Pena v. Honeywell International, Inc.

United States Court of Appeals
For the First Circuit

No. 18-1164

MAYRA F. PENA,

Plaintiff, Appellant,

v.

HONEYWELL INTERNATIONAL, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Stahl, and Lipez,
Circuit Judges.

Mark P. Gagliardi for the appellant.
Neal J. McNamara, with whom Aaron F. Nadich and Nixon Peabody
LLP were on brief, for the appellee.

April 26, 2019
 LYNCH, Circuit Judge. Plaintiff Mayra F. Pena worked as

a machine operator and associate assembler for defendant Honeywell

International, Inc. (Honeywell), until Honeywell terminated her

employment on June 17, 2013, on the basis of job abandonment. Pena

had not come to work since March 8, 2013. On September 20, 2013,

Pena applied for Social Security Disability Income (SSDI)

benefits, asserting that she was totally disabled and had been

since March 8, 2013.

On April 16, 2015, Pena filed this suit under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.,

and under various Rhode Island laws, claiming that Honeywell

terminated her employment on the basis of her disabilities, failed

to provide her with reasonable accommodations, and retaliated

against her. After discovery and after she consistently testified

at her deposition that she was totally disabled as of March 8,

2013, in accord with her SSDI application statements, the district

court granted Honeywell's motion for summary judgment on all of

Pena's claims. It noted, among other things, Pena's deposition

testimony and her SSDI application. The court correctly held that

Pena had not met the requirements of Cleveland v. Policy Management

Systems Corporation, 526 U.S. 795 (1999). We affirm the district

court's grant of summary judgment in favor of Honeywell.

- 2 -
 I.

A. Facts

We recount the undisputed facts, examining them in the

light most favorable to Pena. See Murray v. Kindred Nursing

Centers W. LLC, 789 F.3d 20, 25 (1st Cir. 2015). In or about 2008,

Honeywell hired Pena as a machine operator and associate assembler

at its manufacturing facility in Cranston, Rhode Island. Pena

worked (except for leave) at the facility until March 8, 2013,

after which she never returned to work. On June 17, 2013,

Honeywell terminated Pena's employment for job abandonment.

The Cranston facility's various production and assembly

areas included the respiratory department,1 the molding department,

the logo department, the quicloc/cedars department, and the SCBA

area (SCBA stands for "self-contained breathing apparatus").

Before 2012, Pena usually worked in the respiratory department.

In the molding department, unlike other departments, the machines

run twenty-four hours a day, and emit a new part about every thirty

seconds. In other departments, the employees can control the

timing of the machines' operation.2

1 At her deposition, Pena stated that she worked mainly in
an area called HEPA, and that the respiratory department and HEPA
were two different areas of the Cranston facility.
2 Some Honeywell employees, not claiming disability,
stated that they preferred to work in areas other than the molding
department, where they did not have to keep up with the pace of
the machines and could more easily socialize.

- 3 -
 In 2012, Honeywell decided that all employees working in

production and assembly should be cross-trained so that they could

work as needed in all departments at the Cranston facility,

including in the molding department. Honeywell believed that it

was important "to move associate assemblers to departments where

customer demand was greatest and, as a result, an employee['s]

inability to work in any particular area would burden the

production process." This was particularly true in the molding

department due to its continuous operation. Honeywell then trained

all of its employees, including Pena, to work in all "assembly

departments," including the molding department.

In October 2012, Pena was assigned to and worked in the

molding department under this policy. Pena then took a medical

leave from November 29, 2012, until January 14, 2013. Pena

attributed this request for medical leave to her seasonal

depression. Before this leave, Honeywell had permitted Pena to

take several other medical leaves of absence totaling twenty-three

weeks, including from October 14, 2011, to November 21, 2011; from

December 16, 2011, to February 13, 2012; and from June 22, 2012,

to August 6, 2012.

When Pena returned to the Cranston facility on January

14, 2013, she began working in the molding department four hours

per day, two to three times per week. She worked there without

- 4 -
complaint or incident for about one month. She otherwise typically

worked in the respiratory department.

In late February 2013, Pena complained to the Senior

Human Resources Generalist, Jose Gouveia, that one of the

production leaders had told her to go to the molding department.

Pena says she told Gouveia during that conversation that she did

not want to work in the molding department because "it was harmful

to [her] emotionally."3

Pena met with Gouveia, as well as her supervisor, Kevin

Dyer, and the Health Safety and Environmental Site Leader, Conor

Ryan, on both March 7 and 8, 2013, about her request not to work

in the molding department. At the March 7 meeting, Honeywell

personnel requested that Pena provide a letter from her doctor.

The next day, Pena provided a letter from her physician, Dr. James

Greer. Dr. Greer's letter, dated March 4, 2013, stated:

Currently, [Pena] is reporting exacerbation of
her anxiety symptoms which are interfering
with her ability to function. She reports
that these specifically occur when she is
being sent to the moulding [sic] room as

3 In the same conversation, Pena also told Gouveia that
"she was diabetic and the breaks were 15 and 30 minutes apart from
her lunch and she could not be 15 minutes late for her coffee nor
30 minutes late for her lunch break." Gouveia told Pena that such
delays were not significant, but if they created a problem he
"could revisit the breaks issue." Pena responded, "I don't like
to change my break time, if you want I can get a doctor's note
stating that I cannot change my breaks." The doctor's notes that
Pena provided to Honeywell do not address this issue, and Pena
does not say she ever raised the issue again.

- 5 -
 opposed to the more typical duties to which
she is accustomed.

Dr. Greer "request[ed] that [Honeywell] assist her in other

placements than in this setting," and stated that Pena "is

completely capable of working in other settings." Dr. Greer's

letter relied almost entirely on Pena's self-reported symptoms and

did not contain a specific medical diagnosis. The letter also did

not explain why the molding department, but not any other

department or area, exacerbated Pena's symptoms.

Honeywell concluded that Dr. Greer's letter was

inadequate to determine what accommodations Pena was requesting

and whether Honeywell could meet those requests. On March 8, 2013,

Ryan and Gouveia told Pena that the only work available to her was

in the molding department, so if she refused to do that work, she

would have to go home. Pena decided to go home, and never returned

to work after that day.

Within a week, Pena had retained an attorney, Veronika

Kot. Kot told Pena not to communicate with any Honeywell

personnel, as Kot would handle all such communications.

Honeywell did not know that Pena had retained counsel,

and repeatedly attempted to contact Pena to better understand her

condition and determine what accommodations, if any, would be

appropriate. In late March 2013, Gouveia sent Pena a Reasonable

Accommodations Request Form.

- 6 -
 On April 2, 2013, Honeywell's Associate Director of

Health Services, Dr. Elizabeth Jennison, wrote to Dr. Greer, asking

for "additional documentation to understand the medical necessity

for [Pena's] request." Dr. Jennison's letter also asked Dr. Greer

to "clarify how [Pena's] anxiety symptoms could allow her to work

in many areas of the plant, while interfering with her ability to

function in one area of the plant, the molding department, for

which she is equally qualified and trained," and requested

supporting medical documentation.4

In early April 2013, Pena submitted the Reasonable

Accommodations Request Form to Honeywell, which was dated April 2,

2013. On the form, Pena stated that she was "unable to work in

molding" because "the noise, speed and overall environment gives

[her] anxiety, palpitations." On the form, Pena also stated, "I

had been offered many permanent positions in molding while still

working through an agency and refused because I knew 11 years ago

that I could not perform this job."

