Simo v. Home Health & Hospice Care CV-94-206-JD 06/30/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Glenda Simo
v. Civil No. 94-206-JD
Home Health & Hospice Care
O R D E R
The plaintiff Glenda Simo brings this action under the
Rehabilitation Act of 1973 ("the Act"), 29 U.S.C. § 794, to
recover losses related to her employment with, and ultimate
termination by, her former employer, defendant Home Health &
Hospice Care ("HHHC"). The case is scheduled for a bench trial
on July 11, 1995. Before the court is the defendant's motion for
summary judgment (document no. 23).
Background1
I. Plaintiff's Employment History
The plaintiff was hired by HHHC on August 8, 1988, as a
homemaker for elderly and infirmed patients. At that time the
plaintiff told the defendant that she suffered from post
traumatic stress disorder ("PTSD") and, as a result, was
incapable of working alone with a man in a closed environment.
1The court's recitation of the facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. The plaintiff requested that she only be assigned to work in
homes occupied by females.
The plaintiff initially received strong job performance
evaluations and at least one salary increase. In March, 1990,
the plaintiff was injured in an automobile accident which left
her unable to work for ten weeks. Following her return to work
on June 4, 1990, the plaintiff was subjected to various job
requirements not imposed on the other homemakers and was required
to work in a home occupied by a male patient. As a result, the
plaintiff suffered significant anxiety and an exacerbation of her
PTSD symptoms.
On May 9, 1991, HHHC terminated the plaintiff for
"fraudulent behavior regarding the time sheets" and "gross job
incompetence." Complaint at 5 12. The plaintiff alleges that
the defendant violated the Act by failing to make reasonable
accommodations for her condition and by ultimately terminating
her employment.
II. Receipt of Permanent Disability Benefits
In January 1993, the plaintiff applied for and received
permanent disability benefits from the Social Security
Administration ("SSA"), with benefit payments retroactive to the
day she was terminated by HHHC. Motion for Summary Judgment,
2 Appendix, Plaintiff's Response to Defendant's First Set of
Interrogatories ("Plaintiff's Answer to Interrogatories") at 24.
In response to interrogatory 19, the plaintiff testified as
follows:
19. Please state whether you are now receiving or have ever received any disability, pension, income, insurance, or any workman's compensation payments from any agency, company, person, corporation, state, or government, and if your answer is affirmative, please state:
a) The entity making any such payments. b) Inclusive dates of any such payments. c) A description of the nature and extent of any disability for which such payments were made. d) A description of how such injury occurred or disability arose. f) Whether you now have any disability as a result of such injury or disability. g) If your answer to E is in the affirmative, the nature and extent of such disability. h) Whether or not you had any disability at the time of the alleged occurrence. i) If your answer to G is in the affirmative, the nature and extent of such disability.
ANSWER:
A. Social Security - DSS payments B. January 1993 (retroactive to 5/9/91) C. Post traumatic stress disorder and chronic pain syndrome D. PTSD from sexual victimization; chronic pain syndrome from car accident on 3/26/90 E. NO QUESTION F. I am on full disability due to PTSD. I receive DSS benefits G. Not applicable - No E H. I was gainfully employed even though I had PTSD and myofacial pain disorder I. N/A
3 I d . at 24. In response to interrogatory number 31, the plaintiff
testified as follows:
31. Please advise if you have received any permanency impairment rating. If so, please provide a description and date of rating of any such permanency ascribed to you and the identity of the health care provider rendering such opinion.
Social Security has rendered me permanently disabled due to PTSD and chronic pain syndrome. January, 1993 (retroactive to 5/9/91).
I d . at 36. In response to interrogatory number 34, the plaintiff
34. If you are presently unemployed please describe what efforts have been made to find gainful employment.
Totally disabled. Unable to work.
I d . at 39. The plaintiff has sworn to the accuracy of her
written interrogatory responses. I d . at 50.
