Simon v. Safelite Glass Corp.

• Decision Date: 14 October 1997
• Docket Number: D,No. 1769,1769
• Citation: 128 F.3d 68
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 147, 73 Empl. Prac. Dec. P 45,344 Matthew SIMON, Plaintiff-Appellant, v. SAFELITE GLASS CORPORATION, Defendant-Appellee. ocket 96-9558.
• Court: U.S. Court of Appeals — Second Circuit

Page 68

128 F.3d 68

75 Fair Empl.Prac.Cas. (BNA) 147,

73 Empl. Prac. Dec. P 45,344

Matthew SIMON, Plaintiff-Appellant, v. SAFELITE GLASS CORPORATION, Defendant-Appellee.

No. 1769, Docket 96-9558.

United States Court of Appeals Second Circuit.

Argued June 10, 1997.

Decided Oct. 14, 1997.

Joel Field, New York City, for Plaintiff-Appellant.

Peter D. Stergios, New York City (Michelle Lewis Ramirez, Epstein, Becker & Green, on the brief), for Defendant-Appellee.

Before: OAKES and PARKER, Circuit Judges, and NICKERSON, District Judge. ^*

NICKERSON, District Judge:

Plaintiff Matthew Simon appeals from a judgment of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, dismissing plaintiff's complaint alleging that defendant Safelite Glass Corp. (Safelite) discriminated against him because of his age in violation of the Age Discrimination in Employment Act (the Age Discrimination Act), 29 U.S.C. § 626(c)(1), and the New York State Human Rights Law, N.Y. Exec. Law § 290.

The complaint, filed April 20, 1994, alleged that Safelite terminated and refused to rehire plaintiff because of his age although he had satisfactorily performed his duties, and hired younger persons for positions that plaintiff was "fully qualified" to fill.

On January 15, 1996, Safelite moved for summary judgment urging that plaintiff could not establish a prima facie case of age discrimination. Judge Jack B. Weinstein, then presiding over the case, denied the motion without opinion. The case was reassigned to Judge I. Leo Glasser, and trial was scheduled to commence on February 12, 1996.

On that day Safelite told Judge Glasser that it had just been informed that on February 14, 1994, two months before filing the complaint, plaintiff applied for Social Security disability benefits, which were awarded three days later. Plaintiff remained silent about this information for almost two years, only disclosing these facts to Safelite a few days before trial was to begin. Judge Glasser directed the parties to conduct further discovery and granted Safelite leave to renew the motion for summary judgment.

On October 28, 1996 Judge Glasser granted Safelite's motion for summary judgment, declaring that plaintiff was "the paradigmatic judicial estoppel plaintiff." 943 F.Supp. 261, 264 (E.D.N.Y.1996). He ruled that plaintiff's representations in his application for Social Security disability benefits that he was "disabled" and "became unable to work" because of "his disabling condition" estopped him from claiming under the Age Discrimination Act he was not disabled, but fully qualified to hold his previous job. Id.

I

In order to prevail in an action under the Age Discrimination Act plaintiff is required to show, among other things, that he "was qualified to perform the duties required by the position" in question. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 508 (2d Cir.1994) (quoting Levin v. Analysis & Tech., Inc., 960 F.2d 314, 316 (2d Cir.1992)).

The Social Security Act provides, in relevant part, that a person shall be deemed to suffer from a disability only if his impairments are so severe that "he is not only unable to do his previous work," but also "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).

The regulations issued under the Social Security Act spell out the steps those administering the Act are to take in evaluating whether a person is "disabled." Section 404.1520 of 20 C.F.R. provides, in pertinent part, the following: To be disabled the person must not be engaged in substantial gainful activity and must have a severe impairment; if the impairment is medically so severe as to meet or equal an impairment "listed" in the regulations, the person will be found disabled without consideration of his work experience; but if the impairment does not meet or equal one listed, the person will be found not disabled unless it prevents him from doing the work he has "done in the past." As Section 404.1520(e) puts it, "If you can still do this kind of work, we will find that you are not disabled."

In his signed application of February 14, 1994 for disability payments, plaintiff stated that "I became unable to work because of my disabling condition on March 31, 1993," that "I am still disabled," and that "I agree to notify" the Social Security Administration if "my medical condition improves so that I would be able to work" or if "I go to work whether as an employee or a self-employed person."

