by John Gause, Esq.
Published: Maine LAWYERS REVIEW, March 31, 1999
A large number of recent decisions have focused on the issue of whether representations on applications for disability insurance or social security benefits bars a person from later claiming she is entitled to protection under the ADA. The Circuit Courts of Appeals are currently divided on this issue, and the Supreme Court has granted certiorari to resolve the conflict. The outcome will be closely watched by all people involved in disability cases.
The ADA prohibits discrimination against “a qualified individual with a disability because of the disability of such individual.” Before even getting to the issue of discrimination, the plaintiff must show that she was “qualified” or able to perform the essential functions of her job either with or without a reasonable accommodation. She cannot complain if she could not have performed the job even if the employer had offered her the accommodation she sought.
The question of whether the plaintiff is qualified is often a theoretical undertaking. In many cases, the employee brings the ADA claim precisely because the employer failed to offer a reasonable accommodation. It is therefore unknown whether the employee in fact could have performed the essential functions of the job with the requested accommodation. Testimony from the plaintiff’s doctor is often helpful concerning the potential effectiveness of a particular accommodation. The plaintiff herself will also testify about the requirements of the job and whether she could perform it effectively.
There is a problem, however, when the plaintiff previously applied for disability insurance benefits through a private disability insurance policy or the Social Security Administration. Disability insurance policies vary, but most require the person to be unable to perform her “former job or other work for which she is reasonably fitted by training, education, and experience.” The SSA insists that the former employee have the “inability to engage in any substantial gainful activity.” Statements that the employee is unable to work for purposes of receiving these benefits will come back to haunt her when she is attempting to convince a judge or jury that she is “qualified” under the ADA.
The issue comes up frequently because it is not uncommon for a person who is fired because of her disability to resort to disability benefits as a source of income. This is the natural reaction of someone who has been told that her disability prevents them from preforming her job.
Courts that have addressed the issue have consistently held that representations made when applying for disability benefits are at least relevant to the determination of whether the employee can perform the essential functions of the job for purposes of the ADA. Some courts have gone as far as to say that the employee is judicially estopped from claiming she is qualified. In other words, in all cases where the plaintiff filed a contemporaneous application for disability benefits, she cannot claim that she was simultaneously protected by the ADA. These courts reason that to allow her to do so would condone the commission of a fraud on the court.
Even the majority of courts that do not automatically invoke judicial estoppel demand a strong showing from such a plaintiff. The Fifth Circuit imposes a rebuttable presumption of judicial estoppel. If the plaintiff applied for or was receiving disability benefits at the same time as the discriminatory act, she must overcome a presumption that she is estopped from asserting her ADA claim. She must present credible, admissible evidence such as her social security disability benefits application and other sworn documentation. The Eighth Circuit will enter summary judgment against such a plaintiff unless she can present “strong countervailing evidence” that she is in fact qualified. The Seventh Circuit requires the plaintiff to “come forward with additional evidence” showing that she was qualified “notwithstanding” her contemporary receipt of disability benefits.
The Sixth, Ninth, and Tenth Circuits appear to be the most forgiving, holding that judicial estoppel does not apply, although such representations on previous applications for disability benefits are relevant to the ADA claim. In Griffith v. Wal-Mart Stores, the Sixth Circuit held: “We believe these prior statements should not be the subject of judicial estoppel or a theory of ‘super admissions,’ but rather should be analyzed under traditional summary judgment principles.” Similarly, the Tenth Circuit, in Rascon v. U S West Communs, held 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. Such statements may, however, constitute evidence relevant to a determination of whether the plaintiff is a ‘qualified individual with a disability.’”
The First Circuit’s approach has been borne out in a three opinions. In August v. Offices Unlimited, Inc. the court appears to apply judicial estoppel. The plaintiff asserted on a disability insurance application that he had been totally and continuously disabled at the same time that he was claiming that the defendant failed to accommodate his disability. The Court stated, “Under any definition of the term, August’s declaration that he was ‘totally disabled’ means that he was not able to perform the essential functions of his job at [Offices Unlimited], with or without reasonable accommodations . . . .”
In D’Aprile v. Fleet Servs. Corp., the court tempered its earlier position: “Since August admitted that he was unable to work at the time he requested his part-time schedule, we concluded that he was not a ‘qualified handicapped person’ and thus had failed to make out a prima facie . . . .” The facts of D’Aprile were different, however, because it was not until after her requests for an accommodation that she represented herself to be totally disabled for purposes of receiving disability benefits. The D’Aprile Court also recognized that the terms of the disability policy at issue did not take into account the possibility of an employer providing the plaintiff a reasonable accommodation.
The most recent decision is Soto-Ocasio v. Federal Express Corp. The plaintiff was injured and eventually applied for and received long-term disability benefits under Federal Express’s disability insurance policy. The policy defined “total disability” as “the inability because of a physical impairment, to engage in any substantially gainful activity for which [the claimant is] reasonably qualified (or could become reasonably qualified) on the basis of [the claimant’s] education, training, or experience.” When the plaintiff was released to return to work with restrictions, Federal Express balked and insisted that she be capable of resuming “all of her responsibilities” and “work without restrictions.” Accordingly, the plaintiff was told that her position would be filled by someone else. A subsequent medical examination determined that the plaintiff needed accommodations in order to perform her job, but the plaintiff was not given a copy of the report.
