FREDENBURG v CONTRA COSTA, 9715885
U.S. 9th Circuit Court of Appeals
FREDENBURG v CONTRA COSTA
9715885
JANUARY FREDENBURG,Plaintiff-Appellant, No. 97-15885v. D.C. No.CV-96-03136-VRWCONTRA COSTA COUNTYDEPARTMENT OF HEALTH SERVICES, OPINIONDefendant-Appellee.
Appeal from the United States District Courtfor the Northern District of CaliforniaVaughn R. Walker, District Judge, PresidingArgued and SubmittedMarch 10, 1998--San Francisco, CaliforniaFiled April 19, 1999Before: William C. Canby, Jr. and Alex Kozinski,Circuit Judges, and Charles R. Weiner, 1 District Judge.Opinion by Judge Canby; Concurrence by Judge Weiner;Dissent by Judge Kozinski
______________________COUNSEL Darryl Parker, Fairfield, California, for the plaintiff-appellant.Bernard Knapp, Deputy County Counsel, Martinez, Califor-nia, for the defendant-appellee.Claudia Center, The Employment Law Center, San Francisco,California, for the amicus.
_____________________________OPINION CANBY, Circuit Judge:The question before us is whether plaintiff-appellant Janu-ary Fredenburg is judicially estopped from establishing aclaim against her former employer under the Americans withDisabilities Act ("ADA"), 42 U.S.C. S 12101 et seq. Freden-burg had applied for and received state temporary disabilityinsurance benefits available to workers who, because of aphysical or mental condition, are "unable to perform [their]regular or customary work." Cal. Unemp. Ins. CodeSS 2601,2626, 2653. The district court held that this fact judiciallyestopped Fredenburg from establishing that she is a "qualifiedindividual with a disability" under S 12112(a) of the ADA.We conclude that Fredenburg is not judicially estopped, andwe accordingly reverse the judgment of the district court.IUntil 1995, Fredenburg worked as a Mental Health Treat-ment Specialist II for the Contra Costa County Department ofHealth Services ("Health Services"). After several on-the-jobdifficulties with co-workers, Health Services asked Freden-burg to submit to a fitness-for-duty examination, as autho-rized by the applicable collective bargaining agreement. Apsychiatrist and a clinical psychologist diagnosed Fredenburgas suffering from paranoia and recommended that she take aleave of absence and pursue therapy. Health Services placedFredenburg on administrative leave with pay for two weeks,and thereafter on indefinite leave without pay. Fredenburgappealed to the County Merit Board, claiming that she was fitfor work. The Board denied her appeal. Meanwhile, Freden-burg applied for and received disability benefits from theState of California, which provides temporary benefits up toone year for workers who, because of a physical or mentalcondition, are "unable to perform [their] regular or customarywork." Cal. Unemp. Ins. Code SS 2601, 2626, 2653. Shereceived benefits from November 1995 to May 1996. Thebenefits were terminated on May 12, 1996, after a state psy-chiatrist found her capable of returning to work. Fredenburgattempted to have the benefits continued, certifying on May22, 1996 that she was still disabled and incapable of doing herregular 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 theexamination 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 Ser-vices unlawfully discriminated against her by removing herfrom work and refusing to permit her to return; and (2) thatHealth Services' fitness-for-duty examination exceededADA's permitted boundaries for medical examinations. Fre-denburg also alleged a number of state law claims.The district court granted summary judgment for HealthServices on the ADA claims. With regard to the first claim,the court held that Fredenburg's representations to the statebenefits agency that she was unable to do her regular workjudicially estopped her from asserting in this action that shewas a "qualified individual" under the ADA,S 12112(a). Thedistrict court then held that this conclusion was also fatal toFredenburg's second ADA claim, because she had to be a"qualified individual" in order to maintain a claim for animproper medical examination requirement. After ruling forHealth Services on the ADA claims, the district court electednot to exercise supplemental jurisdiction over the state-lawclaims, and dismissed them without prejudice.II[1] In order successfully to pursue her claim of disabilitydiscrimination, Fredenburg first must show that she is a"qualified individual with a disability." 