The final paragraph of the application reads: "I know that anyone who makes or causes to be made a false statement or representation of material fact in an application or for use in determining a right to payment under the Social Security Act commits a crime punishable under federal law by fine, imprisonment or both. I affirm that all information I have given in connection with the claim is true."

On April 23, 1994, three days after the complaint was filed in court, the Social Security Administration notified plaintiff that it had found, "based on information you gave us," that he "became disabled" on March 31, 1993, and would receive around April 28, 1994 a lump sum payment of $5,230 for back benefits and thereafter $757 each month. Plaintiff has been receiving benefits ever since and has never reported to the Social Security Administration that he was able to do his prior work or any other work, despite the fact that after starting to receive disability benefits he did obtain occasional employment.

The question for decision is whether plaintiff, having received Social Security benefits based on representations under penalties of perjury that he had become "unable to work because of my disabling condition," may now claim that he was and is able to do this prior work.

II

Plaintiff's Social Security file shows the following.

On February 14, 1994, he was given a form to fill out headed "Disability Report." Plaintiff wrote his name and social security number and recorded his job as "auto glass installer." In the box headed "What is your disabling condition? (Briefly explain the injury or illness that stops you from working)," plaintiff wrote "can't see."

The balance of the Disability Report is, as plaintiff concedes, in the handwriting of the person who interviewed him for the Social Security Administration. After plaintiff's statement "can't see," the interviewer wrote "both eyes (right eye more severe)." In the part headed "for SSA Use Only" she indicated that plaintiff had problems seeing and hearing. In the box headed "Describe the exact difficulty involved" she wrote: "Problems with vision and hearing were evident. Claimant held forms close to his eyes to read before signing. When questions were asked, Mr. Simon leaned forward to hear. Interviewer made sure questions were asked loud enough to hear."

Plaintiff's answers to the questions on the Disability Report as they were recorded by the interviewer showed that his "condition" first bothered him in mid-1992, that he continued to work after that date, and that his "condition" caused him to change the circumstances of his work. In explaining the "changes," the interviewer recorded his answer as: "I had to wear my eye bandaged for a while (results of injury-glass in my eye). I stayed out on sick leave at times--was finally laid off--reduction in force."

In answer to the question "When did your condition finally make you stop working?," plaintiff's recorded response was "March 31, 1993." Box 3B directs "Explain how your condition now keeps you from working." Plaintiff's response, as recorded, was: "I was laid off in 3/93 but I have not been able to do any additional work because my vision is getting worse. I have a blurriness--not painful but is annoying. I cannot see to do any detail work."

A section of the Disability Report asks for information "about the work you did." Plaintiff's pertinent recorded answers state that his job title was auto glass installer in the automobile business; that he used machines, tools or equipment; and that he wrote, completed reports, or performed similar duties. In describing his basic duties as an auto glass installer he stated: "I disassembled the doors, wipers etc. and cleaned out old glass. Carefully prepared car for new glass making sure not to scratch car. I made out bills to customer occasionally. I help new employees learn the job." Simon also stated that he "[p]reviously did some locksmith work but color coding requirements became impossible with [his] vision loss."

In a section of the Disability Report requesting "any additional information that you think will be helpful in making a decision in your disability claim," plaintiff's recorded statement was: "I was told by Dr. Fromer, I could expect no improvement because of my age--there is no treatment to change the reduction in vision. I am also having a hearing problem--my hearing has also deteriorated recently. I have not been tested."

On February 14, 1994, the day that the Disability Report was completed, plaintiff also signed the application for disability benefits, referred to above, swearing that he "became unable to work because of my disabling condition" on March 31, 1993 and was "still disabled," and that he agreed to notify the Social Security Administration if his "medical condition improves so that I would be able to work."

On March 25, 1994 plaintiff was referred to Dr. S. Doro for a consultant's eye examination. The doctor reported that the plaintiff had "peripapillary atrophy in both eyes" and "high myopic chorioretinal changes in both." The doctor concluded that (1) plaintiff had "high myopia and myopic chorioretinal degeneration," and (2) "S/P retinal artery occlusion of the right eye." Plaintiff's visual acuity without glasses in the right eye was 20/400 and in the left 20/70. His visual acuity "best...