Alan Schorrs Employment Case of The Week ending August 23, 2013
Smith v. Clark County School Dist., F.3d , 2013 WL 4437599 (9th Cir.(Nev.) August 21, 2013)
This week, in Smith v. Clark County School Dist., the Ninth Circuit affirmed that an ADA plaintiff is not necessarily precluded from bringing a discrimination action for failure to provide reasonable accommodation, even though she filed for Social Security Disability Insurance claiming to be disabled and unable to work.
Jacqlyn Smith was an elementary school teacher in the Clark County School District from 1992-2008. In 2001, she suffered a back injury that limited her mobility and she pursued a less physically demanding job as a literary specialist. She remained in that position, with positive reviews, through 2008. In March 2008, her principal advised her that the following school year, she would be reassigned to teach kindergarten. She could not perform the standing, bending, [and] stooping required to be an effective kindergarten or elementary school teacher. Shortly after this meeting, Smith aggravated her back while sorting boxes at work, and she was unable to work as a literary specialist for the rest of the school year.
Ms. Smith applied for FMLA claiming to be presently incapacitated and out of work indefinitely. In August 2008, she applied for a disability retirement under Nevadas Public Employee Retirement System on the basis that she could no longer perform her duties as a public school teacher. She continued to demand that Clark County permit her to remain in her position as a reasonable accommodation, but the District refused to accommodate her. She was approved for total disability in October 2008. Unable to agree with the District, she resigned her position, and shortly thereafter filed suit against the school district for failing to provide a reasonable accommodation.
The employer filed for summary judgment, which was first denied, but was granted upon reconsideration on the basis that she had not explained the inconsistencies and that the action was irreconcilable with her PERS disability retirement. The Ninth Circuit reversed. The panel ruled that the District Court failed to follow the law as established by Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999). In that case, the U.S. Supreme Court held that filing for total disability does not necessarily preclude a disability claim under the ADA because there are often different standards and definitions of disabled. The Court found that this could explain the apparent inconsistencies between claiming to an insurance company or Social Security that the employee is disabled from his or her job, when it may be the case the employee could work with an accommodation, but the employers refusal to accommodate is the reason that the employee cannot perform the job. Here, the panel concluded that Smith gave sufficient explanations for the inconsistencies between her ADA claim and her PERS and FMLA applications to survive summary judgment. Smith explained that her FMLA applications requested temporary disability leave and were not an admission of permanent inability to work. Although brief, this explanation is sufficient to warrant a reasonable juror to conclude that Smith could perform the essential functions of either a classroom teacher or a reassigned position with or without reasonable accommodation.
The Third Circuit has followed the Cleveland case and has used that case to analyze these situations. See, e.g. Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. (N.J.)1999). The Motley Court held that, since the New Jersey Law Against Discrimination offered even broader protection than the ADA, that if an employee can survive summary judgment under the ADA even though the employee had filed for disability, then the employee would certainly survive under the NJLAD. The New Jersey Courts have only addressed the issue a couple of times with mixed results. Ramer v. New Jersey Transit Bus Operations, Inc., 335 N.J.Super. 304 (N.J. Super. 2000) (judicial estoppel did not apply to private disability insurance application because it was not a governmental agency), but see Winters v. Sharp Electronics Corp., 2008 WL 680732 (N.J. App. Div. 2008) (unpublished) (statements made in disability application demonstrated that she was not actually able to work on a consistent basis).
The bottom line here is that many employees who are denied reasonable accommodations face this incredibly gut-wrenching dilemma of being involuntarily unemployed only because of the employers refusal to accommodate. Often there is no reasonable choice but to apply for disability benefits. These cases recognize this Hobsons choice and do not automatically assume that the application for disability benefits precludes a finding that the employee could have worked but for the employers violation of the law. Of course, this also helps a successful plaintiff establish lost wages, even if they and the government have declared them to be permanently disabled.
Plaintiffs Counsel: Michael P. Balaban.
Defendants Counsel: S. Scott Greenberg, Office of General Counsel.
Circuit Panel: William A. Fletcher, Ronald M. Gould, and Morgan Christen, Circuit Judges (Judge Gould on the opinion).
District Court Judge: Roger L. Hunt, Senior District Judge.