Filed: Aug. 22, 2016
Latest Update: Mar. 03, 2020
Summary: 15-2037-cv Kovaco v. Rockbestos-Surprenant Cable Corp. In the United States Court of Appeals For the Second Circuit _ AUGUST TERM 2015 No. 15-2037-cv JOSIF KOVACO, Plaintiff-Appellant, v. ROCKBESTOS-SURPRENANT CABLE CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the District of Connecticut _ ARGUED: MAY 13, 2016 DECIDED: AUGUST 22, 2016 _ Before: NEWMAN, CABRANES, and LOHIER, Circuit Judges. _ The principal question presented is whether the United States Dist
Summary: 15-2037-cv Kovaco v. Rockbestos-Surprenant Cable Corp. In the United States Court of Appeals For the Second Circuit _ AUGUST TERM 2015 No. 15-2037-cv JOSIF KOVACO, Plaintiff-Appellant, v. ROCKBESTOS-SURPRENANT CABLE CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the District of Connecticut _ ARGUED: MAY 13, 2016 DECIDED: AUGUST 22, 2016 _ Before: NEWMAN, CABRANES, and LOHIER, Circuit Judges. _ The principal question presented is whether the United States Distr..
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15‐2037‐cv
Kovaco v. Rockbestos‐Surprenant Cable Corp.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 15‐2037‐cv
JOSIF KOVACO,
Plaintiff‐Appellant,
v.
ROCKBESTOS‐SURPRENANT CABLE CORPORATION,
Defendant‐Appellee.
________
Appeal from the United States District Court
for the District of Connecticut
________
ARGUED: MAY 13, 2016
DECIDED: AUGUST 22, 2016
________
Before: NEWMAN, CABRANES, and LOHIER, Circuit Judges.
________
The principal question presented is whether the United States
District Court for the District of Connecticut (Warren W. Eginton,
Judge) erred in holding that, as a result of certain factual
representations plaintiff made to the Social Security Administration
in successfully obtaining Social Security Disability Insurance
benefits, plaintiff was judicially estopped from asserting that he was
qualified for his position with his employer, and that he was
therefore unable to establish a prima facie case of discriminatory
discharge under the Americans with Disabilities Act, Title VII of the
Civil Rights Act of 1964, and the Age Discrimination in Employment
Act.
We conclude that, although the District Court’s explanation
was erroneous, the District Court correctly held that plaintiff was
judicially estopped and that plaintiff consequently failed to establish
a prima facie case of discriminatory discharge on summary judgment.
Accordingly, because defendant is entitled to summary judgment on
plaintiff’s discriminatory‐discharge claims, and because we
conclude that plaintiff’s other challenges are unpersuasive, we
AFFIRM the judgment of the District Court, except that we
DISMISS for want of appellate jurisdiction plaintiff’s appeal of so
much of the judgment as related to his claim under the Connecticut
Fair Employment Practices Act.
Judge LOHIER joins fully in the judgment of the Court and files
a concurring opinion.
________
MICHAEL J. REILLY (Angelo Cicchiello, on the brief),
Cicchiello & Cicchiello, LLP, Hartford, CT, for
Plaintiff‐Appellant.
2
SUSAN R. OXFORD, Attorney (P. David Lopez,
General Counsel, Jennifer S. Goldstein, Associate
General Counsel, Barbara L. Sloan, Acting
Assistant General Counsel, on the brief), for Amicus
Curiae Equal Employment Opportunity
Commission, Washington, DC, in support of
Plaintiff‐Appellant.
JEFFREY R. BABBIN (Lawrence Peikes, on the brief),
Wiggin and Dana LLP, New Haven, CT, for
Defendant‐Appellee.
________
JOSÉ A. CABRANES, Circuit Judge:
Plaintiff‐appellant Josif Kovaco (“Kovaco”) appeals from a
judgment of the United States District Court for the District of
Connecticut (Warren W. Eginton, Judge) in part granting summary
judgment to his former employer, defendant‐appellee Rockbestos‐
Surprenant Corporation (“Rockbestos”), on his claims of hostile
work environment and discriminatory discharge.
In his amended complaint, Kovaco alleged that he had been
harassed at work and that his employment was terminated by
Rockbestos based on his disability, Romanian national origin, and
age, in violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (the “ADA”), Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”), and the
3
Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a‐
60 (“CFEPA”).
On September 25, 2013, the District Court granted partial
summary judgment to Rockbestos.1 The District Court held that
Kovaco could not establish a prima facie case of discriminatory
discharge under the ADA, Title VII, the ADEA, and CFEPA, because
he was estopped from asserting that he was qualified for his position
as a maintenance mechanic at the time his employment was
terminated, due to certain factual representations he had made to
the Social Security Administration (“SSA”) in successfully obtaining
Social Security Disability Insurance (“SSDI”) benefits. The District
Court did not address Kovaco’s purported hostile‐work‐
environment claims, which on appeal Rockbestos contends Kovaco
never pleaded, and the District Court denied summary judgment
with respect to Kovaco’s remaining claims, which were later
unsuccessfully tried to a jury. Following the trial, Kovaco filed the
instant appeal, challenging the District Court’s September 2013
decision granting partial summary judgment to Rockbestos.
On appeal, Kovaco argues that the District Court erred when
it (1) misapplied controlling case law in holding that, due to his
representations to the SSA and the SSA’s disability determination,
he could not prove he was qualified for his position as of March 29,
2010, the date when his employment was terminated; and (2)
See Kovaco v. Rockbestos‐Surprenant Cable Corp., 979 F. Supp. 2d 252 (D. Conn.
1
2013).
4
overlooked Kovaco’s hostile‐work‐environment claims in its
decision granting partial summary judgment to Rockbestos, claims
that do not turn on Kovaco’s qualification.
As a threshold matter, we hold that we lack appellate
jurisdiction to review so much of the District Court’s judgment as
involves Kovaco’s CFEPA claim.
