Plaintiffs, formerly two pilots employed by defendant United Air Lines, Inc. (United), appeal from summary judgment granted in favor of defendants on plaintiffs' complaint for disability discrimination and negligence.
FACTUAL AND PROCEDURAL BACKGROUND
Inasmuch as appellants do not challenge the trial court's conclusion that they failed to identify any evidence which created a dispute as to any of the defendants' 52 statements of undisputed facts which formed the basis for their motion for summary judgment, we deem the facts to be undisputed for purposes of this appeal. The following facts are gleaned from the moving parties' separate statement of undisputed facts, supplemented with information from documents and declarations offered in support of, or in opposition to, the motion for summary judgment.
A. Plaintiff Rafalowski.
Rafalowski started employment with United as a flight officer in June 1985, and throughout his employment his performance evaluations were satisfactory or above. Commercial pilots must regularly undergo comprehensive physical examinations administered by a Federal Aviation Administration (FAA) medical examiner in order to receive a medical certificate from the FAA; at each FAA medical examination, a pilot is required to complete an application which includes a complete medical history identifying and explaining all medical conditions that the pilot has or has ever had; in addition, the pilot must list all visits in the last three years to a physician, physician assistant, or psychologist for treatment, examination, evaluation or counseling. If a pilot identifies a disqualifying physical condition on his application, medical certification will be denied or deferred to the FAA for further consideration. Pilots who have been diagnosed with AIDS or AIDS-defining conditions, such as Kaposi's sarcoma, are not eligible to receive a medical certificate and are prohibited by the FAA from piloting an aircraft.
As a matter of regular procedure at United, all pilots are subjected to routine physical examinations conducted by United medical staff. Blood tests taken at such physicals are subjected to lab work which could impact the pilot's ability to continue flying.
Although Rafalowski tested positive for human immunodeficiency virus (HIV) in 1985, on his June 10, 1994, application to the FAA for his medical certification, he stated only that he had surgery for a deviated septum performed by a Dr. Berman; he provided no other medical history and did not identify any other visits to other health care professionals.
Rafalowski's primary treating physician was Dr. Kooshian, who monitored Rafalowski's AIDS; by early 1994, Dr. Kooshian diagnosed Rafalowski with AIDS and other AIDS-related opportunistic infections, including
Tests results from Rafalowski's company physical in early 1994 were abnormal, so he was asked to return for additional testing; the abnormal results were not present after the second test. Rafalowski never informed United that he had HIV or AIDS. Defendant Dr. Daner Reider, United's regional flight surgeon who was responsible for fitness-for-duty evaluations, reviewed Rafalowski's test results and drafted departmental correspondence to Rafalowski on June 6, 1994, stating that "Almost total resolution of all abnormal results, although triglycerides remain significantly high. Prompt decrease of abnormal liver tests strongly suggest some very acute process that has now resolved. It does not suggest infectious hepatitis but implies a toxic effect from some chemical. In most cases, the chemical most likely to cause such a problem is alcohol. Strongly recommend careful self-evaluation of drinking behavior. Call me if you have any questions."
Soon after June 6, 1994, Dr. Reider discussed Rafalowski's test results with Rafalowski's personal physician, Dr. Kooshian; Dr. Kooshian told him that Rafalowski had been treated for epistaxis (recurrent nosebleeds) and a malignancy, Kaposi's sarcoma; Dr. Kooshian also explained that Rafalowski had been diagnosed with AIDS. On June 21, 1994, Dr. Reider received a letter from Dr. Kooshian which stated in pertinent part that "This letter is a follow-up to our telephone conversation yesterday, June 16, 1994. This is confirmation that [Rafalowski] has been placed on indefinite total disability secondary to recurrent epistaxis and a malignancy. This disability commenced on June 11, 1994."
Dr. Reider determined that Rafalowski could no longer physically qualify for a FAA medical certificate with his AIDS diagnosis, and recommended that his flight duties be removed and that he be permanently grounded. On June 24, 1994, Dr. Gary Kohn, United's corporate medical director, placed Rafalowski on medical disability effective June 24, 1994, at the end of his sick leave eligibility.
