United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-50563
HAVEN McCLAREN,
Plaintiff-Appellant,
VERSUS
MORRISON MANAGEMENT SPECIALISTS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Plaintiff-Appellant Haven McClaren filed suit against
Defendant-Appellee Morrison Management Specialists, Inc.
(“Morrison”), alleging that Morrison failed to hire him for a newly
created position after Morrison eliminated McClaren’s original
position with the company, in violation of the Texas Commission on
Human Rights Act (“TCHRA”), TEX. LAB. CODE ANN. § 21.051. After a
jury awarded McClaren compensatory and punitive damages on his age
discrimination claim, Morrison filed a Rule 50 motion for judgment
as a matter of law. The district court denied Morrison’s motion
and entered judgment on the verdict. Morrison subsequently reurged
its Rule 50 motion, which the district court granted. The district
court found that McClaren was judicially estopped from establishing
a prima facie case of age discrimination because of inconsistent
statements he made in an effort to obtain disability benefits. The
district court entered judgment for Morrison, and McClaren timely
appealed. For the reasons discussed below, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
McClaren was hired on April 11, 1988, by Tenet Health Care
System Medical, Inc. (“Tenet”) to manage the food services unit of
a hospital in El Paso, Texas. McClaren worked in that capacity at
Sierra Medical Center (“Sierra”) until 1992, when he was promoted
to Director of Food and Nutrition. As Director, McClaren’s duties
included supervision of employees, designation of the menu, and
management of the financial aspects of the food services unit.
Throughout his career, including prior to his arrival at
Sierra, McClaren suffered from back and other health problems. In
1996, while at Sierra, he slipped, fell, and sustained a serious
back injury requiring two surgeries. McClaren subsequently filed
a worker’s compensation claim against Tenet. Tenet and McClaren
settled the claim, with Tenet agreeing to pay for McClaren’s
medical treatment and pain medication. McClaren continued to
receive medical treatment related to the injury from his slip and
fall through 2000, and during this time his doctor continued to
2
file reports with the Texas Workers’ Compensation Committee.1
In February 2000, Tenet agreed that Morrison would assume
responsibility for food services at three Tenet-affiliated
hospitals in the El Paso area, including Sierra. Per this
agreement, Morrison retained all of Tenet’s hospital employees for
at least 90 days. On May 10, 2000, McClaren learned that his
position would be eliminated by Morrison as of June 12, 2000.
Morrison explains that this restructuring of management was due to
its desire to place all three El Paso area hospitals under one
Director of Food and Nutrition, rather than staffing a Director at
each location. A new position of Assistant Director, with a lower
salary, was created that approximated McClaren’s position at
Sierra. According to Morrison, it planned to create a new
management structure: two Assistant Director positions at the two
smaller hospitals (including Sierra) that would report to the
Director residing at the largest area hospital. McClaren applied
for the new Assistant Director position at Sierra and interviewed
for the position on May 31, 2000. He was told a decision would be
made before June 12, 2000. At the time he applied and was
1
The physician reports filed with the Texas Workers’
Compensation Committee show that from October 19, 2000, through
November 11, 2002, McClaren’s physician continually restricted
him from work, indicating on the forms that McClaren’s back
injury prevented him from all work. As of March 15, 2001, the
reports indicate that the “no work” restriction was permanent.
None of these reports, however, bears upon the determination of
his disability for purposes of Social Security Disability
Insurance benefits, and none reflects an inability to work at the
time relevant to Morrison’s decision not to hire McClaren.
3
considered, McClaren was 63 years old. Morrison did not hire
McClaren as the Assistant Director, but instead hired Martin King,
a man who had been employed by Tenet and who previously reported to
McClaren. King was, at the time, 47 years old.
McClaren learned of Morrison’s decision to hire King through
another employee without the knowledge of Morrison management.
