JOHNSON v STATE OF OREGON, 9636191
U.S. 9th Circuit Court of Appeals
JOHNSON v STATE OF OREGON
9636191
LESLIE ANN JOHNSON,Plaintiff-Appellant,No. 96-36191v.D.C. No.STATE OF OREGON; OREGONCV-95-06273-DHDEPARTMENT OF HUMAN RESOURCES,OPINIONRehabilitation Division,Defendants-Appellees.
Appeal from the United States District Courtfor the District of OregonDennis James Hubel, Magistrate Judge, PresidingArgued and SubmittedJanuary 8, 1998--Portland, OregonFiled April 20, 1998Before: Ruggero J. Aldisert,* Harry Pregerson, andStephen S. Trott, Circuit Judges.Opinion by Judge Trott
______________________COUNSEL Michael Duane Brown, Churchill, Leonard, Brown, Lodine &Hendrie, Salem, Oregon, for the plaintiff-appellant.Stephanie L. Striffler, Assistant Attorney General, Office ofAttorney General, Salem, Oregon, for the defendants-appellees.
_____________________________OPINION TROTT, Circuit Judge:This case requires us to determine (1) the conditions underwhich the doctrine of judicial estoppel precludes claims underthe Americans with Disabilities Act of 1990 (ADA), 1 when alitigant has sought or received benefits for a disability; and (2)whether on the facts of this case, the district court's use ofjudicial estoppel to bar Leslie Johnson's ADA claim was anabuse of discretion. The district court had jurisdiction overMs. Johnson's ADA claim pursuant to 28 U.S.C. S 1331. Thiscourt has jurisdiction pursuant to 28 U.S.C. S 1291.We hold that the pursuit or receipt per se of disability bene-fits does not bar ADA claims. In addition, we conclude thaton the facts of this case, invocation of judicial estoppel to barMs. Johnson's ADA claim was inappropriate. We reverse andremand.Background Ms. Johnson sued her employer, the State of Oregon Voca-tional Rehabilitation Division (VRD), claiming they had dis-criminated against her in violation of the ADA. Among otherthings, she sought reinstatement to her job with accommoda-tion for her disability. Prior to trial, the VRD filed a motionfor summary judgment based on judicial estoppel. The motionfailed because it was not accompanied by any supporting doc-umentation. During the trial, however, the magistrate judgeallowed the VRD to renew it. He granted the renewed motion,holding that the combined representations in Ms. Johnson'sapplication for disability benefits regarding her incapacity towork judicially estopped her from claiming she was a"qualified person with a disability" who could perform theessential functions of her position with reasonable accommo-dations pursuant to the ADA, 42 U.S.C. SS 12111(8) and12112(a). Ms. Johnson appealed.Standard of ReviewWe review the district court's grant of summary judgmentde novo. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9thCir. 1997). Federal law governs the application of judicialestoppel in federal courts. Rissetto v. Plumbers and Steamfit-ters Local, 94 F.3d 597, 603 (9th Cir. 1996). Whether a perse rule exists barring ADA claims after a claimant has appliedfor and received benefits is a question of law reviewed denovo. See Torres-Lopez v. May, 111 F.3d 633, 638 (9th Cir.1997). Because a court invokes judicial estoppel at its discre-tion, we review the application of judicial estoppel to the par-ticular facts of a case for abuse of discretion. United States v.Garcia, 37 F.3d 1359, 1366-67 (9th Cir. 1994).FactsLeslie Johnson has Carpal Tunnel Syndrome. Her conditionworsened while she worked for the VRD as an Office Special-ist. Ms. Johnson underwent five rounds of surgery for herCarpal Tunnel Syndrome between 1986 and 1994. After thelast round of surgery in 1994, her physician recommended anumber of accommodations to facilitate her return to work.Ms. Johnson had worked for the state of Oregon for over tenyears; she began working for the VRD in 1991.The VRD terminated Ms. Johnson's employment on Sep-tember 8, 1994, explaining that they believed her requestedaccommodations were unreasonable. Ms. Johnson filed aclaim under the ADA in September 1995, claiming she wasa qualified person with a disability who could perform theessential functions of her job if the VRD would make reason-able accommodations.The Trial After two and one-half days of trial before a jury, duringwhich Ms. Johnson presented her case, the magistrate judgeallowed the VRD to renew their earlier summary judgmentmotion. This unscheduled development was occasioned by theintroduction of evidence that Ms. Johnson had