B. Plaintiff Prilliman.
Ronald C. Prilliman began employment as a flight officer with United in June 1985, and thereafter received job performance evaluations of satisfactory or above. In 1990, he was diagnosed with HIV; in late 1993 he began seeing Dr. Kooshian to treat his HIV-positive condition; Prilliman's was also treated by Drs. Kaslow and Shallenberger; by early 1994, Prilliman's condition advanced to AIDS. In Prilliman's July 1994 application to the FAA for his medical certification, the only item he listed in response to his medical history inquiry was "sinus surgery in July "; he listed two visits to a health professional in the last three years, including a visit to Dr. Kooshian for treatment for the flu. He did not identify HIV or AIDS in his medical history, or any of the numerous medications, infusions, X-rays, CAT scans or MRI's he received in the preceding year; he also did not tell the FAA medical examiner that he was HIV-positive. Nor did Prilliman disclose his HIV/AIDS condition to United, Dr. Reider, or any other United doctors. From August 20 to 23, 1994, Prilliman captained a 737 aircraft from Los Angeles to Denver to San Antonio to New York to Chicago to Seattle to Los Angeles to Cabo San Lucas and back to Los Angeles; he had no difficulty in the safe and effective operation of the aircraft.
United first learned of Prilliman's disqualifying medical condition of AIDS on August 25, 1994, from the results of tests performed by a United physician on August 24, 1994, as part of United's regular physicals for pilots. Based on the results of blood tests taken at the examination and the medical history given by Prilliman, Dr. Reider decided to ground Prilliman pending a further investigation into his medical condition; Dr. Reider contacted Dr. Kooshian, who verified that Prilliman was HIV-positive with a diagnosis of AIDS. United then determined that Prilliman no longer satisfied
After Prilliman was grounded, a United administrative coordinator advised him to apply for Social Security benefits in order to supplement his disability income, and he did so. As a result of his grounding, Prilliman began to receive from United a monthly disability benefit of $6,610, or 55 percent of his salary; he also currently receives a monthly Social Security disability benefit of $1,351, and for a year he had received a monthly disability benefit of $1,340 from the State of California. Prilliman did not request an alternative job position after he was grounded by United. In answers to interrogatories, United admitted that at the time the plaintiffs were grounded, United did not consider them for any other positions (other than flight officer) because they "did not request any other positions at the time of grounding."
When Prilliman informed the FAA of his HIV/AIDS condition for the first time in December 1994, the FAA immediately denied his medical certification. According to a September 1995 evaluation and report by a neuropsychiatrist, Dr. Eric Miller, Prilliman was "functioning in the average to high average range of general intellectual ability. Overall, Mr. Prilliman is functioning well within the normal range with respect to language functioning, visuospatial ability, verbal memory, and motor skills. We noted some very mild variability in delayed recall of nonverbal stimuli, although all exam results were still within the average range. Measures of executive functioning were mixed with most of his scores in the average range, but with one measure of cognitive flexibility and problem solving in the borderline impaired range. Since this is Mr. Prilliman's first assessment, it is unclear if this is a new area of compromise, a preexisting area of weakness, or because the test was administered near the end of a 7.5 hour testing session.... [¶] It is our impression that the patient's neuropsychological functioning is intact and well within normal limits."
C. Procedural Background.
The first cause of action of plaintiffs' first amended complaint (complaint) seeks damages for violation of the Fair Employment and Housing Act (FEHA); the complaint alleges that United and Dr. Reider violated the FEHA by placing plaintiffs on medical retirement, and by failing to provide them reasonable accommodations. The second cause of action for negligence alleges that United failed to train Dr. Reider and others regarding plaintiffs' rights under the FEHA, and failed properly to supervise Dr. Reider and others, causing plaintiffs mental anxiety, upset, and loss of earnings.
In opposition to the motion for summary judgment, plaintiffs contended that the duty to find a reasonable accommodation arises when the employer is aware an employee's limitations due to a disability impede his job performance and the employee is not required to request accommodation in order for the employer's duty to arise. Plaintiffs also argued that placing them on permanent disability at 55 percent of their income does not, as suggested by defendants, constitute a reasonable accommodation because it does not preserve the disabled employee's employment status.
Plaintiffs also contended that in discovery, defendants admitted that from June 1994 to December 1995, United had 23 pilot instructor positions open and hired 23 individuals without offering any of the positions to them.
In reply, United contended that because of Rafalowski's deteriorated physical condition at the time of his grounding, his accommodation claim is moot because Dr. Kooshian agreed with his grounding, placed him on disability, and United was never contacted by Rafalowski or his doctor thereafter that his condition had improved; in fact, Rafalowski's condition worsened; since October 1994, Rafalowski used a wheelchair to transport himself and in December 1994, he was diagnosed with CMV, a viral infection of the spinal cord, leading to severe dementia, progressive muscle wasting, loss of use of his lower extremities and some loss of vision.
