lifting ten pounds, Dr. Kulak wrote: "No. Must be seated while working--all the time." He added that plaintiff was incapable of working five days a week, seated for six hours in an eight hour day, frequently lifting ten pounds and occasionally lifting twenty pounds: "No. Cannot stand for 2 hours." This form, together with Dr. Kulak's Attending Doctor's progress reports of October 20, 1994 and July 5, 1995 was submitted to the SSA in support of plaintiff's disability reconsideration claim. The July 5, 1995 progress report reads, in part: "6/29/95 stump healed, can not stand at work, pain lateral aspect left leg, groin injury from prothesis [sic], when stands breakdown of skin."
On July 6, 1995, Judge Dorsey held a hearing at which plaintiff was represented by counsel. In that hearing, in response to Judge Dorsey's question as to why plaintiff was unable to work, plaintiff responded, "I'm not sure I can get anything where I could just sit for the entire time I'd be working." He stated that he spent no more than a quarter of his waking hours off of crutches, and when asked how far he could walk with the crutches, stated: "I never measured, but I mean, I can cross the street here and go into a building, and that would be it before I'd have to stop a couple of minutes and sit down [indiscernible]." Plaintiff stated that he could stand for about five minutes at a time, could bend with difficulty, and could not kneel. He further stated that he could probably lift thirty pounds, but could not carry any weight at all.
On August 4, 1995, Judge Dorsey found plaintiff "disabled" within the meaning of the Social Security Act. Specifically, he concluded that plaintiff had not engaged in substantial gainful activity since November 10, 1993, the date he was first under a "disability," and would continue to be unable to work through December 31, 1998. Judge Dorsey further found that plaintiff's "status post amputation of the right leg above the knee" qualified as a severe condition and met one of the impairments listed in the implementing regulations of the Social Security Act. He further noted that since November 10, 1993, plaintiff had been unable to use his prosthesis effectively because of the continued ulceration of his stump. Based on Judge Dorsey's findings, the SSA found that beginning in May 1994, plaintiff was entitled to monthly disability benefits from Social Security.
As of his deposition on November 18, 1996, plaintiff had not notified SSA of any improvements in his medical condition. As of July 1997, plaintiff was still receiving Social Security benefits.
PLAINTIFF'S TERMINATION FROM THE DISTRICT
While these various proceedings were ongoing, the District terminated plaintiff as a Head Custodian. On September 14, 1994, Dr. Kulak wrote a letter "To Whom it May Concern," stating that plaintiff had been unable to return to normal work duties as of that date. He noted that he hoped to be able to determine a return to work date when he examined plaintiff on September 29. But in a letter dated October 6, 1994, Dr. Kulak stated that he had reexamined plaintiff and felt that "due to his above knee amputation and the need for use of a prosthesis . . . he should be retrained for a job that is more sedentary vs. a job that requires frequent ambulation." Plaintiff provided this letter to the District on December 6, 1994.
On November 16, 1994, Peter M. Brenner, Sr., the Superintendent of Schools, informed plaintiff that at the December 19, 1994 Board of Education meeting, he would recommend that plaintiff be terminated "in light of [his] inability to perform the duties of [his] position for in excess of one year's time." He requested that if any of the facts set forth in Dr. Kulak's September 14, 1994 letter were inaccurate, plaintiff should respond in writing by December 6, 1994.
On December 6, 1994, plaintiff responded, enclosing Dr. Kulak's October 6 letter which suggested restructuring to a "more sedentary" job,
and stated that a possible return to Head Custodian might be possible if the position could be restructured to sedentary duties.
Plaintiff further directed that the District should "consider this letter a request for 'reasonable accommodation' as defined by the American Disabilities Act."
Plaintiff was terminated at the December 19, 1994 meeting of the District's Board of Education. On December 12, 1994, Maureen Comer, Director of Personnel for the District, wrote to plaintiff that the District had turned over to its attorney plaintiff's "request regarding accommodation if [he was] released from [his] doctor to return to work." Prior to plaintiff's termination, nothing further was done with respect to his request for reasonable accommodation.
One month after plaintiff's termination, Comer determined that the District should obtain an independent medical evaluation of the plaintiff's ability to perform the duties of the Head Custodian position, and an evaluation of what accommodations the District might make for the plaintiff.