The physician's portion of the Reasonable Accommodations

Request Form was left blank, but Pena attached a second letter

from Dr. Greer dated April 2, 2013. This letter stated that Dr.

Greer diagnosed Pena as having "Major Depressive Disorder,

4 At some point, Honeywell set up an appointment for Dr.
Greer to come to the Cranston facility in person to discuss Pena's
condition, but Dr. Greer did not attend because he "didn't have
time in [his] busy practice" to visit patients' places of work.

- 7 -
Recurrent, Severe." The letter stated that Pena "is eager to

return to work in her previous capacity," and that Dr. Greer could

"state with a reasonable degree of medical certainty that continued

assignment to the more recent work setting will result in worsening

stress and further exacerbation of her condition." Dr. Greer's

letter did not attempt to explain why his diagnosis of Pena would

allow her to work everywhere except in the molding department.

On April 8, 2013, Gouveia sent a letter to Pena stating,

"[y]ou have informed us you signed a release to give your physician

permission to send your medical records to our medical department;

however, no[] medical records have been received. As a result,

and at the moment, we have insufficient information to assess your

request." The letter also stated that while Honeywell "await[ed]

the medical information required to assess [her] request," Pena

had the following options in the meantime: returning to work and

performing her regular duties, including in the molding

department, which was "required of all employees in [Pena's]

position"; remaining on unpaid medical leave; or using any paid

time off she might have available.

Gouveia sent a follow-up letter to Pena on April 22,

2013, stating that Honeywell had not yet received any information

from Pena's physician. That same day, Attorney Kot telephoned

Gouveia. This was the point at which Honeywell became aware that

Pena had retained counsel. Honeywell's in-house employment

- 8 -
counsel, Jacqueline Rolfs, wrote to Kot later that same day, asking

her to review Honeywell's correspondence with Pena to understand

Honeywell's requests for additional medical records.

On April 23, 2013, Kot responded to Rolfs's letter in

writing, stating that Pena had already provided two doctor's notes,

and that Honeywell's request for a "release of all her sensitive

medical records, including mental health records," was an

"unnecessary and prohibited intrusion upon her privacy."

On April 25, 2013, Rolfs sent a letter to Kot, attaching

the prior correspondence between Honeywell, Pena, and Dr. Greer.

This letter detailed Honeywell's attempts to communicate with

Pena, and stated that Honeywell had not asked for all of Pena's

records, but rather, only those records that would explain how her

symptoms prevented her from working in the molding department.

Rolfs's letter also stated that "Honeywell remains willing to work

with your client to assess her reasonable accommodation request.

However, without the cooperation of your client and her physician

in providing responses to Honeywell's reasonable questions about

this request, we cannot proceed further in that process."

Kot responded to Rolfs in a letter dated April 30, 2013,

accusing Honeywell of violating the ADA and of threatening to

terminate Pena's employment if she did not return to work without

accommodations. Kot's letter also stated that she would provide

another letter from Pena's doctor shortly.

- 9 -
 On May 6, 2013, Kot wrote to Rolfs again, expressing

concern that Honeywell management had not provided Pena with "the

appropriate support" and instead had "apparently . . . urged [Pena]

to quit and apply for SSI [Supplemental Security Income]"

(Honeywell disputes this). Kot's letter enclosed a memorandum

from Dr. Greer, stating that Pena "has reported repeatedly and

consistently" that the molding room was stressful because of "a

variety of factors which included increased noise levels, chemical

odors, and the presence of robotics." Dr. Greer's memorandum also

stated, "I cannot specifically identify particular issues there

which might exacerbate her stress, but can state with a reasonable

degree of medical certainty that there is a direct causal

relationship between her working in that setting and the

exacerbation of her symptoms." The memorandum attached four

progress notes from Pena's visits with Dr. Greer that had taken

place between March 4 and April 22, 2013.

Rolfs sent a letter to Kot on May 22, 2013, stating that

Dr. Greer's most recent memorandum still did not explain the

connection between Pena's diagnosis and her ability to work in the

molding department, because all of the items mentioned were also

true of work conditions in other departments. The letter explained

that:

The noise level in molding is not appreciably
different than that in respiratory. Indeed,
employees in both areas are required to wear

- 10 -
 ear plugs. Nor is there any difference in the
chemical odors between respiratory and
molding. In addition, there are robotics in
both molding and respiratory, and all are
enclosed.

The letter stated that "all employees who work on the floor at

this Honeywell facility will be required to rotate into molding as

they complete the necessary training. The rotations are as brief

as 15 minutes, or as long as one week." The letter also stated

that "[r]espiratory will remain Ms. Pena's primary assignment,"

but that "Ms. Pena and the other employees will rotate among all

the areas in the facility, not just molding." Rolfs's letter also

repeated that Honeywell only sought medical records relevant to

Pena's request for reasonable accommodation. It stated that "no

one at Honeywell has suggested that Ms. Pena quit and apply for

SSI." The letter further stated that Dr. Greer had not called

Honeywell's Associate Director of Health Services, Dr. Jennison,

as Honeywell had requested, and asked that Dr. Greer call Dr.

Jennison as soon as possible.

Honeywell personnel did not hear from Kot after May 6,

2013. But the record shows, and her counsel at oral argument

affirmed, that Pena had counsel at the time of each of the

following crucial events.

On June 17, 2013, after Pena had been absent for over

three months and had used all of her medical leave, Honeywell

terminated Pena's employment on the basis of job abandonment.

- 11 -
 On September 20, 2013, Pena applied for SSDI benefits.

Pena was represented by different counsel, Amanda DelFarno, for

her SSDI application. Pena's SSDI application included the

statements "I became unable to work because of my disabling

condition on March 8, 2013," and "I am still disabled." The

application also stated:

I know that anyone who makes or causes to be
made a false statement or representation of
material fact in an application or for use in
determining a right to payment under the
Social Security Act commits a crime punishable
under federal law by fine, imprisonment, or
both. I affirm that all information I have
given in connection with this claim is true.

That same day, Pena was given an electronic receipt for

her SSDI application, which stated, "[y]ou declared under penalty

of perjury that you examined all the information on this form and

it is true and correct to the best of your knowledge. You were

told that you could be liable under law for providing false

information." The receipt stated that Pena should review her SSDI

application and call the telephone number provided within ten days

if Pena disagreed with any of the statements in her application.

Pena does not say that she ever contacted the Social Security

Administration to change any statements in her SSDI application.

On September 29, 2015, Pena testified at a hearing before

an administrative law judge (ALJ). At the hearing, an impartial

medical expert testified that "the medical evidence of record shows

- 12 -
that the claimant has a 'core problem' of a somatoform disorder

while translating everything to physical symptoms."5 On October

16, 2015, the ALJ granted Pena's SSDI application in a five-page

decision, finding that Pena had been suffering from somatoform

disorder and was totally disabled as of March 8, 2013.

B. Procedural History

On April 16, 2015, Pena, represented by new counsel,

Mark Gagliardi, filed a complaint in Rhode Island Superior Court,

which Honeywell removed to federal court on the basis of diversity

jurisdiction. Pena's twelve-count complaint asserted claims under

the federal ADA, 42 U.S.C. §§ 12101 et seq.; the Rhode Island Civil

Rights Act of 1990, R.I. Gen. Laws §§ 42-112-1 et seq.; the Rhode

Island Fair Employment Practices Act, R.I. Gen Laws §§ 28-5-1 et

seq.; the Civil Rights of People With Disabilities Act, R.I. Gen.

