by Zachary Morahan and Shannon Kane, Coughlin & Gerhart, LLP
To be eligible for Social Security disability (SSD) benefits, an individual must be unable to perform “past relevant work.” To be eligible to sue for disability discrimination under the Americans with Disabilities Act (ADA, an individual must be able to perform the essential functions of his position with or without a reasonable accommodation.
What happens when a worker simultaneously claims he is eligible for SSD benefits and is a “qualified individual” under the ADA? The 2nd Circuit—which covers Connecticut, New York, and Vermont—recently held that a worker’s claim for SSD benefits may eviscerate his ADA claim.
Background
“Barry,” a Romanian, began working as a maintenance mechanic for Rockbestos-Suprenant Cable Corporation in April 2005. In early December 2009, he sought treatment for a deteriorating medical condition in his legs and feet. He was placed on light duty and given an electric cart to use as a reasonable accommodation.
He continued to experience medical problems and took leave under the Family and Medical Leave Act (FMLA) in January 2010. He returned to work a month later, but he remained on light duty and continued to use an electric cart when necessary.
In March 2010, Barry was suspended and ultimately terminated for violating company policy by using a golf cart that had been tagged as unsafe and then lying to his supervisor about it. Before he was terminated, Barry served a short suspension, during which he filed an application for SSD benefits with the Social Security Administration (SSA).
In his application, he indicated that he had “stopped working because of [his] conditions” and that he had become “unable to work.” He failed to mention he had been suspended for cause by his employer.
In June 2010, the SSA determined that Barry became “disabled” under the Social Security Act 5 days before his employment was terminated by Rockbestos. In its “Disability Determination Explanation,” the SSA discussed Barry’s medical conditions and stated, “Physical limitations prevent [him] from performing his past relevant work.”
Barry later sued Rockbestos for wrongful discharge, asserting claims under the ADA, the Age Discrimination in Employment Act (ADEA), and Title VII and related claims. The district court granted partial summary judgment (dismissal without a trial) in favor of Rockbestos, finding that Barry was “judicially estopped” from claiming he was discriminated against in violation of the ADA, the ADEA, and Title VII because he had simultaneously and inconsistently told the SSA that he was unable to work when he applied for SSD benefits.
Barry appealed to the 2nd Circuit, which affirmed the district court’s decision based on a slightly different analysis. While the 2nd Circuit found that Barry had failed to explain the discrepancy to the SSA, it agreed that he had failed to make a prima facie (minimally sufficient) showing that he was “qualified” to hold his position under the ADA because he represented to the SSA that he was unable to perform the duties of his position.
Words matter
To establish a case under the ADA, the ADEA, or Title VII, an employee must show that he was qualified for the position he held at the time of his termination. Under the ADA, a “qualified individual” is a person who can perform the essential functions of his job with a reasonable accommodation. The Social Security Act does not take into account the possibility of a reasonable accommodation (e.g., the employer allowing the employee to use a golf cart).
As a result, an ADA suit claiming that an employee can perform his job with a reasonable accommodation may be entirely consistent with an SSD claim in which the employee asserts he cannot perform his job (or other jobs) with or without an accommodation.
However, Barry claimed that he was “unable to work” beginning in March 2010, when he was given an electric cart as a reasonable accommodation. The 2nd Circuit held that was entirely inconsistent with his subsequent ADA claim in which he asserted that he was a “qualified individual” who was able to perform the essential functions of his position with or without an accommodation. Kovaco v. Rockbestos-Suprenant Cable Corporation, F.3d (2d Cir., 2016).
Takeaways
Words do matter. Employers defending against disability discrimination lawsuits are encouraged to review other claims that employees make regarding their alleged disability, such as applications for unemployment insurance, disability benefits, and workers’ compensation benefits.
Factual assertions employees make in those filings may be entirely inconsistent with claims they bring under the ADA, the ADEA, Title VII, or the New York State Human Rights Law (NYSHRL). Consult with qualified employment counsel on how to best defend your company when an employee asserts inconsistent positions regarding a disability.
Zachary D. Morahan, an editor of New York Employment Law Letter, may be reached at zmorahan@cglawoffices.com or 607-723-9511. Shannon Kane is a law clerk, pending admission, at Coughlin & Gerhart, LLP, and can be reached at skane@cglawoffices.com, or 607-723-9511.