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Jacquie Brennan: Today we’re going to talk about judicial estoppel. If you don’t know what that is, well, you’re not alone. We lawyers, we love our big words. This one sort of means what it sounds like. Judicial estoppel. It means that a judicial proceeding is stopped because of some reason, and in the case of ADA, the reason that judicial estoppel ever came up is because it’s really estoppel by inconsistent positions.

What has happened in the ADA, and this really sort of came up in the mid-1990s at first, is that a person would be terminated from a job and the person, the employee, may believe it was because of discrimination. The employee goes ahead and files for Social Security disability and when you file for social security disability, you have to say what you’re unable to work. If you’re unable to work, you’re not covered by the employment provisions of the ADA. So these are two inconsistent positions. You can’t, on the one hand, sue under the ADA saying you’re discriminating against me because I want to work, I can work and you won’t let me, you fired me so you’re discriminating against me based on my disability, but then go to Social Security and say, oh yeah, I can’t work, I’m unable to work.

At least that’s the theory of how judicial estoppel went when it was first brought up in the ADA. Courts were sort of left wondering what they should do about this issue because it seemed like these were inconsistent positions. This went on for a couple of years until finally, in 1999, the Supreme Court settled it. Now keep in mind this was ten years ago.

The Supreme Court, in a case called Cleveland v. Policy Management Systems Corporation and for the lawyer people out there it’s at 526 U.S. 795, said that wait, this seems like two inconsistent positions which is what that judicial estoppel means. It seems like they’re saying two different things, but really they’re not necessarily saying two inconsistent things because for a person to be discriminated against under the ADA they must be able to perform the essential functions of the job with or without a reasonable accommodation. But when you look at Social Security, you’re saying you’re unable to work, yes, but that doesn’t take into consideration an accommodation that might allow you to work.

The Supreme Court said you actually can have both. A person could legitimately have a claim of discrimination under the employment provisions of the ADA and it wouldn’t be inconsistent to also say I also need to get benefits under SSDI. Because for judicial estoppel, it needs to be something that essentially a court or a law body has decided in one case and then you take an inconsistent position in another case.

So the Supreme Court really settled this in this case that’s referred to as Cleveland in 1999, so you’d think that, since it was in 1999, maybe wouldn’t still be dealing with whether judicial estoppel is appropriate in these cases, but we are. That’s what I want to talk about, really 2008- 2009 cases in which we still have this issue coming up and courts are still ruling on this.

The first case we’re going to look at is McNeill v Wayne County which was in the Sixth Circuit Court of Appeals and was decided late 2008 in an unpublished opinion. The plaintiff in this case was Ms. McNeill She was a county account clerk for Wayne County. She was diagnosed with Lupus and thrombocytopenia and she was medically restricted from lifting more than twenty-five pounds, so they transferred her, the county transferred her to accommodate her restriction several times, but ultimately she resigned when the county said it couldn’t accommodate her any more.

During this time of her retirement she was eligible for SSDI and received that. Then later the county hired her again and then she was injured and then she, at least she says she then had to accept a demotion because, again, the county would not accommodate her within the position. So, after she filed a series of EEOC claims that really came out of one of those incidents, the District Court said she had failed to establish that she met the definition of a person with a disability.

And so the case was appealed to the Sixth Circuit Court of Appeals and it affirmed. It said that Ms. McNeill’s contention that the four years during which she was eligible for SSI constituted evidence of a record of a substantially limiting ADA impairment really didn’t fly with them. The Court cited Cleveland, the Cleveland case and said it makes it clear that SSDI and ADA designations of disability are not equivalent because the Social Security Administration’s procedure for administering involves a lot of assumptions and presumptions including a list of automatically qualifying impairments under Social Security.

So in this case it was actually the plaintiff who was trying to use the fact that she had also applied for and gotten SSDI to make that her record of impairment, but the Sixth Circuit Court of Appeals said no.

In another case called Bisker v GGS Information Services, Inc. is a 2009 case in the Third Circuit, reversing the District Court’s summary judgement grant in favor of the employer in that case which was made on the grounds of judicial estoppel. The Third Circuit Court of Appeals said there was no inconsistency in Bisker’s general assertion in support of her application for SSDI benefits. In that application she said she was unable to work and that there was no inconsistency and the claim that she was a qualified individual with a disability under the ADA.

Again, specifically, the Court noted that the eligibility for SSDI benefits does not take into account the availability of reasonable accommodation and also that, in Bisker’s application for SSDI and private insurance benefits, she indicated that she had pain, fatigue and, as a side effect of pain medication, had difficulty concentrating on an unpredictable basis as a result of her multiple sclerosis and that those were consistent with the limitations that she described in her request that she be allowed to work from home and to complete forty hours of work over a seven day period as reasonable accommodations to her disability.