As to Prilliman, United maintained that under some circumstances, a leave of absence can be a reasonable accommodation; at the time of Prilliman's grounding, he was placed on compensated and insured disability leave; thereafter, Prilliman did not request any accommodation, nor was he terminated; rather, he was accommodated when placed on paid disability. According to United, the burden was then on Prilliman to identify a different accommodation, if so desired; since Prilliman made no such alternative request, he cannot now fault United for not providing an alternative accommodation. As to the flight instructor positions, United also maintained that
After extensive oral argument on the motion, the court took the matter under submission. In its written ruling granting the motion for summary judgment, the court concluded that "At oral argument the court invited counsel to discuss the evidence with respect to each of the disputed facts and the court is now convinced that plaintiffs failed to identify any evidence that created a genuine triable issue of fact." The court also stated that "Neither plaintiff requested an alternative job position after being grounded and have not identified any vacant position which they are capable of performing."
Plaintiffs filed timely notice of appeal from the summary judgment. In their briefs on appeal, appellants do not challenge the implied finding by the trial court that their grounding by United did not violate the provisions of the FEHA; rather, appellants' principal contention is that a triable issue of fact exists on the issue of whether United met the requirement of the FEHA to reasonably accommodate their conditions. Appellants' position is that their "forced retirement" was not a reasonable accommodation, and United had an obligation to take affirmative steps to help them find other positions with United. Respondents' position is that because appellants sought and received state and federal disability benefits on the representation that they were totally disabled, they are estopped from taking a contrary position in this lawsuit, i.e., that they were physically able to work in some other position with United. In addition, respondents assert that, under the facts in this case, the offers of medical disability did constitute reasonable accommodation under the FEHA, and in the absence of any requests by appellants for an alternative accommodation, such as nonflight positions, United had no legal obligation to "predict or assume from their silence that they desired other, nonflight jobs." Our first task, then, is to determine the nature and scope of the reasonable accommodation requirement of the FEHA.
REASONABLE ACCOMMODATION UNDER THE FEHA
Under Government Code section 12940, it is an unlawful employment practice for an employer "to fail to make reasonable accommodation for the
Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an "undue hardship." (Cal. Code Regs., tit. 2, § 7293.9; Sargent v. Litton Systems, Inc. (N.D.Cal. 1994) 841 F.Supp. 956, 960.) "Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: [¶] (1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; [¶] (2) Job Restructuring. Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions." (Cal. Code Regs., tit. 2, § 7293.9, subd. (a).)
"`Undue hardship' means an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) the nature and cost of the accommodation needed; [¶] (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; [¶] (3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities; [¶] (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; [¶] (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities." (Cal. Code Regs., tit. 2, § 7293.9, subd. (b).)
In a case dealing with a postal worker with AIDS who requested transfer to another location where he could obtain better medical treatment, and who claimed the Postal Service's refusal to transfer him violated section 501 of the Rehabilitation Act, the court in Buckingham v. U.S. (9th Cir.1993) 998 F.2d 735, noted that the duty on employers under the Rehabilitation Act "goes beyond mere nondiscrimination; the regulations promulgated under section 501 emphasize the affirmative obligation to accommodate." (998 F.2d at p. 739.) "An employer, to meet its burden under the Act, may not merely speculate that a suggested accommodation is not feasible. When accommodation is required to enable the employee to perform the essential
Similarly, in a case dealing with the Americans with Disabilities Act (ADA) of 1990, the court in Reigel v. Kaiser Foundation Health Plan of N.C. (E.D.N.C. 1994) 859 F.Supp. 963, stated that "[A]n employer is not required to find another job for an employee who is no longer qualified to perform the duties of the job previously held but discontinued by virtue of a disability, unless the employer normally provides such alternative employment under its existing policies." (Id. at p. 973, italics added.)