Laws. §§ 42-87-1 et seq.; and the Rhode Island Whistleblower's

Protection Act, R.I. Gen. Laws §§ 28-50-1 et seq. The Complaint

alleges that Honeywell failed to provide Pena with reasonable

accommodations (Counts I through IV), terminated her employment on

the basis of her disabilities (Counts V through VIII), and

terminated her employment in retaliation for reporting

discriminatory conduct (Counts IX through XII).

5 Pena states that somatoform disorder is "a form of mental
illness that can affect different organs and body systems and cause
bodily symptoms, including pain, neurologic[al] problems,
gastrointestinal complaints, and sexual symptoms."

- 13 -
 During discovery, Pena's deposition was taken on

November 3, 2016. She does not say that she filed any corrections

to her deposition transcript. After the completion of discovery,

in February 2017, Honeywell moved for summary judgment on all of

Pena's claims. Pena's counsel filed an opposition to Honeywell's

motion for summary judgment on March 28, 2017, the day it was due.

The opposition attached documents and letters as evidence, but did

not attach any deposition transcripts. The next day, Pena's

counsel filed an "addendum" to the opposition, which included six

deposition transcripts and an affidavit executed by Pena on March

29, 2017, the day after the opposition had been due. That same

day, Pena's counsel also filed a statement of undisputed facts and

a statement of disputed facts. On April 11, 2017, Honeywell filed

a reply brief, which included objections to Pena's late filings,

including the affidavit. That same day, Pena filed a motion for

a retroactive extension to file the "addendum," statement of

disputed facts, and statement of undisputed facts. Later that

same day, Honeywell objected to this motion. On April 26, 2017,

the district court granted Pena's motion for an extension.

The magistrate judge held a hearing on Honeywell's

motion for summary judgment on June 19, 2017. On September 22,

2017, the magistrate judge entered a report and recommendation

that Honeywell's motion be granted. Pena v. Honeywell Int'l Inc.,

No. CV 15-179 WES, 2018 WL 582579, at *3-*12 (D.R.I. Jan. 29,

- 14 -
2018). On January 29, 2018, the district court accepted the report

and recommendation and granted summary judgment in Honeywell's

favor on all counts. Id. at *3. Pena timely appealed.

II.

A movant is entitled to summary judgment if "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). "We

review the district court's disposition of a summary judgment

motion de novo, 'scrutiniz[ing] the evidence in the light most

agreeable to the nonmoving party, giving that party the benefit of

any and all reasonable inferences.'" Murray, 789 F.3d at 25

(quoting Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir.

2005)). If the record is "deficient in vital evidentiary support,

this may suffice to show that the movant has met its initial

burden" of "demonstrating the absence of a genuine issue of

material fact and that it is entitled to judgment as a matter of

law." Carmona v. Toledo, 215 F.3d 124, 132-33 (1st Cir. 2000).

A. Allegation Termination Was Based on Pena's Disabilities

The ADA forbids employers from terminating the

employment of a "qualified individual on the basis of disability."6

6 "Rhode Island courts look to federal case law construing
the [ADA] in evaluating analogous state law discrimination
claims." Pena, 2018 WL 582579 at *3 n.1 (citing Hodgens v. Gen.
Dynamics, 144 F.3d 151, 158 n.1 (1st Cir. 1998); Barber v. Verizon
New England, No. 05-390-ML, 2006 WL 3524465 at *3 n.1 (D.R.I. Dec.

- 15 -
42 U.S.C. § 12112(a). A prima facie case of disability

discrimination requires the plaintiff to show that (1) she was

disabled within the meaning of the ADA, (2) she was a "qualified

individual," and (3) the defendant took an adverse employment

action against her on the basis of her disability. Tobin v.

Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005); 42 U.S.C.

§ 12111(8).

Under the ADA, a "qualified individual" is "an

individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires." 42 U.S.C. § 12111(8). By

contrast, a successful SSDI applicant must be physically and

mentally impaired such that she cannot do her previous work, or

"any other kind of substantial gainful work which exists in the

national economy." Id. § 423(d)(2)(A). This difference creates

an obvious tension.

In Cleveland, the Supreme Court reversed a Fifth Circuit

decision that had created a rebuttable presumption that a

plaintiff's filing of an SSDI application precluded her from being

a "qualified individual" under the ADA. 526 U.S. at 799-800, 807.

The Court remanded to the lower court for the purpose we quote

later. Id. at 807.

6, 2006); Kriegel v. State of Rhode Island, 266 F. Supp. 2d 288,
296 (D.R.I. 2003)). We will do the same.

- 16 -
 The Court held that an ADA plaintiff in an employment

discrimination action is not judicially estopped from establishing

that she can perform the essential functions of her job with

reasonable accommodations solely because she has previously

applied for and received SSDI benefits. Id. at 802. It went on

from there to establish what a plaintiff must show. Id. at 801-

07.

The Court stated that the first question was whether

there was an inconsistency between a plaintiff's prior SSDI

statements and her position in the ADA litigation. Id. at 802.

The Court stated that there are "many situations in which an SSDI

claim and an ADA claim can comfortably exist side by side." Id.

at 803. The Court noted that while "the ADA defines a 'qualified

individual' to include a disabled person 'who . . . can perform

the essential functions' of her job 'with reasonable

accommodation,'" SSDI "does not take the possibility of

'reasonable accommodation' into account." Id. (alteration in

original) (emphasis omitted) (quoting 42 U.S.C. § 12111(9)(B)).

Instead, SSDI adjudications involve a "five-step procedure that

embodies a set of presumptions about disabilities, job

availability, and their interrelation."7 Id. at 804 (citing 20

7 Under this scheme, some conditions are presumed to be
disabling. Cleveland v. Policy Mgmt. Sys. Corp., 120 F.3d 513,
517 (5th Cir. 1997) (citing 20 C.F.R. § 404.1520(d)), vacated on
other grounds, 526 U.S. 795, 804 (1999). Pena does not argue that

- 17 -
C.F.R. §§ 404.1520, 404.1525, 404.1526, 404.1560). These

presumptions "eliminat[e] consideration of many differences

potentially relevant to an individual's ability to perform a

particular job" under the ADA. Id. Cleveland also noted that

SSDI benefits are sometimes awarded "to individuals who not only

can work, but are working," such as those on a statutory nine month

trial-work period to test their ability to return to work. Id. at

805 (citing 42 U.S.C. §§ 422(c), 423(e)(1); 20 C.F.R. § 404.1592

(1998)).

Cleveland then stated that "[w]hen faced with a

plaintiff's previous sworn statement asserting 'total disability'

or the like, the court should require an explanation of any

apparent inconsistency with the necessary elements of an ADA

claim." Id. at 807. To defeat summary judgment, the plaintiff's

"explanation must be sufficient to warrant a reasonable juror's

concluding that, assuming the truth of, or the 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.

Significantly, the plaintiff in Cleveland had argued in

her brief that her SSDI statements "were made in a forum which

does not consider the effect that reasonable workplace

her SSDI application relied on a presumption that her condition
was disabling or that she was on a trial-work period.