King also confirmed his new employment directly with McClaren,
unbeknownst to Morrison. After learning of Morrison’s decision,
but without communicating with Morrison, McClaren visited his
doctor, Dr. Wehrle, on June 6, 2000. There, the doctor explained
that McClaren’s back injuries and pain presented him with two
treatment options: an additional series of steroid injections or
back surgery. McClaren complained to Dr. Wehrle that on that day
he suffered from “intractable” back pain, and the doctor’s notes
reflect persistent “significant” back pain since November 9, 1999.
At that same visit on June 6, McClaren opted for surgery and asked
for a referral to a surgeon.
On June 7, 2000, McClaren filed a request for leave from
Morrison under the Family Medical Leave Act. The request for leave
form asked for McClaren’s date of anticipated return to work, to
which McClaren answered, “N/A.” On June 8, 2000, McClaren packed
his personal belongings at work and left voicemail messages for his
supervisors explaining his decision to take sick leave. On June
14, 2000, McClaren filed for retirement benefits from the Social
Security Administration (“SSA”). Two days later, Morrison mailed
4
McClaren a termination letter explaining that it had not hired him
as Assistant Director and notifying him that his last day of
employment with Morrison was June 8, 2000, but that he would be
paid through June 23, 2000.
In September 2000, McClaren filed discrimination charges with
the Texas Human Rights Commission and the Equal Employment
Opportunity Commission (“EEOC”), alleging that Morrison
discriminated against him on the basis of age and disability, in
violation of the Age Discrimination in Employment Act (“ADEA”) and
the Americans with Disabilities Act (“ADA”), when Morrison
terminated his position and failed to hire him for the Assistant
Director position at Sierra.
In February 2001, McClaren filed for disability benefits with
the SSA, and he received those benefits until he turned 65, at
which time he began to receive retirement benefits.2 McClaren
described his disability as: diabetes, high blood pressure,
hypothyroidism, atherosclerotic heart disease, rheumatoid
arthritis, degenerative arthritis, and back fusion (at “L 4-5").
He also stated that those conditions caused him to make job-related
2
The district court determined that McClaren’s statements
to the Social Security Administration (“SSA”) established his
disability onset as of June 6, 2000. Specifically, McClaren
stated in his disability submissions to the SSA that he became
unable to work because of his illnesses, injuries, or conditions
on June 8, 2001. This statement, however, is in error because
the same submission was signed and dated on January 27, 2001.
McClaren also stated that he stopped working on June 8, 2001,
while other evidence, and both parties’ briefs, supports a
finding that he stopped working on June 8, 2000.
5
changes, including “modified job, reasonable accommodations, and
special parking.” McClaren claimed to the SSA he stopped working
based on Dr. Wehrle’s diagnosis that McClaren was “unable to work
while taking pain medications, muscle relaxers,” and because
“Employer Morrison changed job restrictions.”
The EEOC issued a right to sue letter, and McClaren filed
multiple claims against Morrison in Texas state court. McClaren’s
original petition stated only a claim of age discrimination against
Morrison.3 Upon removal to federal court on the basis of diversity
jurisdiction, Morrison filed a motion for summary judgment that was
subsequently denied. The case proceeded to trial before a jury,
which ultimately awarded McClaren damages. After reducing the
jury’s award, the district court entered final judgment. Morrison
moved for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b), arguing that McClaren was judicially estopped from
establishing a prima facie case of age discrimination in light of
his statements to the SSA regarding his eligibility for disability
benefits. Morrison further contended even if a prima facie case
existed, McClaren failed to demonstrate that Morrison’s proffered
3
The district court’s opinion implies McClaren’s claim as
alleged in his petition arose under the ADEA, but then quotes a
portion of the petition that refers only to Texas mandates
proscribing age discrimination in employment. See TEX. LAB. CODE
ANN. § 21.051. Also, the district court and the parties’ briefs
on appeal characterize Morrison’s removal of the action as
grounded in diversity jurisdiction alone. Thus, no federal claim
was ever stated under the ADEA, but rather McClaren stated only a
Texas state law claim of age discrimination with diversity
jurisdiction as the proper vehicle for removal.
