a
prima facie showing that she was qualified for the position she held
at the time of termination. At the summary judgment stage, a
plaintiff may satisfy this burden by showing that she “possesses the
basic skills necessary for performance of [the] job.” Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (citation
omitted).
Judicial estoppel “prevents a party from asserting a factual
position in a legal proceeding that is contrary to a position
previously taken by [that party] in a prior legal proceeding.” Bates v.
Long Island R.R. Co., 997 F.2d 1028, 1037 (2d Cir. 1993). “A party
invoking judicial estoppel must show that (1) the party against
whom the estoppel is asserted took an inconsistent position in a
prior proceeding and (2) that position was adopted by the first
tribunal in some manner, such as by rendering a favorable
6
No. 14‐941‐cv
judgment.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6
(2d Cir. 1999) (internal citations omitted).
In Cleveland v. Policy Management Systems Corp., 526 U.S. 795
(1999), the Supreme Court addressed the issue of judicial estoppel as
to statements made in support of an application for Social Security
disability benefits and subsequent claims brought under the
Americans with Disabilities Act (“ADA”). The Supreme Court
concluded that a successful disability application does not
automatically preclude a later claim under the ADA, because a
representation of complete disability in a Social Security proceeding
is not necessarily contradicted by the same person’s ADA claim that
he could perform essential job functions with reasonable
accommodation where the former proceeding did not consider the
effect that reasonable workplace accommodations would have on
the claimant’s ability to work. Id. at 802‐03. Nevertheless, the Court
acknowledged that an “ADA plaintiff cannot simply ignore the
apparent contradiction that arises out of the earlier . . . total
disability claim,” and held that in such circumstances, a plaintiff
“must proffer a sufficient explanation” for the conflicting statements
in order to survive summary judgment. Id. at 806.
As the district court noted in its decision in this case, “courts
have applied the Cleveland analysis to other employment statutes,
including the Age Discrimination and Employment Act, Title VII,
and the FMLA, because . . . claims under such statutes generally
require a showing that the [p]laintiff was qualified for the position.”
SA 23 (collecting cases). We agree with the district court that
Cleveland provides the proper framework for evaluating whether
judicial estoppel bars Robinson’s Title VII and Section 1981 claims.
Robinson argues on appeal that “the [d]istrict [c]ourt indulged
in impermissible inferences to conclude that the plaintiff must have
7
No. 14‐941‐cv
testified before the [ALJ] that she was totally disabled from
performing the essential functions of the position of medical
assistant.” Robinson Br. 27. Because her “application for social
security disability benefits has not been introduced into evidence,ʺ
Robinson contends that “any discussion concerning the contents of
the application is based on conjecture.” Id. at 29. Additionally,
Robinson claims that the district court impermissibly inferred from
Robinson’s August 2012 deposition testimony that she was fully
disabled at the time of her termination, two years earlier. See id. at
36‐37.
Robinson cannot survive a motion for summary judgment by
raising “metaphysical doubt[s]” as to the contents of the completed
disability application. Brown, 654 F.3d at 358. During discovery
Concentra requested additional documentation concerning
Robinson’s application for social security disability benefits,
including the completed application, and Robinson’s counsel
informed Concentra and the district court that she is not in
possession of any additional documentation or information. Special
App’x 3, 6, 15, 25. Thus, the only relevant evidence in this record is
the ALJ’s written decision and an August 2012 deposition taken of
Robinson as part of this litigation, where she testified that she is
fully disabled and unable to work. The district court carefully
analyzed the ALJ’s decision to determine what statements could be
attributed to Robinson and relied, as do we, solely on those
paragraphs. Additionally, the district court recognized the limited
relevance of the August 2012 deposition, noting that “[b]y itself,
plaintiff’s statement in her deposition would be insufficient to
establish her disability status at the time of her termination.” Special
App’x 32.
8
No. 14‐941‐cv
Furthermore, Robinson does not deny that she previously told
the SSA and the ALJ that she was fully disabled as of June 2010, nor
does she deny that such a statement is inconsistent with her current
litigation position. Robinson’s job as a medical assistant required
her to work in both the ‘front’ at the reception desk and in the ‘back’
performing tasks like drug tests and assisting doctors with suturing,
which she could not complete if she were fully disabled.
Cleveland also requires a plaintiff to “proffer a sufficient
explanation” for the contradictory statements. The only explanation
Robinson proffers is that she was, in fact, able to work at the time of
her termination, because she continued to work at Concentra until
September 2010, and sought additional work in the cosmetology and
other fields. Although Robinson may have continued to work at
Concentra until September 2010, this fact demonstrates only that her
statements to the SSA and the ALJ may have been false, but does
not sufficiently explain the contradiction between the statements
and her current litigation position. As the Seventh Circuit has
explained, a “plaintiff may not, simply by disavowing a prior claim
of total disability, perform an about‐face and assert that [s]he is a
‘qualified individual’ who is capable of working. Rather . . . the
plaintiff must proceed from the premise that h[er] previous assertion
of an inability to work was true, or that [s]he in good faith believed
it to be true, and [s]he must demonstrate that the assertion was
nonetheless consistent with h[er] ability to perform the essential
functions of h[er] job.” Lee v. City of Salem, 259 F.3d 667, 674 (7th Cir.
2001). Robinson has failed to do so.
CONCLUSION
For these reasons, we AFFIRM the judgment of the district
court.
9