Jacqlyn Smith v. Clark County School District ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQLYN SMITH, No. 11-17398
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-02142-
RLH-LRL
CLARK COUNTY SCHOOL DISTRICT,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
May 6, 2013—San Francisco, California
Filed August 21, 2013
Before: William A. Fletcher, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Gould
2 SMITH V. CLARK COUNTY SCHOOL DISTRICT
SUMMARY*
Employment Discrimination
The panel affirmed in part and reversed in part the district
court’s judgment in favor of an employer on claims of
disability discrimination and failure to accommodate under
the Americans with Disabilities Act of 1990.
The panel held that the district court did not abuse its
discretion by granting the employer’s motion for
reconsideration of an order denying summary judgment
because in that order the court committed a clear error of law
by not applying controlling Supreme Court precedent.
The panel held that, in deciding whether the plaintiff was
a “qualified individual” under the ADA, the district court did
not properly apply the framework set forth in Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), for analyzing
the effect of inconsistent statements on applications for
disability benefits. The panel concluded that claims for
disability retirement, disability leave under the Family and
Medical Leave Act, and private insurance disability benefits
do not inherently conflict with an ADA claim because they do
not account for an applicant’s ability to work with a
reasonable accommodation. In addition, the panel held that,
viewing the facts in the light most favorable to the plaintiff,
she had offered sufficient explanations for her inconsistent
statements in her prior benefit applications so that her case
could proceed past summary judgment. Therefore, the panel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 3
held that the district court erred in granting summary
judgment for the employer, and reversed and remanded for
further proceedings.
COUNSEL
Michael P. Balaban (argued), Law Offices of Michael P.
Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.
S. Scott Greenberg (argued), Clark County School District,
Office of General Counsel, Las Vegas, Nevada, for
Defendant-Appellee.
OPINION
GOULD, Circuit Judge:
Jacqlyn Smith appeals the district court’s order granting
summary judgment in favor of Clark County School District
on Smith’s claims for disability discrimination and failure to
accommodate under the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. §§ 12101–12213. See Smith v. Clark
County (Smith II), No. 2:09-cv-2142, 2011 WL 4007532(D. Nev. Sept. 8, 2011) (unpublished). Smith argues (1) that
the district court abused its discretion by granting the School
District’s motion for reconsideration of its initial order
denying summary judgment; and (2) that the district court
erred by granting summary judgment under Cleveland v.
Policy Management Systems Corporation, 526 U.S. 795(1999). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm in part and reverse in part.
4 SMITH V. CLARK COUNTY SCHOOL DISTRICT
I
Smith worked in the Clark County School District from
1992 to 2008. She first taught elementary school. But in
2001, Smith had a back injury that limited her mobility and
led her to pursue a less physically demanding job within the
school setting. Literary specialist fit the bill. Literary
specialists train and assist elementary school teachers with
teaching and testing student literacy skills, but literary
specialists are not responsible for all of the duties needed to
teach a class of students. Smith earned her literary-specialist
certification in 2004 and took a job as a literary specialist in
the School District. Smith remained a literary specialist in
the School District until 2008. Between 2004 and early 2008,
Smith received positive reviews for her work as a literary
specialist.
In March 2008, the principal at Kesterson Elementary
School told Smith that she would be reassigned to teach
kindergarten for the 2008–2009 school year. Smith objected,
asking to remain in her literary-specialist position because her
back injury prevented her from teaching. According to
Smith, she could not perform the “standing, bending, [and]
stooping required to be an effective kindergarten or
elementary school teacher.” Shortly after this meeting, Smith
aggravated her back while sorting boxes at work, and she was
unable to work as a literary specialist for the rest of the
school year. During the next few months, Smith applied for
family medical leave and disability benefits. These
applications are at the heart of this appeal.
On April 21, 2008, Smith filed a request for leave under
the Family and Medical Leave Act of 1993 (FMLA),
29 U.S.C. §§ 2601–2654. On the request form, Smith’s
SMITH V. CLARK COUNTY SCHOOL DISTRICT 5
doctor explained that Smith was “presently incapacitated”
and could not “work at all until released by [a] doctor.” In
May 2008, Smith applied for and began receiving private
disability benefits through American Fidelity Assurance
Company. In her application for these benefits, Smith stated
that her “dates of total disability” ranged from March 31,
2008 to “Not Sure.” Two months later, Smith sought an
extension to her FMLA benefits and filed an updated form
with her doctor’s statement that Smith was “presently
incapacitated,” would “be out of work indefinitely,” and
could do “no work of any kind until released by a doctor.”
