CAVALIERE v. ADVERTISING SPECIALTY INSTITUTE INC.

Filing 28

MEMORANDUM AND OPINION. SIGNED BY HONORABLE STEWART DALZELL ON 2/16/12. 2/17/12 ENTERED AND COPIES E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUDITH CAVALIERE
v.
ADVERTISING SPECIALTY
INSTITUTE INC.

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CIVIL ACTION

NO. 11-1180

MEMORANDUM
Dalzell, J.

February 16, 2012

Plaintiff Judith Cavaliere (“Cavaliere”) brings this
action against defendant Advertising Specialty Institute Inc.
(“ASI”) under the Family and Medical Leave Act (“FMLA” or the
“Act”), 29 U.S.C. §§ 2601, et seq., and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.

Cavaliere

worked for ASI for nearly six years -- both as an associate
publisher and business development director -- before ASI
terminated her in 2010.

Cavaliere alleges that ASI retaliated

against her in violation of the FMLA,1 and also discriminated
against her (based both on her actual disability and perceptions
of her disability) and retaliated against her in violation of the
ADA.

1

Though Cavaliere’s complaint also includes a claim
for interference with her rights under the FMLA, Pl.’s Compl. ¶¶
24-27, she has now withdrawn that claim. Pl.’s Mem. of L. in
Opp’n to Def.’s Mot. Summ. J. (“Pl.’s Mem.”) at 1 n.2.

ASI has filed a motion for partial summary judgment as
to which Cavaliere has filed a response in opposition and ASI has
filed a reply in support.

For the reasons that follow, we will

grant ASI’s motion in part and dismiss Cavaliere’s claim for
discrimination under the ADA on the grounds of estoppel as well
as her damages claim for back pay and front pay.

I.

Factual Background
Under Fed. R. Civ. P. 56(a), “[t]he court shall grant

summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” where “[a] party asserting that
there is a genuine dispute as to a material fact must support
that assertion with specific citations to the record.”
Romeo, 424 Fed. Appx. 130, 133 (3d Cir. 2011).

Bello v.

We will thus

recite the undisputed facts in this matter, pausing occasionally
to supplement those facts with disputed factual assertions that
the parties have supported with specific citations to the record.

A.

Cavaliere’s Career And Termination At ASI
Cavaliere began working for ASI in August of 2004 as an

associate publisher, and became its business development director
around January 1, 2007.

Her supervisor in the latter capacity
2

was Ed Koehler (“Koehler”).

Def.’s Statement of Facts (“Def.’s

Stmt.”) ¶¶ 1-3; Pl.’s Resp. to Def.’s Stmt. (“Pl.’s Resp.”) ¶¶ 13.

The position description for business development director

stated that it required travel thirty percent of the time, Def.’s
Stmt. ¶ 5 (citing Ex. 3 to Def.’s Stmt. (“Position
Description”)), and Cavaliere explained in her deposition that
she believed her employment contract required travel between
seventy-five and eighty percent of the time.
to Def.’s Stmt. (“Cavaliere Dep.”) at 74).

Id. (citing Ex. 12
In any event,

Cavaliere claims that “she could have performed her job without
traveling,” Pl.’s Resp. ¶ 5 (citing Cavaliere Dep. at 120 (“I
could have done it from home.”)), and that Koehler confirmed this
fact.

Id. (citing Koehler Dep. at 54 (“As long as the rep makes

the sales and the sales come in and they make their budget,
whether they travel or not, it’s up to them.”)).
According to Koehler and ASI’s publisher, Rich
Fairfield (“Fairfield”), ASI had to deal with problems relating
to Cavaliere’s work that involved (1) pricing discrepancies in
which Cavaliere’s clients said they should have been billed at a
lower amount than ASI billed them for particular advertisements,
and (2) claims by those clients that they had not agreed to
orders that Cavaliere had placed for them.
3

Def.’s Stmt. ¶¶ 6-7;

Pl.’s Resp. ¶¶ 6-7.

Some of these clients asked that a new ASI

account representative replace Cavaliere.
Pl.’s Resp. ¶ 8.

Def.’s Stmt. ¶ 8;

At a February 9, 2010 meeting with Koehler and

Carol Albright (“Albright”), ASI's Senior Vice-President of Human
Resources, Cavaliere received a Final Written Warning.
Stmt. ¶ 12; Pl.’s Resp. ¶ 12.