With respect to Kovaco’s discriminatory‐discharge claims
brought under the ADA, Title VII, and the ADEA, we conclude that,
although the District Court’s explanation of why Kovaco was
judicially estopped from asserting that he was qualified for his
position was erroneous, the decision was nevertheless correct
because Kovaco failed to proffer a sufficient explanation in light of
the record why his assertion that he was qualified for his position
was consistent with his earlier sworn statement to the SSA that he
was “unable to work.” As a result, we agree with the District Court
that Kovaco failed to establish a prima facie case of discriminatory
discharge on summary judgment under the ADA, Title VII, and the
ADEA.
Finally, we hold that to the extent Kovaco pleaded hostile‐
work‐environment claims in his amended complaint, he
subsequently abandoned those claims in opposing Rockbestos’s
motion for summary judgment in the District Court by failing to
address them in his brief.
Accordingly, we AFFIRM the judgment of the District Court
in its entirety, except that we DISMISS for want of appellate
5
jurisdiction plaintiff’s appeal of so much of the judgment as related
to his CFEPA claim.
BACKGROUND
Rockbestos hired Kovaco in April 2005 to work as a
maintenance mechanic at its East Granby, Connecticut,
manufacturing facility. As a maintenance mechanic, Kovaco was
responsible for maintenance and repair of Rockbestos’s machinery.
Kovaco contends that, beginning in 2008, he was subjected to
discrimination at Rockbestos on the basis of his Romanian national
origin. Sometime in or around the summer of 2008, Kovaco was
transferred to a new shift. Shortly after he switched shifts, several of
his new coworkers began making derogatory comments about his
having been born in Romania. For instance, several coworkers called
him names, such as “Romanian Gypsy” or “third‐world
countryman,” and made remarks like “go back to Romania.” One
coworker also drew derogatory pictures of Kovaco with exaggerated
features, one of which was labeled “old shit man.” Kovaco testified
that he complained to management, but to no avail. Rockbestos
declined to investigate his complaints and refused to discipline the
accused employees.
In early December 2009, Kovaco sought treatment for a
deteriorating medical condition in his legs and feet and provided his
supervisor, Greg Miller, with a note from his doctor recommending
certain light‐duty restrictions. Later the same day, Kovaco met with
Miller and human resources as well as his shift supervisor to discuss
6
a potential accommodation consistent with the recommendations of
Kovaco’s doctor. Kovaco suggested during the meeting that he
would be able to perform his job functions if he had access to an
electric cart as needed. Even before Kovaco notified Rockbestos of
his medical condition, Rockbestos had provided Kovaco and
members of the Maintenance Department with five electric carts and
a forklift, along with keys to each, to facilitate their navigation of the
500,000 square feet of workspace that comprised the four‐building
plant. Miller and the others confirmed that Kovaco would have
access to one of the electric carts as needed.
Kovaco continued to experience medical problems and took
leave in January 2010 under the Family Medical Leave Act
(“FMLA”). Upon his return the next month, he provided a new
doctor’s note to Miller that again recommended light‐duty
restrictions. Kovaco testified that Miller threw the note on the
ground and stated, “I don’t need one other handicap in my shop.”2
Kovaco remained on light duty and continued to use an electric cart
as necessary until his termination in March 2010.
During the night shift on March 19 and 20, 2010, Kovaco had
trouble locating an electric cart to use. Earlier in the day, Miller had
been advised that one of the carts had a defective battery that was
unable to hold a charge, and he therefore directed a member of his
maintenance staff to place an Occupational Safety and Health
Administration (“OSHA”) “lock out” tag on the cart and move it to
J.A. 731. “J.A.” refers to the Joint Appendix.
2
7
the boiler room. When Kovaco learned that a cart was in the boiler
room, he entered the locked boiler room, examined the cart, and
decided that the cart was functional. He then removed the OSHA
“lock out” tag so that he could use the cart for the remainder of his
shift. The cart’s battery subsequently died, and Kovaco abandoned
the cart before concluding his shift. When Miller questioned Kovaco
on the morning of March 20, Kovaco denied having taken the cart.
On March 23, 2010, Kovaco confessed that he had taken the cart, and
Rockbestos suspended him pending further investigation, until
March 29, 2010.
On March 25, 2010, while he was serving his suspension,
Kovaco filed an application with SSA for SSDI benefits. In his SSA
application, Kovaco indicated that he had rheumatoid arthritis,
degenerative arthritis, and bone spurs in both feet; soft tissue in both
ankles; and severe gout. He represented that each day at Rockbestos
he had spent 7.5 hours per day walking, .5 hours per day sitting, and
1 hour per day climbing; and that he had to lift and carry tools
weighing about 40 pounds and as heavy as 120 pounds. He
indicated that he had “stopped working” on March 24, 2010
“[b]ecause of [his] conditions” and that he “became unable to
work.”3 He also stated that he felt that he “was discriminated against
because [he] couldn’t do [his] job well.”4
J.A. 121–23.
3
J.A. 123.
4
8
On March 29, 2010, Rockbestos management met with Kovaco
and a union representative to discuss the incident involving the cart,
after which Rockbestos informed Kovaco that his employment
would be terminated due to his violation of company policy.
In June 2010, SSA determined that Kovaco had been
“disabled” under the Social Security Act beginning March 24, 2010,
five days before his employment was terminated by Rockbestos. In
its “Disability Determination Explanation,” the SSA discussed
Kovaco’s medical conditions and stated, among other findings and
conclusions, that “[p]hysical limitations prevent [Kovaco] from
performing his past relevant work,” including that he “has a severe
impairment[ ] that limits him[ ] to no more than sedentary work,”
and that he can “occasionally” lift or carry no more than twenty
pounds of weight at a time.5
Kovaco filed the instant action against Rockbestos in March
2011 and filed a nine‐count amended complaint in June 2011, setting
forth several claims ranging from federal employment
discrimination to state‐law conversion.
The District Court granted partial summary judgment to
Rockbestos on September 25, 2013. Specifically, the District Court
granted summary judgment to Rockbestos on Kovaco’s
discriminatory‐discharge claims, brought under the ADA, Title VII,
the ADEA, and CFEPA; FMLA claims; and a claim for intentional
J.A. 114–17.