- 18 -
accommodations would have on the ability to work," and that her

SSDI statements were "'accurate statements' if examined 'in the

time period in which they were made.'" Id. The Court rejected

the plaintiff's argument that this was all that was needed. The

court remanded the case so that the parties could "have the

opportunity in the trial court to present, or to contest, [the

plaintiff's] explanations, in sworn form where appropriate." Id.

Pena argues that she has given an adequate explanation

for the apparent inconsistency between her SSDI statements and her

position in this litigation. She first argues that it is enough

for her to say in her brief that being disabled under the ADA is

different from being disabled for SSDI benefits, because the ADA

takes into account an employer's duty to make reasonable

accommodations, while SSDI does not. Pena argues that if her SSDI

application or the ALJ had asked if she needed disability

accommodations to work, she would have responded "yes." She states

that this is sufficient to meet her burden under Cleveland. This

misreads (and would read out of the law) Cleveland's reasoned

explanation requirement. When the plaintiff in Cleveland made

these same general arguments, the Court did not accept them;

rather, it remanded for factual findings. Id.

This court has interpreted Cleveland before, and

rejected the argument Pena makes. In DeCaro v. Hasbro, Inc., 580

F.3d 55 (1st Cir. 2009), we upheld a jury instruction that the

- 19 -
standard for receipt of SSDI benefits is different from the

standard for whether the plaintiff was able, with or without

reasonable accommodations, to perform the essential functions of

his job. Id. at 62. We affirmed that the mere fact that the

employee "received [SSDI] benefits is not in itself necessarily

fatal to his claim," but that the receipt of SSDI benefits could

be an admission by the employee of his inability to perform the

essential functions of his job, and that the question turned on

"all the facts and circumstances." Id. DeCaro rejected the

argument that the mere differences in standards was all that a

plaintiff had to show; the burden was on the plaintiff to offer a

sufficient explanation. Id.

In Sullivan v. Raytheon Co., 262 F.3d 41 (1st Cir. 2001),

we upheld a grant of summary judgment to the employer where the

plaintiff offered "no evidence to explain" why his prior SSDI

statements were consistent with his claim that he could perform

the essential functions of his job with reasonable accommodations.

Id. at 47. Like here, the plaintiff, in his deposition testimony,

had "continually and consistently claimed that he was totally

disabled" from the date the defendant terminated his employment,

and that his condition had "stayed the same or worsened" after

that. Id. We stated that to defeat summary judgment, the

plaintiff needed to produce "evidence to explain this

discrepancy." Id.

- 20 -
 Nor has Pena's argument been accepted by any circuit.

The Third Circuit has held that "simply averring that the [ADA and

SSDI] statutory schemes differ is not enough to survive summary

judgment in light of Cleveland. An ADA plaintiff must offer a

more substantial explanation to explain the divergent positions

taken, or else summary judgment could never be granted." Motley

v. N.J. State Police, 196 F.3d 160, 166 (3d Cir. 1999). Under

Cleveland, "each case should be decided on its unique facts." Id.

at 164. The Fourth Circuit has held that a plaintiff does not

"automatically avoid[] summary judgment when the defendant asserts

that the plaintiff's sworn statement of total disability in her

SSDI application has negated the 'qualified individual' element of

her ADA case." E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373,

378 (4th Cir. 2000) (emphasis in original). The Seventh Circuit

has similarly concluded that "[e]xplanations of the sort Cleveland

requires are, in short, contextual." Lee v. City of Salem, Ind.,

259 F.3d 667, 675 (7th Cir. 2001). The Fifth Circuit has also

held that a plaintiff's explanation that her SSDI statements "did

not take into account the prospect of accommodation as contemplated

under the ADA" is insufficient under Cleveland, at least when the

plaintiff has also made "specific factual statements which are

inconsistent with her claim" that she could perform the essential

- 21 -
functions of her job. Reed v. Petroleum Helicopters, Inc., 218

F.3d 477, 479-80 (5th Cir. 2000).

Pena's second argument is that she has produced evidence

of a reasoned explanation sufficient to allow a jury to find she

was a "qualified individual." We agree with the district court

that she has not met her burden under Cleveland. In her SSDI

application, Pena offered no qualification of any sort to her

statement that she was totally disabled as of March 8, 2013. She

submitted this application under penalty of perjury, and was

represented by counsel at the time. From the ALJ's decision that

Pena was totally disabled due to somatoform disorder as of March

8, 2013, it is evident that cause and that date are what Pena had

argued to get SSDI benefits. Somatoform disorder is not the

disability for which Pena had claimed to Honeywell she needed

reasonable accommodations. This SSDI evidence cuts against her

and against the argument that she has provided a reasonable

explanation.

As the district court noted, Pena's deposition testimony

does not explain, but rather reinforces, the inconsistency between

her SSDI application and her claims in this case. Pena was

represented by counsel at her deposition. During Pena's

deposition, Honeywell asked Pena several times to explain the

statements in her SSDI application, and Pena repeatedly stated

that she was totally disabled as of March 8, 2013. She did not

- 22 -
state that she could have performed the essential functions of her

prior job with reasonable accommodations as of March 8, 2013.

Honeywell also asked Pena to explain why her SSDI application

stated that she was unable to work as of March 8, 2013, when her

ADA claim "assert[s] that if [she] had been given an accommodation,

[she] could have done [her] job." Pena responded, "[Honeywell]

asked me, [d]o you want to go back to work, and I said, I don't

want to see these people ever anymore." Honeywell again asked

Pena to explain why she stated in her SSDI application that she

was unable to work as of March 8, 2013. Pena responded, "[w]hen

you fill out the application, they ask you when was your last day

of work," but as Honeywell pointed out at the deposition, "[t]hat's

not what the application says. The application says, 'I became

unable to work because'" of "my disabling condition on March 8,

2013." Not only did Pena not explain the discrepancy, but she

also reaffirmed at her deposition that she was entitled to SSDI

benefits retroactive as of March 8, 2013.

Pena attempts to avoid her admissions at deposition

through several arguments. First, Pena relies on the late

affidavit she submitted, attempting to explain away her deposition

admissions with statements not made at deposition and

contradicting the statements she did make.8 Cleveland itself held

8 The affidavit states that (1) Pena's SSDI attorney
advised her to use March 8, 2013, as the onset date of her

- 23 -
that "a party cannot create a genuine issue of fact sufficient to

survive summary judgment simply by contradicting his or her own

previous sworn statement (by, say, filing a later affidavit that

flatly contradicts the party's earlier sworn deposition) without

explaining the contradiction or attempting to resolve the

disparity." Cleveland, 526 U.S. at 806. This court also

"refuse[s] to allow issues of fact to be created simply by

submitting a subsequent contradictory affidavit." Morales v. A.C.

Orssleff's EFTF, 246 F.3d 32, 35 (1st Cir. 2001). "When an

interested witness has given clear answers to unambiguous

questions [at deposition], he cannot create a conflict and resist

summary judgment with an affidavit that is clearly contradictory,

but does not give a satisfactory explanation of why the testimony

is changed." Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-

5 (1st Cir. 1994). Pena's affidavit is in obvious conflict with

her deposition testimony, and Pena has not sufficiently explained

or resolved this disparity. Nothing in Cleveland or in First

Circuit law permits a plaintiff to do a volte-face from her

deposition admissions.

disability, (2) if the SSDI application or the ALJ had asked if
Pena needed reasonable accommodations to work, she would have
responded "yes," (3) if Honeywell had granted Pena's
accommodations request, she would have returned to work and would
not have applied for SSDI benefits, and (4) Pena filed for SSDI
benefits because she could no longer work due to her worsened
depression caused by Honeywell terminating her employment.