As explained in Shiring v. Runyon (3d Cir.1996) 90 F.3d 827, 831-832: "Before 1992, disabled individuals had to prove [in claims under the Rehabilitation Act of 1973] that they were qualified only for the job that they were employed to do. `[Employers] are not required to find another job for an employee who is not qualified for the job he or she is doing.' [Citation.] Although reassignment was an option under the 1990 Americans with Disabilities Act, see 42 U.S.C. § 12111(9)(B) (reasonable accommodation may include reassignment to a vacant position), it was not required of federal employers under the Rehabilitation Act. However, in 1992, the Rehabilitation Act was amended.... [¶] Pursuant to this amendment, the Code of Federal Regulations was amended effective October 31, 1992 to provide that employers shall offer to reassign nonprobationary employees if those employees become unable to perform the essential functions of their jobs. The reassignment should be to an already funded, vacant position within the same commuting area, and at the same grade or level 29 C.F.R. § 1614.203(g). The use of the word `shall' indicates that this reassignment offer is mandatory, unless the reassignment would cause the agency undue hardship. Therefore, courts should consider whether reassignment is possible in determining whether an individual seeking relief under the Rehabilitation Act is an otherwise qualified individual."
The Supreme Court of Washington, in interpreting a statute and regulation similar to California Government Code section 12940, subdivision (k),
The court in Goodman cited with approval Curtis v. Security Bank of Washington (1993) 69 Wn.App. 12 [847 P.2d 507] and Dean v. Municipality of Metropolitan (1985) 104 Wn.2d 627 [708 P.2d 393]. Dean held that under Washington state discrimination law, an employer has a duty to take affirmative steps to make known to the disabled employee other job opportunities within the company and to determine whether the employee is qualified for those positions. (708 P.2d at p. 400.) Curtis held that an employee who was laid off after she developed arthritis in her hips made out a prima facie case of handicap discrimination even though she did not apply for open positions with the employer bank because "Her failure to seek the open positions can be attributed to the Bank's failure to inform her that future jobs would involve teller work. The Bank's duty to accommodate required it to inform Ms. Curtis that future jobs might involve teller work, perform capabilities testing on the open positions, encourage her to apply for the vacant positions she could perform, and affirmatively assist her in applying for those positions." (847 P.2d at pp. 511-512.)
With the foregoing principles in mind, we determine whether the trial court properly granted summary judgment with respect to the complaint as to Prilliman and Rafalowski.
SUMMARY JUDGMENT PRINCIPLES
In its ruling the trial court appeared to grant summary judgment on the ground that the plaintiffs did not request an alternative job position with
SUMMARY JUDGMENT PROPERLY GRANTED AS TO RAFALOWSKI
Thus, had United undertaken to investigate the possibility of other job positions for Rafalowski upon learning of his AIDS diagnosis in June 1994, it is undisputed that he would not have been able to perform any of those positions. Accordingly, any purported violation of the duty to reasonably accommodate Rafalowski by United would not have caused him any damages. Inasmuch as causation of damage is a necessary element of both causes of action at issue on this appeal, and no such damage is shown, we conclude that summary judgment was properly granted in favor of respondents as to the claims of Rafalowski.
SUMMARY JUDGMENT IMPROPERLY GRANTED AS TO PRILLIMAN
Before we address the issue of judicial estoppel, it is important to point out that in the absence of the application of the judicial estoppel doctrine, our record discloses triable issues of fact which would preclude summary judgment in respondents' favor.
A. Triable Issues of Fact Exist as to Whether United Fulfilled Its Duty of Reasonable Accommodation.
The primary flaw in respondents' motion for summary judgment is that it fails to address the issue of what policies or resources United made or makes available for its employees, disabled or not, who are unable to perform their former positions, and what alternative positions were open or available given Prilliman's job skills and physical condition in August 1994, or thereafter. A reasonable inference on our record is that United placed Prilliman on medical disability "without exploring any other options with [him] in a meaningful way. The hallmark of FEHA is the flexibility it requires of employers to work with its disabled employees to accommodate their needs. [Citations.] From the undisputed facts before this court, it is not possible to tell either what efforts at accommodation were made, or what efforts could have been undertaken without undue hardship. For this reason, it is improper to hold on a summary judgment motion that [the employer] reasonably accommodated [the employee's] disability." (Sargent v. Litton Systems, Inc., supra, 841 F.Supp. 956, 962.) While respondents argue that "Both plaintiffs were reasonably accommodated when they were placed on paid and insured disability leave," we are still left with the triable issue of fact as to whether disability leave, or some other reasonable accommodation, such as an alternative job position, could have been provided to Prilliman without undue
We also find without merit respondents' suggestion that the disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such accommodation. In other words, respondents maintain that they reasonably accommodated Prilliman by offering him insured disability leave, and they had no duty to investigate other potential accommodations, such as alternative job positions with United, because Prilliman did not request an alternative position. However, respondents fail to cite applicable authority to support their contention.