In connection with her application for social security
benefits, the plaintiff stated in writing that "I BECAME UNABLE
TO WORK BECAUSE OF MY DISABLING CONDITION ON MAY 09, 1991," and
"I AM STILL DISABLED." Defendant's Supplemental Memorandum of
Law in Support of Motion for Summary Judgment ("Supplement to
Motion for Summary Judgment"), attachment to Affidavit of Lisa M.
Herlehy 1, 3.
4 Discussion
In its motion, the defendant asserts that the plaintiff's
application for and receipt of permanent disability benefits from
the SSA precludes her, as a matter of law, from satisfying the
"otherwise qualified handicapped individual" element of her
instant claim under the Rehabilitation Act. See Supplement to
Motion for Summary Judgment (citing August v. Offices Unlimited,
Inc., 981 F.2d 576, 581 (1st Cir. 1992); Kennedy v. Applause,
Inc., 1994 W.L. 740765 (C.D. Cal. 1994)).
The plaintiff, acknowledging her permanent disability and
inability to work, responds that the defendant's discriminatory
conduct caused or exacerbated her condition and, as such, the
receipt of benefits does "not bar employee's claim for back pay
and reinstatement if employer violated the Rehabilitation Act."
Plaintiff's Memorandum of Law in Objection to Defendant's Motion
for Summary Judgment ("Plaintiff's Memorandum in Opposition to
Summary Judgment") at 4. The plaintiff further asserts that the
collateral source doctrine permits her to recover more than once
for her injury so long as each recovery comes from a different
source. I d . at 3 (citing Mason v. Association for Independent
Growth, 817 F. Supp. 550, 556 (E.D. Pa. 1993); Restatement
(Second) of Torts § 920 (A)(2) (1979)).
5 The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually reguired." Snow v.
Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993), cert.
denied, 115 S. C t . 56 (1994) (guoting Wynne v. Tufts Univ. Sch.
of Medicine, 976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 113
S. C t . 1845 (1993)). The court may only grant a motion for
summary judgment where the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). The party seeking
summary judgment bears the initial burden of establishing the
lack of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Quintero de Quintero v.
Aponte-Rogue, 974 F.2d 226, 227-28 (1st Cir. 1992). The court
must view the entire record in the light most favorable to the
plaintiff, "'indulging all reasonable inferences in that party's
favor.'" Mesnick v. General Elec. Co . , 950 F.2d 816, 822 (1st
Cir. 1991) (guoting Griqqs-Rvan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990), cert, denied, 112 S. C t . 2965 (1992)). However, once
the defendant has submitted a properly supported motion for
summary judgment, the plaintiff "may not rest upon mere
6 allegation or denials of [their] pleading, but must set forth
specific facts showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing
Fed. R. Civ. P. 56(e)).
I. Rehabilitation Act
The Rehabilitation Act, section 504 provides:
No otherwise gualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C.A. § 794 (West 1985, as amended by Act of Oct. 21, 1986;
Act of March 22, 1988; and Act of Nov. 7, 1988) (later amended by
29 U.S.C.A. § 794 (West Supp. 1995)).2 To prevail under section
504, a plaintiff bears the burden of proving that (1) she was
handicapped for purposes of the Act; (2) she was otherwise
gualified to perform the job or participate in the program; (3)
she was excluded from the job or program solely because of her
handicap; and (4) the job or program receives federal funding.
E.g., Joyner v. Dumpson, 712 F.2d 770, 774 (2d Cir. 1983); Gill
2The parties do not dispute that the plaintiff's action is governed by section 504 as it existed prior to the 1991 civil rights amendments. See Simo v. Home Health & Hospice Care, No. 94-206-JD, slip op. at 2-3 (D.N.H. June 19, 1995).
7 v. Franklin Pierce Law Ctr., No. 93-241-SD, slip op. at 8-9
(D.N.H. May 17, 1995) .