In another case called EEOC v AutoZone which was decided in February of this year, the employer’s motion for leave to file an amended answer, alleging an additional defense of judicial estoppel, was denied. The Court said that because the EEOC pursues the public interest rather than just acting as a proxy for the employee, the EEOC is not judicially estopped, which just means they’re not stopped, from contending that the employee was qualified notwithstanding the Social Security Administration’s finding that his sub-optimally controlled depression left him effectively as a person with a disability and his statements in his SSDI application that he had been unable to work since September 13, 2003 due to severe impairments including depression, myofascial pain, degenerative disc disease of the spine, obesity and obstructive sleep apnea. So there was no judicial estoppel finding in that case.

Another case is called Finan v Good Earth Tools again another 2009 case out of the Eighth Circuit. Finan was diagnosed with epilepsy while working as a traveling salesman for Good Earth Tools and Finan was terminated by Good Earth in February 2004 and after that he applied for Social Security disability benefits for SSDI. The Social Security Administration found that he did not have a disability prior to February 9, 2002 but that he did have a disability after that date.

A jury found that Good Earth had discriminated against Finan because it regarded him as having a disability. Good Earth argued that the District Court had improperly dismissed a motion for summary judgment as a matter of law, which is where most of these cases are found in favor of the defendant, and it said the defendant in this case, Good Earth, said that the District Court had improperly dismissed its motion for summary judgment, alleging on appeal that it had disregarded the plaintiff as having a disability, but that it was correct in believing he was not qualified for performing the essential functions of the job.

Good Earth Tools asserted that Finan was receiving private disability benefits and Social Security disability benefits and that conclusively proved he was incapable of working. Well, the Eighth Circuit held that Finan had proffered a sufficient explanation for the apparent discrepancy between the ADA claim and the SSDI claim by showing that the Social Security Administration found that there were not a significant number of jobs in the national economy that he could perform, but that he was capable of performing his job at Good Earth Tools.

And then the last case that I want to talk about today was a case called Butler v Village of Round Lake Police Department and it’s a case in the Seventh Circuit. In this case, the police department of Round Lake, Illinois employed Patrick Butler as a sergeant on the night shift. In 2003, Butler began having significant breathing problems and some other health issues as well. He requested to be transferred to the day shift, but other sergeants were already assigned to those day shifts. Later, he was diagnosed with Chronic Obstructive Pulmonary Disease, COPD, which is an incurable lung disease, of course. His doctor released him to light duty, but again the police department refused to let him return to work until he got a full release, not just a light duty release. Butler applied, at that point, for disability pension.

During the hearing on his application for the disability pension, Butler testified that his duties included all the typical duties of a police officer but that, because of his COPD, he couldn’t really perform those duties. He had medical support from his doctors that said there were severe restrictions on his physical activity, especially his strenuous activity, running, walking and lifting. The pension board found that he was qualified as a person with a disability and awarded him his disability pension.

Then he filed a lawsuit against the police department and, of course, he was saying that it violated the ADA, Title One. To succeed on that claim, of course, under the ADA you have to show that you could perform the essential functions of the job with or without reasonable accommodations. The trial court in the case ruled that the ADA claim failed because of that sworn testimony before the pension board that he was not capable of performing the essential jobs of being a police officer even with an accommodation.

So again, we have that judicial estoppel argument saying, hey wait, he can’t say that we discriminated against him because he already said he couldn’t perform the essential functions of the job. The difference here is that it isn’t a Social Security case, it was before a pension board, but still it’s the same sort of thing in that in one arena he gives sworn testimony that he can’t perform the essential functions of the job and yet, in his ADA claim, he’s saying that he could have.

So, of course, that trial court decision was appealed to the Seventh Circuit and it said that Butler should not succeed on two different claims based on opposite theories. So it said that Butler was unable to perform police duties. He had to say that in order to secure the disability benefits so then he can’t just then turn around and say that he’s capable of performing those duties for purposes of the ADA claim.

The Seventh Circuit did rely on the Supreme Court’s decision in Cleveland, and remember that’s the one that said a plaintiff’s sworn assertion and application for disability benefits saying that he is unable to work will appear to negate an essential element of an ADA case unless a sufficient explanation is offered. The Seventh Circuit Court said that Butler could not offer any kind of a satisfactory explanation for the discrepancy in his statements. It found no evidence that his condition had changed during that time and no accommodation that could have enabled him to perform the essential functions of the job of being a police officer.

It also rejected Butler’s argument that the job duties he described at the pension board hearing were not really his job duties as a sergeant because he was describing police officer duties. The Court didn’t accept that argument, either. In this case, it found that because of his lack of any kind of sufficient explanation, he really was judicially estopped from making these inconsistent arguments, taking these inconsistent positions in this case.

So that’s where we are right now with judicial estoppel. So now when you hear that term, you’ll know what it means. It just means you’re taking inconsistent positions in two different sorts of cases and the Supreme Court has ruled on this but there are still grey areas because of the statement that they have to offer some kind of an explanation for the two different positions. So, if a person can’t do that, that judicial estoppel will still apply.

Thanks for tuning in.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.