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ADA suit barred by employee’s benefit claims

1st Circuit finds inconsistency with SSDI application

A former Honeywell employee’s disability discrimination lawsuit was barred by her consistent assertion of total disability in pursuing Social Security Disability Income benefits, a divided panel of the 1st U.S. Circuit Court of Appeals has ruled.

Plaintiff Mayra F. Pena argued that the doctrine of judicial estoppel did not apply to bar her suit because the standard for being disabled for purposes of obtaining SSDI benefits is not the same as the standard for disability under the Americans with Disabilities Act.

Specifically, the plaintiff pointed to the fact that SSDI does not take into account an employer’s duty to make reasonable accommodations.

But the court in a 2-1 decision upheld a summary judgment obtained by Honeywell in U.S. District Court in Rhode Island. Writing for the majority, Judge Sandra L. Lynch noted that the plaintiff’s argument against the application of judicial estoppel had not been accepted in any circuit, including the 1st Circuit.

dealy-john“They gave the plaintiff every opportunity [to explain], and she blew it at every turn, which is why the majority probably felt comfortable coming down the way they did.”

— John M. Dealy, Worcester

Moreover, the panel rejected the plaintiff’s contention that she had provided an adequate explanation for any apparent inconsistency between her SSDI statements and her position in her lawsuit against Honeywell. On that issue, the judge pointed to the plaintiff’s deposition testimony in the employment case.

“Pena’s failure to accommodate claim requires sufficient evidence that she was a ‘qualified individual,’” Lynch wrote. “She has not presented such evidence. Rather, the undisputed evidence … includes admissions at her deposition and in her briefing that she was not a ‘qualified individual,’ totally apart from the statements in her SSDI application.”

Judge Kermit V. Lipez dissented in part. He argued that the majority misapplied the U.S. Supreme Court’s controlling decision on the issue, Cleveland v. Policy Management Systems Corp.

“[A]t the heart of Cleveland is a recognition that courts have been too quick to find a conflict between claims for [SSDI] benefits and claims alleging discrimination under the Americans with Disabilities Act,” Lipez wrote.

The 48-page decision is Pena v. Honeywell International, Inc.

Damaging deposition

Honeywell’s attorney, Neal J. McNamara of Providence, said his client’s case fit comfortably within the precedent of Cleveland.

“[The plaintiff] had applied for SSDI and on her application repeatedly stated she was totally disabled as of the last date she worked at Honeywell,” McNamara said. “But in order to allege disability discrimination you have to demonstrate that you are a qualified individual with a disability, meaning you are able to do the essential functions of the job, with or without an accommodation.”

McNamara said the plaintiff simply could not explain contradictions between the statements she made on her SSDI application and the allegations of her complaint.

“In her deposition, I gave her multiple opportunities to explain that ‘tension’ between the SSDI application and her ADA allegations, and she didn’t,” he said.

Plaintiff’s counsel, Mark P. Gagliardi of Providence, said his client intends to ask the court to rehear the case en banc. According to Gagliardi, the application of judicial estoppel to the plaintiff’s case was inappropriate.

“The whole point of judicial estoppel is to prevent somebody from gaming the system,” Gagliardi said. “[U.S. Magistrate Judge Lincoln J.] Almond in his [report and recommendations] said there was no evidence she was acting in bad faith.”

John M. Dealy, a management-side employment lawyer in Worcester, Massachusetts, said he was not surprised by the outcome of the case.

“They gave the plaintiff every opportunity [to explain], and she blew it at every turn, which is why the majority probably felt comfortable coming down the way they did,” he said, adding that there are lessons to be learned from the case for both sides.

For defense attorneys, Dealy said the case underscores the need to unearth and examine all evidence of a plaintiff’s statements concerning an alleged disability.

“Make sure you get all the person’s disability applications and statements — anything they fill out,” he said. “They can be a goldmine for cross-examination points.”

For plaintiffs’ counsel, Dealy said the case underscores the need to have a firm grip on a client’s pursuit of claims and benefits, as actions taken in one matter may unwittingly “sabotage” the prospects for success in another matter. Dealy conceded that that may be a difficult task when, as in Pena, different counsel represent the client for different matters.

Hunter S. Keil, an employment lawyer in Springfield, Massachusetts, credited Honeywell for taking steps to place the case in the best posture through its pre-litigation handling of the plaintiff’s reasonable accommodation request.

“They really did make several attempts to contact the plaintiff and get more medical information,” he said. “We always advise employers to make every effort to understand what is being asked for and see if there’s some way [the request] can be accommodated.”