On January 26, 1995, Comer contacted The Workplace, an agency that specializes in evaluating the ability of disabled individuals to perform the essential job functions of a position. On February 6, 1995, Comer informed plaintiff that the District had set up an appointment for a medical evaluation with The Workplace at the District's expense. She wrote: "Once we have a medical evaluation forwarded to us, we can better determine what accommodations, if any, can be made on your behalf given your present condition."
Plaintiff's attorney, however, contends that he was advised by defendant that defendant was not considering rehiring plaintiff and claims that this request was an attempt by defendant to establish a basis for rejecting plaintiff's request for a reasonable accommodation. Plaintiff informed defendant prior to February 17, 1995 that he would not participate in the medical evaluation.
On September 11, 1995, Dr. Kulak performed a Physical Capacities Evaluation of plaintiff. He determined that over an eight-hour workday, plaintiff needed to sit for all eight hours and could not stand or walk. He noted that while plaintiff could lift up to twenty pounds continuously, and twenty-one to fifty pounds frequently, he could never lift fifty-one to one hundred pounds, and could never carry any weight, as carrying weight threw plaintiff's balance off. He indicated that plaintiff could not bend or squat, and could only occasionally crawl or climb. In addition, he determined that plaintiff could never drive automobile equipment, and required complete freedom to rest frequently without restrictions.
On November 16, 1996, plaintiff's vocational expert, Edmond Provder, a certified rehabilitation counselor, evaluated plaintiff for three hours to assess plaintiff's ability to perform the essential functions of the Head Custodian job. Provder has served as the president of Occupational Assessment Services, Inc. for sixteen years, and has provided vocational testimony in Social Security Disability hearings for eight years. In making his determination, Provder reviewed medical records from Drs. Kulak and Newman; hospital records from 1978 and 1981; and Judge Dorsey's decision finding plaintiff disabled for the purpose of receiving Social Security benefits. He also performed a standard vocational interview and administered tests. From plaintiff's description of the Head Custodian job, Provder understood it as follows:
This occupation involved the supervision of between 9 and 25 maintenance and custodial workers in the high school. The employee numbers increase during the summer. He was responsible for building and some grounds maintenance. He supervised repairs and maintenance, such as painting, minor electrical repair, plumbing, carpentry, troubleshooting HVAC, and changing locks. He scheduled employees, ordered supplies, and coordinated after-hours usage of the building. In reality, he was a working supervisor who helped perform necessary repairs. The high school expanded to 240,000 square feet in 1993, doubling its size. This resulted in increased walking by Mr. Mitchell as well as more building activity. He used hand and power tools on this job.
Provder classified the Head Custodian job as Light to Heavy Work.
In his interview with Provder, plaintiff gave the following as his then-current physical capacity:
able to sit two hours and then has to stretch, able to stand 20 to 30 minutes, walk 30 minutes, able to climb two flight [sic] of stairs, able to lift 100 pounds, and can carry 20 pounds, and able to use both hands to grasp and manipulate objects. The dominant hand is the right. He is able to bend, and can kneel on one knee. He is unable to squat.
Based upon Provder's overall assessment of the plaintiff, he determined that from November 9, 1993 to October 15, 1994, plaintiff was unable to perform his job as Head Custodian. Regarding the period after October 15, Provder wrote: "After being fitted for his new prosthesis in 10/15/94, it is my expert opinion that Mr. Mitchell was capable of performing the job duties as a Head Custodian."
In his deposition, Provder reiterated his conclusion that by October 15, 1994 plaintiff could perform his Head Custodian position. This conclusion was based on Provder's understanding that plaintiff's job as Head Custodian consisted mostly of standing and walking and was as plaintiff had described it to Provder. Provder further testified that he felt that after plaintiff had received his new prosthesis in October 1994, plaintiff could meet the physical demands of light work, which required standing and walking for at least six hours of an eight hour workday.
DISCRIMINATION UNDER THE ADA
In March 1996, plaintiff commenced this action, alleging that the District violated the ADA by failing to provide him with "reasonable accommodation" in light of his disability. A claim for disability under the ADA requires plaintiff to first establish a prima facie case, showing: (1) that he is handicapped under the disability acts; (2) that he is otherwise qualified to perform the job in question; and (3) that he was discharged because of his disability. Wernick, 91 F.3d at 383 (citing Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994). In order to show that he is handicapped, plaintiff must prove (1) that he has a physical or mental impairment; and (2) that his impairment substantially limits one or more of his major life activities. Id. In order to show that he is "otherwise qualified" for the job in question, plaintiff must be able to "perform the essential functions of that job, either with or without a reasonable accommodation." Borkowski v. Valley Central School District, 63 F.3d 131, 135 (2d Cir. 1995).