applied for dis-ability benefits from three separate sources after she was ter-minated. In the applications, she had represented that she wasdisabled.The Three Representations1. Social SecurityIn her application for Social Security benefits, which Ms.Johnson completed early in February 1995, Ms. Johnson filledin the blank space following the instruction "explain howyour condition now keeps you from working" as follows: 5 CTS surgeries[;] unable to use hands for repetitive hand movement, grasp, etc. pain and numbness in hands arms -- very painful ache lasting for hours/ days . . . sitting, standing, walking -- pain with[in] 5 minutes if wrong [illegible] . . . .Question 10 asks: "Has your doctor told you to cut back orlimit your activities in any way?" Ms. Johnson responded,reiterating the accommodations she had requested from theVRD before her termination. She wrote: no repetitive fine motor manipulations with any attendant grasping pulling or pushing utilizing hands. No being seated more than 15 minutes. No standing for more than 15 minutes, no bending, stooping or crouching - no lifting over 10-25 #. Limit stress . . . .Responding to Question 2C, Ms. Johnson explicitly indicatedshe had needed "accommodations" at work, including a"chair. . . no lifting . . . [and] low stress accommodations."Twice, she said that to work she needed accommodations.Based on Ms. Johnson's application, the Social SecurityAdministration (SSA) determined that, under its definition,Ms. Johnson was not disabled. The SSA therefore denied herbenefits.2. Disability InsuranceThe second representation involved Ms. Johnson's applica-tion for insurance benefits. Ms. Johnson had received short-term disability benefits from Standard Insurance Company(Standard) prior to her termination, during and after her sur-gery. In mid 1995, the benefits period for short-term disabilityexpired. Standard requires applicants to file a new form toreceive long-term disability payments.On the application for long-term disability benefits, Ms.Johnson verified that her medical condition prevented herfrom working as of December 16, 1995, the date she filled outthe form. To the form's statement: "I returned to work on:_______," she responded with the word "no. " She placed a ques-tion mark in the blank after the statement "I expect to returnto work on _______."On the rest of the form, Ms. Johnson's doctor was requiredto detail her disabilities. In response to the form's question:"When do you anticipate the patient can return to work," hewrote "permanent disability." The doctor described her abilityto use her hands as "severely limited." Nowhere did Ms.Johnson's doctor state that she was "totally disabled" orunable to perform any work.Standard deemed Ms. Johnson eligible for long-term dis-ability benefits and began payments on August 22, 1995. Inthe letter notifying Ms. Johnson of her continuing payments,now under long-term disability, Standard stated:"We havedetermined that you cannot perform with reasonable continu-ity the material duties of any occupation which you have theeducation, training and experience to perform."3. Letter to the IRS The third representation consisted of a handwritten letter tothe IRS in which Ms. Johnson explained why she had filedher 1992 tax return late. In the letter, Ms. Johnson wrote thatdue to her disabilities, she had not managed her affairs verywell, indicated a desire to assume responsibility for heraffairs, and described her disabilities. She wrote:"I was certi-fied as severely disabled by Vocational Rehab [VRD] . . . . Ihave been unable to work since May 25, 1993 due to mydisabilities."2The Magistrate Judge's RulingThe precise basis for the magistrate judge's oral ruling onjudicial estoppel is unclear. On the one hand, he appears tohave rejected the idea that a per se rule exists, automaticallybarring a litigant who has sought and received disability bene-fits from maintaining a suit under the ADA. The judge saidthat it is the precise representations made by a claimant abouther ability to work that control the application of the doctrineof judicial estoppel. In addition, in support of his opinion, hecited the representations Ms. Johnson made while seekingbenefits.On the other hand, however, some statements by the magis-trate judge belie his reliance on the specific representationsmade by Ms. Johnson as the basis for his decision. The judgemade observations regarding the state of the evidence thatsuggest he was applying a per se rule: while with the absence of judicial estoppel she may have raised a question of fact [regarding her ability with or without accommodation to perform the essential functions of her job], . . . we are simply, under the doctrine of judicial estoppel, not going to let people establish a contrary question of fact when they have made representations with the goal in mind of obtaining benefits based on their being totally disabled, which, indeed, this plaintiff has.