Person works for a company of over fifteen employees, develops a disability, and is terminated from her position because of that disability. She then files for SSDI. She then brings suit under the ADA for failure of the employer to reasonably accommodate her disability.
In these type of situations, the employer will invariably defend using the case of Cleveland v. Policy Management Systems, 526 U.S. 795 (1999), to argue that the claims made in the SSDI application were such that the plaintiff is estopped, or prevented, from claiming that he or she can do the job with or without reasonable accommodation and therefore, is no longer qualified and therefore is not protected by the ADA. In Cleveland, plaintiff filed for Social Security Disability Benefits and obtained them. Subsequently, he filed an ADA suit and claimed that he was not reasonably accommodated. To obtain SSDI, a person has to show that he is unable to perform any job in the economic marketplace.
In holding that judicial estoppel might apply but also might not apply in such situations, Justice Breyer, writing for the United States Supreme Court, reasoned as follows:
1. The pursuit and receipt of SSDI benefits do not automatically estop the plaintiff from pursuing an ADA claim. For that matter, the law does not erect a strong presumption against the plaintiff’s success in filing an ADA claim either. However, an ADA plaintiff cannot simply ignore her SSDI contention. To survive a motion for summary judgment, the plaintiff must explain why the information in the SSDI filing is consistent with showing that the plaintiff is otherwise qualified for the position at issue.
2. Justice Breyer took note of the apparent conflict between the ADA and SSDI, but proceeded to say the inherent conflict (the ADA saying, “I can do the job if I am reasonably accommodated” v. SSDI saying, “I can’t do any job in the economic marketplace), was not so severe that courts should apply a special negative presumption.
3. The ADA and SSDI systems operate completely differently from each other. For example, the SSDI system does not factor reasonable accommodation into its calculus. Thus, an ADA suit claiming that the plaintiff can perform the job with reasonable accommodation may be consistent with claiming the inability to perform a job or jobs without it.
4. Justice Breyer noted that people receiving SSDI can work under certain parameters.
5. Even with all this said, an ADA plaintiff cannot ignore the SSDI and ADA apparent contradiction; a sufficient explanation must be forthcoming. In order to defeat a summary judgment motion, the explanation must be sufficient to warrant a reasonable juror concluding that (assuming the truth of the claims made or the plaintiff’s good-faith belief in the truth of those claims made in the SSDI filing), the plaintiff would nonetheless perform the essential functions of the job with or without reasonable accommodation.
But this isn’t the end of the matter. The question becomes what can be said in the SSDI application so that judicial estoppel is not activated. For example, if a person in their SSDI application makes a general statement that they are unable to work, does that activate judicial estoppel? A case that directly dealt with this question is Molina v. Pocono Medical Center, 2013 WL 4520458 (M.D. Pa. August 26, 2013). In this case, the plaintiff was a registered nurse who suffered from an autoimmune deficiency. As a result, she frequently fell ill (for example, she had pneumonia 16 times between 2006 and 2009), and as a result she had to take vacation or medical leave a number of times throughout her employment. On May 24, 2010, she was exposed to a patient with MRSA, which caused her to contract MRSA pneumonia. As a result, she went on FMLA leave and was hospitalized for approximately 90 days. Her primary doctor, an internal medicine specialist, wrote her a note saying that she could return to work on June 19, 2010 providing she was not exposed to infected patients. That note was presented to the plaintiff’s immediate supervisor. The plaintiff’s supervisor would not allow her to return to work as a nurse, and the plaintiff then filed an ADA claim with the EEOC. Critically, for our purposes, she also applied for and was granted SSDI. In the application she simply stated that she was, “unable to work.” Naturally, the first thing the defense did was to defend on the grounds that the claim should be thrown out as a result of judicial estoppel vis-à-vis Cleveland . The court said that viewing the evidence in light most favorable to the plaintiff, that the SSDI grant did not preclude the plaintiff’s ADA claim and reasoned as follows:
1. The court began by noting that the ADA focuses on reasonable accommodations while SSDI focuses on the inability to work.
2. The court cited to Cleveland for the proposition that there are many situations where an SSDI claim and an ADA claim can comfortably exist side-by-side since SSDI claim to not take the possibility of reasonable accommodations into account.
3. As mentioned above, while an ADA plaintiff cannot ignore any contradiction between his or her SSDI and ADA claims, the plaintiff can still satisfy his or her burden by offering a sufficient explanation as to the discrepancy. IMPORTANTLY, the Molina court goes on to say that where there is no discrepancy between the ADA and SSDI claim, there is no need for an explanation. That is, the proper focus is not whether there was a general claim of inability to work on the SSDI claim, but rather on the factual contradiction between the two claims. Accordingly, the general assertion in an SSDI claim that an individual is unable to work due to a disability does not commit that plaintiff to any position as to whether the plaintiff could work if reasonably accommodated. Ultimately, if a plaintiff wishes to defeat summary judgment, the plaintiff’s explanation of the contradiction, if any, between SSDI and ADA claims must enable the reasonable juror to conclude that, assuming the SSDI claim was made in good faith, the plaintiff could still perform the essential functions of the job with or without reasonable accommodations.
4. Citing to a Third Circuit decision, Turner v. Hershey Chocolate USA , 440 F.3d 604 (3rd Cir. 2006), the Molina court said that any statements made in an SSDI application must be inferred to include the language of, “without reasonable accommodation.”
5. Aside from general claims of inability to work, the plaintiff provided the same information in her SSDI application that she provided in her complaint regarding her condition and ability to work vis-à-vis the ADA requirements of being able to perform the essential functions of the job with or without reasonable accommodations.
1. At least in the M.D. of Pennsylvania, a general statement of being unable to work in an SSDI application will not run a plaintiff into the buzz saw of judicial estoppel.
2. A plaintiff when faced with a judicial estoppel claim from the defense will still need to show that they can perform the essential functions of the job with or without reasonable accommodations (i.e. that they are qualified or in Rehabilitation Act parlance, otherwise qualified).
3. At least in the Third Circuit, it will be assumed that an SSDI filing implicitly contains the language, “without reasonable accommodation.”
4. Outside of general claims of inability to work, from the plaintiff perspective, if the plaintiff can provide the same information in her complaint that she provided in the SSDI application regarding her condition and ability to work with respect to performing the essential functions of the job with or without reasonable accommodations, all the better. Keep in mind, that the one thing we don’t from this opinion is the context. That is, while we do know that she made a general statement about being unable to work in the SSDI application, we don’t know what was said with respect to performing the essential functions of a particular job in the SSDI application that she filed. Absent that knowledge, it is not exactly clear what the M.D. of Pennsylvania is asking SSDI counsel to do by this statement.
5. If you are an SSDI practitioner, it is imperative that the Cleveland case be thoroughly read and understood. Also, it is important to understand the real risk of legal malpractice if the attorney does not advise the client on the implications of filing for SSDI when an ADA claim is foreseeable. While I have written on that topic previously,in the fourth edition of my book coming out from the American Bar Association in just a few weeks, I expand on why the risk of legal malpractice exists in this situation. Keep in mind, the plaintiff employment lawyer also needs to be aware of judicial estoppel as well because it is quite possible that a client may say that they would like to go ahead and file for SSDI where they come to you for a situation involving discrimination on the basis of disability in violation of either the Rehabilitation Act or the ADA.