Accommodation refused

According to court records, the plaintiff began working for Honeywell in 2008 as a machine operator and assembler at the manufacturer’s plant in Cranston, Rhode Island. Until 2012, the plaintiff usually worked in departments where machine operators controlled the rate of production.

However, in October 2012 Honeywell began assigning the plaintiff to the molding department, where machines produced parts every 30 seconds, 24 hours a day.

In the year preceding her assignment to the molding department, Honeywell had permitted the plaintiff to take several medical leaves totaling 23 weeks. Shortly after she began working in the molding department, the plaintiff requested and was granted a leave for seasonal depression. She returned to work Jan. 14, 2013.

In late February 2013, the plaintiff complained to human resources about her assignment to molding, claiming it was harmful to her emotionally. Subsequently, at the employer’s request, the plaintiff produced a letter from her doctor stating that the work had exacerbated her “anxiety symptoms.”

On March 8, 2013, the employer informed the plaintiff that the only work available to her was in the molding department and that if she refused to do that work, she would have to go home.

Pena decided to go home and never returned to work at Honeywell. She did submit a reasonable accommodations request form explaining she was “unable to work in molding” because the noise, speed and overall environment gave her anxiety and palpitations.

Over the course of the next several months, the plaintiff’s lawyer at the time and Honeywell’s in-house counsel wrangled over the adequacy of the medical documentation underlying the accommodation request. Unable to resolve the issue, Honeywell terminated the plaintiff on June 17, 2013, citing job abandonment.

In September 2013, the plaintiff applied for SSDI, asserting that she was totally disabled and had been since March 8, 2013.

In April 2015, the plaintiff sued Honeywell in Rhode Island federal court for violating both the ADA and state discrimination law. In addition to a claim of retaliation, the plaintiff alleged the manufacturer terminated her employment on the basis of her disabilities and failed to provide her with reasonable accommodations.

In October 2015, an administrative law judge granted Pena’s SSDI application, finding she suffered from somatoform disorder, a form of mental illness characterized by pain, neurological problems and gastrointestinal complaints. The ALJ further found that the plaintiff was totally disabled as of March 8, 2013.

U.S. District Court Chief Judge William E. Smith granted summary judgment to Honeywell in 2018, concluding that the plaintiff could not satisfy the Cleveland standard for proceeding with a disability discrimination claim.

‘Cleveland’ test applied

In its 1999 decision in Cleveland, the Supreme Court reversed a 5th Circuit ruling that had recognized a rebuttable presumption that a plaintiff’s filing of an SSDI application precluded her from being a qualified individual under the ADA.

Instead, the court held that a plaintiff can avoid the application of judicial estoppel to bar a claim of discrimination by providing an explanation for any inconsistency between a previous sworn statement asserting total disability and the necessary elements of an ADA claim.

The Supreme Court explained that, to defeat summary judgment, the plaintiff’s “explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of her job, with or without ‘reasonable accommodation.’”

The 1st Circuit majority concluded that the plaintiff failed to meet her burden under Cleveland.

“In her SSDI application, Pena offered no qualification of any sort to her statement that she was totally disabled as of March 8, 2013,” Lynch wrote. “She submitted this application under penalty of perjury, and was represented by counsel at the time.”

Lynch found convincing the fact that, during the plaintiff’s deposition, defense counsel asked Pena several times to explain the statements in her SSDI application. The plaintiff responded by repeatedly stating she was totally disabled as of March 8, 2013.

The 1st Circuit was unpersuaded by the plaintiff’s attempts to excuse the admissions in her deposition testimony by claiming in her brief she was confused and did not comprehend the relevance of defense counsel’s questions.

“[T]he record shows that Honeywell asked straightforward questions, was upfront about the Cleveland issue, and gave Pena many opportunities to explain the discrepancy,” Lynch wrote.

Lipez concurred in the dismissal of the plaintiff’s retaliation claim. However, he took the position that a jury issue existed that precluded summary judgment of the plaintiff’s discrimination and reasonable accommodation claims.

“[A] reasonable jury could conclude from this record that Pena believed herself unable to work because of Honeywell’s emphatic rejection of her request for an accommodation and that she could have continued to work if provided that accommodation,” Lipez wrote. “Pena’s explanation is thus sufficient to show that her two claims are reconcilable and that judicial estoppel should not be applied to foreclose her pursuit of ADA relief. Cleveland requires nothing more.”

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