Tuesday, April 7, 2015

Judicial estoppel undercuts employment discrimination claim

I doubt Congress thought about this when it enacted the Civil Rights Act of 1964, but the courts have determined that something you say in lawsuit number 1 cannot be contradicted by what you say in lawsuit number 2, especially if the contradictions would make a difference in the outcome. We call it "judicial estoppel."

The case is Robinson v. Concentra Health Services, decided on March 24. After plaintiff was fired, she put in for disability benefits, claiming that multiple sclerosis made it impossible for her to work. She then filed a lawsuit claiming her termination was discriminatory. What do we do about this?

Under the civil rights laws, you make out a prima facie case in part by showing you were qualified for the position. Under the rules governing Social Security disability benefits, a claimant must show she cannot engage in substantial gainful activity for medical reasons. Here is how the Court of Appeals (Parker, Hall and Lohier) frames the issue:

At issue in this case is whether Robinson’s application for, and receipt of, Social Security disability benefits on the ground that she is fully disabled due to multiple sclerosis, renders her unable to make a prima facie showing that she was qualified for the position she held at the time of termination. At the summary judgment stage, a plaintiff may satisfy this burden by showing that she “possesses the basic skills necessary for performance of [the] job.”
Plaintiff loses the case. Under judicial estoppel, you cannot assert a factual position in a legal proceeding that contradicts a position taken in a prior legal proceeding. "A party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment.” Under Supreme Court authority,

a successful disability application does not automatically preclude a later claim under the ADA, because a representation of complete disability in a Social Security proceeding is not necessarily contradicted by the same person’s ADA claim that he could perform essential job functions with reasonable accommodation where the former proceeding did not consider the effect that reasonable workplace accommodations would have on the claimant’s ability to work. Nevertheless, the Court acknowledged that an “ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier . . . total disability claim,” and held that in such circumstances, a plaintiff “must proffer a sufficient explanation” for the conflicting statements in order to survive summary judgment.
That logic applies in non ADA claims. While plaintiff argues that the district court merely assumed that she told the Administrative Law Judge that she was totally disabled from working, the ALJ's decision summarized her position in seeking SSD benefits. Plaintiff also does not deny that she previous told the SSA and ALJ that she was fully disabled as of June 2010. three months before she was terminated. And she does not "deny that such a statement is inconsistent with her current litigation position." Indeed, "Robinson’s job as a medical assistant required her to work in both the ‘front’ at the reception desk and in the ‘back’ performing tasks like drug tests and assisting doctors with suturing, which she could not complete if she were fully disabled." The Second Circuit wraps it up thusly:

Although Robinson may have continued to work at Concentra until September 2010, this fact demonstrates only that her statements to the SSA and the ALJ may have been false, but does not sufficiently explain the contradiction between the statements and her current litigation position.

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