leave." Final Pre-Trial Order, filed on September 23, 1996, at 6.
Given this ruling, defendant might have expected the court to be receptive to a request for a jury instruction to the effect that the ADA did not require Allied to accommodate Norris by extending her leave at the time she was terminated. However, defense counsel did not request such an instruction, even after plaintiff's counsel argued in closing argument that one of the ways Allied could have accommodated Norris was by extending her leave. Nor did defense counsel object to the contention in plaintiff's closing argument that extending Norris's leave would have been a reasonable accommodation.
The court's pre-trial ruling on the extended leave issue is supported by the following authorities: Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (while "a reasonable allowance of time for medical care and treatment may, in appropriate circumstances, constitute a reasonable accommodation," where plaintiff "failed to present any evidence of the expected duration of her impairment," unpaid leave "of indefinite duration" would not be a reasonable accommodation); Myers v. Hose, 50 F.3d 278, 280, 283 (4th Cir. 1995) (employer not required to reasonably accommodate employee by granting employee leave of indefinite duration to correct disability); Morton v. GTE North Inc., 922 F. Supp. 1169, 1183 n.11 (N.D. Tex. 1996) (court "doubts that indefinite leave could ever be demanded as a reasonable accommodation"); Pegues v. Emerson Electric Co., 913 F. Supp. 976, 981 (N.D. Miss. 1996) (holding that extended leave of absence would not have been reasonable accommodation where employee had already been given nearly entire year of leave to treat injury; stating, "Although it is reasonable for an employer to allow an employee a temporary leave of absence to recuperate from a disabling injury, the court does not believe the ADA requires the employer to extend that leave indefinitely"); Dockery v. North Shore Medical Center, 909 F. Supp. 1550, 1560 (S.D. Fla. 1995) (while unpaid leave may be a reasonable accommodation under the ADA, "as a matter of law, an employer is not required to grant a one-year leave of absence, and such an accommodation is, on its face, unreasonable"); 29 C.F.R. § 1630, App. at p. 344 (a reasonable accommodation "could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment"). See also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996) (employer did not have to keep employee, who had returned from disability but whose position had been filled while he had been unable to work, on unpaid medical leave indefinitely until another position for which he was qualified opened up); McDonald v. Com. of Pa., Dep't of Public Welfare, Polk Center, 62 F.3d 92, 97 (3d Cir. 1995) (stating that "some case law might support the plaintiff's position that an unpaid leave of absence is an appropriate accommodation in some circumstances").
Upon reflection, we are not sure that there should be a per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a "reasonable accommodation" under the ADA. It is not clear why unpaid leave should be analyzed differently from any other proposed accommodation under the ADA. Whether any particular proposed accommodation is "reasonable" should be based on analysis of the specific circumstances in a given case, applying the same criteria the courts apply to other proposed accommodations -- such as whether the accommodation would enable the employee to perform the essential functions of his or her position, and whether the accommodation would impose an undue hardship on the employer.
It is possible that an unpaid leave of an indefinite or very long duration (even as long as one year) could be a reasonable accommodation in some circumstances. For example, in the case of a very large employer, with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of the employee's position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee.
With these thoughts in mind, we note that Allied presented very little evidence that extending Norris's leave would have caused it to suffer undue hardship.
The only such evidence Allied presented was that Mark Castleman, the person who held the position of "Sysco Brand Manager -- Non-Foods -- East" (Norris's position, at the time she was terminated, was "Sysco Brand Manager -- Non-Foods -- West") had to work extremely long hours while Norris was out on disability because, in addition to doing his own job, he had to perform the tasks of Norris's previous position of Non-Foods Specialist. However, it is unclear why Allied held Norris's old position open during at least part of the time that she was out on disability. Moreover, it could be inferred from the evidence that the position of "Sysco Brand Manager -- Non-Foods -- West" was a new position created by Allied for Norris not for business reasons but as a result of a government investigation of Allied's equal employment opportunity practices, meaning that keeping Norris's Brand Manager position open may not have inflicted much hardship upon Allied. See (in part) Final Jury Instruction # 30C, "Undisputed Facts."