Def.’s

At that meeting, ASI instructed

Cavaliere to (1) stop submitting false orders, (2) make a list of
existing orders with potential problems, and (3) submit that list
to Koehler.

Def.’s Stmt. ¶ 20; Pl.’s Resp. ¶ 20.

Koehler and Albright ultimately decided to terminate
Cavaliere’s employment with ASI, and on March 8, 2010, Koehler
and Albright informed her by phone that she had been fired.
Def.’s Stmt. ¶¶ 26, 29; Pl.’s Resp. ¶¶ 26, 29.

Koehler testified

that ASI terminated Cavaliere because (1) she was falsifying
orders, (2) her inaccuracies regarding pricing had created
problems with clients, and (3) she had failed to provide a
complete list of problem accounts contrary to what she was told
at the February 9, 2010 meeting.

Fairfield added that Cavaliere

was terminated because she put in orders that were either not
real or partially real, but at different prices than had been
agreed upon.

Def.’s Stmt. ¶¶ 30-31; Pl.’s Resp. ¶¶ 30-31.

4

ASI

did not hire a new business development director following
Cavaliere’s termination.

B.

Def.’s Stmt. ¶ 32; Pl.’s Resp. ¶ 32.

Cavaliere’s Health Problems
In October of 2009, Cavaliere was diagnosed with

spondylolisthesis.2

Def.’s Stmt. ¶ 34; Pl.’s Resp. ¶ 34.

She

also claims to suffer from osteoarthritis, fibromyalgia,3
degenerative disc disease, depression, obsessive-compulsive
disorder (“OCD”), and anxiety, and states that she has been
seeing an orthopedic surgeon, Dr. Jeffrey Miller (“Dr. Miller”),
for five or six years.4
35-36.

Def.’s Stmt. ¶¶ 35-36; Pl.’s Resp. ¶¶

According to Cavaliere, her condition flared up in

2
Spondylolisthesis: “forward displacement of one
vertebra over another, usually of the fifth lumbar over the body
of the sacrum, or of the fourth lumbar over the fifth, usually
due to a developmental defect in the pars interarticularis.”
Richard Sloane, The Sloane-Dorland Annotated Medical-Legal
Dictionary 483 (Supp. 1992).

3

Fibromyalgia: “a chronic disorder characterized by
widespread pain, tenderness, and stiffness of muscles and
associated connective tissue structures that is typically
accompanied by fatigue, headache, and sleep disturbances.”
Medline Plus Medical Dictionary, U.S. Dep’t of Health & Human
Servs., http://www.nlm.nih.gov/medlineplus/mplusdictionary.html.
4
Though Cavaliere admits this statement, she also
states that she “first treated with Dr. Jeffrey Miller on October
4, 2000.” Pl.’s Statement of Facts (“Pl.’s Stmt.”) ¶ 18 (citing
Ex. F to Pl.’s Stmt. (“Miller Dep.”) at 14).

5

September of 2009, causing pain in her hip that was treated with
a steroid injection.

Def.’s Stmt. ¶ 37; Pl.’s Resp. ¶ 37.

According to Dr. Miller, she told him on October 20, 2009 that
she was experiencing pain in her right leg, and in December of
that year stated that she was experiencing pain in her back, hip,
and right leg.

Pl.’s Stmt. ¶¶ 23-24; Def.’s Resp. to Pl.’s Stmt.

(“Def.’s Resp.”) ¶¶ 23-24.

Dr. Miller further reported that

Cavaliere told him on March 25, 2010 that she did not feel able
to do her job due to its travel requirements.
Def.’s Resp. ¶ 25.

Pl.’s Stmt. ¶ 25;

Cavaliere has seen a chiropractor, continues

to treat with Dr. Miller, and began seeing a psychiatrist in
2011.

C.

Def.’s Stmt. ¶¶ 38-40; Pl.’s Resp. ¶¶ 38-40.

Cavaliere’s Requests For Accommodations From ASI
ASI claims that Cavaliere only made one request for

accommodations from ASI on account of her health problems, asking
for a chair and a lumbar support that ASI provided to her.
Def.’s Stmt. ¶ 47 (citing Cavaliere Dep. at 137 (Counsel for ASI:
“Did you ever request, other than asking Ms. Ambrose to rearrange
your office -- and ‘rearrange’ is a loose term, but I think
that’s what you said -- did you request any other accommodation
from ASI because of your back condition?”

6

Cavaliere: “Just the

chair.”)).