(emphasis added). He explained that Ms. Johnson had faceda choice after her termination: she could either apply for dis-ability benefits or she could pursue an ADA claim: while I would agree with counsel['s] . . . description of the choice that faced plaintiff as a Hobson's choice . . . it is a tough choice, but it is nonetheless one that the plaintiff has made to seek those long- term disability benefits and to receive them.Addressing Ms. Johnson directly, he explained: I am simply not at liberty, with the authorities that bind my decisions here today, to allow you to seek recovery under the ADA now that you've made those representations [to disability benefits provid- ers], and therefore I must grant the State's motion and dismiss this case.In the end, the magistrate judge concluded that Ms. Johnsonwas estopped from claiming she was capable of performingthe essential functions of her job. Therefore, she could notestablish she was a qualified individual under the ADA pursu-ant to 42 U.S.C. SS 12111(8) and 12112(a).DiscussionI. Judicial Estoppel as a Per Se Rule[1] The magistrate judge's characterization of Ms. John-son's situation after the VRD fired her was incorrect. Thejudge described Ms. Johnson as facing a choice -- she couldeither apply for disability benefits or she could pursue anADA claim. She could not, according to the magistrate, doboth. We respectfully disagree.[2] It is possible, due to the different definitions of disabil-ity employed by various agencies, to qualify for disabilitybenefits and to satisfy the ADA's definition of a qualified per-son with a disability. The distinct purposes of the ADA,Social Security, and disability insurance inform the differentdefinitions of disability employed. Ms. Johnson's case pro-vides an illustration of the results of two different definitionsof disability: while Standard found she was disabled and enti-tled to long-term disability benefits, the SSA found she wasnot disabled and therefore not entitled to benefits.[3] The ADA requires a highly fact-specific analysis ofwhether a particular, disabled individual can perform a certainjob with (or without) reasonable accommodation. EEOCEnforcement Guidance, EEOC Notice No. 915.002, February12, 1997, II.A. This accords with the ADA's goals: to preventdiscrimination and further work opportunities for those withdisabilities. See 42 U.S.C. S 12101(b)(1) (stating the ADAprovides "a clear and comprehensive national mandate for theelimination of discrimination against individuals withdisabilities"); Swanks v. Washington Metro. Area TransitAuth., 116 F.3d 582, 584 (D.C. Cir. 1997) (discussing statute).[4] In contrast, the SSA, through a generalized assessment,determines whether an individual is disabled and unable towork. The Social Security Act entitles an individual to dis-ability benefits 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 . . . . For purposes of the preceding sentence . . . "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.42 U.S.C. SS 423(a), 423(d)(2)(A). The Social Security Actdoes not take into account an individual's ability to work withaccommodation. See Swanks, 116 F.3d at 585 (reviewing fed-eral regulations). Thus, where "a claimant had no accommo-dation in his or her past work, a Social SecurityAdministration determination that the claimant cannot do pastwork says nothing about the claimant's ability to perform hisor her former job with reasonable accommodation. " Id. Thishas led the SSA to conclude: "The ADA and the disabilityprovision of the Social Security Act have different purposes,and have no direct application to one another." Id. at 586(quoting Daniel L. Skoler, Assoc. Comm'r, Soc. Sec. Admin.,Disabilities Act Info. Mem. at 3 (June 2, 1993) (No. SG3P2)).