5
9
infliction of emotional distress. The District Court denied summary
judgment on the retaliation claims, brought under the ADA, Title
VII, the ADEA, and CFEPA; the failure‐to‐accommodate claims,
brought under the ADA and CFEPA; and the theft claims.
Rockbestos ultimately prevailed on these remaining claims at trial.
Following the District Court’s entry of judgment for Rockbestos on
May 29, 2015, Kovaco filed the instant appeal, challenging the
District Court’s grant of partial summary judgment to Rockbestos.
DISCUSSION
I. Appellate Jurisdiction
As a threshold matter, we must consider whether we have
appellate jurisdiction to review certain of the challenges set forth in
Kovaco’s appellate brief. Rockbestos contends that Kovaco failed to
include his hostile‐work‐environment claims and his CFEPA claim
in the notice of appeal, and that we consequently lack appellate
jurisdiction to review his challenges regarding these claims. In sum,
we hold that we have appellate jurisdiction to review the District
Court’s decision with respect to the hostile‐work‐environment
claims, but not the CFEPA claim.
Under Rule 3(c)(1)(B) of the Federal Rules of Appellate
Procedure, which is “jurisdictional in nature,”6 an appellant’s
“notice of appeal must . . . designate the judgment, order, or part
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 93 (2d Cir. 2014)
6
(quoting Gonzalez v. Thaler, 132 S. Ct. 641, 652 (2012)).
10
thereof being appealed.”7 This standard is not exacting. Notices of
appeal are to be “construe[d] . . . liberally, taking the parties’
intentions into account.”8 Nevertheless, “our appellate jurisdiction
‘depends on whether the intent to appeal from a decision is clear on
the face of, or can be inferred from, the notice[ ] of appeal.’”9
Kovaco’s notice of appeal read in pertinent part as follows:
Kovaco . . . hereby appeals . . . from an Order granting
Summary Judgment on Plaintiff’s claims of
discrimination under the Americans with Disabilities
Act[,] 42 U.S.C. § 12101, Title VII of the Civil Rights Act
of 1964[,] 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act[,] 29 U.S.C. § 621–
634, as well as his claims for back pay and front pay, . . .
. [which] was entered in this action on the 25th day of
September, 2013. Judgment became final on May 29,
2015.10
Fed. R. App. P. 3(c)(1)(B).
7
Sahu v. Union Carbide Corp., 548 F.3d 59, 65 (2d Cir. 2008) (quoting Shrader v.
8
CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995)).
Id. at 65–66 (brackets omitted) (quoting New Phone Co. v. City of New York,
9
498 F.3d 127, 131 (2d Cir. 2007)).
J.A. 1169. We note that although Kovaco stated in his notice of appeal that
10
he “appeals . . . from an Order,” we construe this in the circumstances presented
to mean that he appeals from the May 29, 2015 judgment and, on that appeal,
seeks review of that order.
11
We conclude that Kovaco’s notice of appeal sufficiently
manifested his intent to seek review of so much of the judgment as
involved his hostile‐work‐environment claims brought under the
ADA, Title VII, and the ADEA.11 The notice aptly described the
claims as “discrimination” claims, listed the statutes under which
Kovaco brought the claims, noted the specific disposition of the
claims by the District Court, and identified by date the order in
which the District Court announced the disposition. We can infer
from this description—and the absence of any exclusionary or
restrictive language therein—that Kovaco had intended to appeal
the grant of summary judgment to Rockbestos with respect to all of
his discrimination‐based claims brought under the named statutes,
including the hostile‐work‐environment claims. Accordingly, these
claims are properly before us on appeal.
Kovaco’s notice of appeal did not manifest his intent,
however, to seek review of so much of the judgment as involved his
CFEPA claim. The notice failed to identify or describe the CFEPA
claim in any way. Although the notice identified by date the order in
which the District Court disposed of the CFEPA claim, it did so only
in reference to the claims brought under federal discrimination
statutes. Further, the notice included no language evincing Kovaco’s
Although we note that the parties dispute whether Kovaco pleaded these
11
claims in his amended complaint, we assume that he did so for purposes of
deciding whether we have appellate jurisdiction.
12
intent to appeal from the entire order.12 Consequently, even
construing the notice of appeal liberally, we cannot infer from the
notice that Kovaco had intended to seek review of the grant of
summary judgment to Rockbestos with respect to his CFEPA
claim.13 Indeed, although “we may construe the rules [of appellate
procedure] liberally, we do not have the authority to waive the
jurisdictional requirements of [Rule 3(c)(1)(B)],” and “our
jurisdiction is limited by the wording of the notice.”14
Accordingly, because we lack jurisdiction over the CFEPA
claim, Kovaco’s appeal of so much of the judgment as involved his
CFEPA claim must be dismissed.
See City of New York v. Smokes‐Spirits.com, Inc., 541 F.3d 425, 453 (2d Cir.
12
2008) (distinguishing between a notice of appeal in which “the [appellant]
appealed from ‘each and every part’ of the final judgment,” which evinced intent
to appeal from the entire judgment, and notices of appeal that “generally
specified certain aspects of an order or judgment, or particular orders, but not
others, [and where] intent to appeal from the entire final judgment could not be
inferred” (emphasis in original)), rev’d on other grounds, Hemi Grp., LLC v. City of
New York, 559 U.S. 1 (2010).
See Kowsh v. Bd. of Elections of City of N.Y., 99 F.3d 78, 80 (2d Cir. 1996)
13
(holding that a notice of appeal stating that plaintiffs appealed “from the
[judgment of the district court] reversing the [report and recommendation of the
magistrate judge] that an injunction be issued” meant that “only so much of the
district court’s judgment as denied [the] injunction . . . is properly before us,”
notwithstanding challenges to other rulings set forth in plaintiffs’ brief).
14 New Phone Co., 498 F.3d at 130.
13
II. Discriminatory‐Discharge Claims
We turn now to Kovaco’s principal argument on appeal,
which is that the District Court misapplied controlling case law in
holding that, due to his representations to the SSA and the SSA’s
disability determination, he could not prove he was qualified for his
position as of March 29, 2010, the date when his employment was
terminated by Rockbestos.