Cavaliere responds that she “requested from Mr.

Koehler that she be able to work from home after her back
problems began to flare up in the fall and winter of 2009” and
that he told her that she could not.

Pl.’s Resp. ¶¶ 40, 47

(citing Cavaliere Dep. at 120 (“I asked Ed if I could work from
home when I started feeling ill and he said no.”)).

While

Cavaliere testified that she was not allowed to work from home
while at ASI, she also testified that she “‘could work at home
for California calls, which I did late at night,’” Def.’s Stmt. ¶
56 (quoting Cavaliere Dep. at 309); Pl.’s Resp. ¶ 56, and that
she occasionally worked from home as part of her job at ASI.
Def.’s Stmt. ¶ 56; Pl.’s Resp. ¶ 56.
Cavaliere also alleges in her complaint that ASI
terminated her “in retaliation for seeking reasonable
accommodations (periodic time off from work).”
32.

Pl.’s Compl. ¶

ASI insists that Cavaliere never sought periodic time off

from work, instead requesting only occasional days off “which ASI
granted her without issue”, Def.’s Stmt. ¶ 49 (citing Cavaliere
Dep. at 261).

Cavaliere appears to agree with the first part of

this statement, Pl.’s Resp. ¶ 49 (quoting Cavaliere Dep. at 261
(Counsel for ASI: “Was there a point where you sought periodic
time off from work and were denied?”
7

Cavaliere: “No, just

days.”)), but disagrees with the latter portion, Pl.’s Resp. ¶ 49
(citing Cavaliere Dep. at 260-62), apparently because Koehler
“might have commented” on Cavaliere taking those days off.
Cavaliere Dep. at 261.

The parties agree, in any case, that (1)

Cavaliere never exhausted the number of days off that ASI allowed
her, (2) all of the time off that she took was permitted by ASI,
and (3) ASI never indicated to her that the time she took off
from work played any role in her termination.

Def.’s Stmt. ¶¶

52-53; Pl.’s Resp. ¶¶ 52-53.
ASI claims that Cavaliere never told anyone at ASI that
she was unable to travel.

Def.’s Stmt. ¶ 57 (citing Cavaliere

Dep. at 94 (Counsel for ASI: “Did you tell anyone at ASI while
you still worked there that you could no longer travel at all?”
Cavaliere: “No.”)).

Cavaliere responds that she told Koehler

about her inability to travel on specific trips, Pl.’s Resp. ¶ 57
(citing Cavaliere Dep. at 93-94), though she admitted that she
never told him that she could not travel at all.

Cavaliere Dep.

at 94.

D.

Cavaliere’s Requests For Leave From ASI
According to Cavaliere’s testimony, while she never

spoke with Koehler about taking leave under the FMLA, she did ask

8

Jeannette Killeri (“Killeri”), an employment specialist at ASI,
about getting FMLA forms.

Cavaliere testified that Killeri told

her she would get the forms for her, but never did.
¶¶ 60-63; Pl.’s Resp. ¶¶ 60-63.

Def.’s Stmt.

Cavaliere also testified that

she spoke with Kathleen Piazza (“Piazza”), a disbursement
accountant at ASI, about obtaining FMLA papers in late 2009,
about two weeks after she spoke to Killeri.

Piazza printed out

the FMLA forms from her computer and gave them to Cavaliere.
Def.’s Stmt. ¶¶ 65-67, 69-70; Pl.’s Resp. ¶¶ 65-67, 69-70.
Cavaliere did not fill out these forms, and never
applied for FMLA leave from ASI.
Resp. ¶¶ 71-72.5

Def.’s Stmt. ¶¶ 71-72; Pl.’s

ASI claims that Cavaliere testified that she

did not fill out these forms because she didn’t want FMLA leave,
Def.’s Stmt. ¶ 73, but Cavaliere responds that her testimony
“does not stand for the proposition that she did not want to
invoke her rights under the FMLA.”

Pl.’s Resp. ¶ 72.

The

parties agree that neither Albright, nor Koehler, nor Ambrose was
aware that Cavaliere had asked anyone at ASI about taking leave
under the FMLA.

Def.’s Stmt. ¶¶ 74-76; Pl.’s Resp. ¶¶ 74-76.

5

Though Cavaliere denies Paragraph 72 of ASI’s
Statement of Facts, it appears -- given her qualification of this
denial -- that she meant to deny Paragraph 73. Pl.’s Resp. ¶ 72.
9

The parties also agree that Cavaliere had to cancel two
to three business trips in late 2009 due to her medical
conditions.