An otherwise qualified handicapped employee is one who,
"with or without reasonable accommodation, can perform the
essential functions of the position in question without
endanqerinq the health and safety of the individual or others
. . ." Taub v. Frank, 957 F.2d 8, 10 (1st Cir. 1992) (quotinq 29
C.F.R. § 1613.702(f)); see School Bd. of Nassau County v. Arline,
107 S. C t . 1123, 1131 n. 17 (1987) (quotinq Southeastern Comm.
College v. Davis, 99 S. C t . 2361, 2367 (1979)) ("An otherwise
qualified person is one who is able to meet all of a proqram [or
job's] requirements in spite of his handicap."). Thus, to
advance to trial, the section 504 plaintiff must make, inter
alia, an initial showinq that she is qualified and capable of
performinq the job at issue. See, e.g., Taub, 957 F.2d at 10
(citinq Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372,
1385 (10th Cir. 1981)); Boldini v. Postmaster General, 1995 U.S.
Dist. LEXIS 6651 * 11-13 (D.N.H. May 11, 1995) (citinq Mazzarella
v. U.S. Postal Serv., 849 F. Supp. 89, 94 (D. Mass. 1994)).
II. Judicial Estoppel
Judicial estoppel "precludes a party from assertinq a
position in one leqal proceedinq which is contrary to a position it has already asserted in another." Patriot Cinemas, Inc. v.
General Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987); Lockheed
Sanders, Inc. v. United States, 862 F. Supp. 677, 684 (D.N.H.
1994) . It is designed to protect the integrity of the judicial
process. United States v. Levasseur, 846 F.2d 786, 792 (1st
Cir.), cert. denied, 488 U.S. 894 (1988); see Chaveriat v.
Williams Pipe Line Co., 11 F.3d 1420, 1427-28 (7th Cir. 1993)
("The objective of the doctrine . . . is to prevent situations
from arising in which one of two related decisions has to be
wrong because a party took opposite positions and won both
times."). Under the majority view of this doctrine, "'a party
[who] assumes a certain position in a legal proceeding, and
succeeds in maintaining that position . . . may not thereafter,
simply because his interests have changed, assume a contrary
position.1" Wang Lab., Inc. v. Applied Computer Sciences, Inc.,
958 F.2d 355, 358 (Fed. Cir. 1992) (guoting Davis v. Wakelee, 156
U.S. 680, 689 (1895)); Milqard Tempering, Inc. v. Selas Corp.,
902 F .2d 703, 716 (9th Cir. 1990).
Administrative and guasi-judicial proceedings, such as those
conducted by the SSA, are considered prior legal proceedings
under the doctrine of judicial estoppel. UNUM Corp. v. United
States, 1995 U.S. Dist. LEXIS 6371 * 24 (D. Me. 1995); see Zapata
Gulf Marine Corp. v. Puerto Rico Maritime Shipping Auth., 731 F. Supp. 1 A 1 , 750 (E.D. La. 1990) ("The doctrine applies equally to
positions taken in quasi-judicial administrative proceedinqs as
it does in courts of law"); Brown v. Amtrak, 1990 U.S. Dist.
LEXIS 10535 * 14 (N.D. 111. 1990) ("application for disability
benefits amounted to the first step in an administrative
proceedinq which was quasi-judicial in nature"); Muellner v.
Mars, Inc., 714 F. Supp. 351, 358 (N.D. 111. 1989) (application
process for social security benefits constitutes prior leqal
proceedinq for purposes of judicial estoppel).
The First Circuit has employed a more liberal approach to
judicial estoppel to curtail a litigant from "'playing fast and
loose with the courts,1" and from using "'intentional self-
contradiction . . . as a means of obtaining unfair advantage in a
forum provided for suitors seeking justice.1" Patriot Cinemas,
834 F.2d at 212. (quoting Scarano v. Central R. Co . , 203 F.2d
510, 513 (3d Cir. 1953)); Lockheed Sanders, 862 F. Supp at 684;
see also Milqard Tempering, 902 F.2d at 716-17 (observing First
Circuit adopted minority view of doctrine). The party asserting
judicial estoppel need not prove prejudice or harm by the
inconsistent position. Patriot Cinemas, 834 F.2d at 214.