- 24 -
 Second, Pena disclaims responsibility and blames her

SSDI attorney for choosing March 8, 2013, as the onset date of her

disabilities. When Honeywell asked her, "[d]id someone advise you

to use the date March 8, 2013 on your application?", Pena did not

say she did so on advice of counsel.9

Third, Pena attempts to excuse her admissions in her

deposition testimony by saying in her brief that she did not

understand the relevant questioning at her deposition. Pena claims

that Honeywell's questions were "confusing" and constituted a

"blatant attempt to trip up Pena into admitting that she is lying

and trying to manipulate the system." Pena had counsel with her

at the time, who made no such objections. Pena was also provided

with an interpreter at the deposition. In any event, the record

shows that Honeywell asked straightforward questions, was upfront

about the Cleveland issue, and gave Pena many opportunities to

explain the discrepancy.

Pena's brief attempts a variant argument that she was

disabled when she applied for SSDI benefits, that she was not

disabled on March 8, 2013, and that she became disabled in between.

She argues that her condition worsened after March 8, 2013, and

that that worsening was because Honeywell "denied her request for

9 Instead, in response to this question, Pena stated that
from March 8, 2013, she was prescribed heavier dosages of her
medications.

- 25 -
a reasonable accommodation when it sent her home" that day. This

is a newfound argument and is not supported by the record. That

Pena's condition worsened later does not mean she was well enough

to perform the essential functions of her job on March 8, 2013.

An individual who is totally disabled may still suffer from

worsened symptoms later. In Pena's sworn SSDI application and at

her sworn deposition, she gave March 8, 2013, her last day at work,

as the date on which she became totally disabled.

Under Cleveland, Pena has "fail[ed] to make a showing

sufficient to establish the existence of an element essential to

[her] case, and on which [she] will bear the burden of proof at

trial," namely, that she is a "qualified individual." See

Cleveland, 526 U.S. at 806 (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986)). The district court properly granted

Honeywell summary judgment as to Pena's claim that her employment

was terminated because of her disabilities.

B. Alleged Failure to Accommodate

The ADA's prohibition of employment discrimination

includes an employer's failure to make "reasonable accommodations

to the known physical or mental limitations of an otherwise

qualified individual with a disability." 42 U.S.C.

§ 12112(b)(5)(A). To establish a claim for failure to accommodate,

a plaintiff must produce sufficient evidence for a reasonable jury

to find that (1) she was disabled within the meaning of the ADA,

- 26 -
(2) she was a "qualified individual," and (3) the defendant,

despite knowing of her disability, "did not reasonably accommodate

it." See Tobin, 433 F.3d at 107; 42 U.S.C. § 12111(8).

Pena's failure to accommodate claim requires sufficient

evidence that she was a "qualified individual." See Tobin, 433

F.3d at 107; 42 U.S.C. § 12111(8). She has not presented such

evidence. Rather, the undisputed evidence, as discussed earlier,

includes admissions at her deposition and in her briefing that she

was not a "qualified individual," totally apart from the statements

in her SSDI application. The district court properly granted

Honeywell's motion for summary judgment as to Pena's failure to

accommodate claims.

C. Alleged Retaliation

Pena's appellate brief argues that Honeywell retaliated

against her for reporting what she calls "discriminatory" conduct

to Honeywell's human resources department. But part of her claim

was not made in the trial court.

The disposition of Pena's earlier claims does not

dispose of her retaliation claims. See Calero-Cerezo v. U.S. Dep't

of Justice, 355 F.3d 6, 25 (1st Cir. 2004). "To prove a claim of

retaliation, a plaintiff must establish that (1) she engaged in

protected conduct; (2) she experienced an adverse employment

action; and (3) there was a causal connection between the protected

conduct and the adverse employment action." Id. at 25. "Once a

- 27 -
plaintiff makes [a prima facie] showing, the burden shifts to the

defendant to articulate a legitimate, non-retaliatory explanation

for the adverse action." D.B. ex rel. Elizabeth B. v. Esposito,

675 F.3d 26, 41 (1st Cir. 2012). "If the defendant does so, the

burden shifts back to the plaintiff to show that the proffered

legitimate explanation is pretextual, meaning that the defendant

was motivated by a retaliatory animus." Id.

Pena argues on appeal that there are disputed issues of

material fact as to whether Honeywell retaliated against her by

terminating her employment because (1) Pena had requested to remain

in the respiratory department on March 8, 2013, due to her anxiety

and depression, and (2) Pena had complained to Gouveia in February

2013 that her supervisor did not honor her request for meal breaks

at very specific times, when she needed to eat because of her

diabetes.

We do not engage the first argument. Pena did not make

the argument about her request to remain in the respiratory

department in her opposition to Honeywell's motion for summary

judgment (or, even belatedly, in her objections to the report and

recommendation). Pena has also failed to develop this argument on

appeal, devoting a single sentence to the issue in her brief. For

both reasons, the argument about retaliation due to her request to

remain in the respiratory department is waived. See Kozikowski v.

- 28 -
Toll Bros., Inc., 354 F.3d 16, 23 (1st Cir. 2003); United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Pena's argument that she was retaliated against for

making requests as to break times, described in footnote 3, relies

solely on temporal proximity in an effort to establish causality.

Pena points to the fact that her employment was terminated four

months after she made the complaint about break times. As the

district court found, this four-month period "cannot carry the

day." Pena, 2018 WL 582579, at *2. "The cases that accept mere

temporal proximity between an employer's knowledge of protected

activity and an adverse employment action as sufficient evidence

of causality to establish a prima facie case uniformly hold that

the temporal proximity must be very close." Cherkaoui v. City of

Quincy, 877 F.3d 14, 28–29 (1st Cir. 2017) (quoting Clark Cty.

Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). "Without some

corroborating evidence suggestive of causation . . . a gap of

several months cannot alone ground an inference of a causal

connection between a complaint and an allegedly retaliatory

action." Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010). The

gap of four months, on its own, is not "very close" for

establishing causality.10 See Cherkaoui, 877 F.3d at 29.

10We have previously explained that "[t]hree and four
month periods have been held insufficient to establish a causal
connection based on temporal proximity." Calero-Cerezo, 355 F.3d
at 25. But see Sanchez-Rodriguez v. AT&T Mobility Puerto Rico,

- 29 -
 Independently, "[t]he larger picture undercuts any claim

of causation." Soileau v. Guilford of Maine, Inc., 105 F.3d 12,

16 (1st Cir. 1997). Here, the district court correctly observed

that after Pena's single comment to Gouveia about break times,

"the dialogue between [Pena] and Honeywell was singularly focused

on the issue of her assignment to the Molding Department." Pena,

2018 WL 582579, at *12. The evidence overwhelmingly shows that

Honeywell terminated Pena's employment on the basis of job

abandonment, and there is insufficient evidence from which Pena

could establish that this reason was pretextual.