[5] The Equal Employment Opportunity Commission(EEOC), the agency responsible for implementing the ADA,agrees with the SSA and extends its analysis to other benefitsprograms in addition to Social Security. A recent EEOCEnforcement Guidance explains: Because of the inherent differences in the definitions of the term "qualified individual with a disability" under the ADA and the terms used in . . . disability benefits programs . . . an individual can meet both the eligibility requirements for receipt of disability benefits and the definition of a "qualified individual with a disability" for ADA purposes. Thus a per- son's representations that s/he is "disabled" or "totally disabled" for purposes of disability benefits are not necessarily inconsistent with his/her repre- sentations that s/he is a "qualified individual with a disability." Accordingly, they should never be an automatic bar to an ADA claim.EEOC Enforcement Guidance, Notice No. 915.002, February12, 1997, II.A.[6] Because of the different definitions of disability underthe ADA and under the various policies of disability benefits-providers, an individual may be disabled -- and thereforeentitled to disability benefits so long as she is not working3 --and still be a qualified individual under the ADA because shecan work with reasonable accommodations, if her employerwill provide them. Thus, neither application for nor receipt ofdisability benefits automatically bars a claimant from estab-lishing that she is a qualified person with a disability underthe ADA.In so holding, we join the majority of circuits that haveruled on this issue. See Griffith v. Wal-Mart Stores, Inc., 1998WL 29870 at *6 (6th Cir. 1998) (citing Blanton v. Inco AlloysInt'l, Inc., 108 F.3d 104, as amended by 123 F.3d 916, 917(6th Cir. 1997)) ("statements made in an application forSocial Security disability benefits, while relevant, do notresult in judicial estoppel"); Talavera v. School Bd. of PalmBeach County, 129 F.3d 1214, 1220 (11th Cir. 1997) (holdingthat the district court abused its discretion by applying per serule of estoppel); Cleveland, 120 F.3d at 517-18 (5th Cir.1997) (declining to adopt per se rule and holding that applica-tion for or receipt of benefits creates a rebuttable presumptionthat a plaintiff is judicially estopped from claiming to be a"qualified individual with a disability"); Swanks, 116 F.3d at586 (D.C. Cir. 1997) ("the receipt of social security benefitsdoes not preclude ADA relief"); Weiler v. Household Fin.Corp., 101 F.3d 519, 524 (7th Cir. 1996) ("determinationsmade by the Social Security Administration concerning dis-ability are not dispositive findings for claims arising under theADA").4In a much-discussed and sometimes misinterpreted case,the Third Circuit upheld a district court's use of judicialestoppel to preclude a claimant's ADA claim. See McNemarv. The Disney Store, 91 F.3d 610, 619 (3d Cir. 1996); Krousev. American Sterilizer Co., 126 F.3d 494, 502 n.3 (3d Cir.1997) (reviewing criticism of McNemar). Based on the partic-ular facts and circumstances of that case, the court concludedthat McNemar was attempting to take a position in his ADAlawsuit that was irreconcilable with, and flatly contradictedby, statements he had made to the SSA and other benefits pro-viders. McNemar, 91 F.3d at 619. The court described theclaimant as facing a difficult "choice between obtaining fed-eral or state disability benefits and suing under the ADA." Id.at 620. However, the court also emphasized the facts of thecase, noting that "application of the doctrine of judicial estop-pel always is factually driven." Id. at 613. The facts ofMcNemar included the claimant's blatant lie that he had beenunable to work during a period of weeks when he had actuallybeen working. Id. at 615, 620.Since the publication of McNemar, the Third Circuit hasindicated that "district courts in this circuit are misapplyingMcNemar without first considering the unique facts of thatcase." Krouse, 126 F.3d at 503 n.5. McNemar involved"unconditional assertions as to disability and work," the courtexplained, and "[c]ourts should not assume that McNemaralways bars an individual's ADA claims merely because priorrepresentations or determinations of disability exist in therecord." Id. Thus, McNemar does not support a per se rule.[7] We note that a rule contrary to the one we adopt todaywould contravene the purposes of the ADA by forcing plain-tiffs to choose between enforcing their rights under the ADAand seeking immediate, subsistence benefits. See, e.g.,Swanks, 116 F.3d at 586 (stating that plaintiffs will be facedwith "an `untenable' choice" if ADA claims are precludedwhere plaintiffs have applied for disability benefits); Norris v.Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418, 1448 (N.D.Cal. 1996) (expressing concern that "given the serious finan-cial constraints that an ill or injured employee often may face"it may not be equitable to force plaintiffs to choose "betweenapplying for disability benefits or filing an ADA lawsuit thatmay not be resolved for years"); EEOC Enforcement Guid-ance, EEOC Notice No. 915.002, February 12, 1997, III.B(quoting Smith v. Dovenmuehle Mortgage Co., 859 F. Supp.1138, 1142 (N.D. Ill. 1994)) (stating that forcing plaintiffs tochoose between benefits and ADA claims would place themin an "untenable position" and would force them to choosebetween what should be independent rights).[8] Some potential plaintiffs might abandon pursuit of theirrights under the ADA if they could not apply for disabilitybenefits. Faced with the financial pressures accompanying theloss of a job and the uncertainty and length of litigation,5 indi-viduals might well elect immediate benefits over the pursuitof even the most meritorious ADA claim. Such a situationwould not only harm the individuals the ADA seeks to pro-tect, it also would protect the very activity the ADA seeks toeliminate: discrimination against disabled individuals.Employers who discriminate unlawfully would be shieldedfrom liability if their victims could sue them only if they didnot apply for disability benefits.[9] As we have previously emphasized, what may be con-sidered a disability or total disability under legal precepts ofcertain federal or state disability statutes or private instru-ments conferring disability benefits may differ under provi-sions of other federal or state legislation or other privateinstruments. Therefore, a statement averring a legal conclu-sion in a previous application or proceeding as to disabilitymay not always preclude eligibility in subsequent applicationsor proceedings. Having said this, however, we emphasize thatmaterial factual statements made by an individual in prior dis-ability applications or proceedings may be binding in subse-quent ADA claims.[10] Finally, we note that judicial estoppel is an equitabledoctrine, invoked by a court at its own discretion, and drivenby the specific facts of a case. See Yanez v. United States, 989F.2d 323, 326 (9th Cir. 1993) (citations omitted); McNemar,91 F.3d at 613. Accordingly, a per se rule barring claimantsfrom pursuing ADA claims after seeking or obtaining benefitswould run counter to the doctrine of judicial estoppel itself.II. Judicial Estoppel on the Facts of This CaseBy holding that claims for and receipt of disability benefitsdo not automatically preclude claims for ADA protection, wedo not hold that a plaintiff's representations on benefits appli-cations are irrelevant to ADA cases. See, e.g., Swanks, 116F.3d at 587 ("The conclusion we reach today does not meanthat claimants' statements in support of disability claims arenever relevant in ADA suits."); Blanton, 123 F.3d at 917(allowing "the consideration of prior sworn statements as amaterial factor"). To the contrary, such representations consti-tute useful evidence.[11] For example, a plaintiff's prior representations may beso strong and definitive that they will defeat the plaintiff'sprima facie case on traditional summary judgment grounds. InKennedy v. Applause, Inc., 90 F.3d 1477, 1479, 1481 (9th Cir.1996), the plaintiff's sworn statements on disability benefitsapplications contributed to the judge's holding that no genu-ine issues of material fact existed sufficient to preclude sum-mary judgment. The plaintiff had claimed she was"completely disabled for all work-related purposes" when sheapplied for benefits. Id. at 1479. In addition, her "personalphysician found her totally disabled from all work. " Id. Shethen filed an ADA claim and asserted that she was able to per-form her job. Id. The district court concluded that, given thestrength of her prior representations and her physician's opin-ion, Kennedy's subsequent assertion that she was able to per-form her job did not "present a sufficient disagreement torequire submission to a jury." Id. (internal quotations and cita-tions omitted). Thus, the district court granted Kennedy'semployer's motion for summary judgment. We affirmed,explaining that application of the doctrine of judicial estoppelwas "unnecessary" because "no genuine issue of materialfact" existed. Id. at 1481 n.3.