42 U.S.C. S 12112(a);Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996).2To be "qualified," Fredenburg must be able to perform all theessential functions of her job, either with or without a reason-able accommodation for any disability. See 42 U.S.C.S 12111(8). Health Services argues that Fredenburg cannotperform her job because of her mental health problems. Insupport, Health Services points to the many documentedexamples of Fredenburg's on-the-job troubles and the physi-cians' opinions concluding that she suffers from paranoia.Fredenburg, however, offers the declaration of her own psy-chologist, who opined that Fredenburg was able to return towork, but would benefit from a transfer to a less stressfulwork environment. Fredenburg also points to the opinion ofthe physician who examined her for purposes of determiningher eligibility for disability benefits, and who expressed theview that Fredenburg suffered a "major depressive episode"but would be ready to return to work after a month's rest.[2] The conflicting opinions about Fredenburg's ability towork create a genuine dispute as to whether Fredenburg coulddo her job. It is true that Health Services presents substantialevidence that she could not. It is also true that Health's state-ments that she could do the job, when viewed in the light ofher statements to the state benefits agency that she was stilldisabled, might be insufficient of themselves to forestall sum-mary judgment. See Kennedy, 90 F.3d at 1481. Unlike theplaintiff in Kennedy, however, Fredenburg supported herstatements with the opinions of two physicians. Consideringall of the evidence, a reasonable trier of fact could find thatFredenburg can perform all of the essential functions of herjob. On the factual issue presented, therefore, summary judg-ment was improper.The district court, however, held that Fredenburg wasbound by her representations to the state Employment Devel-opment Department that she was disabled and incapable ofdoing her regular work. In the district court's view, these rep-resentations contradicted her claim in these proceedings thatshe is a qualified individual. The court therefore invoked thedoctrine of judicial estoppel, which precludes litigants fromasserting inconsistent positions in different forums.3 For sev-eral reasons, we conclude that this application of judicialestoppel is inappropriate.[3] Judicial estoppel has been controversial in ADA cases.Several district courts have ruled that an application for stateor federal disability benefits acts as a per se bar to an ADAclaim. We rejected this position in Johnson v. Oregon, 141F.3d 1361 (9th Cir. 1998). We pointed out that "[i]t is possi-ble, due to the different definitions of disability employed byvarious agencies, to qualify for disability benefits and to sat-isfy the ADA's definition of a qualified person with adisability." Id. at 1366; see also Lujan v. Pacific MaritimeAss'n, 1999 WL23128, *2-3 (9th Cir. Jan. 22, 1939). Wetherefore rejected a per se rule, but we went farther than that.Although we acknowledged that estoppel might be appropri-ate when the inconsistency of statements and positions was soblatant as to "demonstrate that a claimant is playing fast andloose with the courts," our clear preference was that inconsis-tent statements simply be considered along with other evi-dence to see whether they were so damaging that no rationaltrier of fact could rule in the plaintiff's favor. We emphasize that in general, the use of a plain- tiff'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.[4] Fredenburg was not playing fast and loose with, orcommitting fraud on, the court. Her case illustrates the prob-lems faced by a worker in her position. Her employer con-cluded that she could not perform her job, and placed her onunpaid leave. She disagreed with her employer's determina-tion and unsuccessfully challenged it. Then, without paybecause of her asserted disability, she applied for temporarydisability benefits and received them. What else was she todo? When those benefits were terminated because the statedecided she was no longer disabled, she disagreed but wasunsuccessful in challenging that determination. She thenasked her employer to take her back, and the employerrefused. So she brought suit under the ADA, claiming that shewas able to perform her job. It is true that Fredenburg tookinconsistent positions during this saga, but her employer andthe state, considered together, were not treating her consis-tently either. She has not denied any of the representations shemade; the court has not been misled. Johnson's requisites forjudicial estoppel are simply not met.4 [5] Fredenburg was also subject to different definitions ofdisability for the purposes of state benefits and the ADA, butthe district court made allowance for that