In a case cited by respondents, involving the ADA, the court stated that "The statute does not require the plaintiff to speak any magic words before he is subject to its protections. The employee need not mention the ADA or even the term `accommodation.' Of course, the employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. [Citations.] An employer also has no duty to accommodate an employee who denies she has a disability or denies a need for accommodation." (Schmidt v. Safeway, Inc., supra, 864 F.Supp. 991, 997.) In Schmidt, the court granted partial summary judgment in favor of the employee, and thus rejected the employer's defense that the employee must expressly request accommodation in order for the employer's duty of reasonable accommodation to arise. (Id. at p. 998.)
Nor does Ferry v. Roosevelt Bank (E.D.Mo. 1995) 883 F.Supp. 435, support respondents' contention that under the FEHA the employee must request a specific accommodation before the employer has a duty to consider it. Ferry involved a claim under the ADA by an employee who was having trouble performing her job, was offered unpaid medical leave, and turned it down before she was terminated. The court in Ferry stated that it "need not resolve whether the ADA requires the employee to request an accommodation from his or her employer before the employer's duty to accommodate arises because, in this case, defendant complied with the law by initiating a discussion with Ferry concerning possible accommodations prior to her termination. The record demonstrates that after Ferry's performance failed to
Ferry is inapplicable to the instant case. Not only did the court refrain from addressing the issue of whether the ADA required the employee to request a particular accommodation, but Ferry involved an employee who claimed the employer failed to make accommodations to permit the employee to continue to perform her job. The instant case, on the other hand, involves an employee who indisputably was disqualified from performing his job as pilot because his diagnosis of AIDS precluded him from obtaining FAA certification for flying an aircraft, so the issue here is whether United had a policy or practice to find alternative positions for Prilliman and whether he was capable of performing such other positions. These latter issues were not addressed by the court in Ferry. Accordingly, we conclude that respondents failed to establish a defense based on the failure of Prilliman to come forward and request an alternative job placement with United.
We also conclude that triable issues of fact exist with respect to Prilliman's cause of action for negligence. Without merit is respondents' argument that the negligence claim is waived in that "Plaintiffs argue on appeal, for the very first time, that United had a duty to gather sufficient information from the applicant and qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the [alternative] job." This issue was clearly raised in the complaint, where it is alleged that "The aforesaid acts of Defendant United, including but not limited to the failure to train Dr. Reider and others regarding plaintiffs' rights under the FEHA, and the failure to properly supervise Dr. Reider and others, constituted negligence; such negligence was a substantial factor in causing plaintiffs to suffer mental anxiety and upset, [and] ... [a]s a direct
Without merit also is respondents' argument that even if the negligence claim is not waived, Prilliman has "not identified any facts that demonstrate that United failed to train or supervise Dr. Reider or any other employee with respect to United's obligations or plaintiffs' corresponding rights under the FEHA."
Inasmuch as respondents' separate statement of undisputed facts entirely fails to address the negligence claim, respondents were not entitled to summary judgment on this cause of action.
B. Judicial Estoppel.
By citing a host of federal cases upholding summary judgment in favor of employers on the ground of judicial estoppel, respondents implicitly contend that such line of federal cases governs the instant case and supports the trial court's grant of summary judgment. However, as explained below, the doctrine of judicial estoppel is not uniformly defined or applied by the federal courts; moreover, application of the doctrine in this case is a matter governed by state law, not federal law.
