Fredenburg v. Contra Costa County Dept. of Health Services

• Decision Date: 19 April 1999
• Docket Number: No. 97-15885,97-15885
• Parties: 9 A.D. Cases 385, 15 NDLR P 72, 99 Cal. Daily Op. Serv. 2806, 1999 Daily Journal D.A.R. 3639 January FREDENBURG, Plaintiff-Appellant, v. CONTRA COSTA COUNTY DEPARTMENT OF HEALTH SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1176

172 F.3d 1176

9 A.D. Cases 385, 15 NDLR P 72, 99

Cal. Daily Op. Serv. 2806,

1999 Daily Journal D.A.R. 3639

January FREDENBURG, Plaintiff-Appellant, v. CONTRA COSTA COUNTY DEPARTMENT OF HEALTH SERVICES, Defendant-Appellee.

No. 97-15885.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 10, 1998.

Decided April 19, 1999.

Darryl Parker, Fairfield, California, for the plaintiff-appellant.

Bernard Knapp, Deputy County Counsel, Martinez, California, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-96-03136-VRW.

Before: CANBY and KOZINSKI, Circuit Judges, and WEINER, ¹ District Judge.

Opinion by Judge CANBY; Concurrence by Judge WEINER; Dissent by Judge KOZINSKI.

CANBY, Circuit Judge:

The question before us is whether plaintiff-appellant January Fredenburg is judicially estopped from establishing a claim against her former employer under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Fredenburg had applied for and received state temporary disability insurance benefits available to workers who, because of a physical or mental condition, are "unable to perform [their] regular or customary work." Cal. Unemp. Ins. Code §§ 2601, 2626, 2653. The district court held that this fact judicially estopped Fredenburg from establishing that she is a "qualified individual with a disability" under § 12112(a) of the ADA. We conclude that Fredenburg is not judicially estopped, and we accordingly reverse the judgment of the district court.

I

Until 1995, Fredenburg worked as a Mental Health Treatment Specialist II for the Contra Costa County Department of Health Services ("Health Services"). After several on-the-job difficulties with co-workers, Health Services asked Fredenburg to submit to a fitness-for-duty examination, as authorized by the applicable collective bargaining agreement. A psychiatrist and a clinical psychologist diagnosed Fredenburg as suffering from paranoia and recommended that she take a leave of absence and pursue therapy. Health Services placed Fredenburg on administrative leave with pay for two weeks, and thereafter on indefinite leave without pay. Fredenburg appealed to the County Merit Board, claiming that she was fit for work. The Board denied her appeal. Meanwhile, Fredenburg applied for and received disability benefits from the State of California, which provides temporary benefits up to one year for workers who, because of a physical or mental condition, are "unable to perform [their] regular or customary work." Cal. Unemp. Ins. Code §§ 2601, 2626, 2653. She received benefits from November 1995 to May 1996. The benefits were terminated on May 12, 1996, after a state psychiatrist found her capable of returning to work. Fredenburg attempted to have the benefits continued, certifying on May 22, 1996 that she was still disabled and incapable of doing her regular work, but she was unsuccessful.

The following month, Fredenburg sought to return to work, and Health Services asked her to undergo another fitness-for-duty examination. Fredenburg refused, contending that the examination was overbroad in scope and invaded her privacy. Health Services did not allow Fredenburg to return to work. Fredenburg then commenced this action.

Fredenburg stated two ADA claims: (1) that Health Services unlawfully discriminated against her by removing her from work and refusing to permit her to return; and (2) that Health Services' fitness-for-duty examination exceeded ADA's permitted boundaries for medical examinations. Fredenburg also alleged a number of state law claims.

The district court granted summary judgment for Health Services on the ADA claims. With regard to the first claim, the court held that Fredenburg's representations to the state benefits agency that she was unable to do her regular work judicially estopped her from asserting in this action that she was a "qualified individual" under the ADA, § 12112(a). The district court then held that this conclusion was also fatal to Fredenburg's second ADA claim, because she had to be a "qualified individual" in order to maintain a claim for an improper medical examination requirement. After ruling for Health Services on the ADA claims, the district court elected not to exercise supplemental jurisdiction over the state-law claims, and dismissed them without prejudice.

