Plaintiff Eddie Jackson, a safety police officer with the County of Los Angeles (County), sustained a work-related injury to his back.
Jackson filed this action under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§ 12101-12213), alleging that the County had discriminated against him because of his disability. The trial court granted summary judgment in favor of the County on the ground that Jackson's work restriction rendered him unqualified for employment. We affirm.
In October 1974, Jackson began his employment with the County as a safety police officer I. At some point, he was assigned to County-U.S.C. Medical Center (Medical Center) and was promoted to safety police officer III. According to Jackson's performance evaluations, his job responsibilities included protecting patients, visitors, employees, and members of the public from acts of violence; safeguarding County property by responding to fires, bomb threats, and hazardous material spills; and arresting individuals engaged in criminal activity. These duties required that Jackson carry a firearm.
The formal class specification for the position of safety police officer III states that "[p]ositions allocable to this class ... [are assigned to] isolated fixed posts, or conduct individual foot and vehicle patrol of premises where the patrons and clientele include a high proportion of aggressive and quarrelsome individuals and groups hostile to authority, and who often react to the frustration of having rules imposed that regulate their behavior by resorting to physical assault upon persons or property. The areas included within these assignments are often invaded by groups and/or individuals who come upon the premise[s] to commit crimes such as theft, vandalism and rape.... [¶] Positions allocable to this class are distinguished from fulltime peace officer positions by the limited nature of their law enforcement authority. Such authority is limited to the enforcement of law only as necessary to prevent injury to persons or damage to or theft of property within the area or areas of the County facility of facilities of the shift to which they are posted or assigned." The class specification indicates that the position of safety police officer III has a physical class rating of "4," which means that the physical demands of the job are "arduous."
In March 1991, Jackson sustained an injury while restraining a hyperactive patient who was on phencyclidine, commonly known as PCP. Shortly
In connection with the workers' compensation claim, Jackson's attorney selected two physicians, Drs. Richard Low and Jack Kroeger, to evaluate his injuries.
On September 10, 1992, Dr. Kroeger reported: "The subjective factors of disability are occasional slight to moderate low back pain when getting out of bed in the morning. [¶] ... The objective factors of disability include restriction of low back motion with pain on terminal range, tenderness in the area and 50% restricted squatting." Under the heading, "Work Restrictions," Dr. Kroeger stated: "Mr. Jackson is to avoid quick back movements and strains, including heavy lifting, repeated bending and stooping." Under the heading, "Rehabilitation," Dr. Kroeger wrote: "Mr. Jackson is a Qualified Injured Worker. He is unable to return to his usual occupation as a safety police [officer]. He is eligible for vocational retraining and rehabilitation."
At the County's request, Jackson was also evaluated by Randolph Noble, M.D. In a February 1, 1993, report, Dr. Noble concluded: "Mr. Jackson is presently working full time and there does not appear to be an internal medicine disability precluding him from his usual and customary job activities. [¶] ... [I]t is my opinion that Mr. Jackson could perform his usual and customary occupational duties without restriction. Work preclusions are not indicated."
In early April 1993, Jackson's workers' compensation claim was resolved by way of the parties' "Stipulations with Request for Award," which they filed with the Workers' Compensation Appeals Board. The stipulations
By letter dated April 19, 1993, the County's workers' compensation administrator informed Adele Harris, who worked in the County's "return-to-work" unit, of Jackson's work restrictions. Subsequently, Jackson's superiors decided that his work restriction mandating a stress-free environment precluded him from continuing to serve as a safety police officer and that there were no accommodations that would permit him to continue in that job.
On April 23, 1993, Jackson's supervisor told him that he was being relieved of his duties as a safety police officer because there were no positions that were free from emotional stress. In an effort to accommodate Jackson's work restrictions, the County attempted to find another position for him at the Medical Center or in a different safety police division within the department of health services. The County also provided Jackson with vocational rehabilitation services through Anami Rehabilitation Services, Inc. However, Jackson withdrew from the rehabilitation program after a few weeks. The only position he wanted or would consider was that of safety police officer III. Beginning on or about April 23, 1993, Jackson was placed on a medical leave of absence. At that time, the County still considered him to be an employee.