divergence. As thedistrict court recognized, state law provided benefits if Fre-denburg was unable to perform her regular or customarywork, without regard to possible accommodation. The ADArequires only that Fredenburg be able to perform all of theessential functions of her job, with or without reasonableaccommodation. The district court held, however, that Fre-denburg had not met her burden of showing a reasonableaccommodation that would permit her to perform her job. SeeBarnett v. U.S. Air, Inc., 157 F.3d 744, 749 (9th Cir. 1998).Fredenburg only alludes to an accommodation tangentially,when she refers to the opinion of one of her physicians whoopined that she might function better if transferred to anothersupervisor. Transfer to a vacant position may be considereda reasonable accommodation under the ADA in some circum-stances. See Buckingham v. United States, 998 F.2d 735, 740(9th Cir. 1993). But Fredenburg never identified a vacantposition or indicated how transfer would enable her to per-form the essential functions of her job.5 The district courtaccordingly did not err in disregarding the fact that the state'sdefinition of disability, unlike the ADA's, took no account ofaccommodation.[6] The fact remains, however, that the district court pre-cluded Fredenburg from showing that she was qualified toperform her job without further accommodation. As we havestated, that invocation of judicial estoppel was inappropriate,because Fredenburg had not played fast and loose with, orcommitted a fraud on, the court. The summary judgmenttherefore cannot stand.6[7] Fredenburg's complaint alleged that Health Servicesviolated the ADA both when it initially placed her on leaveand when it refused to take her back after her period of receiv-ing state disability benefits. The district court did not focusparticularly on the first claim. It may be that the court consid-ered that claim to be precluded; the court's order notes thatFredenburg did not seek judicial review of the administrativedetermination upholding Health Services' action in placingher on leave. We wish to make clear, however, that, eventhough judicial estoppel is inappropriate with regard to thisfirst claim, Fredenburg certainly would not be entitled toretain disability benefits and, at the same time, recover backpay for the same period on her claim that her employer vio-lated the ADA by placing her on leave. Our ruling relievesFredenburg of an untenable choice between disability benefitsand an ADA claim, see Johnson, 141 F.3d at 1368, but it doesnot permit a double recovery based on inconsistent positions.[8] With regard to Fredenburg's second claim--that HealthServices violated the ADA by not permitting her to return towork, there is an additional important factor to be considered.Fredenburg's disability was potentially temporary. The wholepurpose of placing a person on leave is that he or she mayeventually return to work. Indeed, we recently have held thatleave on account of disability may itself be a reasonableaccommodation under the ADA. Nunes v. Wal-Mart Stores,Inc., 164 F.3d 1243 (9th Cir. 1999). The state benefits thatFredenburg applied for and received were temporary, and thestate terminated them when it found that Fredenburg wascapable of returning to work. There was no conflict betweentemporary disability and apparent recovery. It was thereforeerror for the district court to conclude that a claimant's certifi-cation of disability during the period of leave is inconsistentwith ability to return to work for ADA purposes. 7 See id. at1246.We conclude, therefore, that the district court erred ingranting summary judgment in favor of the Health Serviceson Fredenburg's claim of disability discrimination. Weaccordingly reverse that ruling and remand for further pro-ceedings.III[9] Fredenburg also challenged Health Services' requiredfitness-for-duty examination, alleging that it exceeds thescope permitted by the ADA.8 The district court ruled thatdecision of this claim was controlled by its decision of Fre-denburg's first ADA claim, because Fredenburg had to be a"qualified individual with a disability" in order to maintain aclaim of improper medical examination. This ruling was erro-neous, independently of the disposition of Fredenburg's firstADA claim, because Fredenburg does not have to be a"qualified individual with a disability" in order to have stand-ing to invoke the ADA's protection against improper medicalexaminations.Section 12112(d) of the ADA limits the scope of medicalexaminations employers may require employees to undergo toretain their jobs. Subsection (d)(1) provides a general prohibi-tion against using medical examinations to discriminate; sub-sections (d)(2) through (d)(4) provide more detailedguidelines as to what is and is not allowed.9The district court began its analysis with the general lan-guage of subsection 12112(d)(1), which states: "The prohibi-tion against discrimination as referred to in subsection (a) ofthis section shall include medical examinations and inquiries."42 U.S.C. S 12112(d)(1). Turning to subsection (a) of section12112, the district court noted that it prohibits discriminationonly against "a qualified individual with a disability." 