Pena now claims that Honeywell's adverse employment

actions against her actually began the month after she made the

complaint about break times, when she went home after refusing to

work in the molding department on March 8, 2013. But again, this

is belied by the record, because the conversations immediately

preceding Pena's decision to go home on March 8, 2013, explicitly

reference her refusal to work in the molding department, and the

subsequent communications between Honeywell and Pena were

exclusively focused on her desire to be exempt from working in the

molding department. The district court properly granted

Inc., 673 F.3d 1, 15 (1st Cir. 2012) (temporal proximity sufficient
to establish a prima facie case of causality when plaintiff filed
an EEOC complaint about religious discrimination and was placed on
active disciplinary status three months later).

- 30 -
Honeywell's motion for summary judgment as to Pena's retaliation

claims.

III.

The district court's grant of summary judgment is

affirmed.

— Separate Opinion Follows —

- 31 -
 LIPEZ, Circuit Judge, concurring in part and dissenting

in part. Judicial estoppel is an equitable doctrine designed to

safeguard courts from misuse by litigants who attempt to change

positions in the expediency of the moment. Relying on that

doctrine to deny plaintiff Pena an opportunity to seek a remedy

before a jury for disability discrimination, my colleagues

misapply the Supreme Court's decision in Cleveland v. Policy

Management Systems Corp., 526 U.S. 795 (1999). Indeed, at the

heart of Cleveland is a recognition that courts have been too quick

to find a conflict between claims for Social Security Disability

Insurance ("SSDI") benefits and claims alleging discrimination

under the Americans with Disabilities Act ("ADA"). The Court held

that a plaintiff could pursue a reasonable accommodation claim

despite an earlier SSDI application asserting total disability if

she provides an "explanation . . . sufficient to warrant a

reasonable juror's concluding that, assuming the truth of, or the

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.

In this case, the explanation offered by Pena could warrant that

conclusion by a reasonable jury. Therefore, I respectfully

dissent.11

11
I join only the portion of the majority opinion affirming
summary judgment for Honeywell on Pena's retaliation claims.

- 32 -
 I.

Pena worked at a Honeywell manufacturing facility for

approximately five years, from 2008 to 2013, primarily in the

respiratory department. Suffering from anxiety and depression,

Pena experienced several medical issues throughout that period,

and the company routinely accommodated her needs by, for example,

allowing her extended time away from the job.

In October 2012, after Honeywell decided to cross-train

employees, Pena trained in the molding room. She took a medical

leave from November 2012 to January 2013, attributed in part to

her depression. Upon her return, Pena started working in the

molding room for eight to twelve hours per week, where she found

that the pace, noise, smell, and enclosure significantly

exacerbated her symptoms. Following her complaint about the

conditions in late February 2013, she was granted a temporary

reprieve from working in the molding room pending further review.

On March 8, 2013, she left work after her supervisor refused her

request not to work there.

Then followed three months of back and forth between

Honeywell, Pena's attorney, and her doctor about Pena's desire to

continue working outside the molding room. She experienced

worsening anxiety and stress associated with her employment

uncertainty. Honeywell terminated Pena's employment on June 17,

2013 for "job abandonment."

- 33 -
 On September 20, 2013, Pena submitted an application for

SSDI benefits in which she stated, "I BECAME UNABLE TO WORK BECAUSE

OF MY DISABLING CONDITION ON March 8, 2013. I AM STILL DISABLED."

On April 16, 2015, Pena filed this action against Honeywell

alleging disability discrimination, effectively claiming that she

could work, albeit with an accommodation. Six months later, on

October 16, 2015, her SSDI application was approved. Her seemingly

inconsistent disability and discrimination claims generate the

judicial estoppel issue before us.

II.

A. Judicial Estoppel Principles

The Supreme Court said virtually nothing in Cleveland

about the substance of the doctrine of judicial estoppel, but the

principles governing that doctrine are well-established. The

purpose of judicial estoppel is to "safeguard the integrity of the

courts by preventing parties from improperly manipulating the

machinery of the judicial system." Alt. Sys. Concepts, Inc. v.

Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004) (citing New

Hampshire v. Maine, 532 U.S. 742, 750 (2001)). Although

application of judicial estoppel is "not reducible to any general

formula[]," several conditions typically drive a court's decision

to apply the doctrine. New Hampshire, 532 U.S. at 750. First,

the litigant's earlier and later positions "must be clearly

inconsistent." Id. (internal quotation marks omitted). Second,

- 34 -
the estopped party must have persuaded a court to accept its prior

position. Alt. Sys. Concepts, Inc., 374 F.3d at 33.12

In addition, the Court cautioned that judicial estoppel

is an equitable doctrine, applied as an act of discretion. New

Hampshire, 532 U.S. at 750. Concerns about fairness inform the

analysis. Id. at 751; see also James Wm. Moore, 18 Moore's Federal

Practice § 134.31 (3d ed. 2012) ("Application of the doctrine of

judicial estoppel should be guided by a sense of fairness, with

the facts of the particular dispute in mind."). An advantage

unfairly gained by the litigant -- or a detriment unfairly imposed

on the other party -- weighs in favor of estoppel. New Hampshire,

532 U.S. at 751. Judicial estoppel thus disfavors intentional

inconsistencies and provides leniency for a plaintiff who operated

in good faith in presenting conflicting positions. See id. at

753.

B. The Cleveland Analysis

In Cleveland, the Court held that there is no presumption

of judicial estoppel against a claim for failure to accommodate an

employee's disability when the employee has already received SSDI

benefits premised on the inability to work. Cleveland, 526 U.S.

at 805. The Court reasoned that "there are . . . many situations

12
Presumably, the ALJ's award of benefits in SSDI cases
constitutes an acceptance of the prior statement by a court. We
have that circumstance here.

- 35 -
in which an SSDI claim and an ADA claim can comfortably exist side

by side." Id. at 802-03. Accordingly, a plaintiff may "defeat

summary judgment" if she can provide "a sufficient explanation"

for her "two seemingly divergent" claims. Id. at 797, 806-07.

Cleveland tells us that we must conduct the

inconsistency analysis "assuming the truth of, or the plaintiff's

good-faith belief in, the earlier statement." Id. at 807. This

assumption binds the plaintiff to her prior assertion,

establishing the contours of the conflict that the plaintiff must

explain. See, e.g., Lee v. City of Salem, 259 F.3d 667, 674 (7th

Cir. 2001). Although the Court in Cleveland did not prescribe the

details of the inconsistency inquiry, the Court indicated that an

ADA claim could not survive if there were "directly conflicting

statements about purely factual matters, such as 'The light was

red/green,' or 'I can/cannot raise my arm above my head.'"

Cleveland, 526 U.S. at 802. Such irreconcilable assertions of

fact "present precisely the sort of threat to judicial integrity

that the doctrine of judicial estoppel was designed to prevent."

Bos. Gas Co. v. Century Indem. Co., 708 F.3d 254, 264 (1st Cir.

2013).

By contrast, an SSDI "representation of total disability

differs from a purely factual statement in that it often implies

a context-related legal conclusion, namely, 'I am disabled for the

purposes of the Social Security Act.'" Cleveland, 526 U.S. at

- 36 -
802. "So understood, a quasi-legal assertion of this kind does

not foreclose the possibility that the individual is nonetheless

'qualified' to work for purposes of the ADA." Lee, 259 F.3d at

673. The Court's reasoning acknowledged that the two statutes

reflected contrasting conceptions of disability. Enacted in 1956,

the SSDI program reflects a view of disability as a certifiable

medical excuse from work. For some people, disabilities impose

medical obstacles to employment. Matthew Diller, Dissonant

Disability Policies: The Tensions Between the Americans with

Disabilities Act and Federal Disability Benefit Programs, 76 Tex.