In October 1993, Jackson filed a charge with the United States Equal Employment Opportunity Commission (EEOC), alleging that the County had violated the ADA. In July 1994, he received a right-to-sue letter from the United States Department of Justice authorizing him to file a civil suit under the ADA within 90 days. The department did not make any determination regarding the merits of Jackson's claim.
In October 1994, Jackson filed this action, alleging that the County had violated the ADA by failing to accommodate his disability and by terminating his employment on April 23, 1993. Jackson also alleged that the County had treated him as if he had a disability when in fact he did not.
Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A. The ADA
The ADA makes it unlawful for an employer to "discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." (42 U.S.C. § 12112(a).) A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." (Id., § 12111(8).) "Disability" means (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment. (Id., § 12102(2).)
The ADA prohibits several forms of "discrimination," including: "(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of [his] disability...; [¶] ... [¶] [(2)] excluding or otherwise denying equal jobs or benefits to a qualified individual because of [his] known disability ...; [and] [¶] [(3)] not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business...." (42 U.S.C. § 12112(b)(1), (4), (5)(A).) "Undue hardship" means an action requiring significant difficulty or expense by the employer. (Id., § 12111(10)(A); 29 C.F.R. § 1630.2(p) (1997); see also 42 U.S.C. § 12111(10)(B) [discussing factors to be considered in determining whether reasonable accommodation would impose an undue hardship on employer].)
B. Judicial Estoppel
"`The doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.... "The policies underlying preclusion of inconsistent positions are `general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings.'" ... Judicial estoppel is "intended to protect against a litigant playing `fast and loose with the courts.'"'" (Russell v. Rolfs (9th Cir.1990) 893 F.2d 1033, 1037.) "It seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite." (Comment, The Judiciary Says, You Can't Have It Both Ways: Judicial Estoppel — A Doctrine Precluding Inconsistent Positions (1996) 30 Loyola L.A.L.Rev. 323, 327 (hereafter You Can't Have It Both Ways).)
Although the doctrine of judicial estoppel has been recognized in California, our courts have not established a clear set of principles for applying it.
C. The Effect of the Workers' Compensation Award
"A significant number of federal courts have ... decided that a person who characterizes herself as `totally disabled' in order to receive state, federal, or even insurance benefits will normally be estopped from proving that she is a qualified individual with a disability within the meaning of the ADA or similar state laws. [Citations.] Different courts have positioned themselves on the other side of this dispute, holding that one who represents herself as `totally disabled' for purposes extraneous to the ADA should still have an opportunity to recover under that statute. [Citations.]" (Dush v. Appleton Elec. Co. (8th Cir.1997) 124 F.3d 957, 961-962.)
In Rissetto v. Plumbers and Steamfitters Local 343, supra, 94 F.3d 597, the Ninth Circuit held that federal principles of judicial estoppel barred the plaintiff's claims, including an age discrimination claim under the FEHA, where she had received workers' compensation benefits for temporary total disability. The plaintiff's civil action was premised on the theory that she had been able to perform her job but that she had been constructively discharged. (Id. at pp. 599, 606.) However, the Ninth Circuit found that
In Dush v. Appleton Elec. Co., supra, 124 F.3d 957, the employer had terminated an employee for failure to work a full eight-hour day. The employee argued that her termination violated the ADA because she was a "qualified individual with a disability." In particular, she claimed that she could have continued to work with a reasonable accommodation, i.e., a light-duty assignment. Relying on the doctrine of judicial estoppel, the Eighth Circuit affirmed summary judgment for the employer based on the findings made in the employee's workers' compensation proceeding. The court stated: "[Plaintiff] posits that being `totally disabled' for purposes of Nebraska's workers' compensation law has no bearing on the question of whether she is a qualified individual with a disability. This is because the ADA includes the concept of `reasonable accommodation,' whereas workers' compensation law does not.... According to [the plaintiff], she could have been totally disabled under Nebraska law, but still have been able to perform the essential functions of her job with a reasonable accommodation (namely, reduced hours).... The problem with this contention, however, is that the workers' compensation court addressed the issue of shorter shifts and specifically ruled that [the plaintiff] was `unable to continue this light duty employment on any long term sustained basis.' At least in this case, then, the workers' compensation proceedings in Nebraska did, indeed, take into account the only reasonable accommodation which [the plaintiff] now asserts would have allowed her to perform her job. Consequently, the state administrative tribunal's characterization of [the plaintiff] as `totally disabled' was equivalent to a finding that she was not qualified under the ADA." (Id. at pp. 964-965, citations and fns. omitted.)