In late August, Smith applied for disability retirement
under the Nevada Public Employees’ Retirement Systems
(PERS) on the basis that she could not perform the duties
required for her current job as a kindergarten teacher,
including standing for long periods of time, bending,
stooping, walking, lifting, and reaching. She also explained
that she could not perform the lifting, bending, and stooping
required for her former job as a literary specialist, but she
could sit to work. Her doctor certified that Smith was
“unable to work due to injury or mental or physical illness.”
The Nevada Retirement Board approved Smith’s application
for “total and permanent disability” in October 2008.
During this time, Smith was embroiled in heated and
unhappy discussions with the School District over whether
she could work as a kindergarten teacher and how the School
District should accommodate her disability. Smith insisted
that she could not teach in the classroom and repeatedly asked
that the school district accommodate her disability by keeping
her in the literary-specialist position or by transferring her to
another non-teacher position within the School District, such
as a project facilitator. The School District was adamant,
6 SMITH V. CLARK COUNTY SCHOOL DISTRICT
however, that Smith could not remain in the literary-specialist
position and that transferring Smith to another position was
not a reasonable accommodation. Instead, the School District
offered several accommodations for the kindergarten-teacher
position, including a special chair that would reduce Smith’s
need to bend and stoop and a full-time classroom aid to help
with lifting and to minimize Smith’s movement. After an
extended stalemate, the parties failed to reach an agreement.
Smith resigned from the School District at the end of
September 2008, so she could receive PERS disability
retirement. Smith takes the position that she did not want to
start disability retirement, but felt she had no choice because
she could not work as a kindergarten teacher and she had
used all of her sick leave.
Smith sued the School District in the United States
District Court for the District of Nevada, alleging that the
School District violated the ADA by discriminating against
Smith and by not providing reasonable accommodation. The
School District moved for summary judgment, asserting
(1) that Smith was not a “qualified individual” under the
ADA because she had represented on her applications for
disability benefits that she was permanently disabled; and
(2) that the School District did not deny Smith a reasonable
accommodation. Initially, the district court denied summary
judgment, concluding that triable issues of fact remained
as to both issues. Smith v. Clark County (Smith I), 2:09-cv-
2142, 2011 WL 1576894, at *4–5 (D. Nev. Apr. 26, 2011)
(unpublished). The School District moved for
reconsideration on the qualified-individual issue, which the
district court granted, finding that it had committed clear
error by not considering whether Smith had offered a
sufficient explanation for the inconsistencies between her
ADA claim and her PERS application. See Smith II, 2011
SMITH V. CLARK COUNTY SCHOOL DISTRICT 7
WL 4007532, at *1–2. Concluding that Smith had not
sufficiently explained the inconsistences, the district court
granted summary judgment for the School District because
Smith’s ADA action was irreconcilable with her PERS
disability retirement. Id. at *2–3. Smith appealed.
II
We review for abuse of discretion the district court’s
decision to grant or deny a motion for reconsideration. See
SEC v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100
(9th Cir. 2010). We review de novo the district court’s grant
of summary judgment. See Hamilton v. State Farm Fire &
Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). “Summary
judgment is appropriate only if, taking the evidence and all
reasonable inferences drawn therefrom in the light most
favorable to the non-moving party, there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law.” Furnace v. Sullivan, 705 F.3d
1021, 1026 (9th Cir. 2013) (quoting Torres v. City of Madera,
648 F.3d 1119, 1123 (9th Cir. 2011)). As we explain below,
under Cleveland, 526 U.S. 795, we apply this summary-
judgment standard, and thus de novo review, to determine the
sufficiency of a plaintiff’s explanation for his or her
inconsistent claims for disability benefits.
III
We must determine (A) whether the district court abused
its discretion by granting the motion for reconsideration, and,
if not, (B) whether the district court erred by granting
summary judgment in favor of the School District. We
conclude that district court did not abuse its discretion by
reconsidering its initial summary-judgment order, but that it
8 SMITH V. CLARK COUNTY SCHOOL DISTRICT
erred by granting summary judgment in favor of the School
District.