Shortly thereafter, the plaintiff’s doctor submitted a supplemental report to the disability insurer stating that the plaintiff needed disability insurance because she was “unable to work.” On the insistence of the insurer, the plaintiff also applied for SSA benefits. She was approved, and the first date of her disability was determined to have preceded the date when she was told she could not return to work.
Based on these facts, the Court entered summary judgment against the plaintiff on the issue of whether she was “qualified” under the ADA. The standard the Court articulated is as follows:
If an ADA plaintiff was receiving, during the time she claims to have been denied reasonable accommodation, total disability benefits that were predicated on her inability to perform the job, then, to defeat a motion for summary judgment, she must make some type of showing that she was in fact able to perform the essential functions of her job during the time in question.
The court found that the plaintiff could not carry her burden.
The appeals courts have generally recognized the differences between the definition of disability in many disability insurance policies and the definition under the ADA. For example, most disability policies do not take into account the applicant’s ability to work with the provision of a reasonable accommodation. A person may have been unable to perform the job due to the employer’s failure to offer a flexible leave schedule. Without the flexible leave, the person may be unable to work.
There are other differences under the SSA system that have given courts pause. The Fifth Circuit in Cleveland noted that the SSA subscribes to a list of conditions that are presumptively disabling, whereas the ADA requires an individualized inquiry. The person could therefore be disabled in the context of social security and capable of performing the job under the ADA. The court also noted that there are various circumstances under which a person who received social security benefits is entitled and encouraged to work.
There are also important societal interests at stake by foreclosing an ADA claim based on disability insurance applications. Such a stance would either discourage people from pursuing benefits they need, or frustrate the purposes of the ADA. People should not have to choose between meeting their basic needs and remedying unlawful discrimination. If an application for disability insurance always forecloses suit, many otherwise meritorious cases will go unchecked. The Eighth Circuit, in Moore v. Payless Shoe Source, summed up the effect of such a rule as follows:
Some potential plaintiffs might abandon pursuit of their rights under the ADA if they could not apply for disability benefits. Faced with the financial pressures accompanying the loss of a job and the uncertainty and length of litigation, individuals might well elect immediate benefits over the pursuit of even the most meritorious ADA claim. Such a situation would not only harm the individuals the ADA seeks to protect, it also would protect the very activity the ADA seeks to eliminate: discrimination against disabled individuals. Employers who discriminate unlawfully would be shielded from liability if their victims could sue them only if they did not apply for disability benefits.
As the Ninth Circuit in Johnson v. Oregon noted, a per se application of judicial estoppel would also be contrary to the doctrine of judicial estoppel itself. Judicial estoppel only applies when there has been a knowing misrepresentation or fraud upon the court. If the inconsistency is due to inadvertence or mistake, judicial estoppel does not apply.
Even though the majority of Circuits and the First Circuit appear to be moving away from an automatic application of judicial estoppel under these circumstances, there are important questions that need to be answered. It is unclear whether the plaintiff’s burden at summary judgment is actually greater if she previously filed for social security. The First Circuit insists that she “make some type of showing that she was in fact able to perform the essential functions of her job,” yet the plaintiff had that burden anyway. If she has filed for benefits, is her burden greater that it was originally?
There will be times when a plaintiff will want to take a position in the course of an ADA case that is materially different from what is on her application for disability benefits. In filling out a form for social security benefits, the applicant is required to specify the exact nature and duration of her symptoms. If there are inconsistencies between what is written on the form and what the plaintiff advances during her ADA case, the trial court will need to determine whether the use of the prior statements will be limited to attacking her credibility of if she will be judicially estopped from taking the new position.
The Supreme Court will be addressing these issues soon. It has granted certiorari in Cleveland v. Policy Mgmt. Sys. Corp., the Fifth Circuit’s decision. The issues accepted for review are as follows:
1. Whether the application for, or receipt of, disability insurance benefits under the Social Security Act, 42 U.S.C. § 423, creates a rebuttable presumption that the applicant or recipient is judicially estopped from asserting the she is a qualified individual with a disability’ under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
2. If it does not create such a presumption, what weight, if any, should be given to the application for, or receipt of, disability insurance benefits when a person asserts she is a qualified individual with a disability’ under the ADA?
The Court’s decision regarding the effect of an application for social security benefits should apply to applications for private disability benefits as well.
In the meantime, we are faced with a challenge. If our clients say they have no money and have been unable to find a job within their restrictions, we need to advise them of the risks associated with applying for disability benefits. In cases where the application clearly should be filed, we may want to assist the client in filling them out to ensure that their interests are protected. We also may want to speak with the doctors who will be filing reports in order to alert them to the danger of making broad-sweeping representations of the client’s inability to work.