Similarly, in Cheatwood v. Roanoke Industries (N.D.Ala. 1995) 891 F.Supp. 1528, the findings made in a workers' compensation proceeding precluded an employee's ADA claim alleging discriminatory termination. There, the employee worked for an industrial manufacturer of plastic parts as
Finally, in Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935, Division Seven of this court declined to apply judicial estoppel to bar an employee's disability discrimination claim under the FEHA. In Prilliman, the plaintiff, a pilot, was grounded and placed on disability leave after United Airlines learned that he had been diagnosed with acquired immune deficiency syndrome. The plaintiff alleged that United Airlines had failed to accommodate his disability since it had not determined whether he could perform an alternative nonflight job (e.g., pilot instructor). For its part, United Airlines argued that, under the doctrine of judicial estoppel, the employee's receipt of disability benefits from the company, the Social Security Administration, and the State of California precluded his discrimination claim. (Id. at pp. 944, 946.) According to United Airlines, the employee's receipt of disability benefits was inconsistent with his contention in the FEHA action that he was able to work in a nonflight job. In addition, on an application for company benefits, the plaintiff's treating physician had stated that the plaintiff was on "permanent total disability." (Id. at pp. 943-944, 963.) The Court of Appeal concluded that judicial estoppel did not apply because the plaintiff's disability discrimination claim was not "clearly inconsistent" with the position he had taken in seeking disability benefits. (Id. at p. 963.)
This conclusion is consistent with a recent "enforcement guidance" issued by the EEOC, the agency statutorily charged with administering the ADA. (See 42 U.S.C. §§ 12116, 12117.)
"Because the ADA definitions of the terms `disability' and `qualified individual with a disability' are tailored to the broad remedial purposes of the Act, they differ from the definitions of the same or similar terms used in other laws and benefits programs designed for other purposes. The definitions of the terms used in the Social Security Act, state workers' compensation laws, disability insurance plans, and other disability benefits programs are tailored to the purposes of those laws and programs. Therefore, representations made under those laws and programs are not determinative of coverage under the ADA....
".... .... .... .... .... .... ....
"The workers' compensation definitions of `disability' reflect the purposes of workers' compensation laws. Those laws provide a system for securing prompt and fair settlement of employees' claims against employers for occupational injury and illness. In that regard, the laws generally require employers to compensate employees who are injured in the course of employment for the resulting loss of earning capacity and for medical care. Thus, workers' compensation provides benefits to individuals whose earning capacity has been reduced because of a work-related injury. Because of the emphasis on lost earning capacity, the workers' compensation definitions of disability generally focus on what a person can no longer do rather than on what s/he still is capable of doing with or without reasonable accommodation.
"To receive workers' compensation benefits, an employee generally must prove that s/he has a compensable `disability' as defined by the applicable workers' compensation statute. The term `disability' in this context most commonly means loss or reduction of earning power that results from a work-related injury.
".... .... .... .... .... .... ....
"[U]nlike the ADA definition of `qualified individual with a disability,' the workers' compensation definitions of `disability' do not distinguish between marginal and essential functions and do not consider whether an individual can work with reasonable accommodation. In many workers' compensation cases, a person has a `total disability' when s/he is unable to do certain tasks, even if those tasks are marginal functions or if s/he could perform them with reasonable accommodation. Thus, a person may be `totally disabled' for workers' compensation purposes and yet still be able to perform a position's essential functions with or without reasonable accommodation. [¶] ... [¶] ... Accordingly, an individual receiving workers' compensation benefits still may be entitled to protection under the ADA." (EEOC Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a "Qualified Individual with a Disability" Under the Americans with Disabilities Act of 1990, in Avoiding Workplace Litigation (PLI Litig. & Admin. Practice Course Handbook Series No. H4-5261 (1997) pp. 151-164, fns. omitted, cited with approval in Swanks v. WMATA (D.C. Cir.1997) 116 F.3d 582, 586 [325 App.D.C. 238].)