The following two pieces of evidence may also be treated as tending to show that allowing Norris a longer leave of absence would not have imposed an undue hardship on Allied. First, there was evidence that Allied had allowed other employees to remain out on disability for more than a year. See Facts P 51. Second, Allied had a "Medical Leave" policy which could be reasonably interpreted as providing that an employee would be permitted to remain on an extended leave of indefinite duration until he recovered, it became clear that he would be unable to return to work, or he resigned. See Facts P 50.
Because of our ruling in § IV(A), supra, however, we need not decide whether a reasonable jury could have found under the law and the facts of this case that Allied should have reasonably accommodated Norris by extending her leave of absence.
V. SIGNIFICANCE OF REPRESENTATIONS IN SUPPORT OF NORRIS'S APPLICATIONS FOR DISABILITY BENEFITS
A. Judicial Estoppel
Defendant argues that a reasonable jury could not have concluded that Norris was able to perform the essential functions of her position because her testimony that she was able to work at home during at least some of her disability leave contradicted representations that she and her doctors made on disability applications and "return to work" forms. In a pre-trial motion, defendant asked the court to prohibit Norris, because of the representations on her disability and "return to work" forms, from introducing any evidence supporting her ADA claim. The court denied this motion. In doing so, the court stated, in a pre-trial order,
There is a split of authority on the issue of whether a plaintiff who states that he or she is totally disabled in a disability benefits application is estopped in a suit under the ADA from arguing that he or she was not wholly disabled. This court will not follow cases which hold that the plaintiff is estopped, such as Cheatwood v. Roanoke Industries, 891 F. Supp. 1528, 1538 (N.D. Ala. 1995), and Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 557 (D. Kan. 1995). This court will follow the cases that hold that there is no estoppel, as this court finds persuasive the arguments in those cases that no recognized principle of estoppel, including judicial estoppel, applies to a situation where a plaintiff seeks to present testimony in an ADA suit that contradicts statements in a disability benefits application. See Dockery, 909 F. Supp. at 1556-59; see also Morton v. GTE North Inc., 922 F. Supp. 1169, 1181-82 (N.D. Tex. 1996). However, Norris's statements in her disability benefits applications may still be relevant evidence of what her medical condition was and whether and when she sought to return to work. See Dockery, 909 F. Supp. at 1559.
Final Pre-Trial Order, filed on September 23, 1996, at 7.
At the time we issued this ruling, we were not aware of an important Ninth Circuit case dealing with the doctrine of judicial estoppel which had been decided several weeks earlier -- Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597 (9th Cir., Aug. 29, 1996). We discovered this case during our research for this opinion and order.
On the authority of Rissetto, we must vacate our earlier ruling that judicial estoppel does not generally apply to statements on disability benefits applications, and we must determine whether, based on the standards in Rissetto and other relevant authorities, Norris should be judicially estopped in this case from asserting that she was able to perform the essential functions of her position for purposes of the ADA.
Before discussing the governing Ninth Circuit authorities, we will discuss how federal courts across the country have dealt with the issue of whether statements on disability benefits applications that a plaintiff is totally disabled should estop a plaintiff from bringing an ADA claim. During the course of this discussion, we will explain the basis for our previous ruling that judicial estoppel is generally inapplicable in such circumstances.