“We review the district court’s grant of summary judgment de
novo, construing the evidence in the light most favorable to the non‐
moving party.”15
For the reasons set forth below, we conclude that, although
the District Court’s explanation of why Kovaco was judicially
estopped from asserting that he was qualified for his position was
erroneous, the decision was nevertheless correct. Specifically,
Kovaco was judicially estopped because he failed to proffer a
sufficient explanation of why his assertion that he was qualified for
his position was consistent with his earlier sworn statement to the
Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000). Although
15
“[w]e have expressed some question as to whether the standard of review for a
ruling on judicial estoppel should be de novo or abuse of discretion,” Chevron
Corp. v. Donziger, No. 14‐0826, 2016 WL 4173988, at *44, ‐‐‐ F.3d ‐‐‐ (2d Cir. Aug.
8, 2016), the parties do not argue which standard applies, and we need not
decide the question here, where we confront only a legal question that must be
reviewed de novo under both standards, see United States v. Legros, 529 F.3d 470,
474 (2d Cir. 2008) (“The abuse‐of‐discretion standard incorporates de novo review
of questions of law . . . .”).
14
SSA that he was “unable to work.”16 As a result, we agree with the
District Court that Kovaco failed to establish a prima facie case of
discriminatory discharge on summary judgment under the ADA,
Title VII, and the ADEA.
A. Overview of the Qualification Element under
the ADA, Title VII, and the ADEA
We analyze employment‐discrimination claims under the
ADA, Title VII, and the ADEA using the now‐familiar burden‐
shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a
plaintiff must first establish a prima facie case of discrimination,
which causes the burden of production to shift to the defendant to
offer a legitimate, nondiscriminatory rationale for its actions.17 “If
the defendant satisfies its burden of production, then the
presumption raised by the prima facie case is rebutted and drops
from the case,” such that “[a]t the final stage, the plaintiff then has
We “may affirm the judgment of the district court on any ground
16
appearing in the record.” Konikoff, 234 F.3d at 98 (internal quotation marks
omitted).
See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012)
17
(Title VII); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (the
ADA); Abdu‐Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (the
ADEA).
15
the opportunity to demonstrate that the proffered reason was not
the true reason for the employment decision.”18
To establish a prima facie case under the ADA, Title VII, and
the ADEA, a plaintiff must show, inter alia, that he was qualified for
the position he held at the time of termination.19 In opposing a
defendantʹs motion for summary judgment, “a plaintiff may satisfy
this burden by showing that she possesses the basic skills necessary
for performance of the job.”20 Therefore, “especially where discharge
is at issue and the employer has already hired the employee, the
inference of minimal qualification is not difficult to draw.”21
Notably, the qualification prong under the ADA differs from the
qualification prong under Title VII and the ADEA, in that the
plaintiff must show under the ADA that he is “qualified to perform
Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012)
18
(internal quotation marks omitted).
See Chin, 685 F.3d at 151 (Title VII); Sista, 445 F.3d at 169 (the ADA); Abdu‐
19
Brisson, 239 F.3d at 466 (the ADEA).
Robinson v. Concentra Health Servs., 781 F.3d 42, 45 (2d Cir. 2015) (brackets
20
and internal quotation marks omitted).
See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)
21
(explaining, in the context of an ADEA claim, that “[t]he qualification prong
must not . . . be interpreted in such a way as to shift onto the plaintiff an
obligation to anticipate and disprove, in his prima facie case, the employer’s
proffer of a legitimate, non‐discriminatory basis for its decision” and noting that
“the qualification necessary to shift the burden to defendant for an explanation of
the adverse job action is minimal”).
16
the essential functions of his job, with or without reasonable
accommodation.”22
Unlike typical discriminatory‐discharge cases in which a
defendantʹs motion for summary judgment is before the court for
consideration, however, this case presents the question not of
whether a plaintiff established that there was at least a genuine
dispute of fact as to his qualification for purposes of establishing his
prima facie case, but rather whether he was judicially estopped from
asserting that he was qualified.
B. The District Court’s Judicial Estoppel Analysis
The District Court appears to have held that Kovaco was
judicially estopped from asserting that he was qualified for his
position as of March 29, 2010 due to factual representations in his
SSA application and factual findings and conclusions by the SSA in
determining that he was disabled as of March 24, 2010. The District
Court did not use the term “judicial estoppel,” but both cases relied
upon by the District Court turn on judicial estoppel, and the District
Court’s singular focus on the SSA proceeding to the exclusion of
other evidence bolsters this conclusion.23 We therefore consider
Sista, 445 F.3d at 169 (internal quotation marks omitted) (emphasis
22
supplied); see also 42 U.S.C. § 12111(8) (defining “qualified individual” in part to
mean “an individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual
holds or desires”).
See Kovaco, 979 F. Supp. 2d at 259 (citing Mitchell v. Washingtonville Cent.
23
Sch. Dist., 190 F.3d 1 (2d Cir. 1999); Nieman v. Syracuse Univ. Office of Human Res.,
17
whether the District Court properly applied controlling case law in
reasoning that Kovaco was judicially estopped from asserting that
he was qualified for his position.
“Judicial estoppel applies to sworn statements made to
administrative agencies such as the Social Security Administration
as well as to courts.”24 We explained in Robinson v. Concentra Health
Services, Inc., a case that similarly involved a successful SSA
disability applicant who later pursued an employment‐
discrimination claim against his employer, that “[j]udicial estoppel
prevents a party from asserting a factual position in a legal
proceeding that is contrary to a position previously taken by that
party in a prior legal proceeding.”25 To establish judicial estoppel, a
party “must show that (1) the party against whom the estoppel is
asserted took an inconsistent position in a prior proceeding and (2)
that position was adopted by the first tribunal in some manner, such
as by rendering a favorable judgment.”26
No. 5:12‐CV‐732 (MAD/TWD), 2013 WL 2445098 (N.D.N.Y. June 5, 2013)). A
corollary of this conclusion is that, if the District Court had not ruled based on a
judicial estoppel theory, then the Court erred in overlooking other evidence that
could have created a genuine dispute of fact as to whether Kovaco was qualified
for his position. This is unlikely.