42U.S.C. S 12112(a). By this process, the district court con-cluded that only a qualified individual with a disability couldbring a claim for violation of the ADA's restrictions on medi-cal examinations.This analysis was correct only so far as it went. Subsection(d)(1) states a general principle--medical examinations maynot be used to discriminate against qualified persons with adisability--and categorically directs courts to treat medicalexaminations as possible evidence of discriminatory conduct.Within this context, only qualified individuals with a disabil-ity have a cause of action.But the restrictive language of section 12112(a)--incorporated by reference in section 12112(d)(1)--does notapply to subsections (d)(2), (d)(3) and (d)(4). Those subsec-tions set forth the types of examinations that are prohibited.In so doing, they refer to "employees," and "job applicants,"not "qualified individuals with a disability. " They do so for areason: protecting only qualified individuals would defeatmuch of the usefulness of those sections. Under subsection(d)(2), for example, an employer could not require job appli-cants to take an HIV test unless the inquiry were shown to bejob-related. This restriction prevents employers from usingHIV tests to deter HIV-positive applicants from applying;requiring applicants challenging the test first to prove thatthey are in fact disabled--thereby revealing their HIV status--would render the section nugatory. We therefore reversethe decision of the district court and hold that plaintiffs neednot prove that they are qualified individuals with a disabilityin order to bring claims challenging the scope of medicalexaminations under the ADA. The only other circuit toaddress the issue reached the same conclusion. See Roe v.Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221,1229 (10th Cir. 1997).[10] Because the district court erroneously rejected Freden-burg's challenge to the medical examination on the ground ofstanding, it did not rule on the permissibility of the examina-tion under the standards of the ADA. Section 12112(d)(4)(A)prohibits a "covered entity" from inquiring into whether anemployee is an individual with a disability unless the"examination or inquiry is shown to be job-related and consis-tent with business necessity." 42 U.S.C. S 12112(d)(4)(A).The only reasonable reading of this language places the bur-den on the covered entity, here Health Services, to make therequisite showing. Health Services argues with considerableforce that it has demonstrated both job-relatedness and busi-ness necessity, but these are both factual determinations thatwe prefer to have the district court address in the firstinstance.[11] Health Services sought from the examining physicianthe answers to the following questions: (1) Are there condi-tions present in Ms. Fredenburg that endanger herself, her co-workers, or patients? (2) Can Ms. Fredenburg function as anindependent professional psychiatrist? (3) Does Ms. Freden-burg suffer from a psychiatric impairment? (4) If so, what isthe nature of that impairment? (5) Does the impairment sub-stantially limit one or more of the activities of daily living?If so, please indicate those activities which are limited and thenature of the limitations? (6) What treatment plan, if any, doyou recommend?10[12] Whether these questions, or other aspects of therequired examination, were "job-related and consistent withbusiness necessity," 42 U.S.C. S 12112(d)(4)(A), are factualand situational questions that we leave to the district court inthe first instance. See Yin v. California, 95 F.3d 864, 867-69& n.8 (9th Cir. 1996). Upon remand, the district court mayconduct such further proceedings and allow such further dis-covery as it deems appropriate, in its discretion, for the reso-lution of this issue. See footnote 7, supra.IVThe district court dismissed Fredenburg's state-law claimswithout prejudice, choosing not to exercise its supplementaljurisdiction once it had resolved the federal claims on