Harrison v. Labor and Industry Review Com'n, 93-3279

• Decision Date: 14 September 1994
• Docket Number: No. 93-3279,93-3279
• Citation: 523 N.W.2d 138,187 Wis.2d 491
• Parties: , 6 NDLR P 21 George HARRISON, Petitioner-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Co-Appellant. FRIENDS PROFESSIONAL STATIONERY, INC., Petitioner-Appellant, d v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.
• Court: Wisconsin Court of Appeals

Page 138

523 N.W.2d 138

187 Wis.2d 491, 6 NDLR P 21

George HARRISON, Petitioner-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Co-Appellant.

FRIENDS PROFESSIONAL STATIONERY, INC., Petitioner-Appellant, d v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.

No. 93-3279.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 16, 1994.

Opinion Released Sept. 14, 1994.

Opinion Filed Sept. 14, 1994.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

BROWN, Judge.

The central issue is whether sworn statements made by George Harrison relating to an age discrimination claim under state law were contrary to his sworn averments and testimony before a federal administrative law judge (ALJ) determining his qualifications for social security disability (SSI). A state ALJ ruled that the statements in the two proceedings were contrary to each other and used the principles of judicial estoppel to deny Harrison's claim; LIRC agreed. We affirm the trial court's rejection of LIRC's rationale because LIRC has not yet persuaded us that the factual context of the two statements is the same.

Harrison worked for Friends Professional Stationery Division of Paper Box and Specialty Company as a printer/pressman operator from 1979 until November 1986. He had back surgery for removal of a disc in 1981. The surgery left him unable to perform all of the lifting and bending involved in the printer/press operator job. He was able to continue working, however, because his coworkers assisted him with the lifting and bending.

Paper Box terminated all of the employees in the Friends Professional Stationery Division in November 1986 and sold the division to Harrison's supervisor, to be operated as an independent company named Friends Professional Stationery, Inc. Prior to Harrison's termination, the supervisor asked Harrison how old he was and how long he intended to keep working. Harrison was sixty years old at the time of his termination. Friends hired most of the employees terminated by Paper Box, but did not hire Harrison.

On December 16, 1986, Harrison applied for SSI. He certified in his application that he had a disabling back condition which made him unable to work beginning on November 21, 1986. At the SSI hearing on December 7, 1987, Harrison testified that he was able to work in the past as a printer/press operator because coworkers assisted him, but doubted that he was now physically able to set up or load a large press. A vocational expert testified that Harrison could still do light work, although he could not perform his past job. "Light work" is defined under federal regulations as being able to lift no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. The federal ALJ found that while Harrison's disability prevented him from performing his past job, he could still perform light work and, therefore, was not entitled to disability benefits.

Nearly simultaneous to his filing of the SSI claim, Harrison also filed age and handicap discrimination claims against Friends in a state action under the Wisconsin Fair Employment Act (WFEA). A finding was made that there was probable cause to show age discrimination, but no probable cause to show handicap discrimination. A state ALJ then heard the age discrimination claim on September 17 and October 12, 1990, nearly three years after Harrison's SSI hearing. To show age discrimination, Harrison had to prove that he was capable of performing the job and did so testify. Harrison also testified, however, that he had not sought to mitigate his damages by pursuing other available work because of a disabling back condition. Friends voiced concern about an inconsistency in Harrison's testimony, that he was capable of working at one point in his testimony, but that he had a disabling back condition at another point in his testimony. The ALJ adjourned the hearing so that Friends could take Harrison's deposition and discover the facts relating to the inconsistency. At the deposition, Friends found out about the SSI hearing for the first time. Subsequently, Friends moved to dismiss based on what it believed to be the inconsistency of Harrison's statements to the state ALJ that he was capable of working and his statements to the federal ALJ that he was incapable of working.

The state ALJ held that Harrison's sworn statements in the federal proceeding were factually contrary to his statements in the state proceeding and that Harrison was successful in convincing the federal ALJ that he was incapable of performing the job he had as a printer/press operator. The state ALJ concluded that Harrison was therefore judicially estopped from asserting a contrary position in the state proceeding. LIRC affirmed. The circuit court reversed. It held, inter alia, that the positions taken by Harrison in his age discrimination case were "arguably not totally inconsistent with the position taken during the social security proceedings." Both LIRC and Friends have appealed.

Determining the elements and considerations involved before invoking the doctrine of judicial estoppel are questions of law which we decide independently and without deference to the commission. Cf. Schaeffer v. State Personnel Comm'n, 150 Wis.2d 132, 138, 441 N.W.2d 292, 295 (Ct.App.1989) (whether the elements of res judicata are satisfied is a question of law reviewed de novo). Once these are determined, it is the prerogative of the courts or, in this case, the commission to invoke judicial estoppel in its discretion. See State v. Fleming, 181 Wis.2d 546, 558, 510 N.W.2d 837, 841 (Ct.App.1993).

Judicial estoppel is a comparatively new name for the old doctrine of "estoppel in pais." Levinson v. United States, 969 F.2d 260, 264 (7th Cir.), cert. denied, 506 U.S. 989, 113 S.Ct. 505, 121 L.Ed.2d 441 (1992). The first Wisconsin case using the new term appeared in 1987. See, e.g., State v. Michels, 141 Wis.2d 81, 98, 414 N.W.2d 311, 317 (Ct.App.1987). It has been used with increasing regularity since that time, mostly in criminal appeals where the defendant asserts one position at trial and a contrary position on appeal. See, e.g., State v. Washington, 142 Wis.2d 630, 635, 419 N.W.2d 275, 277 (Ct.App.1987). More than thirty cases, published and unpublished, have used the term since Michels.

The focus of judicial estoppel is to insure the integrity of the courts. Fleming, 181 Wis.2d at 557, 510 N.W.2d at 841. It is intended "to protect against a litigant playing 'fast and loose' with the courts' [sic] by asserting inconsistent positions." Id. (quoted source omitted). The rule looks toward cold manipulation and not unthinking or confused blunder. Id. at 558, 510 N.W.2d at 841.

The Seventh Circuit Court of Appeals has stated that although the doctrine is not reducible to a pat formula, there are certain identifiable boundaries. Levinson, 969 F.2d at 264. They are: first, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position--a litigant is not forever bound to a losing argument. Id. at 264-65.

Obviously, instances where a defendant in a criminal case reverses positions on appeal most often fit these parameters since the facts are the same and it is easier to discern whether the positions are clearly inconsistent. This does not necessarily foreclose the use of...