"`The policies underlying preclusion of inconsistent positions are general considerations 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.... Because it is intended to protect the dignity of the judicial process, it is an equitable doctrine invoked by a court at its discretion.'" (Rissetto v. Plumbers and Steamfitters Local 343, supra, 94 F.3d at p. 601.) However, as acknowledged by the court in Rissetto, "`the judicial estoppel [doctrine] remains unsettled. [¶] The majority of circuits recognizing the doctrine hold that it is inapplicable unless the inconsistent statement was actually adopted by the court in the earlier litigation.... The minority view, in contrast, holds that the doctrine applies even if the litigant was unsuccessful in asserting the inconsistent position, if by his change of position he is playing "fast and loose" with the court....' [Citation.] [¶] This Circuit has not yet had occasion to decide whether to follow the `majority' view or the `minority' view. In many of our cases, the apparently inconsistent position was not really incompatible with the party's earlier position, [citations], or the party's change in position was justified, [citations]." (94 F.3d at pp. 600-601, fn. omitted.) The court in Rissetto, however, forthrightly acknowledges that a federal district court in AFN, Inc. v. Schlott, Inc. (D.N.J. 1992) 798 F.Supp. 219, questioned the Ninth Circuit's characterization of the "majority" and "minority" positions, since only a few cases had held categorically that prior judicial adoption is required for application of judicial estoppel, with the Third Circuit in Ryan Operations G.P. v. Santiam-Midwest Lumber Co. (3d Cir.1996) 81 F.3d 355,
The court in Rissetto also noted that judicial estoppel "is sometimes said to apply to `preclude parties from taking inconsistent positions in the same litigation,' [citation], but our cases as well as those from other circuits have applied the doctrine in disregard of this supposed limitation." (94 F.3d at p. 605, italics omitted.) Thus, the doctrine is not confined to inconsistent positions taken in the same litigation (ibid.), and though called judicial estoppel, the doctrine has been applied to proceedings in which a party to an administrative proceeding obtains a favorable order that he seeks to repudiate in a subsequent judicial proceeding. (94 F.3d at p. 604.)
The doctrine of judicial estoppel has not been applied by federal courts in all cases where the plaintiff has received social security disability benefits. The court in Smith v. Dovenmuehle Mortg., Inc. (N.D.Ill. 1994) 859 F.Supp. 1138 stated: "The Seventh Circuit recently has stated that a finding of disability by the Social Security Administration can not be construed as a judgment that the plaintiff is unable to do his job. Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir.1992). The district court in Overton originally granted summary judgment for the defendant due, in part, to the SSA's finding that the plaintiff was entitled to disability benefits because he was `"unable to perform any substantial gainful activity."' The Court of Appeals reversed. The court rejected the very argument defendant proffers here: [¶] [E]ven if a finding of disability could have preclusive effect in a private lawsuit, such a finding is consistent with a claim that the disabled person is `qualified' to do his job under the Rehabilitation Act. [Citation.] The court further recognized that the SSA's decision to award disability benefits does not necessarily translate into a determination that the recipient is unable to find work within the economy. Even if the SSA does make such a determination, that does not necessarily mean that the claimant will not find a job. [Citation.] [¶] In the present case, the SSA awarded Smith disability benefits based on his representations that he was suffering from AIDS and that his condition had forced him to stop working. However, as stated in Overton, the SSA's decision to award benefits is not synonymous with a determination that plaintiff is not a `qualified individual' under the ADA. Nor does it amount to a determination that the plaintiff can not find work in the economy. This is particularly true in the present case because Smith has found another job as a full-time administrator. [¶] ... [¶] Defendant's position would place plaintiff in the untenable position of choosing between his right to seek disability benefits and his right to seek redress for an alleged violation of the ADA. Moreover, it would conflict with one of the stated purposes of the ADA which is to combat `the continuing existence of unfair and unnecessary discrimination
"Similarly, in Kupferschmidt v. Runyon, 827 F.Supp. 570 (E.D.Wisc. 1993), the court simply held that the receipt of social security disability benefits, per se, did not preclude the plaintiff from proving that she could perform the essential function of her job. [Citation.] Lastly, in Lawrence v. United States I.C.C., 629 F.Supp. 819 (E.D.Pa. 1985), the court found no contradiction between the plaintiff's representations to the SSA and his ADA claim because the former consisted only of his assertion that he could not perform all the functions of his prior job, not that his disability prevented him from working at all. [Citation.]" (Griffith v. Wal-Mart Stores, Inc., supra, 930 F.Supp. 1167, 1173, fn. and italics omitted.)
The California courts which have addressed the doctrine of judicial estoppel observe that "This form of estoppel `has been said to be one of vague application, and in many cases it has been held inoperative, or has not been applied.' [Citation.] It cannot be invoked where the position first assumed was taken as a result of ignorance or mistake. [Citation.] The position must be clearly inconsistent so that one necessarily excludes the other. The application has also sometimes been limited by the requirement that to permit one party to change must be unjust to the other party." (Coleman v. Southern Pacific Co. (1956) 141 Cal.App.2d 121, 128 [296 P.2d 386].) The court in Coleman determined that a jury instruction based on the doctrine of judicial estoppel was erroneous, as the doctrine did not apply under the circumstances, where the inconsistency of the positions taken by plaintiff was not sufficiently clear, and the nature of the prior statements made by plaintiff's attorney at a prior trial were not of the "unconscionable character" required to cause an estoppel. (141 Cal. App.2d at pp. 129-130; see also Associated Creditors' Agency v. Wong (1963) 216 Cal.App.2d 61, 67 [30 Cal.Rptr. 705] [characterizing form of estoppel in Coleman as "quasiestoppel, of lesser definiteness in scope than estoppel by judgment," and "of vague application"].)