sum-mary judgment. Because we reverse that judgment of the fed-eral claims, we also reverse the dismissal of the state-lawclaims, to permit the district court once again to determinewhether to exercise its supplemental jurisdiction in light ofthe proceedings on remand with regard to the federal claims.VThe judgment of the district court is reversed, and the mat-ter is remanded to the district court for further proceedingsconsistent with this opinion.REVERSED and REMANDED.WEINER, District Judge, concurring:I concur with Judge Canby's decision that the protectionsof ADA SS 12112(d)(2)-(4) are not limited to only "qualifiedindividual[s] with a disability." I also agree that the conflict-ing opinions about Fredenburg's ability to work created agenuine dispute as to whether she could do her job. JudgeKozinski also appears to agree with these propositions.Finally, I agree with Judge Canby that Fredenburg was notplaying fast and loose with the court when she asserted incon-sistent positions when attempting to first keep her job, thenkeep her disability benefits, and then attempt to regain herjob, a decision with which Judge Kozinski disagrees. Facedwith different definitions of disability in qualifying for statedisability benefits and maintaining an ADA claim, the ele-ments of judicial estoppel have not been satisfied on therecord before us and thus the entry of summary judgment onthat basis was improper. I write separately only to stress that,upon remand, the district court is at liberty to determine in thefirst regard whether, under a straightforward summary judg-ment analysis, Fredenburg's claims fail a matter of law.As the court stated in Johnson v. Oregon, 141 F.3d 1361,1369 (9th Cir. 1998), a "plaintiff's prior representations maybe so strong and definitive that they will defeat the plaintiff'sprima facie case on traditional summary judgment grounds."While judicial estoppel applies only to a "knowing misrepre-sentation to or even a fraud on the court," the holding ofJohnson distinguishes chicanery from inadvertence or mis-take. Id. Here we seem to confront a situation somewhere inthe middle. Appellant appears to have simultaneously insistedto the state disability agency that she continued to be disabledwhen it sought to cut off her benefits, while seeking to main-tain an ADA claim without requesting any specific accommo-dation. Adding further to the confusion, Fredenburg alsoclaims discrimination based on her initial removal from work,arguing presumably that the County's claim that she sufferedfrom paranoia was pretextual. While these inconsistent claimsregarding her ability to work, return to work and inability toreturn to work might be satisfactorily explained, for example,by the nature of her psychological impairment, or the passageof time, on remand the district court is free to consider all thisevidence in determining whether Appellant's claim can sur-vive summary judgment or upon reaching the ultimate meritsof her claims.
_____________________________KOZINSKI, Circuit Judge, dissenting:The majority manufactures a new defense to the bar of judi-cial estoppel--having a really good excuse for taking incon-sistent positions. In so doing it creates a conflict with Johnsonv. Oregon, 141 F.3d 1361 (9th Cir. 1998), and Rissetto v.Plumbers and Steamfitters Local 343, 94 F.3d 597 (9th Cir.1996). Johnson went to great lengths to explain how theplaintiff's previous representations could be squared with herposition that she was in fact a qualified individual with a dis-ability. For example, it explained that her representations tothe Social Security Administration were not inconsistentbecause "[t]he SSA neither asks nor considers whether indi-viduals can work with accommodation." Johnson , 141 F.3d at1370. What she represented to Standard Insurance was notinconsistent because she explained that "although she [was]permanently disabled, she [could] nevertheless work, but onlywith reasonable accommodations." Id. Finally, in a letter tothe IRS, she flatly represented that she was "totally disabled,"which the panel found "troubling." Id. However, it found theinclusion of that representation in her handwritten letter to theIRS was not "an affront to the court sufficient to warrant judi-cial estoppel" because "[s]he was not seeking financial bene-fits from the agency, she was merely asking for leniencyregarding her late tax return." Id. at 1370-71. No such recon-ciliation can be made here, and the majority doesn't even pre-tend it can.The majority holds, correctly I believe, that Fredenburg hasnot proposed a reasonable accommodation. The only