No judicial estoppel in plaintiff's employment discrimination case

No one likes tomfoolery, or flim-flamming. And the federal courts don't like it either. Which is why we have the doctrine of "judicial estoppel," which means that you cannot take a legal position in one proceeding and then take the opposite legal position in another proceeding.

The case is DeRosa v. National Envelope Corporation, decided on February 17. This is a case brought under the Americans With Disabilities Act. DeRosa was disabled, and his doctor said he should avoid sitting or standing for prolonged periods of time and needs to "elevate his leg above his heart at regular intervals.” National Envelope accommodated DeRosa by allowing him to work from home. Telecommuting is the buzzword of the modern era, and DeRosa was able to work productively under this arrangement. Things went sour when new management came in and rescinded the accommodation. This led to DeRosa's termination because he could not work at the office.

DeRosa then sought Social Security Disability Insurance and stated in his application that he “became unable to work because of my disabling condition on October 13, 2004” and “I am still disabled.” He also wrote that he "[c]an’t write, type, sit, stand, walk & lift, reach, grab, bend” and that because of his disability he “could no longer commute, had to work from home.” He also filled out a state disabilities assistance form that asked about his social activities. On that form, DeRosa stated that he was “no longer able to speak on phone or work with computer [due] to pain.”

That did it. The district court dismissed DeRosa's disabilities discrimination claim against National Envelope because his statements in support of his governmental benefits -- in particular his inability to work on the computer or use the phone -- conflicted with his claim that he was able to perform the essential functions of his job.

The Court of Appeals (Parker, Raggi and Pooler) reinstates the lawsuit. As Judge Parker notes, "The interaction of statements made in applications for social security disability benefits and ADA claims is not a new issue for the courts." The courts are careful in applying judicial estoppel, however. "before applying judicial estoppel to factual claims in ADA cases, 'a court must carefully consider the contexts in which apparently contradictory statements are made to determine if there is, in fact, direct and irreconcilable contradiction.'”

DeRosa was not playing games in bringing this lawsuit. His written statements that prompted the district court to dismiss his case were "only in response to a question about his social activities. ... Fairly construed, those statements related to his social interactions, not his capability to perform the essential functions of his job if permitted to work from home."

In context, the "apparent contradiction between DeRosa’s statements that he is limited in social circumstances, but still able to perform the conditions of his employment with a no-longer-available accommodation, is reconcilable. DeRosa may well have experienced significant pain when he used the computer and phone while he worked for National Envelope from home, but he may have been able to endure that much pain, particularly as it was necessary to maintaining his job with the granted accommodation of home – work. His response to the social question may have indicated only that the work experience left him with no ability to tolerate further pain from social, optional activities. The response did not indicate an inability – or an unwillingness – to work from home despite some pain."