Under the Social Security Act, a claimant is disabled if he has an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A claimant is entitled to disability benefits:
only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A). If the claimant can show that his impairment meets or equals a listed impairment that the SSA has determined is "severe enough to prevent a person from doing any gainful activity," the claimant is considered per se disabled. 20 C.F.R. §§ 404.1520(d) and 404.1525(a); Knipe v. Heckler, 755 F.2d 141, 146 (10th Cir. 1985). One of the listed impairments is "inability to use a prosthesis effectively," the impairment that Judge Dorsey found applied to plaintiff here. Unlike the ADA, the Social Security Act does not address the effect of reasonable accommodation on the individual's claim. Likewise, New York Workers' Compensation Law makes no provision for reasonable accommodation in determining the level of disability or whether an individual is disabled.
APPLICATION OF JUDICIAL ESTOPPEL
In this case, defendant challenges plaintiff's contentions that under the ADA he is "otherwise qualified" to perform the essential functions of the head custodian position. Defendant argues that plaintiff should be judicially estopped to assert this contention in light of the contradictory positions he took in prior proceedings before the Workers' Compensation Board and Social Security Administration.
Judicial estoppel, which is intended to "protect judicial integrity by avoiding the risk of inconsistent results in two proceedings," prevents a party in a judicial proceeding from taking a position contrary to one taken by the same party in a prior judicial, quasi-judicial, or administrative proceeding. Simon v. Safelite Glass Corp., 128 F.3d 68, 71 (2d Cir. 1997) (citing Bates v. Long Island R.R. Co., 997 F.2d 1028, 1037-38 (2d Cir. 1993)). The doctrine applies if the prior tribunal has accepted the claim at issue in a decision favorable to the claimant and when there has been a true inconsistency between the statements in the two proceedings. 128 F.3d at 72-73.
Our Court of Appeals has not addressed the precise issue presented by defendant, although it recently addressed a related question. Simon v. Safelite Glass Corp., supra, held that a litigant who claimed that he could not see for the purposes of claiming Social Security benefits was judicially estopped from later claiming under the Age Discrimination in Employment Act ("ADEA") that he was not fully disabled, but was in fact qualified to hold his previous job. Id. at 73-74. While the Simon court noted that a plaintiff seeking recovery under the ADEA had to show that he "was qualified to perform the duties required by the position" in question, the court did not address the possibility of "reasonable accommodation." Id. at 69. The court further "left for another day" whether judicial estoppel should per se bar a person from bringing suit under the ADA based on statements made in applying for Social Security benefits. Id. at 74.
Other courts have, however, addressed the question. A minority of courts, including the Third Circuit, have adopted a per se rule, holding that a plaintiff who asserts that he is totally disabled for the purpose of obtaining Social Security benefits is judicially estopped from asserting in a later claim under the ADA that he can perform the essential functions of his job with reasonable accommodation.
Other courts, however, including two in this District, have adopted a more measured response, and decline to impose a per se rule. These cases, for the most part, rely on the material differences between the SSA and the ADA in defining "disability," and have held that a "total disability" for purposes of Social Security benefits does not automatically preclude a claim that an individual is a "qualified individual with a disability" under the ADA. All of the cases in the latter category, however, give some weight to a party's prior representations.
Two courts in this District have thus far considered the relevance of prior representations in subsequent ADA proceedings. See Mohamed v. Marriott International, Inc., 944 F. Supp. 277 (S.D.N.Y. 1996); Marvello v. Chemical Bank, 923 F. Supp. 487 (S.D.N.Y. 1996). While not ruling out the possibility of judicial estoppel, both courts held that on the facts of the case in question, judicial estoppel was not warranted.
Following the majority view, I decline to apply a per se rule of judicial estoppel in this case. However, on its facts, I find that this case is one to which judicial estoppel should apply.
