Today’s blog entry deals with the concept of judicial estoppel. As I previously discussed here, the concept says that you make representations in one forum those representations can come back to haunt you later. I have also written on how it is legal malpractice not to be aware of this principle, here179182192195190192192190191193192. In the ADA world, you will see judicial estoppel come up in the areas of short-term disability, long-term disability, workers compensation, and SSDI. Basically, what happens is you have a person with a disability who files one of the above claims and then argues that the employer should reasonably accommodate his or her disabilities. When the employer does not do so, they defend on the grounds of judicial estoppel.
In Cleveland v. Policy Management Systems, (we discussed that case here180183193196191193193191192194193 and the actual case can be found here194192193195194, a unanimous Supreme Court said that when it comes to SSDI in failure to accommodate claims, judicial estoppel doesn’t automatically apply. Rather, the plaintiff must give an explanation as to why the statements were inconsistent. So, turning to our case of the day, Allen v. Michelin North America, Inc., decided on December 14, 2020, out of the United States District Court of South Carolina, Greenville Division and written by Judge Timothy M Cain, you have a classic judicial estoppel situation. As usual, our blog entry is divided into categories and they are: key facts; court’s reasoning; problems with the decision; and thought/takeaways. Since this blog entry is so short, for me anyway, you will probably want to read the whole thing.
- In June 2017, “during a phone interview with the SSA, Plaintiff confirmed that she has been unable to work because of her disabling condition since January 20, 2017 and remains unable to work.”
- In June 2018, she submitted a statement in support of her application for long-term disability benefits indicating that she was “completely and totally disabled from performing my prior job, or any job on a full-time basis”) (emphasis added).
- In March 2017, during her deposition for her workers’ compensation case, Plaintiff testified that, “I’m out of work because of my – my ability to not – I can’t concentrate. I can’t – I’m not together,” and later, in her deposition for this case, confirmed that testimony as well as her statement in support of her long-term disability application that she had been unable to perform her job at that time).
- Cleveland does not apply to purely factual contradictions in summary judgment proceedings. Therefore, Cleveland does not apply to this particular scenario as what is involved are factual statement regarding her ability to work that directly contradict her allegations with respect to her failure to accommodate claims.
- For judicial estoppel to apply, the following criteria must be satisfied: A) the party to be estopped must be seeking to assert a position inconsistent with the stance taken in a prior judicial or quasi-judicial proceeding; B) the prior inconsistent position must have been accepted by the judicial or quasi-judicial body; and C) the party to be estopped must be seeking an unfair advantage through intentional machination.
- II(2)(A),(B) are easily satisfied by the representations made in the various applications and the setting they occurred in.
- II(2)(C) is satisfied because to decide otherwise would allow the plaintiff to treat her disability as a piece of clothing that can be donned and removed when the mood strikes her. Also, permitting plaintiff to proceed with this argument is the very height of countenancing an unfair advantage through the manipulation of the judicial process.
- Even if Cleveland applied, plaintiff failed to offer sufficient explanation for her contradictory statements and therefore cannot survive summary judgment on her ADA claims.
Problems with the Decision
- To say that Cleveland does not apply to facts but only to legal conclusions misstates Cleveland. In particular, Cleveland says the following: “Nor does it involve directly conflicting statements about purely factual matters, such as ‘The light was red/green,’ or ‘I can/cannot raise my arm above my head.’ An SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, ‘I am disabled for purposes of the Social Security Act.’ And our consideration of this latter kind of statement consequently leaves the law related to the former, purely factual, kind of conflict where we found it.” Cleveland , 526 U.S. at 802.
- The statements made by the plaintiff in this case are not the same as, “the light was red or green, or “I can or cannot raise my arm above my head.” Instead, statements referenced by the court are much more similar to the legal conclusions talked about in Cleveland than they are to pure facts.
- Even if the statements are somewhat factual, they are not the “purely factual,” type of statements made that the Court said in Cleveland were exempted from the rule. Statements made by the plaintiff in this case are very much overlaid with legal conclusions.
- It isn’t at all clear that the plaintiff was seeking an unfair advantage through intentional machination (the third element of judicial estoppel), as intentional implies some sort of subjective intent on the part of the plaintiff, which may or may not be the case here.
- If Cleveland does not apply to the “factual,” matters described by the Allen court, then what you have is an exception that swallows the rule. Cleveland does not apply to “purely factual matters,” but those types of matters are not, in my opinion, involved in Allen.
- The problem the plaintiff is going to have on appeal, if there is one, is if she did not truly raise any questions as to why the contradictions were present, she is going to be out of luck regardless of whether an appellate court would say that Cleveland applies.
- Lawyers who are operating in the long term disability, short-term disability, SSDI, and workers compensation spaces must read this blog entry181184194199194196196194195197195 or run the considerable risk of legal malpractice. They also must be sure to make clear that there are reasons for the inconsistencies in the prior representations. Failure to offer any explanation is, in my opinion, legal malpractice and has been so ever since Cleveland was decided in 1999.
- If you are an attorney operating in the long term disability, short-term disability, SSDI, and workers compensation spaces, you need to be advise your clients of the risk inherent in making those applications with respect to judicial estoppel. If you can, tailor those applications to make clear that you are not implying or suggesting that your client would be disqualified from doing jobs if given reasonable accommodations per the ADA.
- Did I mention that you need to read this blog entry182185195200195197197195196198196?
Have a happy holiday season everyone.