24 DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010).
25 781 F.3d at 45 (brackets and internal quotation marks omitted).
26 Id. (internal quotation marks omitted).
18
In Cleveland v. Policy Management Systems Corp., the Supreme
Court defined the contours of judicial estoppel in a case where, as
here, the plaintiff had stated in her SSA application that she was
totally disabled, and also brought claims against her former
employer under the ADA asserting that she had been qualified for
her position.27 Rejecting the argument that these claims were
inherently inconsistent, the Court explained that “there are . . . many
situations in which an SSDI claim and an ADA claim can
comfortably exist side by side.”28 For example, the Court explained
that a “qualified individual” under the ADA includes a person who
can perform the essential functions of her job with reasonable
accommodation, whereas disability under the Social Security Act
does not take into account the possibility of reasonable
accommodation.29 As a result, “an ADA suit claiming that the
plaintiff can perform her job with reasonable accommodation may
well prove consistent with an SSDI claim that the plaintiff could not
perform her own job (or other jobs) without it.”30
27 526 U.S. 795 (1999).
28 Id. at 802–03.
Id. at 803; see also 42 U.S.C. § 423(d)(1)(A) (defining “disability” in part to
29
mean “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months”).
Cleveland, 526 U.S. at 803. Among other examples of how the two claims
30
could be consistent, the Supreme Court explained that “the nature of an
individual’s disability may change over time, so that a statement about that
19
But the Supreme Court also recognized that “in some cases an
earlier SSDI claim may turn out genuinely to conflict with an ADA
claim,” observing that “a plaintiff’s sworn assertion in an application
for disability benefits that she is, for example, ‘unable to work’ will
appear to negate an essential element of her ADA case—at least if
she does not offer a sufficient explanation.”31 The Court therefore
held that “an ADA plaintiff cannot simply ignore the apparent
contradiction that arises out of the earlier SSDI total disability claim.
Rather, she must proffer a sufficient explanation.”32 The Court
concluded: “To defeat summary judgment, that explanation must be
sufficient to warrant a reasonable juror’s concluding that, assuming
the truth of, or the plaintiff’s good‐faith belief in, the earlier
statement, the plaintiff could nonetheless ‘perform the essential
functions’ of her job, with or without ‘reasonable
accommodation.’”33
disability at the time of an individual’s application for SSDI benefits may not
reflect the individual’s capacities at the time of the relevant employment
decision.” Id. at 805.
31 Id. at 805–06.
32 Id. at 806.
Id. at 807. The Court in Cleveland emphasized that the case did not involve
33
“directly conflicting statements about purely factual matters, such as ‘The light
was red/green,’ or ‘I can/cannot raise my arm above my head.’” Id. at 802. The
Court explained that “[a]n SSA representation of total disability differs from a
purely factual statement in that it often implies a context‐related legal
conclusion, namely, ‘I am disabled for purposes of the Social Security Act.’” Id.
The Court noted that it “consequently leaves the law related to the former,
purely factual, kind of conflict where [the Court] found it.” Id.; see DeRosa, 595
20
Here, Kovaco proffered an explanation on summary judgment
as to how his sworn statement in his SSA application that he was
“unable to work” as of March 24, 2010 did not “negate [the] essential
element of [his] ADA case” that he was qualified for his position on
March 29, 2010.34 Like the plaintiff in Cleveland, Kovaco explained
that he was disabled within the meaning of the Social Security Act
on March 24, 2010, but that he nevertheless was qualified under the
ADA on March 29, 2010, because he would have been able to
perform his essential job functions on that date if he had reasonable
accommodation in the form of an electric cart.35 The necessary
implication of this explanation is that Kovaco was “unable to work”
beginning March 24, 2010 only because he did not have access to an
electric cart. The District Court rejected this explanation, however,
concluding that “[a]n electric cart would not remedy the majority of
[his] job‐related deficiencies.”36 The Court cited the factual
representations in Kovaco’s SSA application regarding the physical
demands of his job, as well as the SSA’s factual findings and
conclusions that Kovaco was “fit only for sedentary work and [was]
limited to occasionally lifting up to twenty pounds.”37 On this basis,
F.3d at 103 (“Cleveland therefore did not displace traditional estoppel analysis
where the issue with respect to a plaintiff’s prior statements is a purported
factual contradiction.”).
34 Cleveland, 526 U.S. at 806.
35 J.A. 390–91.
36 Kovaco, 979 F. Supp. 2d at 259.
37 Id.
21
the District Court held that Kovaco could not establish that he was
qualified for his position with reasonable accommodation, under the
ADA, nor under Title VII and the ADEA, “as reasonable
accommodation is not implicated” by these statutes.38
We conclude that the District Court erred in holding that the
SSA’s factual findings and conclusions that Kovaco was “fit only for
sedentary work and [was] limited to occasionally lifting up to
twenty pounds,” in conjunction with Kovaco’s factual statements to
the SSA about the more onerous physical demands of his job,
judicially estopped him from asserting that he would have been
qualified to perform his essential job functions if he had reasonable
accommodation.
First, the SSA’s specific factual findings and conclusions have
no estoppel effect insofar as they appear to be untethered to any
specific position taken by Kovaco before the SSA. In his SSA
application, Kovaco described his medical conditions and diagnoses,
as well as the physical demands of his position, and concluded that
he was “unable to work” and that he had stopped working on
March 24, 2010 “[b]ecause of [his] conditions.”39 But he did not
assert or otherwise suggest that he could lift only twenty pounds of
weight or that he was unable to walk or stand and was capable of
only sedentary work. This is not to say that the SSA’s ultimate
38 Id.
39 J.A. 120–29.
22
determination was irrelevant. Indeed, for Kovaco to have been
judicially estopped, his earlier position before the SSA must have
been “adopted by the [SSA] in some manner, such as by rendering a
favorable judgment.”40 But this does not mean that Kovaco is
estopped from taking a position inconsistent with the SSA’s position
where Kovaco had not taken the position himself.41 Judicial estoppel
does not reach so far.