To state a prima facie case under the ADA, Smith must
show (1) that she is disabled within the meaning of the ADA;
(2) that she is a qualified individual with a disability; and (3)
that she was discriminated against because of her disability.
See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th
Cir. 1999). A qualified individual with a disability is defined
as “an ‘individual with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires.’” Id. (quoting 42 U.S.C. § 12111(8)). This
case turns on whether Smith’s claims for disability benefits
negate her ability to prove that she is a qualified individual
under the ADA.
A
The district court did not abuse its discretion by
reconsidering its prior order. A district court may properly
reconsider its decision if it “(1) is presented with newly
discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” School Dist. No. 1J
v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 2003). Clear
error occurs when “the reviewing court on the entire record
is left with the definite and firm conviction that a mistake has
been committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948).
Here, the district court found that it had committed clear
error by not considering whether Smith gave a sufficient
explanation for the conflict between her ADA claim and her
SMITH V. CLARK COUNTY SCHOOL DISTRICT 9
PERS application under the Supreme Court’s decision in
Cleveland. See Smith II, 2011 WL 4007532, at *1–2. In its
initial order, the district court did not mention Cleveland, and
instead analyzed whether the School District had conclusively
shown that Smith was permanently disabled. See Smith I,
2011 WL 1576894, at *4. As we explain below, Cleveland
sets the framework for analyzing how inconsistent statements
on applications for disability benefits affect an ADA claim.
Because it is a clear error of law to not apply controlling
Supreme Court precedent, we conclude that the district court
did not abuse its discretion by reconsidering its prior order.
It is common for both trial and appellate courts to
reconsider and change positions when they conclude that they
made a mistake. This is routine in judging, and there is
nothing odd or improper about it. A trial court may
reconsider and reach a conclusion contrary to an earlier
decision, and a paradigmatic example of when this should be
done is when the court made its prior decision without
considering the legal standards in a controlling opinion, such
as the Cleveland opinion from the United States Supreme
Court.
B
Smith next asserts that summary judgment was
inappropriate because Cleveland does not apply to her claim,
and even if it does, she has provided an explanation for her
inconsistent statements sufficient to overcome a motion for
summary judgment. We reject Smith’s contention that
Cleveland is inapplicable. But we agree that Smith has
offered a sufficient explanation for her inconsistent
statements so that her case may proceed past summary
judgment.
10 SMITH V. CLARK COUNTY SCHOOL DISTRICT
In Cleveland, the Supreme Court considered “the legal
effect upon an ADA suit of the application for, or receipt of,
disability benefits.” 526 U.S. at 800. Carolyn Cleveland
applied for Social Security Disability Insurance (SSDI)
before filing her ADA suit against her former employer. Id.at 798–99. To determine the legal effect of Cleveland’s SSDI
claim upon her ADA claim, the Supreme Court engaged in a
two-part analysis. First, it determined whether, as a legal
matter, a claim under the ADA “inherently conflict[s]” with
an SSDI claim to warrant a “negative presumption” against
the ADA claim. Id. at 802; see also id. at 802–05. Second,
after finding no inherent conflict, the Court analyzed whether
Cleveland’s SSDI claim “genuinely” conflicted with her
ADA claim so as to “negate an essential element of her ADA
claim.” Id. at 805–06. Where genuine conflict exists, the
Court held that a plaintiff could overcome summary judgment
by offering a sufficient explanation for any inconsistency. Id.
at 806; see also Solomon v. Vilsack, 628 F.3d 555, 561–62
(D.C. Cir. 2010) (explaining Cleveland’s two-part analysis).1
Smith advocates for a narrow reading of Cleveland that
limits its application to inconsistencies between ADA claims
and SSDI claims. The reasoning and the language of
Cleveland supports a broader application. Although the
decision considered only SSDI disability benefits, it
1
The Supreme Court emphasized that its decision did not consider
“directly conflicting statements about purely factual matters, such as ‘The
light was red/green,’ or ‘I can/cannot raise my arm above my head.’”