The cases dealing with the issue of the application of judicial estoppel to statements on applications for disability benefits are best classified into three groups. First, some cases hold (some more clearly than others) that either judicial estoppel, or some other (not clearly specified) principle of law, per se bars a plaintiff who has stated on disability applications that he was totally disabled from arguing that he was able to perform the essential functions of his position for purposes of the ADA. See Pegues v. Emerson Electric Co., 913 F. Supp. 976, 981 (N.D. Miss. 1996) ("regardless of the label attached," it is not "legally proper" for a plaintiff to represent in an administrative proceeding that she cannot work and then to argue in court, in support of an ADA claim, that she could have worked with reasonable accommodation); Cheatwood v. Roanoke Industries, 891 F. Supp. 1528, 1538 (N.D. Ala. 1995) (after collecting disability benefits based on representations that he was unable to perform the essential functions of his job, a plaintiff is estopped from asserting a claim against his employer based on contrary representations); Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 554-56 (D. Kan. 1995) (plaintiff could not maintain that she was a qualified individual with a disability for purposes of the ADA after receiving disability benefits based on representations that she could not perform the material duties of her job); Reigel v. Kaiser Foundation Health Plan of N.C., 859 F. Supp. 963, 969-70 (E.D.N.C. 1994) (representations by plaintiff and her doctors in support of disability applications to effect that plaintiff's injury was totally disabling precluded reasonable fact-finder from finding that plaintiff was able to perform essential functions of her position for purposes of the ADA, as "statements made for the purposes of obtaining disability benefits were binding admissions" and "plaintiff cannot speak out of both sides of her mouth with equal vigor and credibility before [the] court"). See also McNemar v. Disney Store, Inc., 91 F.3d 610, 616-19 (3d Cir. 1996); Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768, 770-71 (8th Cir. 1987), cert. denied, 485 U.S. 938, 99 L. Ed. 2d 277, 108 S. Ct. 1116 (1988); Wilmarth v. City of Santa Rosa, 945 F. Supp. 1271, 1996 WL 675841, at *7 n.5 (N.D. Cal., Oct. 1, 1996); Smith v. Midland Brake, Inc., 911 F. Supp. 1351, 1358 (D. Kan. 1995); Fussell v. Georgia Ports Authority, 906 F. Supp. 1561, 1575-76 (S.D. Ga. 1995); Nguyen v. IBP, Inc., 905 F. Supp. 1471 (D. Kan. 1995); Harden v. Delta Air Lines, Inc., 900 F. Supp. 493 (S.D. Ga. 1995).
Second, other courts, without applying any such per se rule, have, after examining the facts in the particular case before them, decided that no reasonable fact-finder could find that the plaintiff could have performed the essential function of his position, at least in part because of statements made by the plaintiff that the plaintiff was totally disabled. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1480-82 (9th Cir. 1996) (no reasonable fact-finder could conclude that plaintiff could perform essential functions of position where plaintiff stated on disability forms and doctor testified that plaintiff was totally disabled from working); August v. Offices Unlimited, Inc., 981 F.2d 576, 581-84 (1st Cir. 1992) (no reasonable fact-finder could conclude that plaintiff was able to perform essential functions of job under Massachusetts statute similar to ADA where plaintiff had declared that he was totally disabled on numerous disability applications and there was no contrary evidence to show that plaintiff was not completely and totally disabled during relevant period of time).
Third, other courts have ruled that a plaintiff is not estopped by statements in disability applications from arguing, in support of an ADA claim in court, that he was able to perform the essential functions of his position. See D'Aprile v. Fleet Services Corp., 92 F.3d 1, 3-5 (1st Cir. 1996) (plaintiff not barred from claiming handicap discrimination under state statute similar to ADA by representations that she was "totally disabled" within meaning of employer's disability insurance policy); Mohamed v. Marriott Intern., Inc., 944 F. Supp. 277, 1996 WL 631687, at *3-*8 (S.D.N.Y., 1996) (it is "inappropriate to invoke the fact-sensitive and limited doctrine of judicial estoppel to erect a per se bar to ADA protection for individuals who have also applied for and/or received SSDI [Social Security Disability Insurance] benefits"); Morton v. GTE North Inc., 922 F. Supp. 1169, 1181-83 (N.D. Tex. 1996) ("strict estoppel approach," under which statements in support of disability applications may per se bar an ADA claim, is not supported by the case law, but representations in disability applications are factors to be weighed in determining whether a summary judgment motion should be granted
); Dockery v. North Shore Medical Center, 909 F. Supp. 1550, 1556-59 (S.D. Fla. 1995) (judicial estoppel does not apply to statements in administrative filings for disability applications). See also Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992) (finding by Social Security Administration that plaintiff was entitled to disability benefits could not be construed as judgment that plaintiff was not qualified to do his job); Pressman v. Brigham Medical Group Foundation Inc., 919 F. Supp. 516, 522-23 (D. Mass. 1996) (plaintiff permitted to maintain handicap discrimination claim despite receiving disability benefits under "total disability" section of employer's insurance policy); Smith v. Dovenmuehle Mortgage, Inc., 859 F. Supp. 1138, 1141-43 (N.D. Ill. 1994) (plaintiff not judicially estopped by representations in support of application for disability benefits and by determination of Social Security Administration that plaintiff was entitled to benefits, where these representations and this determination did not contradict plaintiff's assertions that he was able to perform essential functions of his position for purposes of ADA during relevant time period); Kupferschmidt v. Runyon, 827 F. Supp. 570, 574 (E.D. Wis. 1993).