[12] In addition, in clear-cut cases, representations on dis-ability benefits applications may warrant judicial estoppel ofADA claims. See, e.g., McNemar, 91 F.3d at 615, 620 (claim-ant's ADA claim judicially estopped where he claimed beforebenefits providers that he had been unable to work during aperiod of weeks when he had actually been working)."[A]nADA plaintiff should not be permitted to disavow any state-ments she made in order to obtain [disability] benefits."Talavera, 129 F.3d at 1220. Sometimes, prior representationson disability benefits may demonstrate that a claimant is play-ing fast and loose with the courts, seeking advantage byadvancing mutually exclusive contentions before the courtand benefits providers. In such cases, courts would be withintheir discretion to estop plaintiffs.We emphasize that in general, the use of a plaintiff's priorrepresentations on disability benefits as evidence helpful inevaluating an ADA claim -- the approach of Kennedy -- willsuffice to protect the sanctity of the judicial process."Straightforward summary judgment analysis, rather than the-ories of estoppel" will be appropriate in most cases. See Grif-fith, 1998 WL 29870 at *7. Judicial estoppel applies when aparty's position is "tantamount to a knowing misrepresenta-tion 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). If incompat-ible positions are based not on chicanery, but only on inadver-tence or mistake, judicial estoppel does not apply. See In reCorey, 892 F.2d 829, 836 (9th Cir. 1989) (citations omitted).Thus, if a claimant's particular representations are so incon-sistent that they amount to an affront to the court, judicialestoppel may apply.[13] Comparing each of Ms. Johnson's applications forbenefits to her ADA claim, we conclude that judicial estoppelwas unwarranted in this case. A. Social Security[14] Ms. Johnson described her disabilities in response tothe SSA's question: "explain how your condition now keepsyou from working." She described the ways in which her doc-tor had instructed her to limit her activities. The descriptionis a reiteration of the accommodations her physician recom-mended to the VRD. Ms. Johnson explained that, among otherthings, she could not perform "repetitive fine motormanipulations," could not be seated or remain standing formore than fifteen minutes, and needed to limit her stress. Shedoes not appear to have exaggerated her condition. Thedescriptions of her disability and limitations match those pres-ented in this suit. She does, however, state that she was dis-abled beginning May 25, 1993. That was the last day she wentto work, and the last day she claimed she could work withoutaccommodation. She was not terminated, however, until Sep-tember, 1994, after she attempted to return to work but wasrefused the disputed accommodations.[15] Ms. Johnson's representation is not inconsistent withher ADA claim. The SSA neither asks nor considers whetherindividuals can work with accommodation. Ms. Johnson didnot tell the SSA that she could not work even with accommo-dation. She has consistently claimed -- both before the SSAand before the court -- that she can work, but only withaccommodations. Thus, her representations to the SSA are notirreconcilable with her ADA claim. Moreover, we are unableto find any evidence in the record suggesting that Ms. John-son acted in bad faith or was playing fast and loose with thecourts. As we have explained, the law does not require plain-tiffs to choose between applying for benefits and pursuing anADA claim. They may do both. B. Insurance Disability Benefits[16] On the Attending Physician's Statement, Standard'sapplication for long-term benefits, Ms. Johnson stated that shehad not returned to work and placed a question mark in theblank for the date she expected to return to work. Herresponse is not inconsistent with her ADA claim.On the same form, her physician, Dr. Huff, responded toquestions that requested a description of Ms. Johnson's"sickness or injury causing inability to work, " her current lim-itations and work activity restrictions, her medications, andhis opinion regarding when he "anticipate[s ] the patient canreturn to work." To this last question, Dr. Huff respondedwith the words "permanent disability."