Cleveland, 526 U.S. at 802; see also id. at 807. Although the parties
contest the application of Cleveland, neither argues that Smith’s
inconsistent statements were about “purely factual matters.” We agree
that Smith’s conflicting representations are similar to the statements
implying “context-related legal conclusion[s]” addressed in Cleveland. Id.
at 802.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 11
repeatedly referred to the legal impact of any application for,
or receipt of, disability benefits on a plaintiff’s ADA suit.
See Cleveland, 526 U.S. at 800, 806, 807. In recognition of
this broad language, we have applied Cleveland’s standard to
determine whether a plaintiff’s statements in her applications
for state and private disability benefits genuinely conflicted
with her ADA claim. See Norris v. Sysco Corp., 191 F.3d
1043, 1048–49 (9th Cir. 1999). Our sister circuits have also
applied Cleveland to determine the legal effect of
applications for Federal Employee Retirement System
benefits and state-police pension benefits. See Solomon,
628 F.3d at 561–62; Butler v. Vill. of Round Lake Police
Dep’t, 585 F.3d 1020, 1023 (7th Cir. 2009); see also Detz v.
Greiner Indus., Inc., 346 F.3d 109, 117 (3d Cir. 2003)
(“While Cleveland only specifically addressed a conflict
between SSDI and ADA claims, the analysis is not limited in
its application to cases involving those particular statutory
and administrative schemes.”). Cleveland is likewise
applicable here to determine the legal effect of Smith’s
disability benefit claims on her ADA action.2 See Solomon,
628 F.3d at 561.
Under Cleveland’s framework, we must first determine
whether claims for PERS disability retirement, FMLA
disability leave, or private insurance disability benefits
inherently conflict with an ADA claim. See Solomon,
628 F.3d at 561. We conclude that they do not. As with the
2
Smith also raises a temporal argument, contending that Cleveland is
distinguishable because Smith filed her PERS claim after the School
District made the relevant decision about accommodation. The record
does not support this argument. Smith continued to communicate with the
school district about accommodation up until the time she filed for PERS
benefits.
12 SMITH V. CLARK COUNTY SCHOOL DISTRICT
SSDI claim considered in Cleveland, 526 U.S. at 802–03,
there are situations in which PERS, FMLA, and private
insurance disability claims can coexist with an ADA claim.
Because none of these applications account for an applicant’s
ability to work with reasonable accommodation, it is possible
that a person could claim he or she qualifies for disability
benefits and still be able to work if accommodated. See id.For example, the PERS statute requires an applicant to be
“totally unable” to perform his or her current job or any
comparable job, but neither the statute nor the application
requires a beneficiary or applicant to say that he or she is
unable to work even with reasonable accommodation. See
Nev. Rev. Stat. § 286.620(1). Smith’s ADA suit claiming
that she can perform her job with reasonable accommodation
could prove consistent with her disability-benefit applications
stating that she could not perform her job without it. See
Cleveland, 526 U.S. at 803.
The School District makes much of the fact that the PERS
application contained a space for Smith’s doctor to explain
Smith’s ability to work in a limited capacity. None was
stated. But this is not enough to make the receipt of PERS
benefits inherently inconsistent with an ADA claim. Asking
if a person can work in a limited capacity is not the same as
asking if that person can work with reasonable
accommodation. Were we to accept the position that an
application for disability retirement prohibits the applicant
from bringing an ADA claim against his or her employer, we
would essentially “grant immunity” to employers who
succeeded in forcing employees to accept disability
retirement by denying them reasonable accommodation for
their disabilities. Solomon, 628 F.3d at 564.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 13
Also, a situation could arise in which a person makes a
representation on one of these disability-benefit forms about
his or her present ability that differs from his or her ability at
the time of the relevant employment decision. See Cleveland,
526 U.S. at 805. There is no inconsistency between being
totally disabled at a particular point in time and in not being
totally disabled at a later point in time. Both the FMLA and
the American Fidelity benefits applications contemplate an
end to the applicant’s inability to work by asking when the
applicant anticipates returning to work. And although a
PERS application requires a more permanent disability,
neither the applicant nor the applicant’s doctor is required to
say that the applicant can never work again. Rather, both
applicant and doctor are asked present-tense questions about
whether the applicant “can” perform her current or former job
or whether she “is unable” to work. Because there may be
circumstances in which the application for, or receipt of,
benefits from PERS, FMLA, or private disability benefits
could coexist with an ADA claim, we will not apply a
conclusive negative legal presumption against Smith’s ADA
claim. See Cleveland, 526 U.S. at 803, 805.3
That said, certain statements made by Smith and her
doctors on her PERS and her FMLA benefit forms appear to
conflict with Smith’s ADA claim. See id. at 805.4 To prevail
3
In our pre-Cleveland jurisprudence, we similarly rejected a per se rule
of judicial estoppel that would automatically bar an ADA claimant from
bringing suit if he or she applied for or received disability benefits. See
Johnson v. Oregon, 141 F.3d 1361, 1367 (9th Cir. 1998).