At the time we issued our pre-trial ruling that judicial estoppel was inapplicable, the case we found most persuasive was Dockery, 909 F. Supp. at 1556-59. Relying on 11th Circuit authority, the court in Dockery stated that there are two requirements for the application of judicial estoppel: "First, it must be shown that the allegedly inconsistent pleadings were made under oath in a prior proceeding. Second, such inconsistencies must be demonstrated to have been calculated to make a mockery of the judicial system." 909 F. Supp. at 1558. The Dockery court concluded that the first requirement meant that the prior assertions had to be made in judicial or quasi-judicial proceedings, not in administrative filings. Id. The Dockery court concluded that, under the second requirement, unless the inconsistent statements of the plaintiff were calculated to make a mockery of the judicial system, judicial estoppel is an inappropriate sanction. Id. at 1559. We found these and other arguments by the Dockery court to be persuasive.
At the time of our pre-trial ruling, the only applicable Ninth Circuit authority we were aware of was Kennedy, 90 F.3d at 1480-82, which was decided on July 31, 1996. In Kennedy, the plaintiff stated in disability applications and the plaintiff's physician testified in deposition that the plaintiff was totally disabled. The only evidence that the plaintiff was able to perform the essential functions of her position was plaintiff's own deposition testimony. 90 F.3d at 1480-82. The Ninth Circuit determined that such "uncorroborated and self-serving" deposition testimony was not enough to raise a genuine issue of material fact and concluded that there was no genuine dispute of material fact that the plaintiff was unable to perform her job during the time period relevant to her ADA claim. Id. at 1481. The Ninth Circuit thus affirmed the district court's decision to grant summary judgment against the plaintiff on the plaintiff's ADA claim. Id. at 1482.
In a footnote, the Kennedy court stated,
[Defendant] and amicus urge us to apply the doctrine of judicial estoppel in this case. Judicial estoppel is an equitable doctrine invoked to protect the integrity of the judicial process. It precludes parties from taking inconsistent positions in judicial proceedings. Because we find no genuine issue of material fact in this case, we find it unnecessary to rely on the doctrine of judicial estoppel.
Id. at 1481 n.3 (emphasis added) (citations omitted). We interpreted this footnote as meaning that the issue of whether judicial estoppel should be applicable to statements in disability applications had not been decided by the Ninth Circuit. We also interpreted the Kennedy court's statement that judicial estoppel "precludes parties from taking inconsistent positions in judicial proceedings" (emphasis added) as suggesting that the Ninth Circuit might be inclined to agree with the Dockery court's conclusion that judicial estoppel only applies to statements made in judicial or quasi-judicial proceedings and not to statements in administrative filings.
When we made our pre-trial ruling, we were not aware of Rissetto, 94 F.3d 597, which was decided on August 29, 1996. In Rissetto, the plaintiff filed a claim for workers' compensation benefits. The plaintiff settled the claim with the workers' compensation insurer, and the insurer agreed to pay plaintiff temporary total disability benefits. The workers' compensation appeals board approved the settlement. The plaintiff received the benefits. The plaintiff then filed a lawsuit against his former employer, alleging age discrimination (based on an alleged constructive discharge) and related claims (dependent on the age discrimination claim). The Ninth Circuit held that the plaintiff was judicially estopped from arguing that she was able to perform her job in a satisfactory manner, meaning that her age discrimination and related claims were barred. See 94 F.3d at 600.
The court in Rissetto explained that "judicial estoppel, sometimes also known as the doctrine of preclusion of inconsistent positions, precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an inconsistent position." Id. The Rissetto court added:
The policies underlying preclusion of inconsistent positions are general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings. . . . Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts. . . . Because it is intended to protect the dignity of the judicial process, it is an equitable doctrine invoked by a court at its discretion.