6
reason for not hiring McClaren was pretext for discrimination.
Noting that the Fifth Circuit had yet to address the question
of judicial estoppel in the context of a state law age
discrimination claim made in light of statements supporting a claim
for social security disability benefits, the district court held
that McClaren was estopped from making a prima facie claim and
granted Morrison’s motion for judgment as a matter of law. The
district court did not reach whether, if a prima facie case had
been met, McClaren demonstrated that Morrison’s proffered reason
for termination was pretext. McClaren timely filed the instant
appeal.
DISCUSSION
A district court’s grant of judgment as a matter of law is
reviewed de novo. Hamburger v. State Farm Mut. Auto. Ins. Co., 361
F.3d 875, 884 (5th Cir. 2004). Under Rule 50, judgment as a matter
law should be granted only where “there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on
that issue.” FED. R. CIV. P. 50(a)(1); Ellis v. Wealser Eng’g Inc.,
258 F.3d 326, 337 (5th Cir. 2001). In reviewing the grant of a
judgment as a matter of law after a jury verdict, special deference
is given to the jury’s verdict. Coffel v. Stryker Corp., 284 F.3d
625, 630 (5th Cir. 2002) (citing Brown v. Bryan County, Okla., 219
F.3d 450, 456 (5th Cir. 2000)).
I. Whether McClaren is judicially estopped from making a
prima facie case of age discrimination.
7
At primary issue in this appeal is whether McClaren is
judicially estopped from claiming he was qualified for purposes of
his age discrimination claim, even though he applied for and
received Social Security Disability Insurance (“SSDI”) program
benefits as one who is disabled and unable to perform his past
relevant work. In other words, we must decide whether McClaren’s
claims of qualification and disability are sufficiently
inconsistent to preclude his age discrimination claim on the basis
of judicial estoppel.
Morrison argues that McClaren cannot prevail on his age
discrimination claim because the two claims are inconsistent and
McClaren has failed to sufficiently explain the inconsistencies.
McClaren argues he adequately explained that his disability claim
does not preclude his discrimination claim because, at the time he
was terminated, he was not disabled and was qualified for his job.
According to McClaren, he later became disabled due to a worsening
condition and due to his choice of medical treatment and, for that
reason, became eligible for disability benefits after his
termination. He claims that he only chose surgery because he knew
Morrison did not hire him for the Assistant Director position and
that he would have chosen additional steroid injections if he had
the option of continuing to work.
Under the TCHRA, an employer may not “fail[] or refuse[] to
hire an individual, discharge[] an individual, or discriminate[] in
any other manner against an individual in connection with
8
compensation or the terms, conditions, or privileges of employment”
on the basis of age. TEX. LAB. CODE ANN. § 21.051(1). “Section
21.051 is substantively identical to its federal equivalent in
Title VII, with the exception that” federal law makes age
discrimination unlawful under the ADEA. Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 475 (Tex. 2001); see also Jaso v. Travis
County Juvenile Bd., 6 S.W.3d 324, 328 (Tex. App.-Austin 1999, no
pet.).4
In order to establish a prima facie case of age discrimination
under the TCHRA in a non-selection or failure to hire case,
McClaren must show that: (1) he was in the protected class;5 (2) he
was qualified for the position sought; (3) he was not selected; and
(4) he was either (a) replaced by another person outside of the
protected class; (b) replaced by someone younger;6 or (c) otherwise
not selected because of age. See Machinchick v. PB Power, Inc., 398
4
Texas’s provision for age discrimination claims, TEX. LAB.
CODE ANN. §§ 21.001-.556, was designed in part to bring Texas “in
line with federal laws addressing discrimination.” Specialty
Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
5
Under the ADEA and TCHRA, an age discrimination plaintiff
must establish that he was over the age of 40 at the time of the
non-selection in order to prove he was a member of the protected
class. Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir.