Second, even if Kovaco were estopped from taking a position
clearly inconsistent with the SSA’s position that he was “fit only for
sedentary work and is limited to occasionally lifting up to twenty
pounds,” this would not preclude Kovaco from taking the different
position that he could perform his essential job functions with
reasonable accommodation. “We have cautioned . . . that before
applying judicial estoppel to factual claims in ADA cases, a court
must carefully consider the contexts in which apparently
contradictory statements are made to determine if there is, in fact,
direct and irreconcilable contradiction.”42 If Kovaco could perform
40 Robinson, 781 F.3d at 45 (internal quotation marks omitted).
See Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 119 (2d Cir. 2004)
41
(“The law in this circuit recognizes that when an individual’s prior submission
regarding his disability to an adjudicatory body contains a purely factual
statement that directly contradicts a statement made in a subsequent ADA claim,
and the two cannot be reconciled with any amount of explanation, judicial
estoppel will preclude the ADA claim.” (brackets and internal quotation marks
omitted) (emphasis supplied)).
42 DeRosa, 595 F.3d at 103 (internal quotation marks omitted).
23
only sedentary work and lift only up to twenty pounds of weight,
this is not “clearly inconsistent” with the possibility that Kovaco
could meet the more onerous physical demands of his job with
reasonable accommodation.43 For example, with reasonable
accommodation, he would not necessarily need to walk several
hours a day—a demand of the job for those without reasonable
accommodation—because he could use an electric cart to traverse
the facility.
In sum, the District Court erred in reasoning that Kovaco was
judicially estopped based on factual findings and conclusions by the
SSA that do not appear to represent Kovaco’s position before the
SSA, and that in any event were not clearly inconsistent with his
later assertion that he was qualified to perform the essential
functions of his job with reasonable accommodation. As we discuss
below, however, Kovaco is nevertheless judicially estopped for
independent reasons.
See id. (noting that judicial estoppel typically applies if, inter alia, “a party’s
43
later position is clearly inconsistent with its earlier position” (internal quotation
marks omitted)); Parker v. Columbia Pictures Indus., 204 F.3d 326, 333 (2d Cir. 2000)
(“[S]ummary judgment may be appropriate under Cleveland where the SSDI and
ADA claims involve directly conflicting statements about purely factual
matters.” (internal quotation marks omitted)). The purported factual
contradiction here would be unlike that in Mitchell v. Washingtonville Central
School District, where we held that the plaintiff—who had previously stated to
the SSA that he was incapable of standing or walking and that he required work
that could be performed seated—was judicially estopped from taking the
contrary factual position in support of his ADA claim that he could walk and
stand and was thus qualified for his position. 190 F.3d at 7–8.
24
C. Why Kovaco Is Judicially Estopped from
Establishing That He Was Qualified For His
Position
Although the District Court’s explanation was erroneous, its
decision that Kovaco was estopped from asserting that he was
qualified was nevertheless correct. As noted above, the explanation
proffered by Kovaco was that he was unable to work for purposes of
the Social Security Act, but that he was nonetheless qualified to
work if he had reasonable accommodation in the form of an electric
cart, implying that he lacked an electric cart when he stated he was
“unable to work.” The evidence adduced on summary judgment,
however, conclusively establishes that Kovaco had an electric cart
during his shifts when he stated to the SSA that he was “unable to
work,” belying his explanation that he was only “unable to work”
because he lacked reasonable accommodation. In other words,
although an explanation like Kovaco’s might be sufficient to defeat
summary judgment in other circumstances—such as those presented
in Cleveland44—it fails to defeat Rockbestosʹs motion for summary
See Cleveland, 526 U.S. at 803 (“The result is that an ADA suit claiming that
44
the plaintiff can perform her job with reasonable accommodation may well prove
consistent with an SSDI claim that the plaintiff could not perform her own job (or
other jobs) without it.” (emphasis in original)); see also Parker, 204 F.3d at 333–34
(concluding that plaintiff’s “statement in his SSDI application that he ‘became
unable to work’ . . . and that he was ‘still disabled’ does not dictate the factual
conclusion that he was incapable of returning . . . with other accommodation,”
noting also that “Cleveland . . . gives ADA plaintiffs wide latitude to overcome
apparent conflicts between their SSDI applications and their statements alleging
discriminatory discharge”).
25
judgment on the record before us, which makes clear that Kovaco’s
later assertion is inconsistent with his sworn statement to the SSA.
The record shows that Kovaco indisputably was able to use an
electric cart as necessary during his shifts leading up to his
suspension on March 23, 2010, notwithstanding his subsequent
statement to the SSA during his suspension that he was “unable to
work.”45 The jury verdict in favor of Rockbestos on Kovaco’s failure‐
to‐accommodate claims confirmed this fact. The District Court
instructed the jury that it “must determine whether defendant
accommodated plaintiff by taking reasonable steps to ensure that an
electric cart was available for his use as needed.”46 In its special
verdict form, the jury indicated that Kovaco had not proved that
Rockbestos “failed to provide him with a reasonable
accommodation for his medical restrictions with respect to climbing
and walking,”47 a finding that Kovaco does not challenge on appeal.
Finally, perhaps in light of the weight of evidence and the
subsequent jury verdict, Kovaco has conceded on appeal that he
For example, when asked during his deposition whether he was able to use
45
the electric cart during the third shift which he worked, Kovaco responded,
“Every night for the last three weeks before I got fired, yes.” J.A. 173–74. In
response to a similar question about whether he had used a particular cart
previously, Kovaco responded, “Oh, yes. Every day for the last two weeks,
because I went on third shift. Every day I was using it.” J.A. 155.