4
The School District also contends that Smith’s representation that she
was “totally disabled” on her American Fidelity benefit form is genuinely
inconsistent with her ADA claim. Although it is true that Smith marked
on her May 2008 benefits form that she had been totally disabled since
14 SMITH V. CLARK COUNTY SCHOOL DISTRICT
on her ADA claim, Smith bears the burden of proving that
she is a qualified individual who can perform the essential
functions of a particular job. Cleveland, 526 U.S. at 806.
Smith’s statements in her applications for PERS and FMLA
benefits, along with those of her doctors, “appear to negate”
this essential element of her claim. Id. Her PERS application
states that Smith “is unable to work” and that she could not
perform her current or any comparable job. For this
application to be approved, Smith also had to show that she
could not perform the job she held in the past year—her
position as literary specialist. See Nev. Rev. Stat.
§ 286.620(1)(c). Similarly, on the FMLA application,
Smith’s doctor wrote that Smith could do “no work at all until
released by [a] doctor.”
These statements cast some doubt on Smith’s ability to
prove that she is a qualified individual who could work with
or without accommodation, especially when Smith insisted
that she be allowed to remain in her literary-specialist
position. However, summary judgment adverse to Smith is
inappropriate if she has given sufficient explanation for
inconsistencies in her prior benefits applications. We
consider whether, viewing the facts in the light most
favorable to Smith, her explanations are sufficient to avoid
summary judgment.
We conclude that this question should be reviewed de
novo because it is a legal conclusion about whether the
March 31, 2008, she stated two lines later that she planned to return to
work in August or September 2008. Because Smith said that she intended
to return to work around the time that she would have started as a
kindergarten teacher, we do not consider this application to be inconsistent
with Smith’s ADA claim.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 15
inconsistency made it appropriate to grant summary
judgment, and we traditionally review summary judgment
decisions de novo. As we previously noted, Cleveland
requires us to apply the summary-judgment standard to
determine whether “in light of the prior statements made by
a plaintiff when [s]he was seeking disability benefits, . . . a
reasonable juror [could] find in [h]er favor on [h]er ADA
claim.” Norris, 191 F.3d at 1049. In doing so, we look at the
facts in the light most favorable to the plaintiff. We took a
similar approach to reviewing claims of inconsistency before
Cleveland. See Fredenburg v. Contra Costa Cnty. Dep’t of
Health Servs., 172 F.3d 1176, 1179 (9th Cir. 1999)
(explaining the court’s “clear preference” to review
inconsistent statements “along with other evidence to see
whether they were so damaging that no rational trier of fact
could rule in the plaintiff’s favor”).
The School District argues that Smith has not provided a
sufficient explanation for these inconsistencies. It contends
that Smith cannot reconcile her representation that she could
not work as a literary specialist with her repeated requests to
remain in the literary-specialist position as a reasonable
accommodation. The district court likewise concluded that
Smith had not given a sufficient explanation to reconcile
these inconsistencies. Smith II, 2011 WL 4007532, at *2–3.
We disagree.
Cleveland’s sufficient-explanation standard is not an
exceedingly demanding one. It “gives ADA plaintiffs wide
latitude to overcome apparent conflicts” between their
disability applications and their ADA claims. Parker v.
Columbia Pictures Indus., 204 F.3d 326, 333 (2d Cir. 2000).