questionleft, then, is whether she can work without an accommoda-tion. Fredenburg repeatedly represented to the state Employ-ment Development Department (EDD) that she was incapableof performing her regular work.1 She is now claiming that shecan perform her regular work, and in fact could do so allalong. There is absolutely no way to reconcile the two posi-tions. This is very different than Johnson, where the seem-ingly inconsistent representations could be reconciled bynoting that the employee said nothing about her ability towork with a reasonable accommodation. And her representa-tions here differ radically from the third representation madeby Johnson because, unlike a letter to the IRS explaining whya tax return was late, one would expect an applicant to be pre-cise about the nature of her ability to work when making rep-resentations to an agency whose business it is to pay disabilityclaims.The simple explanation is that Fredenburg told one story inone proceeding, and then, when it didn't get her what shewanted, she told a different and inconsistent story in anotherproceeding. The majority responds to Fredenburg's obviousmendacity with a rhetorical question: "What else was she todo?" Maj. op. at 3576. What Fredenburg was to do was to tellthe truth at all times; that's the very essence of judicial estop-pel. There is nothing wrong with expecting a plaintiff torespond truthfully to a simple question like whether she isable to perform her job. Although it may be asking too muchto expect her to take into account the difference betweenbeing able to work with or without a reasonable accommoda-tion, the majority's analysis doesn't pretend to be concernedwith such niceties. Rather, Fredenburg is allowed to changeher tune without penalty because she "had not played fast andloose with, or committed a fraud on, the court." Maj. op. at3578.2I'm quite unsure what this standard means or is intended tomean. Does "committing a fraud on the court" mean that wefailed to learn of the prior representation, and thus the partywas able to sneak one by us? Certainly Fredenburg did noth-ing to bring her prior representations to the attention of thedistrict court, and they probably would not have come to lighthad the county not learned of them.3 There is nothing Freden-burg could possibly have done to be any less forthright ormore inconsistent than she was. If this be not "fast and loose,"I'm not sure what is.What I am sure of is that such a lax test for what constitutes"playing fast and loose" is contrary to binding precedent. Ina very similar case, Rissetto, we noted "our concern that itmight constitute `playing fast and loose with the courts' forplaintiff to claim in 1990 that she was unable to perform herjob in order to obtain workers' compensation benefits and toclaim now that she was performing her job adequately inorder to win damages in this suit." Rissetto , 94 F.3d at 601.Indeed, in that case we determined that the plaintiff was infact trying to play fast and loose, and thus was judiciallyestopped from taking a new position in her FEHA suit. See id.at 606. Johnson did not, and could not, overrule Rissetto. Thedeception practiced by Fredenburg here is on all fours withthat in Rissetto, and must lead to the same result.The majority tries to rely on Nunes v. Wal-Mart Stores,Inc., 164 F.3d 1243 (9th Cir. 1999), see maj. op. at 3579, butthe cases are so different the citation only undercuts themajority's analysis. In Nunes, the plaintiff had suffered fromsyncopal episodes that caused her to faint at work but, aftertaking a leave of absence, she was cured. See id. at 1245-46.There is no inconsistency in taking a leave of absence andcollecting disability benefits while admittedly disabled, thenreturning to work after one's health is restored. This does notin any way describe Fredenburg. Fredenburg nowhere allegesor suggests that she had a problem and needed time off to getwell. Instead, she complains of her "pretext[ual]" terminationat the hands of the county. See ComplaintP 11. Admittedly,she references a letter from one of her physicians stating thatshe would be able to return to work after recovering from her"adjustment disorder" on January 16th; but she obviouslydidn't believe that doctor's opinion--she continued to acceptdisability benefits after January 16th, and then represented tothe EDD in May, four months later, that she remained dis-abled and unable to perform the functions of her job. Nor doesFredenburg's brief suggest that she was once sick and thengot better; rather, she objected to the district court's takingjudicial notice of the "unsubstantiated