46 J.A. 1156.
47 J.A. 1143.
26
“agrees that he was able to successfully perform his job duties with
the use of a cart from December 2009 through March 19, 2010.”48
Based on the foregoing, Kovaco’s explanation of the apparent
contradiction between his sworn statement to the SSA that he was
“unable to work” beginning March 24, 2010, and his assertion in
support of his discriminatory‐discharge claims that he was
nonetheless qualified to perform his essential job functions when his
employment was terminated on March 29, 2010, is insufficient to
defeat summary judgment. A reasonable juror who assumes the
truth of Kovaco’s sworn statement that he was “unable to work”
beginning March 24, 2010, despite conclusive evidence that Kovaco
was able to use an electric cart as necessary, cannot also believe
Kovaco’s explanation that five days later, on March 29, 2010, he
could nonetheless perform the essential functions of his job if only
he had access to a cart. In light of the evidence on the record before
us, the explanation proffered by Kovaco does not reconcile the
Pl. Suppl. Br. 1, ECF No. 92. By circumscribing this concession to the time
48
period between December 2009 and March 19, 2010—even though he was not
suspended until March 23, 2010—Kovaco seems to imply that he was denied an
electric cart between March 20 and his suspension on March 23. To be sure,
Kovaco appears to have had difficulty locating a cart during his shift on March
19–20, 2010, until he extricated the cart bearing the OSHA “lock out” tag from the
boiler room, leading to his suspension. Kovaco testified during his deposition,
however, that he was able to use a cart without exception in the weeks leading
up to the March 29 termination of his employment, see ante note 45, which is
consistent with the jury verdict on his failure‐to‐accommodate claims. He did not
argue otherwise in his summary judgment brief or in his appellate brief,
obviating the need for us to consider this implied argument.
27
apparent contradiction between his statement to the SSA and his
current litigation position, and we conclude that the two positions
are clearly inconsistent.49
We also reject Kovaco’s explanation on appeal that
“notwithstanding the Plaintiff’s representation to the SSA, he
continued to perform his job duties without issue through the date
of the termination of his employment.”50 This assertion may be
We do not mean to foreclose the possibility that a plaintiff such as Kovaco
49
can avoid judicial estoppel where the evidence does not conclusively undermine
his explanation. Nor do we mean to foreclose the possibility that Kovaco could
have successfully proffered an explanation that he had a “good‐faith belief” that
he was unable to work beginning March 24, 2010, due to the perceived denial of
reasonable accommodation, which belief turned out to be mistaken, or due to a
mistaken diagnosis. See Cleveland, 526 U.S. at 807 (“To defeat summary judgment,
th[e] explanation must be sufficient to warrant a reasonable juror’s concluding
that, assuming the truth of, or the plaintiff’s good‐faith belief in, the earlier
statement, the plaintiff could nonetheless ‘perform the essential functions’ of her
job, with or without ‘reasonable accommodation.’” (emphasis supplied)); see also
Mitchell, 190 F.3d at 6 n.2 (“We have recognized that judicial estoppel does not
apply when the first statement resulted from a good faith mistake or
unintentional error.” (internal quotation marks omitted)). But these were not the
explanations proffered by Kovaco, so we need not consider them here.
Pl. Br. 35; see id. at 36 (“It was undisputed that the Plaintiff was able to
50
perform his job up to the termination of his employment.”); id. at 39 (“Plaintiff
has set forth a significant factual basis in support of his claims that he was
qualified for his job, with an accommodation, despite his representations to the
SSA, by demonstrating that he continued to do his job up until the date of his
termination . . . .”); id. at 41 (“[I]n light of the evidence that Plaintiff performed all
of the duties of his job up to the date of his termination without accommodation .
. . the Court should have denied Summary Judgment.”); see also J.A. 136 (Kovaco
deposition testimony suggesting that he was able to work when he applied for
disability benefits).
28
true—especially in light of the evidence discussed above—but this
position is clearly inconsistent with Kovaco’s statement in his SSA
application that he was “unable to work” during that same time
period. If anything, this explanation, like the one advanced by the
plaintiff in Robinson, “demonstrates only that [Kovaco’s] statements
to the SSA . . . may have been false, but does not sufficiently explain
the contradiction between the statements [to the SSA] and [this new]
litigation position.”51
In sum, Kovaco has failed to proffer a sufficient explanation of
how his assertion in support of his ADA, Title VII, and ADEA
claims that he was qualified for his position on March 29, 2010 is not
“clearly inconsistent” with his earlier sworn statement, adopted by
the SSA, that he was “unable to work” beginning March 24, 2010, a
period during which he was provided with reasonable
accommodation.52 As a result, we hold that Kovaco is judicially
estopped from asserting that he could perform his essential job
functions—with or without reasonable accommodation—at the time
that his employment was terminated by Rockbestos. Accordingly,
Robinson, 781 F.3d at 47; see also Lee v. City of Salem, 259 F.3d 667, 674 (7th
51
Cir. 2001) (“Cleveland’s analysis suggests that an ADA plaintiff may not, simply
by disavowing a prior claim of total disability, perform an about‐face and assert
that he is a ‘qualified individual’ who is capable of working. . . . [T]he plaintiff
must proceed from the premise that his previous assertion of an inability to work
was true, or that he in good faith believed it to be true, and he must demonstrate
that the assertion was nonetheless consistent with his ability to perform the
essential functions of his job.”).
52 DeRosa, 595 F.3d at 103 (internal quotation marks omitted).
29
we also hold that he has failed to establish a prima facie case of
discriminatory discharge under the ADA, Title VII, and the ADEA,
and we uphold the District Court’s grant of summary judgment to
Rockbestos on these claims.
III. Hostile‐Work‐Environment Claims
We next consider Kovaco’s contention that the District Court
erroneously granted summary judgment to Rockbestos on his
hostile‐work‐environment claims, brought under the ADA, Title VII,
and the ADEA. We reject this contention as meritless because we
conclude that, assuming arguendo that Kovaco pleaded such claims,
he abandoned them at the summary judgment stage.
As an initial matter, the parties dispute whether Kovaco
pleaded hostile‐work‐environment claims in his amended
complaint.53 Although we harbor doubt as to whether Kovaco
adequately pleaded hostile‐work‐environment claims, we need not
resolve this issue. Even if we assume that Kovaco pleaded hostile‐
work‐environment claims, he abandoned them in the District Court
by failing to argue that they should survive Rockbestos’s motion for
summary judgment.