II

In order successfully to pursue her claim of disability discrimination, Fredenburg first must show that she is a "qualified individual with a disability." 42 U.S.C. § 12112(a); Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir.1996). ² To be "qualified," Fredenburg must be able to perform all the essential functions of her job, either with or without a reasonable accommodation for any disability. See 42 U.S.C. § 12111(8). Health Services argues that Fredenburg cannot perform her job because of her mental health problems. In support, Health Services points to the many documented examples of Fredenburg's on-the-job troubles and the physicians' opinions concluding that she suffers from paranoia. Fredenburg, however, offers the declaration of her own psychologist who opined that Fredenburg was able to return to work, but would benefit from a transfer to a less stressful work environment. Fredenburg also points to the opinion of the physician who examined her for purposes of determining her eligibility for disability benefits, and who expressed the view that Fredenburg suffered a "major depressive episode" but would be ready to return to work after a month's rest.

The conflicting opinions about Fredenburg's ability to work create a genuine dispute as to whether Fredenburg could do her job. It is true that Health Services presents substantial evidence that she could not. It is also true that Health's statements that she could do the job, when viewed in the light of her statements to the state benefits agency that she was still disabled, might be insufficient of themselves to forestall summary judgment. See Kennedy, 90 F.3d at 1481. Unlike the plaintiff in Kennedy, however, Fredenburg supported her statements with the opinions of two physicians. Considering all of the evidence, a reasonable trier of fact could find that Fredenburg can perform all of the essential functions of her job. On the factual issue presented, therefore, summary judgment was improper.

The district court, however, held that Fredenburg was bound by her representations to the state Employment Development Department that she was disabled and incapable of doing her regular work. In the district court's view, these representations contradicted her claim in these proceedings that she is a qualified individual. The court therefore invoked the doctrine of judicial estoppel, which precludes litigants from asserting inconsistent positions in different forums. ³ For several reasons, we conclude that this application of judicial estoppel is inappropriate.

Judicial estoppel has been controversial in ADA cases. Several district courts have ruled that an application for state or federal disability benefits acts as a per se bar to an ADA claim. We rejected this position in Johnson v. Oregon, 141 F.3d 1361 (9th Cir.1998). We pointed out that "[i]t is possible, due to the different definitions of disability employed by various agencies, to qualify for disability benefits and to satisfy the ADA's definition of a qualified person with a disability." Id. at 1366; see also Lujan v. Pacific Maritime Ass'n, 165 F.3d 738, 740 (9th Cir.1999). We therefore rejected a per se rule, but we went farther than that. Although we acknowledged that estoppel might be appropriate when the inconsistency of statements and positions was so blatant as to "demonstrate that a claimant is playing fast and loose with the courts," our clear preference was that inconsistent statements simply be considered along with other evidence to see whether they were so damaging that no rational trier of fact could rule in the plaintiff's favor.

We emphasize that in general, the use of a plaintiff's prior representations on disability benefits as evidence helpful in evaluating an ADA claim-the approach of Kennedy will suffice to protect the sanctity of the judicial process. "Straightforward summary judgment analysis, rather than theories of estoppel" will be appropriate in most cases. See Griffith [v. Wal-Mart Stores, Inc., 135 F.3d 376,] 382-83 [ (6th Cir.1998) ]. Judicial estoppel applies when a party's position is "tantamount to a knowing misrepresentation to or even fraud on the court." Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir.1996) (citations and internal quotations omitted).

Johnson, 141 F.3d at 1369.

Fredenburg was not playing fast and loose with, or committing fraud on, the court. Her case illustrates the problems faced by a worker in her position. Her employer concluded that she could not perform her job, and placed her on unpaid leave. She disagreed with her employer's determination and unsuccessfully challenged it. Then, without pay because of her asserted disability, she applied for temporary disability benefits and received them. What else was she to do? When those benefits were terminated because the state decided she was no longer disabled, she disagreed but was unsuccessful in challenging that determination. She then asked her employer to take her back, and the employer refused. So she brought suit under the ADA, claiming that she was able to perform her job. It is true that Fredenburg took inconsistent positions during this saga, but her employer and the state, considered together, were not treating her consistently either. She has not denied any of the representations she made; the court has not been misled. Johnson 's requisites for judicial estoppel are simply not met. ⁴

Fredenburg was also subject to different definitions of disability...