2001); Russo v. Smith Int’l, Inc., 93 S.W.3d 428 (Tex. App.-
Houston [14th Dist.] 2002, pet. ref’d).
6
At the time of his hiring, Martin King was 47 years old.
The parties do not dispute the age difference satisfies the
requirement that King was “significantly younger” than McClaren.
See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313
(1996); Rachid v. Jack in the Box, Inc., 376 F.3d 305, 313 (5th
Cir. 2004).
9
F.3d 345, 350 (5th Cir. 2005) (citing Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 309 (5th Cir. 2004) (stating prima facie
requirements in a discharge, rather than failure to hire, case));
see also Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir.
2001) (providing elements in a Title VII failure to promote case).
Before the district court and now on appeal, Morrison maintains
McClaren is unable to show that he was qualified for the Assistant
Director position he sought.
Morrison argued in its Rule 50 motion that McClaren is
judicially estopped from showing he is qualified — and therefore
precluded from making his discrimination claim — because McClaren
averred to the SSA he was disabled and unable to perform his prior
relevant work in order to receive SSDI benefits.7 Observing the
lack of Fifth Circuit precedent on the issue, the district court
relied on United States Supreme Court, Third Circuit, and Texas
case law in granting Morrison’s Rule 50 motion. Specifically, the
district court held McClaren’s averment of disability and inability
to perform his job “as of June 6, 2000,” (that is, two days prior
to his termination) judicially estopped him from subsequently
7
The SSA defines “disability” as an “inability to engage in
any substantial gainful activity by reason of any . . . 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).
The impairment must be “of such severity that [a claimant] is not
only unable to do his previous work but cannot . . . engage in
any other kind of substantial gainful work . . . in the national
economy.” 42 U.S.C. § 423(d)(2)(A); see also 45 C.F.R. §
404.1529(a).
10
claiming he was qualified for the Assistant Director position that
was denied him on June 8, 2000.
In Cleveland v. Policy Management Systems Corp., 526 U.S. 795
(1999), the Supreme Court addressed whether a plaintiff who claims
both to be “totally disabled” for purposes of receiving SSDI
benefits and “qualified” for employment under the ADA is judicially
estopped from bringing his ADA claim. As a preliminary matter, the
Supreme Court first observed that to make a prima facie case of
disability discrimination under the ADA, a plaintiff must first
demonstrate he is qualified for the position in question; and in
order to receive SSDI benefits, a claimant must make a showing of
a disability. Id. at 806. Although apparently incompatible, the
Court concluded these two statuses may nevertheless co-exist as to
one claimant, observing that a claimant for SSDI benefits is not
per se precluded from making a showing of qualification for
purposes of setting out a prima facie case of disability
discrimination. Id. at 797-98.
In such a case, to survive judgment for the employer, a
plaintiff must address the apparent inconsistency between
“qualified” for employment under the ADA and “disabled” for SSDI
benefits. Id. at 798, 806 (holding that “ADA plaintiff cannot
simply ignore the apparent contradiction that arises out of the
earlier SSDI total disability claim”). A plaintiff’s explanation
of the apparent inconsistency must be “sufficient to warrant a
reasonable juror’s concluding that, assuming the truth of, or the
11
plaintiff’s good faith belief in, the earlier statement, the
plaintiff could nonetheless perform the essential functions of her
job, with or without reasonable accommodation.” Id. at 807
(internal quotation marks omitted). If a plaintiff fails to
explain the inconsistency between his qualification and disability,
or if the explanation is insufficient, then his ADA claim is
judicially estopped by his earlier statements regarding disability.
Id.
