UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-41310
(Summary Calendar)
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DAVID J PENA,
Plaintiff - Appellant,
versus
HOUSTON LIGHTING & POWER COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
September 21, 1998
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:
David Pena brought suit against Houston Lighting & Power
Company (HL&P), alleging violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Texas
Commission on Human Rights Act (“TCHRA”), TEX. LAB. CODE ANN.
§ 21.051 et seq. The district court granted summary judgment in
favor of HL&P, holding that Pena was estopped from arguing that he
was able to perform the essential functions of his job because he
had made contrary representations in his applications for Long-Term
Disability (“LTD”) benefits and mortgage disability benefits. We
affirm.
In Cleveland v. Policy Management Systems Corporation, we held
that “the application for or the receipt of social security
disability benefits creates a rebuttable presumption that the
claimant or recipient of such benefits is judicially estopped from
asserting that he is a ‘qualified individual with a disability’
[under the ADA].” 120 F.3d 513, 518 (5th Cir. 1997) (emphasis in
original), petition for cert. filed, 66 U.S.L.W. 3435 (U.S. Dec.
15, 1997) (No. 97-1008); see also McConathy v. Dr. Pepper/Seven Up
Corp., 131 F.3d 558, 562-63 (5th Cir. 1997) (explaining that “[t]he
statements in the SSA application create a presumption that [the
plaintiff] is not a qualified person with a disability”). It is
undisputed that Pena applied for LTD and mortgage disability
benefits and that he represented in both applications that he was
“totally disabled.” Furthermore, it is undisputed that as part of
his LTD benefits application, Pena was required to fill out a
Disability Report with the United States Social Security
Administration (“SSA”) in which he claimed that his condition
“hamper[ed] all job duties.” Pena was approved for LTD benefits in
August 1995 and has continued to receive a gross monthly LTD
benefit of approximately $1,782.55. Thus, because of his multiple
representations that he was “totally disabled,” Pena must overcome
the rebuttable presumption that he is not a “qualified individual
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with a disability” under the ADA. See Cleveland, 120 F.3d at 517;
McConathy, 131 F.3d at 562-63.
We must reemphasize, however, particularly in light of the
district court’s assertion that “[i]t would be hard to imagine any
set of circumstances where a claim of total disability would be
consistent with a claim of ability to perform the essential
functions of one’s job,” that we have not adopted a per se rule of
judicial estoppel precisely because the SSA’s definition of
disability differs in significant respects from the definition of
a “qualified individual” under the ADA. See Cleveland, 120 F.3d at
517 & n.14; see also Rascon v. U S West Communications, Inc., 143
F.3d 1324, 1332 (10th Cir. 1998) (“We join the majority of circuits
and hold that statements made in connection with an application for
social security disability benefits cannot be an automatic bar to
a disability discrimination claim under the ADA.”); Johnson v.
Oregon, 141 F.3d 1361, 367 (9th Cir. 1998) (“[N]either application
for nor receipt of disability benefits automatically bars a
claimant from establishing that she is a qualified person with a
disability under the ADA.”); Griffith v. Wal-Mart Stores, Inc., 135
F.3d 376, 382 (6th Cir. 1998) (“[J]udicial estoppel does not apply
because the answers given in a Social Security disability benefit
application are not necessarily inconsistent with a plaintiff’s
claim that he could have worked at his job, during the relevant
period, with a reasonable accommodation.”), petition for cert.
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filed, 66 U.S.L.W. 3800 (U.S. June 9, 1998) (No. 97-1991); Talavera
v. School Board of Palm Beach County, 129 F.3d 1214, 1220 (11th
Cir. 1997) (“We agree with the majority of our sister circuits that
a certification of total disability on an SSD benefits application
is not inherently inconsistent with being a ‘qualified individual
with a disability’ under the ADA.’”); Swanks v. Washington Metro.
Area Transit Auth., 116 F.3d 582, 584 (D.C. Cir. 1997) (“[I]n
assessing eligibility for disability benefits, the Social Security
Administration gives no consideration to a claimant’s ability to
work with reasonable accommodation.”); Weiler v. Household Finance
Corp., 101 F.3d 519, 523-34 (7th Cir. 1996) (“Because the ADA’s
determination of disability and a determination under the Social
Security disability system diverge significantly in their
respective legal standards and statutory intent, determinations
made by the Social Security Administration concerning disability
are not dispositive findings for claims arising under the ADA.”);
Robinson v. Neodata Servs., Inc., 94 F.3d 499, 502 n.2 (8th Cir.
1996) (“Social Security determinations . . . are not synonymous
with a determination of whether a plaintiff is a ‘qualified person’
for purposes of the ADA.”). Nonetheless, we agree with HL&P that
Pena is unable to overcome the rebuttable presumption under the
facts of this case. The LTD plan’s definition of “totally
disabled” tracks the language of “qualified individual with a
disability” under the ADA. The LTD plan states that the claimant
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is “totally disabled” if “the Participant is wholly and continually
disabled by sickness or accidental bodily injury which prevents
him/her from performing, with or without reasonable accommodations,
the essential functions of his/her normal occupation.” (emphasis
added). This definition was included in both the application that
Pena filled out in September 1994 and in the letter he received in
August 1995 awarding him benefits. Because Pena specifically
represented that he could not perform his job with or without
reasonable accommodation, he cannot demonstrate that he is a
“qualified individual with a disability” under the ADA.
Ultimately, Pena has put forth no “credible, admissible
evidence” to overcome the Cleveland presumption and his case does
not present the “limited and highly unusual set of circumstances”
necessary to rebut the presumption. See Cleveland, 120 F.3d at
517-18. Accordingly, the judgment of the district court is
AFFIRMED.
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