The "classic" case where courts have utilized judicial
estoppel occurs where "a litigant asserts inconsistent statements
of fact or adopts inconsistent positions on combined questions of
fact and law." Lockheed Sanders, 862 F. Supp. at 684 (quoting
Patriot Cinemas, 834 F.2d at 214).
10 III. Permanently Disabled Workers Are Not Otherwise Qualified
Federal courts have ruled, in a variety of contexts, that a
permanently disabled individual may not sue an employer for
employment discrimination under a statute, such as section 504,
which requires a prima facie showing that the plaintiff is
otherwise qualified or capable to perform the job in question.
E.g., Kennedy v. Applause, Inc., 1994 WL 740765 *3 (C.D. Cal.
1994) (citing cases); Muellner, 714 F. Supp. at 359-360.3 For
example, in Brown v. Amtrak, the plaintiff applied for and
ultimately received benefits from the SSA, and later from the
Railroad Retirement Board ("RRB"), based on representations by
the plaintiff that he was disabled and unable to perform his
prior job. 1990 U.S. Dist LEXIS * 6-8. The plaintiff
subsequently sued his former employer under, inter alia, the Age
Discrimination in Employment Act ("ADEA") and the Civil Rights
Act of 1964 ("Title VII"), two employment discrimination statutes
which, like section 504, require a plaintiff to demonstrate that
he was otherwise qualified for the job. I d . at * 19-20. The
district court judicially estopped the plaintiff "from seeking
3The Muellner court observed that
[a]mong the cases most influential in the development of the doctrine of judicial estoppel are those involving the very situation confronting the court: an individual claims disability, through either judicial or quasi-judicial proceedings obtains a single payment or continuing disability benefits, and then seeks reinstatement to his job.
714 F. Supp. at 355.
11 any relief premised on his ability to work," i d . at * 11-12,
because the plaintiff's
representations to the SSA and the RRB, coupled with his continued acceptance of disability benefits from both agencies, are irreconcilable with his position before this court. To allow [the plaintiff] to assert that he was and is able to perform the duties of his employment with [the defendant] at the same time that he is collecting disability benefits -- awarded as a result of his representations that he could no longer work at his job or any other -- would countenance a fraud, either on this court or on the two federal agencies that awarded him those benefits.
I d . at * 19-20; see Muellner, 714 F. Supp. at 359-60 (same
holding on similar facts).
Likewise, courts in this and other circuits have barred
disabled litigants from maintaining claims reguiring an otherwise
gualified showing on essentially the same grounds but without
explicitly invoking the doctrine of judicial estoppel. In August
v. Offices Unlimited, a case filed under the Massachusetts
counterpart to section 504, Mass. Gen. L. ch. 151B, § 4(16), the
First Circuit affirmed the district court's entry of summary
judgment against a plaintiff who received insurance benefits
after he repeatedly represented himself to insurance companies as
totally disabled. 981 F.2d 576, 581 (1st Cir. 1992). The court
reasoned that, absent evidence to the contrary, the prior sworn
statements indicate that "no reasonable fact finder could
conclude that, at relevant times, [that the plaintiff] was a
gualified handicapped person within the meaning of the [act]."
I d . at 582. Drawing direct analogy to the Rehabilitation Act,
the court noted that
12 [s]ection 504 was designed to prohibit discrimination within the ambit of an employment relationship in which the employee is potentially able to do the job in question. Though it may seem undesirable to discriminate against a handicapped employee who is no longer able to do his or her job, this sort of discrimination is simply not within the protection of section 504.
