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.
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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.
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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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
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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."
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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,
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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Pena v. Honeywell International, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2019-04-26
Citations: 923 F.3d 18
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