Pl.’s Stmt. ¶¶ 26-28; Def.’s Resp. ¶¶ 26-28.

Cavaliere testified that during a business trip in September of
2009, she explained to Koehler that she could not attend certain
(presumably trade) shows because of her back, and that traveling
and driving were difficult for her.

Pl.’s Stmt. ¶ 36 (citing

Cavaliere Dep. at 275, 75 (Counsel for ASI: “Were you disciplined
for not being able to attend the San Francisco show?”
“I told him that I had back problems.”)).

Cavaliere:

ASI denies that

Cavaliere ever made any such statement to Koehler, Def.’s Resp. ¶
36 (citing Koehler Dep. at 167 (Counsel for Cavaliere: “Did Ms.
Cavaliere ever tell you that she was having difficulty traveling
because of her back?”

Koehler: “Not that I recall, no.”)), and

states that Koehler was only aware that Cavaliere had to cancel a
single trip to Chicago.

Def.’s Resp. ¶ 37 (citing Koehler Aff.

at 163-65).
Cavaliere claims that after she informed Koehler of her
medical conditions in September of 2009, Koehler made comments to
her that she needed to care for her back on about ten occasions,
Pl.’s Stmt. ¶ 38 (citing Cavaliere Dep. at 103-104, 106); ASI
denies that Koehler ever made any such statements.
10

Def.’s Resp.

¶ 38 (citing Ex. B to Def.’s Resp. (“Koehler Aff.”) ¶¶ 4-6).
Cavaliere testified that she wore a brace and shoulder device,
including to work.

Pl.’s Stmt. ¶ 39; Def.’s Resp. ¶ 39.

Deb

Mayfield, a sales representative at ASI, also testified that she
overheard Koehler talking to an administrative assistant about
Cavaliere being absent from work because of her back.

Pl.’s

Stmt. ¶ 40; Def.’s Resp. ¶ 40.

E.

Cavaliere’s Capacity To Work At ASI
Cavaliere testified that she believed that she could

have continued working even after her termination, and ASI admits
that she was able to perform the essential functions of her job
at the time of her termination.
Resp. ¶¶ 42-43.

Pl.’s Stmt. ¶¶ 42-43; Def.’s

Cavaliere also testified that she looked for

work after her termination from ASI but was unable to find work
similar to what she had performed at ASI because each position
she sought required travel, Pl.’s Stmt. ¶¶ 45, 47-50; Def.’s
Resp. ¶¶ 45, 47-50, and that she waited until May 27, 2010 to
apply for Social Security Disability Insurance (“SSDI”) because
she had hoped instead to find a job.
Def.’s Resp. ¶¶ 52-53.

11

Pl.’s Stmt. ¶¶ 52-53;

F.

Cavaliere’s Application For Social Security Benefits
Around May 27, 2010, Cavaliere applied for SSDI from

the Social Security Administration (“SSA”).
Pl.’s Resp. ¶ 77.

Def.’s Stmt. ¶ 77;

ASI claims that Cavaliere “told the SSA that

her disability began on March 8, 2010, which was the exact date
on which ASI terminated her employment,” Def.’s Stmt. ¶ 78,
citing the SSA’s April 19, 2011 decision in which it recorded
that “[t]he claimant . . . is alleging disability since March 8,
2010.”

Ex. 21 to Def.’s Stmt. (“SSA 2011 Decision”) at P717.

Cavaliere denies this statement, Pl.’s Resp. ¶ 78, pointing to
testimony in which she was asked, “So do you recall, at any time,
you alleging that March 8th, 2010, was the date of onset of your
disability?,” and answered “I don’t recall alleging that.”
Cavaliere Dep. at 325.
In Cavaliere’s submissions to the SSA, she answered the
question, “‘What were you able to do before your illnesses,
injuries, or conditions that you can’t do now?,’” by answering
“‘Walk long distances -- drive long distances -- fly on plane -bend -- lift -- turning,’” and noting that her condition affected
her ability to dress, bathe, and feed herself.
81-82; Pl.’s Resp. ¶¶ 81-82.

Def.’s Stmt. ¶¶

Cavaliere explained that she does

not do house or yard work because “‘I’m in pain -- (chronic),’”,
12

that her condition affected an array of daily activities,6 and
that she could lift only five pounds and walk four blocks.
Def.’s Stmt. ¶¶ 84, 87; Pl.’s Resp. ¶¶ 84, 87.