In Jackson v. Federal Express, we held that when a counseled
party moves for summary judgment, “a partial response [by the
non‐movant] arguing that summary judgment should be denied as
53 See Pl. Br. 41–44; Def. Br. 46–49.
30
to some claims while not mentioning others may be deemed an
abandonment of the unmentioned claims.”54 We explained that
“[p]leadings often are designed to include all possible claims or
defenses, and parties are always free to abandon some of them.”55
And insofar as summary judgment “is known as a highly useful
method of narrowing the issues for trial,” it follows that
“preparation of a response to a motion for summary judgment is a
particularly appropriate time for a non‐movant party to decide
whether to pursue or abandon some claims or defenses.”56
Accordingly, “[g]enerally, but perhaps not always, a partial
response reflects a decision by a party’s attorney to pursue some
claims or defenses and to abandon others,” and “a court may, when
appropriate, infer from a party’s partial opposition that relevant
claims or defenses that are not defended have been abandoned.”57 If
a district court so holds, it “should . . . include a finding of
abandonment of undefended claims or defenses.”58
Here, Rockbestos moved in November 2012 for summary
judgment on all claims in the amended complaint. Kovaco protests
that “it is clear that [Rockbestos] was seeking summary judgment
54 766 F.3d 189, 195 (2d Cir. 2014).
55 Id. at 196.
56 Id.
57 Id. at 196, 198.
58 Id. at 198.
31
only as it related to [his] claim of discriminatory discharge, and it
was not seeking summary judgment as to [his] national origin, age,
and disability hostile[‐]work[‐]environment claims.”59 But the plain
language of Rockbestos’s motion for summary judgment—which at
the outset argues that Rockbestos is entitled to summary judgment
on “each of plaintiff’s claims”—belies this conclusion.60 We thus
treat Rockbestos’s motion as one that requested summary judgment
on all of the claims in Kovaco’s amended complaint, including the
purported hostile‐work‐environment claims.
In response to Rockbestos’s global motion for summary
judgment, Kovaco filed a brief in opposition, but the brief failed to
support or even address the purported hostile‐work‐environment
claims. In fact, the argument section of the brief specifically
enumerates Kovaco’s claims and argues extensively why each
should survive summary judgment, but the brief is bereft of any
mention of the purported hostile‐work‐environment claims, let alone
argument why these claims should survive summary judgment.61
Kovaco’s motion for reconsideration similarly failed to mention the
59 Pl. Br. 45.
See J.A. 60 (“Defendant . . . hereby moves pursuant to Fed. R. Civ. P. 56 for
60
an Order entering summary judgment in its favor as to the claims alleged in the
Amended Complaint filed by plaintiff . . . in the above‐captioned case.”); J.A. 65
(“Because exhaustive discovery has revealed the absence of any genuine issue of
material fact as to each of plaintiff’s claims, summary judgment should enter for
defendant on all counts.”).
61 See J.A. 386–417.
32
purported hostile‐work‐environment claims.62 Kovaco did not raise
the hostile‐work‐environment claims until four months after filing
his motion for reconsideration and almost a year after filing his
initial brief in opposition of summary judgment, when he finally
filed a “supplemental memorandum” in support of reconsideration
in which he argued that the District Court overlooked the claims.63
Applying Jackson, we hold that Kovaco abandoned in
opposing summary judgment any hostile‐work‐environment claims
he may have pleaded in his amended complaint. As discussed
above, Rockbestos moved for summary judgment on all claims, and
Kovaco opposed the motion with respect to all but the purported
hostile‐work‐environment claims. In these circumstances, we infer
from Kovaco’s failure to mention the claims that he had abandoned
them.64
62 See J.A. 1107–19.
Def. App. 1–7. The District Court “granted” the motion for reconsideration
63
but, without addressing Kovaco’s new arguments regarding his purported
hostile‐work‐environment claims, indicated that it “adhere[d] to its previous
decision to grant summary judgment on plaintiff’s discrimination and front and
back pay claims.” J.A. 1142.
See Jackson, 766 F.3d at 198. As noted above, ordinarily if a district court
64
concludes that a plaintiff has abandoned a claim, the district court must “include
a finding of abandonment of [the] undefended claims” in its decision. Id. Here,
the District Court made no such finding, likely because it was unaware from the
face of the amended complaint and the briefing prior to the supplemental motion
for reconsideration that Kovaco had intended to plead hostile‐work‐environment
claims. In any event, we are free to affirm on any ground appearing in the record,
33
CONCLUSION
We have reviewed all of plaintiff’s arguments on appeal and
find them to be without merit. We thus AFFIRM the May 29, 2015
judgment of the District Court in its entirety, except that we
DISMISS plaintiff’s appeal of so much of the judgment as involved
his CFEPA claim.
even if it is not one on which the District Court has rested its decision. See
Konikoff, 234 F.3d at 97–98.
34
1 LOHIER, Circuit Judge, concurring:
2 I concur fully in the majority opinion. I write separately to reinforce an
3 important point made by the Equal Employment Opportunity Commission in its
4 amicus brief: A disabled plaintiff can demonstrate that he was qualified for the
5 position under Title VII or the Age Discrimination in Employment Act (the
6 “ADEA”) by showing that he could perform the job with or without a reasonable
7 accommodation. In other words, he “must show only that he possesse[d] the
8 basic skills necessary for performance of [the] job.” Slattery v. Swiss Reinsurance
9 Am. Corp., 248 F.3d 87, 91–92 (2d Cir. 2001) (quotation marks omitted). If this
10 were not the rule, a disabled worker who performed his job with a reasonable
11 accommodation would be unable to establish a prima facie case of discriminatory
12 discharge under Title VII or the ADEA even if he were discharged based on his
13 race, color, religion, sex, national origin, or age. As the majority opinion
14 implicitly recognizes, Title VII, the ADEA, and the Americans with Disabilities
15 Act together work to foreclose that possibility.