L. Rev. 1003, 1005-06 (1998). Adopted nearly forty years later,

the ADA reflects the different view that a disability will not

necessarily foreclose participation in the workforce. Id. The

ADA thus requires employers to remove barriers, where feasible,

that impede persons with disabilities from performing the

essential functions of their jobs. Id.

The Cleveland Court recognized that, "in context, these

two seemingly divergent statutory contentions are often

consistent," such that individuals may qualify for SSDI and also

remain capable of continuing in their jobs. Cleveland, 526 U.S.

at 797. In so concluding, the Court rejected the notion that an

SSDI recipient who seeks ADA protection is necessarily gaining an

unfair advantage by "double dipping" into two forms of financial

support for disability. See Diller, Dissonant Disability Policies

- 37 -
at 1035 (listing cases in which courts were sidetracked by double

dipping before Cleveland); Lauren Lowe, Note, What Employees Say,

or What Employers Do: How Post-Cleveland Decisions Continue to

Obscure Discrimination, 62 Vand. L. Rev. 1245, 1272 (2009) (listing

cases after Cleveland). While a plaintiff must do more than merely

point to the difference in statutory standards for "disability,"

the legal context of the two claims is essential to understanding

the Cleveland inquiry. See DeCaro v. Hasbro, Inc., 580 F.3d 55,

62 (1st Cir. 2009).

III.

Applying the inconsistency analysis required by

Cleveland, and guided by the principles of judicial estoppel, I

disagree with the majority's conclusion that Pena's SSDI

application statements "I BECAME UNABLE TO WORK BECAUSE OF MY

DISABLING CONDITION ON March 8, 2013" and "I AM STILL DISABLED"

contradict irreconcilably her reasonable accommodation claim, such

that judicial estoppel is warranted.

A. The Prior Statement

The "previous sworn statement" at issue here actually

consists of the two statements in Pena's SSDI application that she

"became unable to work" on March 8, 2013 and "[is] still disabled."

Cleveland instructs us to assume Pena's good-faith belief in these

two prior assertions. Hence, to assess the ostensible conflict

between those SSDI assertions and the particulars of her ADA

- 38 -
reasonable accommodation claim, we have to understand how Pena

explains her good-faith belief in these assertions.

Pena argues that she understood herself to have become

disabled on March 8 "only after her employer denied her request

for a reasonable accommodation." Her brief points to her

deposition, in which she was asked for the date from which she was

"no longer able to work at all." She responded, "[w]hen I was

kicked out of that place." When asked if she "agree[d] that since

March 8, 2013 you have been unable to perform any sort of work,"

she responded, "[y]es." Asked to identify the point when she

"bec[a]me unable to work at all," she responded, "[t]he same moment

that they denied me my job without accommodating me." Pena argues

that it is essential context that this denial preceded her

representation of disability because this denial framed her

understanding of her situation when she sought SSDI benefits.

Her affidavit, filed as part of her opposition to

Honeywell's motion for summary judgment, makes this exact point:

"I did not apply for SSDI benefits until September 20, 2013, only

after I had exhausted every possible effort of getting the needed

accommodation." Although this affidavit is in the record, the

district court dismissed its relevance, quoting Cleveland for the

premise that "a party cannot create a genuine issue of fact

sufficient to survive summary judgment simply by contradicting his

or her own previous sworn statement (by, say, filing a later

- 39 -
affidavit that flatly contradicts that party's earlier sworn

deposition) without explaining the contradiction or attempting to

resolve the disparity." Pena v. Honeywell Int'l Inc., No. CV 15-

179 WES, 2018 WL 582579, at *2 (D.R.I. Jan. 29, 2018) (quoting

Cleveland, 526 U.S. at 806-07). The district court misses the

point of this affidavit. Its very purpose is to explain, as

Cleveland says she must do, how she could have a good-faith belief

in the truth of her SSDI assertions, while still being able to

perform the essential functions of her job with a reasonable

accommodation.

When Pena filed her SSDI application in September, she

knew that the accommodation that she had demanded for more than

three months had been repeatedly and decisively denied to her.

Given this circumstance, a jury could reasonably find that Pena

plausibly believed on September 20, 2013 that she became "unable

to work" as of March 8, 2013. See Lowe, How Post-Cleveland

Decisions Continue to Obscure Discrimination at 1278 (observing

that denial of an accommodation may explain the claimant's good-

faith belief in the assertion to the Social Security Administration

that she was unable to work); see also Diller, Dissonant Disability

Policies at 1042 (noting that statements of "total disability" on

a disability benefit application may be based on the individual's

experience that no employer will employ her because of her

- 40 -
disability, even if she could perform the essential elements of

the job with accommodation).

The majority wrongly chides Pena because she "offered no

qualification" for her assertion of disability on her SSDI

application. Cleveland expressly stated that such qualification

is not required. Since the SSDI definition of disability does not

take accommodation into account, an applicant need not "refer to

the possibility of reasonable accommodation when she applies for

SSDI." Cleveland, 526 U.S. at 803. The particulars of this case

reflect the wisdom of that legal proposition. In her affidavit,

Pena averred:

When I stated on my SSDI application that I
was unable to work as of March 8, 2013, I meant
that I was totally disabled only for the
purposes of receiving SSDI benefits. The SSDI
application did not ask if I needed any
accommodations of a disability in order to
work and no one at any of the hearings asked.
Had I been asked, I would have responded,
"Yes."

Without question, Pena could supportably argue to a jury that she

held a good-faith belief in the accuracy of her SSDI application,

given her understanding of the process, while still being in a

position to perform the essential functions of her job with a

reasonable accommodation.

B. Ability to Perform Essential Functions

We must now evaluate, pursuant to Cleveland, Pena's

insistence that, despite her good-faith belief in her SSDI

- 41 -
assertions of total disability, she could perform the essential

functions of the job, as required for her ADA claim.

The record plainly permits a jury to find that Pena could

have continued to perform the job she had held before Honeywell

insisted that she work in the molding room. As Pena describes,

her years of work at the facility before the rotation requirement

was imposed reflect her ability to fulfill the requirements of the

job beyond the molding room. In addition, her efforts to be

reinstated at Honeywell, including the submission of three

doctor's notes, constitute further evidence that she could have

worked with her requested accommodation. In particular, Dr.

Greer's March 4 letter (delivered to Honeywell on March 8), stated

that Pena was "completely capable of working in other settings,"

but that she experienced "exacerbation of her anxiety symptoms

. . . . when she is being sent to the moulding [sic] room as

opposed to the more typical duties to which she is accustomed."13

13 Whether the request not to work in the molding room is a
reasonable accommodation is a separate question the jury would
need to answer in evaluating Pena's ADA claim. The district court,
adopting the report and recommendation of the magistrate judge,
concluded that if estoppel did not apply, a genuine dispute of
material facts about "whether rotation to the Molding Department
was an essential function of Plaintiff's job and whether Plaintiff
participated in good faith in the interactive process" foreclosed
summary judgment on the reasonable accommodation claim. Pena,
2018 WL 582579, at *10.

- 42 -
 The majority compares Pena's case to Sullivan v.