In this case, plaintiff, while represented by counsel, and his treating physician have made a number of sworn representations regarding plaintiff's condition to the SSA and the Workers' Compensation Board, both in writing and in administrative hearings. On forms during these proceedings, plaintiff stated: (1) "I [am] unable to work because of my disabling condition;" (2) "I am totally disabled and unable to engage in any type of gainful employment due to being on my feet for long periods of time which resulted in a cyst;" (3) "I am totally disabled and unable to engage in gainful employment due to being an amputee, my right leg from the knee down. This disability enables me [sic] from any type of prolonged standing or ambulation." While testifying in the July 1995 Social Security hearing, plaintiff stated that he could stand for about five minutes at one time. In response to Judge Dorsey's question as to why he was unable to work, plaintiff stated: "I'm not sure I can get anything where I could just sit for the entire time I'd be working."
Plaintiff's treating physician, Dr. Kulak, supported plaintiff's claims of disability.
In an evaluation of plaintiff's condition based on a previous examination of March 1, 1994, Dr. Kulak stated that plaintiff could not lift and carry more than fifteen pounds, could stand and/or walk up to six hours per day, could sit without limitation, and could push and pull only with his upper extremities. Before the July 6, 1995 hearing before Judge Dorsey, Dr. Kulak wrote that plaintiff "cannot stand beyond short period of time." He added that plaintiff could not work five days a week full-time, seated for at least six hours in an eight hour day frequently lifting up to five pounds and occasionally lifting ten pounds because the plaintiff "must be seated while working--all the time." He further added that plaintiff could not work five days a week, seated for six hour in an eight hour day, frequently lifting ten pounds and occasionally lifting twenty pounds because plaintiff "cannot stand for 2 hours." As of June 29, 1995, Dr. Kulak did not feel that plaintiff could stand at work.
Plaintiff's representations, including those in the July 1995 Social Security hearing that he needed a job in which he could sit all the time, are directly contrary to his subsequent deposition testimony, in which he stated that by December 1994 he could be on his feet for about four hours a day using his prosthesis, that his condition subsequently improved, and that by June 1995 he thought that he could work on his feet up to five hours a day. His deposition testimony also contradicts his physician's testimony, which stated, in no uncertain terms, that as late as June 29, 1995, plaintiff could not stand at work.
The preconditions for the application of judicial estoppel are present in this case. Under penalty of perjury, plaintiff and his treating physician made both written and oral statements in administrative proceedings before the SSA and the Workers' Compensation Board. Such statements were relied upon in decisions finding that plaintiff suffered from a disability and granting Workers' Compensation and Social Security benefits. In his decision on Social Security benefits, for example, Judge Dorsey specifically noted: "The claimant's testimony is credible and supported by the evidence regarding the impairments alleged." Yet the statements of plaintiff and Dr. Kulak that plaintiff was unable to walk and unable to work except in a sitting position are directly contrary to plaintiff's claims in this proceeding, including those through Edmund Provder, plaintiff's vocational expert, that plaintiff could stand or walk on his prosthesis. Based on the evidence presented by plaintiff and his treating physician, Dr. Kulak,
I find that plaintiff is estopped from denying that he was capable of doing work in other a sedentary position.
This estoppel extends to Provder's report and testimony as well, as his representations in his deposition and expert report on behalf of plaintiff are flatly contradicted by numerous representations of plaintiff and plaintiff's treating physician. Since the judicial estoppel doctrine applies to inconsistent positions by a party, the doctrine also clearly applies to inconsistent positions taken by Provder on behalf of the plaintiff--especially where, as here, these inconsistences suddenly blossom in opposition to a summary judgment motion. See Simon v. Safelite Glass Corp., 128 F.3d 68 (2d Cir. 1997).
"REASONABLE ACCOMMODATION" UNDER THE ADA
The question now becomes whether a possible restructuring of his job to sedentary, or "more sedentary" duties, would allow plaintiff to "perform the essential functions of [the Head Custodian] job, either with or without a reasonable accommodation."
An employer is not required to eliminate essential functions from a job in order to accommodate an individual with a disability. Borkowski, 63 F.3d at 140. Thus, this Court must determine what constitutes the "essential functions" of the Head Custodian job, and whether the District could restructure the position to "more sedentary" duties without stripping the position of its essential functions.
While the ADA itself does not define the term "essential functions," the regulations promulgated by the Equal Employment Opportunity Commission (EEOC) implementing the ADA provide as follows:
(n) Essential functions--
(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position.