Although the Cleveland Court did not address the application
of judicial estoppel to an ADEA or, as here, a state law age
discrimination claim asserted after a plaintiff has filed for SSDI
benefits, we find the reasoning employed therein persuasive to the
precise issue before this court and, for the first time, this
Circuit. We also observe that at least one other circuit court and
district court have applied Cleveland’s analysis to a
discrimination claim brought under the ADEA. Detz v. Greiner
Indus. Inc., 346 F.3d 109, 120-21 (3d Cir. 2003) (holding plaintiff
judicially estopped from establishing ADEA claim where attempt to
explain the inconsistency between disabled and qualified consisted
only of argument that his termination rendered him “unable to
work”); Johnson v. Exxon Mobil Corp., No. 02-C-5003, 2004 WL
419897, at *5 (N.D. Ill. Feb. 2, 2004) (unpublished opinion)
(holding plaintiff judicially estopped from establishing he was
qualified for purposes of age discrimination claim because
plaintiff could not resolve the inconsistency between his
12
disability and his qualification by simply disavowing elements of
his claims to the former).
Here, McClaren’s age discrimination claim arises under the
TCHRA rather than the ADEA, but as noted previously, this
distinction does not prevent our application of the Cleveland
analysis because the TCHRA parallels federal discrimination laws.
Specialty Retailers, 933 S.W.2d at 492. Moreover, at least one
Texas court of appeals has applied Cleveland’s judicial estoppel
analysis to a joint sex and disability discrimination claim.
See Johnson v. Hoechst Celanese Corp., 127 S.W.3d 875, 880-82 (Tex.
App.-Corpus Christi 2004, pet. ref’d).8
Having concluded the Supreme Court’s analysis in Cleveland
applies to the age discrimination claim before this Court, we must
first address whether there is a genuine conflict between
McClaren’s statements to the SSA and his claim under the TCHRA.
McClaren submitted documentation to the SSA detailing how he was
8
Morrison argues McClaren should not be entitled to the
Cleveland two-part analysis because McClaren chose not to pursue
an ADA claim, even though based upon his EEOC filings, he might
have done so. Morrison argues the panel should instead, on this
record, rely on the Fourth Circuit’s judicial estoppel analysis
in a pre-Cleveland case. See King v. Herbert J. Thomas Mem’l
Hosp., 159 F.3d 192, 196-98 (4th Cir. 1998) (addressing judicial
estoppel in an age discrimination claim filed after an
application for disability benefits).
Morrison’s argument is unconvincing. The Fourth Circuit’s
analysis in King provides no specific reason for its application
to a claim of age discrimination, as opposed to a disability
discrimination claim, and this Circuit has recognized that
Cleveland altered the relevant judicial estoppel analysis. See
generally Holtzclaw v. DSC Communications Corp., 255 F.3d 254,
257-59 (5th Cir. 2001).
13
entitled to SSDI benefits based on various maladies, including
“pain lower back, chest pain, fatigue, weakness, obesity, high
blood pressure, neropathy [sic] both legs feet, dizziness,
sleeplessness, diabetes, hycholesterol [sic].” Further, McClaren
averred to the SSA that these symptoms were “constant” and
precluded him from performing many of the essential functions of
life. Alternatively, in support of his TCHRA complaint, McClaren
represented to the district court (and the jury) that he would have
been able to perform the duties associated with the Assistant
Director position. We conclude the two positions taken by McClaren
are facially inconsistent.
Nevertheless, under Cleveland, McClaren is entitled to proffer
an explanation for this inconsistency, which, if sufficient, would
require this court to reverse the district court’s grant of
judgment as a matter of law. McClaren points to several pieces of
evidence in the record that he maintains established he was
qualified for the position of Assistant Director, despite his
allegedly disabling injuries: (1) his own testimony revealing he
was physically able to work in May 2000, at the time of his
application for the Assistant Director position; (2) testimony from
Morrison representatives indicating the failure to hire McClaren
was not due to his health or physical condition; (3) the fact that
McClaren never requested an accommodation for his back injury; and
(4) McClaren’s testimony that if Morrison had offered McClaren the
position at issue, he would have accepted and continued working,
14
choosing a less invasive medical treatment for his back pain than
the back surgery he elected after Morrison did not hire him.
