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In the Absence of an Explanation for the Discrepancy, ADA Claimant Is Judicially Estopped from Taking Inconsistent Positions in Social Security and ADA Claims

Article

The Employment and Labor Law Alert

September 4, 2002

As the court recites in Hidalgo v. Bloomingdales, __ F. Supp.2d __, 2002 WL 1482622, (S.D.N.Y. July 9, 2002), plaintiff Abel Hidalgo began his employment with defendant Bloomingdales in 1992 in a housekeeping position. His responsibilities were typical of those associated with this type of position and included cleaning, vacuuming, mopping, and dusting. In August 1997, Hidalgo sustained a work-related injury to his back and was briefly out of work. However, he subsequently returned to full duty.

In March 1998, Hidalgo re-injured himself while at work. He attempted to continue working but was told by a Bloomingdale’s representative that he should not work. Hidalgo’s own physician cleared him to return to light-duty. However, the physician who examined Hidalgo as part of an independent medical examination cleared him to return to work without restrictions. As a result, Bloomingdales contacted Hidalgo and requested that he return to work by March 30, 1998. Relying upon a letter from another physician, which placed additional restrictions on Hidalgo’s ability to lift, bend, walk up and down stairs and “do any motion that would be detrimental to his condition,” Hidalgo did not return to work. Naturally, there we no housekeeping positions that could accommodate these restrictions.

In July 1998, the same physician who had placed restrictions on Hidalgo’s ability to perform certain tasks released Hidalgo to return to work on modified duty for a period of 6-8 weeks. Bloomingdales inquired about Hidalgo’s ability to return to full duty following the 6-8 week period and was advised that Hidalgo was capable of doing so. Thereafter, Bloomingdales provided Hidalgo’s physician with a light duty job description and he released Hidalgo to perform those duties. The position was subsequently offered to Hidalgo with the understanding, based upon his physician’s prognosis, that he would eventually return to full duty. Shortly thereafter, however, Bloomingdales received another note from Hidalgo’s physician, this time limiting Hidalgo’s job abilities to replenishing bathroom supplies and indicating that Hidalgo could not perform any other housekeeping – porter duties. Since Bloomingdales did not have a light duty position available that was limited to replenishing bathroom supplies, it requested additional information from his physician but never received a response.

In the months and years that followed, Bloomingdales received a series of reports from various physicians, all of whom were of the opinion that Hidalgo had been totally disabled since March 1998 and that his return to work was undetermined. The reports consistently limited Hidalgo’s ability to stand, walk and lift. By September 1998, Hidalgo still had not returned to work and there was no indication from his physicians of when he might be capable of doing so. Although Bloomingdales had a policy that permitted it to terminate employees who were out of work for any reason for a period of twelve consecutive months, it chose not to invoke the policy because Hidalgo had filed a charge with the EEOC alleging age, national origin and disability discrimination.

In April 1999, a Bloomingdales representative discussed a door guard position with Hidalgo. The position would have required Hidalgo to hail cabs for customers, carry packages and stand outdoors. Hidalgo initially indicated that he was capable of performing the position but never appeared for a scheduled interview. He later informed Bloomingdales that his physician would not release him to interview for the position because he could not stand all day and could not be exposed to cold weather. Although other positions were discussed with Hidalgo at that time, he would not accept them and continued to provide reports from various physicians setting forth his restrictions. The only position in which Hidalgo expressed an interest was that of a greeter, who was responsible for greeting customers, answering their questions and addressing their complaints. Bloomingdales never offered Hidalgo this position because of his prior disciplinary record, his poor communication skills, and his inability to get along with customers without losing his temper.

The Court granted summary judgment in favor of Bloomingdales on Hidalgo’s age and national origin discrimination claims. However, the Court held Bloomingdale’s motion on the ADA claim in abeyance until the parties submitted additional documents and briefing. The Court specifically requested that Hidalgo provide an explanation for inconsistencies in the position he took before the Social Security Administration and the Workers’ Compensation Board and the position he took in this case regarding his limitations. In response to the Court’s request, Hidalgo offered only the SSA decision, in which the administrative law judge found that he had been disabled since March 1998 and was capable of performing only sedentary jobs.

In analyzing Hidalgo’s ADA claim, the Court initially recognized Hidalgo’s burden of proving that a vacancy existed in a position to which he could be reassigned. After proving the existence of vacancy, the analysis shifts to whether an accommodation is required and, if so, whether the proposed accommodation is reasonable. In addition, the Court set forth Hidalgo’s burden of establishing a prima facie case of disability discrimination. To do so, Hidalgo had to show a vacancy in the greeter position and that he had the ability to perform that position with or without reasonable accommodation. The Court focused on the latter of the two requirements, finding that Hidalgo had established the existence of a vacancy.

The parties did not dispute that the greeter position would have required Hidalgo to stand at the top or bottom of escalators to greet customers, hand out directories or calendars, and answer customers’ questions. Thus, Hidalgo would have been required to stand all day except during breaks and meal periods. According to the Court, Hidalgo’s claimed ability to perform this position conflicted with the decision of the Social Security Administration, which determined that he had the residual functional capacity to stand or sit for only 2 hours in a workday and could only perform sedentary work. In addressing this apparent inconsistency, the Court considered the United States Supreme Court’s decision in Cleveland v. Policy Management Sys. Corp., 526 U.S. 795 (1999). There, the Supreme Court held that although “a plaintiff’s pursuit and receipt of Social Security Disability Insurance does not estop him from pursuing an ADA claim, where they conflict, a plaintiff must proffer a sufficient explanation for any inconsistency with his social security claims.” Similarly, the Court relied upon the Second Circuit Court of Appeals’ decision in Mitchell v. Washingtonville Central School District, 190 F.3d 1 (2d Cir. 1999), which was factually similar to the case before it. In Mitchell, the plaintiff made a statements to SSA and the Workers’ Compensation Board that he was incapable of standing for any length of time. However, in pursuing his ADA claim, he argued that he was capable of performing work that required him to stand. The Second Circuit held that because Mitchell’s claimed inability to stand was accepted by the SSA and the Board and resulted in a determination in his favor, he was judicially estopped from advancing a contrary position.

Returning to the case at bar, the Court found that Hidalgo had failed to offer any explanation for why his ADA claim is not inconsistent with the disability finding of the SSA. Relying upon Cleveland, supra, the Court determined that Hidalgo could not create a genuine issue of material fact simply by contradicting his own prior statements without explaining the contradiction or resolving the disparity.

The Southern District of New York is just one of many courts that have followed the Supreme Court’s directive in Cleveland. Both the Third Circuit Court of Appeals and the District Court for the District of New Jersey have followed Cleveland and considered applying judicial estoppel to an ADA claimant who could not satisfactorily explain an inconsistent or contrary position taken in another setting. See, e.g., Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. 1999); Lincoln v. Momentum Systems Ltd., 86 F. Supp.2d 421 (D.N.J. 2000).