hearsay " contained inher EDD applications, Appellant's Br. at 10, railed against thecounty's "belie[f] that appellant was suffering from a person-ality disorder," id. at 12, and then admitted that "out of finan-cial desperation . . . [she] applied for and received SocialSecurity [sic, state] disability benefits, " id. at 13. Althoughher illness was "potentially" temporary, nowhere does sheallege that she was disabled during the time that she was col-lecting benefits, and then later got better, as did Nunes. Nuneshas no application here, and to suggest that it does belittles theclaims of honest plaintiffs who admit to taking disability ben-efits during a leave of absence in which they seek to recoverfrom a disability.I also note that we have given the district court no guidanceas to what to do on remand--or perhaps too much guidance.The majority opinion doesn't appear to leave any room for thedistrict court to grant summary judgment on Fredenburg'sclaims. Judge Weiner concurs in that opinion, yet strangelysuggests that the district court could nevertheless grant sum-mary judgment in favor of the county. See Weiner op. at3585. I don't get it. Given that we all agree that there was agenuine issue of fact as to whether Fredenburg could do herjob, and given that the majority disavows the use of judicialestoppel, I can't see any way in which the district court couldproperly grant summary judgment. Because the district courtcannot preclude Fredenburg's claims based on her previousrepresentations, it would have to weigh the evidence pres-ented by Fredenburg and the county in order to grant sum-mary judgment. What am I missing here?In sum, the majority opinion guts the doctrine of judicialestoppel, which has previously been followed in this circuit.The majority forthrightly admits this when it allows that"Fredenburg's earlier admissions, like those of any litigant,may be used in evidence against her." Maj. op. at 3578 n.6.Of course a party's prior statements are always admissible attrial, so long as they meet the test of relevancy under FRE401. But prior inconsistent representations made in a judicialproceeding are not merely admissible--they are preclusive.That is the heart and soul of judicial estoppel. By saying thatprior judicial statements are to be treated just like prior state-ments made to a fish merchant or a fortune teller, the majoritydrives a stake through the heart of the doctrine of judicialestoppel.I agree with the core holding of Johnson that representa-tions made to disability agencies should be read narrowly soas not to automatically preclude ADA plaintiffs from pursuingthe remedies that Congress has granted to them. However, Icannot agree with the majority here that sworn statements onapplications for disability benefits--which result in the pay-ment of cash benefits--should be granted no more weightthan statements made in casual conversation. The majority'sapproach allows people to slough off prior inconsistent repre-sentations when they become inconvenient, much like a snakesheds its skin. It is one thing to allow a plaintiff to explainhow her previous representations were actually truthful andconsistent with what she claims today, as did Johnson; it is afar different thing to look away from a plaintiff's previousrepresentations with a wink and a nudge because she was"forced" to lie in order to fenagle benefits from the welfarestate. Because the majority opinion is at loggerheads withdecades of precedent in our circuit and elsewhere, I dissent. the end
___________________________FOOTNOTES 2 We assume that Fredenburg's mental condition falls within ADA'sdefinition of disability.3 The doctrine is sometimes awkwardly but more precisely referred to asthe doctrine of preclusion of inconsistent positions.4 In fairness to the district court, we note that it did not have the benefitof the Johnson opinion at the time it ruled.5 Fredenburg contends that the district court ruled on summary judgmenttoo precipitously, without allowing full discovery. The district court'soriginal case management order required discovery to be completed byAugust 29, 1997, and ordered motions directed to Health Services' rightto conduct a psychological examination to be filed in time for hearing onApril 18, 1997. On the scheduled filing date, Health Services filed amotion for summary judgment that was not so limited; it sought summaryjudgment on all claims. Although Fredenburg may have been surprised,the summary judgment motion was properly noticed and nothing in theorder or rules prevented Health Services from filing a general summaryjudgment