In this case, the County acknowledges that it removed Jackson from his job and placed him on an extended medical leave because of his disability. In granting summary judgment, the trial court did not invoke judicial estoppel based on any representations Jackson had made in seeking workers' compensation benefits (e.g., that he was "disabled"). Nor did the trial court rely on Jackson's receipt of disability benefits or on the finding in the workers' compensation proceeding that he had a "permanent disability" (with a rating of 65 percent). Rather, the trial court found that judicial estoppel barred Jackson's ADA claim because of the position he took in the workers' compensation proceeding with respect to his work restrictions. We agree.
Workers' compensation awards may be based upon stipulations between the parties. (Lab. Code, § 5702.) A "Stipulations with Request for Award" is
Here, the "Stipulations with Request for Award" stated that the parties had "mutually agree[d]" that Jackson was under a restriction that his "work environment [be] free from emotional stress and strain and no heavy work." The stipulations cited Dr. Low's April 16, 1992, report as support for that restriction. Dr. Low had found that "[b]y virtue of ... worsening hypertension, and based solely on this condition, the patient is restricted to working in an environment free of emotional stress and strain, and no heavy work as fatigue tends to aggravate these findings and set him up for life threatening complications." The workers' compensation judge accepted the parties' stipulations and approved the work restriction as part of the award.
To prevail on his ADA claim, Jackson must establish that he is a "qualified individual with a disability." (See 42 U.S.C. § 12112(a); Bultemeyer v. Fort Wayne Community Schools, supra, 100 F.3d at p. 1284.) In other words, Jackson must prove that he could perform the essential functions of the job he held or desired, with or without reasonable accommodation. (42 U.S.C. § 12111(8).) To make such a showing, Jackson would have to assert a position in this action that is totally inconsistent with the position he successfully pursued in the workers' compensation proceeding. The doctrine of judicial estoppel forecloses that attempt.
On this record, we find that the elements of judicial estoppel have been satisfied. First, Jackson has taken two positions: In the workers' compensation proceeding, he agreed with Dr. Low's assessment that he had to have a stress-free job; in this action, he claims that he could perform the essential functions of a safety police officer III. Second, both positions were taken in judicial or quasi-judicial administrative proceedings. Third, Jackson was successful in asserting the first position: The requirement of a stress-free job appeared in the parties' "Stipulations with Request for Award" (which Jackson and his attorney signed), and the workers' compensation judge adopted the stipulations in making the award. Fourth, the two positions are totally inconsistent: Jackson cannot have a stress-free work environment and perform the essential functions of a safety police officer III. The County has classified that job as "arduous" for good reason, and Jackson has admitted that all of the duties of a safety police officer III involve stress. Nor was a reasonable accommodation possible. Despite the County's efforts to rehabilitate Jackson and find him an alternative job, he withdrew from the rehabilitation program and indicated that the only job he wanted was that of safety police officer III.
In closing, we comment briefly on the evidence submitted by Jackson in opposing summary judgment, none of which created a triable issue of material fact. First, although Dr. Noble — the physician selected by the County — found that Jackson was not subject to any work restrictions, the parties did not base their stipulations for the award on his report, nor did the workers' compensation judge rely on it in making the award. Second, we find irrelevant the testimony of Jackson's expert that the 65 percent disability rating did not prevent Jackson from performing the essential functions of his job with or without accommodation. We have concluded that judicial estoppel barred Jackson's ADA claim based on the work restriction mandating a stress-free environment, not on the finding of permanent disability or the particular disability rating. Lastly, the fact that Jackson may have been performing his job satisfactorily before the workers' compensation award does not mean the County should have allowed him to continue in that job after the award. Jackson expressly agreed in the workers' compensation proceeding to be bound by the work restriction recommended by Dr. Low, and the workers' compensation judge included that restriction in the award. The requirement that Jackson work in a stress-free environment precluded his continued performance as a safety police officer III, just as it bars his ADA claim. The doctrine of judicial estoppel ensures that Jackson will not "speak out of both sides of [his] mouth ... before this court." (Reigel v.
The judgment is affirmed.
Ortega, Acting P.J., and Dunn, J.,
Appellant's petition for review by the Supreme Court was denied March 11, 1998.