Twenty years after Coleman, the court in Ng v. Hudson (1977) 75 Cal.App.3d 250 [142 Cal.Rptr. 69], refused to apply the judicial estoppel doctrine to preclude a plaintiff from maintaining on appeal that the trial court committed instructional error by failing to instruct on the aggravation of a preexisting vertebral disc condition because her testimony that she did not suffer from any disability prior to the subject accident was not clearly inconsistent with her request for an instruction pertaining to a dormant pre-existing condition, in that pain and disability need not always accompany a dormant condition. The court in Ng remarked that "Defendant has not cited any cases supporting application of this doctrine to the present case. The proper application of this doctrine is at best uncertain; nevertheless, certain limitations on it are clear. The estoppel cannot be invoked where the first position was not clearly inconsistent so that holding one position necessarily excludes the other. Nor can it be asserted where the first position was based upon ignorance of facts." (75 Cal. App.3d at p. 258.)
Although the doctrine of judicial estoppel has been addressed more recently in other factual and procedural contexts not particularly pertinent here
The related principle of "judicial admission" has not been accorded as broad application as the D'Amico rule. "A judicial admission (by affirmative allegation in a pleading) is a conclusive concession of the truth of the matter admitted." (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1066, fn. 4 [14 Cal.Rptr.2d 604].) As noted by the court in Kirby, "... this court previously has rejected a broad reading of the language
The only other evidence pertaining to Prilliman's receipt of disability benefits offered by respondents in support of their summary judgment motion are Prilliman's October 1994 applications for benefits submitted to US Life Agency Services, Inc., and Central States Health & Life Co. of Omaha. Both applications state that Prilliman was medically grounded from employment with United, and the reason for his unemployment was "medical disability." In a portion to be completed by Prilliman's doctor, Dr. Kooshian stated that Prilliman was disabled since August 25, 1994, with coccidoidmycosis, severe anemia, severe weight loss, and malabsorption syndrome and that "Patient has been placed on permanent total disability." The estimated future disability was listed as "Permanent."
Although it is unclear from our record the purpose for which such applications were submitted, we infer that such applications were submitted so that Prilliman could receive the United disability insurance benefits described above, which are payable as long as Prilliman remains grounded and not reemployed by United. Accordingly, we cannot infer from such applications that Prilliman made any representations inconsistent with his present claims under the FEHA.
In light of the instant record we therefore conclude that respondents fail to show, as they must under principles of judicial estoppel set out in Coleman v. Southern Pacific Co., supra, 141 Cal.App.2d 121, that Prilliman's position in this lawsuit is "clearly inconsistent" with the position taken in applications for disability benefits. Nor have respondents shown that any change in position by Prilliman is "unjust" to respondents.
We also note that in this case there is before us no evidence of any statements or representations made by Prilliman in his application for government Social Security benefits, so the federal cases cited by respondents, dealing with the concept of judicial estoppel by virtue of representations made to receive such government benefits, are inapposite. We thus conclude that the trial court erred to the extent that it granted summary judgment against Prilliman based on the principle of judicial estoppel. Moreover, inasmuch as the concept of judicial estoppel is an equitable doctrine, it must also be considered in this case that it was a United benefits coordinator who advised Prilliman to apply for such government disability benefits. This
For all of the foregoing reasons, we conclude that summary judgment was improperly granted in respondents' favor and against Prilliman.
The judgment in favor of respondents and against appellant Rafalowski is affirmed; the judgment in favor of respondents and against appellant Prilliman is reversed and on remand, the trial court is directed to deny the motion for summary judgment as to Prilliman. The parties are to bear their own costs on appeal.
Johnson, J., and Woods, J., concurred.
Respondents' petition for review by the Supreme Court was denied July 9, 1997.
Because of the similarity between the disability discrimination law of Washington and the California disability discrimination provisions, we find the foregoing Washington State cases useful in explicating the parameters of the employer's duties under California Government Code section 12940, subdivision (k).