Also, McClaren argues his disability would not have occurred
but for Morrison’s failure to hire. In making this argument, he
casts his disability as the surgical spinal fusion, rather than the
years of back pain due to injury, and urges that, had Morrison
hired him, he would have continued steroid injections. Record
evidence supports that this treatment choice was available to
McClaren on June 6, 2000. While McClaren worked for Morrison, he
received steroid injections in order to continue to be able to
work. He argues he would have continued steroid injections as
Assistant Director but that, when he learned he did not get the
position, he chose the surgery which ultimately led to his
disability. Morrison responds that McClaren’s explanation of
treatment choice is insufficient under Cleveland because McClaren
never testified at trial that the surgery alone rendered him
disabled nor did he make any such representation in his brief or to
the SSA. Morrison argues that McClaren’s only relevant testimony
was that he was willing to work and would have done so despite his
condition.
The district court’s application of Cleveland to the instant
facts was based upon: (1) the timing of McClaren’s various
statements and conduct; and (2) its determination that McClaren
simply disavowed his disability claim, rather than sufficiently
explaining the inconsistency between the two positions. As to
15
timing, the court was persuaded that McClaren’s submissions to the
SSA established his “total disability” as beginning two days prior
to his termination by Morrison.9 In evaluating the sufficiency of
McClaren’s explanation, the district court compared McClaren to the
plaintiffs in Detz and Johnson.
In Detz, the plaintiff, upon being terminated from his
employment, applied for disability benefits and later filed claims
against his former employer under both the ADEA and the parallel
Pennsylvania statute for age discrimination. Detz, 346 F.3d at
111. Detz explained he was qualified in spite of a disability
because it was the layoff itself that rendered him unable to work.
Id. at 119-20. The Third Circuit deemed Detz’s argument as less an
explanation of how legal statuses could factually co-exist in his
case and, instead, more akin to a disavowal of statements made in
connection with his application for disability benefits. Id. at
120. Thus, the court concluded that Detz was judicially estopped
from pursuing his ADEA claim. Id. at 120-21.
Similarly, in Johnson, the plaintiff attempted to explain the
9
The district court notes the latter date as the date of
termination, June 8, 2000, but Morrison briefs a more substantial
gap in time. Morrison explains that McClaren claimed disability
as of June 6, 2000, but the hiring decision was not made by
Morrison until June 10, 2000. Morrison argues June 6, 2000,
constitutes the date of disability because on that date Dr.
Wehrle diagnosed McClaren as totally disabled. McClaren points
to SSA submissions that he was disabled as of June 8. Regardless
of whether he was disabled on June 6 or 8, McClaren cannot, based
upon the specificity of his submissions to the SSA, also claim to
be qualified as of June 8.
16
inconsistency between his disability and his ADEA claim by
maintaining he was willing to work and would have done so despite
a disability. Johnson, 2004 WL 419897, at *4. The court found
Johnson succeeded only in disavowing his early disability
statements and failed to sufficiently explain the inconsistency.
Id. at *4-5. Accordingly, the court held him judicially estopped
from stating his discrimination claim. Id. at *5.
Here, as in Detz and Johnson, McClaren urges only that he
“would have been willing to work” and would have done so despite
his sworn statements to the SSA that he was incapable of working at
the relevant time. Therefore, the district court concluded that
McClaren’s explanation was no more than a disavowal of his previous
statements related to disability claims to the SSA. McClaren
maintains that his case differs from Detz and Johnson in that the
briefs reveal an inconsistency regarding the dates upon which
McClaren acted in relevant part. In other words, McClaren argues
that there exists a disagreement about the date upon which Morrison
notified McClaren of its decision not to hire him. Based on this
disagreement, McClaren contends his statement of total disability
and inability to work as of June 6, 2000, is not inconsistent with
his age discrimination claim. McClaren’s argument is unpersuasive.