[17] Ms. Johnson does not contest the fact that she has apermanent disability. Her claim is that, although she is perma-nently disabled, she can nevertheless work, but only with rea-sonable accommodations. Thus, Dr. Huff's statement, and heracceptance of it, does not necessarily conflict with her ADAclaim.The definition of disability for long-term benefits under theStandard policy is "disability from all occupations." Stan-dard's policy explains to applicants: "You are disabled fromall occupations if, as a result of sickness, injury or pregnancy,you are unable to perform with reasonable continuity thematerial duties of any gainful occupation for which you arereasonably fitted by education, training or experience."Standard does not state whether applicants are ineligible ifthey believe they can work with accommodation but theiremployer denies it. In addition, Standard does not seek infor-mation regarding potential accommodations on their applica-tion.At trial, Ms. Johnson explained her acceptance of the long-term disability payments, despite her belief that she couldwork with accommodation. She did not contest the insurancecompany's finding of eligibility, she explained, because sheneeded to support herself and every agency seemed to have itsown definition of disability. On the stand, she stated "if by[Standard's] definition and after their examination, they foundthat I came under their definition, I accepted it . . . I agreedthat I was unable to go back without accommodation. " Suchan explanation is plausible and does not suggest that Ms.Johnson was attempting to perpetrate a fraud upon the court. C. Letter to the IRS[18] In a handwritten letter to the IRS asking for leniencyregarding her late tax return, Ms. Johnson made various state-ments including that she was "totally disabled " and "unableto work since May 25, 1993." According to her ADA claim,Ms. Johnson is permanently disabled and was unable to workwithout reasonable accommodation. Ms. Johnson states in herbrief that her letter would have been more accurate if she hadwritten she "was unable to work and fired because of her dis-abilities and because defendant refused her reasonable accom-modation. But, the context of the letter did not require thatdetail."[19] The categorical statement in Ms. Johnson's letter istroubling. However, given the context in which the letter waswritten, the statement does not represent an affront to thecourt sufficient to warrant judicial estoppel. She was not seek-ing financial benefits from the agency, she was merely askingfor leniency regarding her late tax return. What mattered tothe IRS was not that Ms. Johnson might sue her formeremployer because she believed they had discriminated againsther. What mattered was the reason for her late tax return.ConclusionGiven this record and the facts and circumstances of thiscase, the magistrate judge's observation that the evidencepresented by Ms. Johnson "may have raised a question offact" is incompatible with the grant of summary judgment infavor of the VRD. Genuine issues of material fact unencum-bered by evidence that the court is being used for an improperpurpose are precisely what engages a court's jurisdiction.Accordingly, we reverse the opinion of the district court andremand for further proceedings consistent with this opinion.REVERSED and REMANDED. the end
___________________________FOOTNOTES 1 42 U.S.C. SS 12101 et seq.2 At trial, Ms. Johnson explained that May 25, 1993 was the last day shehad gone to work for pay. She received short-term disability soon after,from 1993 until 1995. She was terminated in September, 1994.3 Individuals may also be entitled to some benefits while working. See42 U.S.C. S 422(c) (allowing Social Security benefits during nine-monthtrial work period).4 The Second Circuit has not ruled on the issue directly. See Simon v.Safelite Glass Corp., 128 F.3d 68, 74 (2d Cir. 1997) (saving "for anotherday" the question of "whether judicial estoppel should preclude a person"from bringing an ADA claim "based on statements made in applying forSocial Security benefits").Two circuits have published conflicting cases. Compare D'Aprile v.Fleet Servs. Corp., 92 F.3d 1, 3-5 (1st Cir. 1996) with August v. OfficesUnlimited, Inc., 981 F.2d 576, 582 (1st Cir. 1992); see Dush v. AppletonElectric Co., 124 F.3d 957, 962 n.8 (8th Cir. 1996) (describing intra-circuit conflict).5 Ms. Johnson, for example, filed her claim over two and one-half yearsago, and it is far from resolution.