I d . at 582-83 (quoting Beauford v. Father Flanagan's Bovs' Home,
831 F.2d 768, 771 (8th Cir. 1987), cert, denied, 485 U.S. 938
(1988)); see Kennedy, 1994 WL 740765 * 3-4 ("disabled individuals
who certify in a claim for disability benefits that they are
totally disabled from work are estopped from claiming that they
can perform the essential functions of their job").
VI. The Section 504 Claim Does Not Survive Summary Judgment
There is no dispute that the plaintiff successfully applied
for and continues to collect total permanent disability benefits
from the SSA. To receive these benefits, the plaintiff made a
number of representations, first to the SSA and, more recently,
in response to the defendant's interrogatories, concerning the
disabling nature of her condition and her resultant inability to
work. Indeed, at one point the plaintiff stated in writing that
she "became unable to work because of my disabling condition on
May 09, 1991" -- the very day she was terminated by the
defendant. Given the unequivocal nature of the defendant's
documentary evidence and the plaintiff's conspicuous failure to
submit evidence to the contrary, the court finds there is no
factual dispute that at all relevant times the plaintiff has been
13 and continues to be incapable of performing the essential
functions of her past position as a homemaker.
A. The Plaintiff Cannot Satisfy an Element of Her Claim
The plaintiff's inability to work creates an insurmountable
barrier to recovery under section 504, a statute which requires
an initial showing that the plaintiff is qualified and capable of
performing the job at issue. The claim resembles that dismissed
under Rule 56 in August to the extent that "no reasonable fact
finder could conclude that [the plaintiff] . . . was a qualified
handicapped person within the meaning of the [act] ." 981 F.2d at
582 .
Notwithstanding the apparent inability to satisfy a
necessary element of her claim, the plaintiff urges that a total
disability does not bar a section 504 action where the disability
was caused or exacerbated by the defendant:
That in order for handicap persons to be protected, the court must adopt the rationale of Saverese [sic] since it would be in the employer's interest to engage in conduct that results in the employee's inability to work so as to avoid damage claims in discrimination lawsuits. Such a result would sap the vitality of the Rehabilitation Act.
Plaintiff's Response to Defendant's Supplement to Motion for
Summary Judgment at 5 3 (citing Savarese v. Aqriss, 883 F.2d
1194, 1206 n. 19 (3rd Cir. 1989)). The argument has appeal but
fails nonetheless. First, the plaintiff has not adduced
evidence, medical or otherwise, beyond bald assertions to
indicate a causal link between the defendant's conduct and her
14 inability to work. See Plaintiff's Response to Defendant's
Supplement to Motion for Summary Judgment, Appendix (photocopied
excerpt of SSA form in which plaintiff states that "employer
exacerbated my [unintelligible] wrongfully fired"). In fact, the
plaintiff's recent written responses to interrogatories, supra,
indicate that she was injured by prior sexual victimization
and/or an automobile accident.
Second,
even if [the plaintiff] could prove that [the defendant's conduct] caused h[er] further psychic injury . . ., this would not establish a cause of action for discriminatory discharge on account of handicap in violation of Mass. Gen. L. ch. 151B. See Lanqon v. Department of Health & Human Servs., 959 F.2d 1053, 1061-62 (D.C. Cir. 1992) (establishing a causal connection between employer's failure to accommodate and plaintiff's poor job performance may support a claim for damages for harm caused, but does not establish a violation of the Rehabilitation A c t ) . . . . [the plaintiff's] status as a "gualified handicapped person" does not depend on the cause of his disability, but rather on the extent of his disability. The critical guestion is whether, in fact, [s]he was able to perform the essential functions of h[er] job with or without reasonable accommodation when [s]he was fired.
August, 981 F. 2d at 583 (emphasis in original); see Beauford,
831 F.2d at 768-71 ("Though it may seem undesirable," disabled
plaintiff could not proceed under section 504 even where
disability resulted from defendant's conduct). The plaintiff
correctly observes that adherence to the reguirement that a
plaintiff be otherwise gualified actually may benefit a
discriminatory employer in those circumstances where the
plaintiff's disability resulted from the employer's wrongful
conduct. Although such an outcome may appear antagonistic to the
15 policy of safeguarding employee civil rights, the potential for
an incongruous result does not dispose of the statutory
reguirement that a section 504 plaintiff be capable or
potentially capable of working in order to state her claim.