McClaren cannot overcome the fact that his submissions to the
SSA contained more than legal statements of disability related to
the spinal fusion, which he claims he would not have had if
Morrison had hired him as Assistant Director. To the contrary, his
17
disability application contains broad descriptions of his pains,
injuries, health conditions, and inability to work as of June 6,
2000, a date before he was given official notice of Morrison’s
decision to hire King and before his official termination date with
Morrison. Most pointedly, his submissions to the SSA aver that
since the date of his surgery, his back symptoms improved.
Essentially, McClaren argues now that Morrison’s failure to hire
him resulted in his surgery, which in turn resulted in a
deterioration of his back pain and condition, such that he
subsequently filed for disability benefits but was nevertheless
qualified at the time of Morrison’s decision. McClaren’s position
is not a sufficient explanation of the inconsistency he must
reconcile, but rather is simply a disavowal of his averment to the
SSA.
Both parties cite two Fifth Circuit cases addressing
Cleveland’s application to discrimination claims brought pursuant
to the ADA, as opposed to the ADEA. See Giles v. Gen. Elec. Co.,
245 F.3d 474 (5th Cir. 2001); Reed v. Petroleum Helicopters, Inc.,
218 F.3d 477 (5th Cir. 2000). In Giles, a panel of this Court
determined that the plaintiff was not judicially estopped from
making his disability claim, where in his application for SSDI
benefits he made “no specific assertions resisting his explanation
that he could perform his job with reasonable accommodation.” 245
F.3d at 485. In Reed, a plaintiff who received disability benefits
was found to be judicially estopped from showing she was qualified
18
because she made specific, factual statements to the SSA that were
fundamentally inconsistent with her ability to perform her job,
with or without accommodation. 218 F.3d at 480 (holding
plaintiff’s statements to the SSA that she was “totally
unpredictable” because she could not sit for an extended period of
time could not be reconciled with the qualifications for flying a
helicopter).
The compelling distinction underlying the different outcomes
in Reed and Giles is the type of averments made by the plaintiffs
to the SSA.10 Thus, comparing plaintiffs through the lens provided
by Cleveland, estoppel will apply in those cases, like Reed, where
the plaintiff’s factual descriptions supporting disability preclude
the possibility of qualification as of a certain date. Not only
are McClaren’s statements to the SSA inconsistent with his showing
of qualification on his age discrimination claim, but also the
specificity of the statements renders his proffered explanation
insufficient. In other words, McClaren cannot disavow his
statement to the SSA that his disability includes more impairment
10
Morrison argues that Giles is distinguishable from Reed
and the instant case because the plaintiff in Giles did not
ultimately receive SSDI benefits. Morrison urges that the
failure to obtain disability benefits provides the basis for
concluding that a plaintiff is not judicially estopped from
asserting qualified individual status in a subsequent
discrimination action. This Court has previously rejected this
position, however, in Giles no less. 245 F.3d at 483-84 (finding
that plaintiff’s assertions to the SSA “do not operate judicially
to estop him from asserting qualified individual status only
because he failed to obtain benefits under SSDI”).
19
than simply the fusion of his back and that his disability actually
improved, rather than worsened, as a result of surgery. McClaren
swore his disability onset date preceded both his termination and
Morrison’s official adverse employment action. Therefore, McClaren
is judicially estopped from making a prima facie age discrimination
claim.
CONCLUSION
Because McClaren made signed representations to the SSA that
as of June 6, 2000, he was totally disabled, unable to work, and
that his disability was characterized by multiple, broad symptoms
of impairment, he is judicially estopped from showing he was
qualified for the position he was subsequently denied on June 8,
2000. Accordingly, because McClaren cannot make a prima facie case
of age discrimination, the district court’s order granting Morrison
judgment as a matter of law is AFFIRMED.
AFFIRMED.
20