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More than two years after the U.S. Supreme Court ruled that judicial estoppel does not automatically bar recipients of Social Security disability benefits from suing under the Americans with Disabilities Act, New Jersey lawyers and courts continue to grapple with the issue. Their uncertainty is underscored by disparate outcomes in two recent cases. Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), held that people who assert they are unable to work when seeking Social Security benefits can still pursue discrimination claims, which require that they be able to perform the job, so long as they can explain their inconsistent statements. On Aug. 3, Hunterdon County Superior Court Judge Edmund Bernhard, citing Cleveland, threw out a disability claim in Rishkofski v. Somerset Medical Center, L-666-99, based on statements by Kimberly Rishkofski in applying for Social Security benefits. Two weeks later, on Aug. 17, Essex County Superior Court Judge Francine Schott denied a motion to dismiss a claim under the New Jersey Law Against Discrimination in McGittigan v. New Jersey Transit, L-2572-97. Schott made it clear from the bench that judicial estoppel does not apply in New Jersey courts based on apparent inconsistencies between a LAD claim and statements made in seeking pension or disability benefits, says Edward McGittigan’s attorney, Stephen Klausner, a partner with Klausner & Hunter in Somerville, N.J. Schott and Bernhard both referred to last December’s Appellate Division holding in Ramer v. New Jersey Transit Bus Operations, 335 N.J. Super. 304. That ruling, decided after Cleveland, is the only reported case in New Jersey on the issue. It holds that judicial estoppel applies only to statements made in a judicial setting and did not encompass bus driver Karen Ramer’s receipt of benefits under a credit-disability policy that paid her car loan for almost two years. “We need not tarry with Cleveland and its progeny as judicial estoppel is not applicable to plaintiff’s statements made in the context of her private insurance claim forms,” Judge Erminie Conley wrote in Ramer. Conley wrote it was the province of the jury to determine any inconsistency between Ramer’s prior statements and her trial testimony and the weight that should be given to such inconsistency. Bernhard’s ruling in Rishkofski signifies that employees can’t have it both ways, says Scott Carroll, an associate with the Florham Park, N.J. firm of Drinker Biddle & Shanley who, along with partner Stephen Long, represents Somerset Medical Center. Carroll calls Ramer consistent with Cleveland and says Ramer and Rishkofski can be reconciled based on their distinguishing facts. Ramer’s application for benefits stated no more than that she was totally disabled. In contrast, Carroll points out that emergency room nurse Rishkofski “made very specific statements regarding her symptoms and limitations” concerning what Bernhard referred to as “severe multiple sclerosis-like symptoms.” Rishkofski successfully applied for Social Security benefits on Feb. 8, 1999, shortly after Somerset Medical Center denied her request to return to work after disability leave. The application lists double vision, tremors, confusion, fatigue, pain, numbness and other problems. Bernhard agreed with Rishkofski that Social Security determinations differ from LAD claims in that they do not take into account the possibility of reasonable accommodation. But Bernhard found it did not matter that she claimed she improved since applying for the benefits. He found that she failed to reconcile her statements in the benefits application with her allegations in the LAD case and dismissed. Klausner calls Bernhard’s decision “the right result for the wrong reason.” A better basis for the ruling would have been that Rishkofski could not meet the second prong of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires that a claimant be able to perform the essential functions of the job, according to Klausner. Richard West, his adversary in McGittigan, says he withdrew his judicial estoppel argument after Ramer was decided but will continue to challenge the claim based on McDonnell-Douglas and that under Schott’s ruling, the jury will get to weigh the effect of McGittigan’s statements in his benefits application. “So long as Ramer is controlling, the literal argument of judicial estoppel is not available,” concedes West, a partner with Lum, Danzis, Drasco, Positan & Kleinberg in Roseland, N.J. McGittigan is a reverse sex-discrimination case, but the McDonnell-Douglas analysis applies to all types of discrimination claims. William Hildebrand, a partner with Cherry Hill, N.J.’s Feldman & Hildebrand, who represents plaintiffs in discrimination cases, calls Rishkofski “dead wrong” under Ramer. Hildebrand says the situation comes up a lot because terminated employees “looking for income from any source they can” often apply for benefits before consulting a lawyer. Richard Schall, who heads the New Jersey chapter of the National Employment Lawyers Association, calls judicial estoppel in this context “a pernicious doctrine.” Terminated employees “make statements out of desperation that they need to get the benefits and then the very employer that threw them out of the workplace makes an issue of it,” says Schall, a partner with Schall & Barasch in Moorestown, N.J. “It’s a fine line they have to walk,” he adds. He hopes that if the New Jersey Supreme Court gets to address the issue, it will go further than Cleveland and Ramer and adopt a per se rule that there is no contradiction. Lisa Manshel, who represents plaintiffs, says “it would be helpful to have some clear guidance from the higher courts. It gets wearying to be arguing from statutory interpretation when these are issues we see repeatedly in our cases.” “People shouldn’t have to apply for government entitlements at the peril of losing their civil rights protection,” adds Manshel, a partner with the Millburn, N.J. firm of Francis & Manshel. Robert Wilson, who represents Rishkofski, could not rule out that his might be the case that leads to a clearer rule. Wilson, an associate with Gebhart & Kiefer in Clinton, N.J., says he is moving for reconsideration and if unsuccessful, will likely appeal.

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