motion. See Fed. R. Civ. P. 56(a). Fredenburg ultimately askedfor a continuance for further discovery, but did not indicate to the districtcourt what information was sought or what it intended to show. See Fed.R. Civ. P. 56(f). The district court therefore did not err in denying furtherdiscovery. In addressing the summary judgment motion, however, the dis-trict court focused on judicial estoppel, which necessarily eliminated theneed for much factual development. On remand, the district court is notprecluded from reopening discovery if it deems such action appropriate.6 We disagree with the dissent's conclusion that our decision "allowspeople to slough off prior inconsistent representations when they becomeinconvenient." Fredenburg's earlier admissions, like those of any litigant,may be used in evidence against her. The trier of fact can take them intoaccount in arriving at a decision. This ordinary process of decisionmakingwill be allowed to work in Fredenburg's case. The only effect of our rulingis to avoid closing the courthouse door to Fredenburg at the outset,because of her admissions.7 We recognize that Fredenburg challenged the state's determination thatshe was able to return to work. For reasons we have already stated, how-ever, her unsuccessful assertion that she was unable to return to work wasnot a proper foundation for judicial estoppel because it did not indicatethat Fredenburg was "playing fast and loose with the courts." See Johnson,141 F.3d at 1369.8 Fredenburg's complaint is unclear regarding her ADA challenge to themedical examination(s). The district court interpreted Fredenburg's com-plaint as raising an ADA claim with regard to the second examination,which Health Services required in September 1996 as a condition of Fre-denburg's return to work. We follow the district court's example and dealwith the second examination. The same information was sought by HealthServices from both examinations, however.9 The relevant portions of section 12112(d) provide: (d) Medical examinations and inquiries (1) In general The prohibition against discrimination as referred to in sub- section (a) of this section shall include medical examinations and inquiries. . . . . (4) Examination and inquiry (A) Prohibited examinations and inquiries A covered entity shall not require a medical examina- tion and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and con- sistent with business necessity. (B) Acceptable examinations and inquiries A covered entity may conduct voluntary medical exami- nations, including medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related fuctions. . . . .10 Fredenburg's counsel insisted that the examination was overbroad,and advised Fredenburg not to consent to the disclosure of medical or psy-chiatric information other than "whether or when, in the opinion of thehealth care provider, Ms. Fredenburg can safely return to work."1 In order to qualify for state disability benefits, a claimant must be"unable to perform his or her regular or customary work" as a result of"his or her physical or mental condition." Cal. Unemp. Ins. Code S 2626(West 1986). Although this doesn't mention the possibility of reasonableaccommodation, the majority opinion doesn't rely on that distinction.Given the similarity of this language to that of the ADA, see 42 U.S.C.S 12111(8) (defining a "qualified individual" as a person who "can per-form the essential functions of the employment position that such individ-ual holds"), I am puzzled by Judge Weiner's suggestion that this caseturns on "different definitions of disability, " see Weiner op. at 3584. JudgeWeiner does not explain--nor do I believe he can--how the "differentdefinitions of disability" make any difference in answering the questionput to us.2 The majority also excuses Fredenburg's conduct because "heremployer and the state, considered together, were not treating her consis-tently either." Maj. op. at 3576. But Fredenburg's employer and the dis-ability office were different parties who had no obligation to takeconsistent positions. Even if inconsistency by a single party opponentwere a defense to judicial estoppel, I don't see how one could meld theconduct of two unrelated parties for that purpose.3 Not only did Fredenburg fail to forthrightly admit to her prior represen-tations, in this court she argued that the district court's decision to takenotice of her application for benefits was an abuse of discretion. SeeAppellant's Br. at 10-11. That pretty much refutes the majority's conten-tion that "[s]he has not denied any of the representations she made." Maj.op. at 3576.