Third, the cited authority does not support adeguately the
plaintiff's argument. In Savarese, the Third Circuit, in
reviewing the district court's award of damages under 42 U.S.C. §
1983, observed in a footnote that "[i] would indeed be ironic if
the plaintiffs were denied back pay because they were unable to
work when the defendants' actions caused the disability." 883
F.2d at n.19. The remark, when viewed in context of the entire
footnote, has no relevance to the issues before the court because
it addresses those situations where the defendant's wrongful
conduct would prevent a section 1983 plaintiff from being placed
in the position he would have occupied but for the civil rights
violation. See i d . In contrast, the instant case is advanced
under the Rehabilitation Act, a statutory scheme distinct in
purpose, function and available remedies from section 1983.
Accordingly, the Savarese footnote, announced by a court sitting
in a different circuit in the context of a different statute,
does not guide the court's consideration of the instant motion.
The plaintiff, unable to make the necessary initial showing
that she is otherwise gualified for the homemaker position,
cannot maintain a claim under the Rehabilitation Act as a matter
of law.
16 B. In the Alternative, the Plaintiff is Estopped From Alleging Facts Necessary to Establish an Element of Her Claim
Principles of judicial estoppel provide an alternative basis
for the dismissal of the Rehabilitation Act claim. The plaintiff
has made multiple factual representations to the SSA concerning
her disabling condition and inability to work. The plaintiff
attested to the veracity of each representation, knowing they
would be relied upon in the context of a government benefits
application process, a guasi-judicial administrative proceeding.
Finding that the plaintiff is "totally disabled" and "unable to
work", the SSA approved the application and to date she has
collected over five years worth of government benefits.
The plaintiff, who continues to receive funds from the SSA,
now seeks to recover under a civil rights statute which, by its
express language, reguires a showing that she is otherwise
gualified to perform her former job as a homemaker. The very
filing of the instant lawsuit under the Rehabilitation Act is
"totally inconsistent with the position she took before the SSA."
Muellner, 714 F. Supp. at 358. The integrity of the judicial
system is jeopardized when litigants are permitted to assume
contrary factual, not legal, positions for the purpose of
achieving advantageous results. The plaintiff, having already
reaped the benefits of her past representations of total
disability, may not now advance before this court any claim
necessarily based on a contrary factual representation. The
court finds the plaintiff is judicially estopped from asserting
17 facts in support of the otherwise qualified element of her
section 504 claim and, as a result, the claim may not proceed to
trial.4
Conclusion
For the foregoing reasons, the court finds that the
defendant is entitled to judgment as a matter of law on the
plaintiff's claim under the Rehabilitation Act. The motion for
summary judgment (document no. 23) is granted. This order
resolves the dispute pending between the parties and the clerk is
ordered to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge June 30, 1995 cc: William E. Aivalikles, Esquire Martha V. Gordon, Esquire
4The plaintiff also asserts that the collateral source doctrine permits her to recover damages from both the SSA and the defendant. According to the Restatement: Effect of Payment Made to Injured Party (2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable.
Restatement (Second) of Torts, § 920A (1977). The argument fails. The plaintiff's section 504 claim is dismissed because she cannot satisfy the otherwise qualified element of her claim given the undisputed fact that she is totally disabled and unable to work. In the alternative, the claim is dismissed because she is judicially estopped from alleging that she is otherwise qualified given her contrary representations to the SSA. Under either rationale, the court's ruling is based on the viability of her claim as a threshold matter and not whether the receipt of disability benefits precludes or offsets whatever damages the plaintiff could receive from the defendant should she prevail.