Raytheon Co., 262 F.3d 41 (1st Cir. 2001), in which we affirmed

summary judgment for the employer because the plaintiff made

repeated claims that he was totally disabled and provided "no

evidence" that he could work with an accommodation. Id. at 48.

The facts here are strikingly different. Pena has developed a

record that would support a jury finding that she could have

continued to work at Honeywell with her requested accommodation.

At summary judgment, courts are obliged to draw record inferences

on behalf of the nonmovant. Yet the majority draws every inference

against Pena.

Honeywell also attempts to undercut Pena's ADA claim by

pointing out that she sought an accommodation for anxiety and

depression until June 2013, but she was deemed "totally disabled"

by somatoform disorder as of March 2013. The company argues that,

given her total disability, she would not have been able to work

even if her anxiety and depression had been accommodated.

Honeywell's argument, however, ignores Cleveland's admonition that

ostensibly conflicting legal conclusions derived from different

disability processes must be evaluated in their legal context.

As Cleveland noted, the SSDI program provides for

categorical determinations of eligibility for benefits to

facilitate the processing of the large number of cases handled by

the Social Security Administration. See 526 U.S. at 804. Pursuant

- 43 -
to the five-step eligibility procedure, an individual may be deemed

totally disabled without regard to her actual ability to work if

her condition "meet[s] or equal[s]" an impairment in the enumerated

list of impairments. Id. at 804. The eligibility finding in such

a case stems from the "regulatory determination that most

individuals with certain disabilities cannot work." Anne E.

Beaumont, Note, This Estoppel Has Got to Stop: Judicial Estoppel

and the Americans with Disabilities Act, 71 N.Y.U. L. Rev. 1529,

1567 (1996).

The ALJ determined that Pena has "somatoform disorder,"

one of the listed impairments under SSDI regulations, based on the

testimony of an impartial medical expert at the SSDI hearing.

Because Pena met the severity criteria for a finding of categorical

disability, the ALJ bypassed individual review of her capacity for

work. This procedural history undermines Honeywell's argument

that the ALJ determined that Pena is incapable of working even

with an accommodation. It also exposes the baselessness of the

majority's assumption that Pena argued somatoform disorder to the

ALJ. As noted, the only statements in the record that Pena made

in the course of her SSDI application are that she "became unable

to work" on March 8, 2013 and "[is] still disabled."

The majority nonetheless erroneously compares Pena's

circumstances to cases in which the plaintiff made specific,

"purely factual" statements about disability that were

- 44 -
incompatible with the undisputed job requirements. Unlike those

cases in which the plaintiffs' descriptions of their injuries

conflicted with their asserted ability to work with an

accommodation, Pena's blanket statement of disability in her SSDI

application does not belie her ADA claim. For example, in Reed v.

Petroleum Helicopters, Inc., 218 F.3d 477 (5th Cir. 2000), cited

by the majority, the plaintiff made "specific factual statements"

about her inability to sit for an extended period, which the court

found incompatible with her claimed ability to fly a helicopter.

Id. at 480.

Likewise, in Motley v. New Jersey State Police, 196 F.3d

160 (3d Cir. 1999), also cited by the majority, the plaintiff

claimed headaches, backpain, and knee aches when standing and

running, and he had been found "totally and permanently

incapacitated for state police officer duties" by the state police

medical board. Id. at 166. On that record, the plaintiff's

"sole[]" reliance on the difference between the statutory schemes

was "fatal." Id. at 167; see also Feldman v. Am. Mem'l Life Ins.

Co., 196 F.3d 783, 791-92 (7th Cir. 1999) (concluding that

plaintiff's SSDI benefits application assertions that she could

not drive long distances, work a six- to eight-hour day, or carry

a briefcase were incompatible with her ADA claim that she could

work as a traveling salesperson); Parker v. Columbia Pictures

Indus., 204 F.3d 326, 333 (2d Cir. 2000) (holding that "summary

- 45 -
judgment may be appropriate under Cleveland where the SSDI and ADA

claims 'involve directly conflicting statements about purely

factual matters'") (quoting Cleveland, 526 U.S. at 802); cf. Felix

v. N.Y. City Transit Auth., 154 F. Supp. 2d 640, 651 (S.D.N.Y.

2001), aff'd, 324 F.3d 102 (2d Cir. 2003) (holding judicial

estoppel unwarranted where, inter alia, the plaintiff "stated in

general terms that she could not work as a result of her disabling

condition without offering particular facts as to that

condition"). Pena's SSDI application did not include specific

factual assertions. Rather, the conflict here between Pena's

asserted inability to work and her asserted ability to work with

accommodation is exactly the nuanced contradiction that Cleveland

recognized as "often" permissible. Cleveland, 526 U.S. at 797.

Indeed, in a similar case, the Third Circuit concluded

that limited prior factual assertions did not foreclose a finding

that the plaintiff could perform the essential functions of her

job. In Turner v. Hershey Chocolate U.S., 440 F.3d 604 (3d Cir.

2006), the employer Hershey decided to require rotation of

employees among three different assembly stations in July 2001.

Id. at 607. Turner objected that she could not do one of the

rotations, which required standing, bending, and twisting, was

considered more difficult, and was not part of her job requirements

up to that point. Id. Hershey determined that Turner could not

continue to work in her position without this rotation, and "she

- 46 -
was deemed a disabled employee." Id. On a subsequent SSDI

benefits application, Turner stated that she had been unable to

work since July 2001, and she was awarded total disability benefits

from that time. Id. The Third Circuit determined that Turner was

not judicially estopped from pursuing an ADA claim:

As discussed in Cleveland, this statement of
inability to work must be read as lacking the
qualifier of reasonable accommodation, which did
not apply for purposes of her SSDI application, but
does apply for purposes of her ADA claim. Thus, in
her SSDI application, Turner was saying, in effect,
"I am unable to work without reasonable
accommodation." This statement is not inconsistent
with her ADA claim, in which she is saying, in
effect, "I am able to work with reasonable
accommodation."

Id. at 610. To the extent that Turner made a factual assertion

about pain that limited her ability to work, the court found it

did not "foreclose the possibility that she could perform [her

job] with reasonable accommodation." Id. at 609. It therefore

remanded the case to allow a jury to decide her ADA claim. Id. at

610, 613.

The parallels to this case are evident: the asserted

date on which the plaintiff was "unable to work" for purposes of

SSDI benefits does not "foreclose the possibility" that, at the

same time, she could have continued working with a reasonable

accommodation. In the absence of an irreconcilable factual

conflict, her prior disability claim and her ADA claim could be

- 47 -
reconciled. Hence, judicial estoppel was not required under

Cleveland.

IV.

Pena's case does not implicate any of the considerations

warranting the application of judicial estoppel. The district

court found her case "sympathetic," without any "indication that

she ha[d] taken any positions in bad faith." See Pena, 2018 WL

582579, at *9. There is also no indication of her gaming the

system or of causing an unfair detriment to Honeywell. Rather, a

reasonable jury could conclude from this record that Pena believed

herself unable to work because of Honeywell's emphatic rejection

of her request for an accommodation and that she could have

continued to work if provided that accommodation. Pena's

explanation is thus sufficient to show that her two claims are

reconcilable and that judicial estoppel should not be applied to

foreclose her pursuit of ADA relief. Cleveland requires nothing

more. Pena was entitled to bring her ADA claim to a jury. I

therefore dissent from the majority's decision denying her that

opportunity.

- 48 -