But plaintiffs cannot ignore the inconsistencies between their
claims either. To defeat summary judgment, a plaintiff must
16 SMITH V. CLARK COUNTY SCHOOL DISTRICT
give an explanation that is sufficient for a reasonable juror to
conclude “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.’” Cleveland,
526 U.S. at 807.
Under this standard, we conclude that Smith gave
sufficient explanations for the inconsistencies between her
ADA claim and her PERS and FMLA applications to survive
summary judgment. Smith explains that her FMLA
applications requested temporary disability leave and were
not an admission of permanent inability to work. Although
brief, this explanation is sufficient to warrant a reasonable
juror to conclude that Smith could perform the essential
functions of either a classroom teacher or a reassigned
position with or without reasonable accommodation. See
Norris, 191 F.3d at 1047, 1049 (finding sufficient plaintiff’s
explanation that when she and her doctor said plaintiff was
disabled they meant “that she could not engage in her regular
occupation at that time”). Because “the nature of an
individual’s disability may change over time,” Cleveland,
526 U.S. at 805, it is possible that Smith could have been
completely incapacitated in April, or even August, but still
able to work with or without accommodation during the
2008–2009 school year. Even if Smith had not recovered by
the beginning of the school year, it may have been reasonable
for the School District to accommodate Smith’s disability
through an extended leave of absence. See Humphrey v.
Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001) (“A
leave of absence for medical treatment may be a reasonable
accommodation under the ADA.”).
SMITH V. CLARK COUNTY SCHOOL DISTRICT 17
A reasonable juror could likewise find that Smith’s PERS
application is consistent with her ADA action. Smith
explains that the PERS application did not account for her
ability to perform the literary-specialist position with the
accommodation that she be able to sit down regularly or lie
down when needed. This explanation is consistent with
Smith’s PERS application in which she stated that she could
perform the “sitting” duties of the literary-specialist position.
It is also consistent with Smith’s assertions, including in her
complaint, that she could work as a literary specialist because
it allowed her to sit during the day and it was not as
physically demanding as teaching kindergarten. Her doctor’s
note dated May 1, 2008, which requests that Smith “be kept
in her present position as a literary specialist where minimal
physical exertion is required,” also supports this explanation.
A reasonable juror could reconcile the apparent inconsistency
between Smith’s PERS application and her claim that she is
a qualified individual under the ADA. See Cleveland,
526 U.S. at 807 (accepting Cleveland’s explanation that her
SSDI application did not account for the effect of reasonable
accommodation on her ability to work).
Smith further explains that her PERS application is not
inconsistent with her request to be accommodated through
reassignment to a vacant project-facilitator position. A
person can be a qualified individual under the ADA if “[s]he
can ‘perform the essential functions of a reassignment
position, with or without reasonable accommodation, even if
[she] cannot perform the essential functions of the current
position.’” Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th
Cir. 2006) (quoting Hutton v. Elf Atochem N. Am., Inc.,
273 F.3d 884, 892 (9th Cir. 2001)). Nothing in the record
shows that Smith or her doctor represented that Smith could
not work as a project-facilitator if reassigned to that position.
18 SMITH V. CLARK COUNTY SCHOOL DISTRICT
So, even setting aside the question of Smith’s ability to
perform the duties of a literary specialist, a reasonable juror
could find that Smith is a qualified individual because she
could perform the essential functions of a different reassigned
position.
We hold that, viewing the facts in the light most favorable
to Smith, a reasonable juror could conclude that Smith’s
applications for disability benefits are consistent with her
ADA claim. The statements relied upon by the School
District may be admitted in evidence and weighed by the
jury, but they should not be preclusive of Smith’s claim at the
summary-judgment stage. Because triable issues of fact
remain, the district court erred by granting summary
judgment for the School District.5 We reverse and remand for
proceedings consistent with this opinion.
The parties shall bear their own costs.
AFFIRMED IN PART; REVERSED IN PART.
5
Clark County urges us to affirm on the alternate ground that Smith was
not denied reasonable accommodation. We decline to do so. We agree
with the district court that genuine issues of material fact exist as to
whether Smith or the School District proposed reasonable
accommodations that would allow Smith to retain employment. See Dark,
451 F.3d at 1088–91 (concluding summary judgment was inappropriate
when plaintiff showed his proposed accommodations, including
reassignment, were reasonable on their face).