When asked “[f]or

how long can you pay attention?,” Cavaliere answered, “not long.”
June 29 SSA Submission at P591.

Cavaliere submitted a report

from Dr. Miller in which he noted that Cavaliere reported on
March 25, 2010 “‘that the pain has become incapacitating [and]
she is unable to continue working.’”
in Def.’s Stmt.); Pl.’s Resp. ¶ 89.

Def.’s Stmt. ¶ 89 (brackets
Dr. Miller also noted,

though, that Cavaliere “feels she is no longer able to do her job
because of the travel requirements.”

Pl.’s Resp. ¶ 89 n.5

(quoting Ex. 25 to Def.’s Stmt. (“Miller Report”) at P386), and
that she “has inability to travel including prolonged driving and
flying which is 50% of her job.”

Miller Report at P386.

The SSA denied Cavaliere’s SSDI application on November
23, 2010, and Cavaliere appealed this ruling the next month,
stating that “‘I am disabled and unable to work.’”
¶¶ 91-93; Pl.’s Resp. ¶¶ 91-93.

Def.’s Stmt.

In her submissions, Cavaliere

stated that her condition had not changed since her last

6
Including lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, stair climbing, completing
tasks, and concentration. Ex. 23 to Def.’s Stmt. (“June 29 SSA
Submission”) at P590.

13

disability report, explaining that she “‘still can’t sit, walk or
drive,’” Def.’s Stmt. ¶ 94; Pl.’s Resp. ¶ 94, and that she could
not fly on planes for her job.

Pl.’s Resp. ¶ 98 n.8 (citing Ex.

C to Pl.’s Resp. (“SSA Application”) at P583)).

In response to

the question “‘What changes have occurred in your daily
activities since you last completed a disability report?,’”
Cavaliere answered, “‘All is basically the same -- with not
working (after working a high level position for 25+ years) I’m
very depressed.

I’m scheduled to see psychiatrist Jan. 4.

loved my job -- never would have left.’”
Pl.’s Resp. ¶ 95.

I

Def.’s Stmt. ¶ 95;

Cavaliere further stated that

“I left my job in March 2010. I had a 25year career making [a] six figure income for
many years. I could not fly, drive or stand
for long periods. On my job I had to fly to
trade show[s] and clients 60 percent of [the]
time. The denial letter from [Social
Security] said I could do ‘my job’ -- I
cannot. I would not leave a [$]130,000 job
if I could -- I paid all [Social Security]
since I’m 17 -- now at 57, I need help and
have no income.
“I cannot do my job because of spondylosis
[sic] -- degenerative disc disease -arthritis[,] hip problems and now depression
is getting worse because of this disability
situation.”
Def.’s Stmt. ¶ 98 (brackets in Def.’s Stmt.) (emphasis omitted
from Def.’s Stmt.); Pl.’s Resp. ¶ 98.
14

The SSA denied Cavaliere’s appeal on March 10, 2011,
leading her to file a second appeal that month, Def.’s Stmt. ¶
100; Pl.’s Resp. ¶ 100, in which she explained that “I had a high
six-figure salary for many years -- a great job as a bus. dev.
[business development] director.

I cannot work anymore due to

spodolthesis [sic] -- degenerative arthritis -- fibromyalgia -depression -- OCD -- anxiety.”

Def.’s Stmt. ¶ 101 (brackets in

Def.’s Stmt.); Pl.’s Resp. ¶ 101.

The SSA then issued a “Fully

Favorable” decision on April 19, 2011, finding that (1) “‘[t]he
claimant has been under a disability as defined in the Social
Security Act since March 8, 2010, the alleged onset date of
disability,’” Def.’s Stmt. ¶ 102-03; Pl.’s Resp. ¶ 102-03; (2)
Cavaliere’s severe impairments included degenerative joint
disease, lumbar disc herniation, spondylosis, and depression,
Def.’s Stmt. ¶ 104; Pl.’s Resp. ¶ 104; (3) Cavaliere “‘is unable
to perform any past relevant work’” and “‘there are no jobs that
exist in significant numbers in the national economy that the
claimant can perform,’” Def.’s Stmt. ¶ 105; Pl.’s Resp. ¶ 105;
and (4) “‘the requirement that the claimant alternate between
sitting and standing every 15 minutes precludes her work as a
publisher.’”

Def.’s Stmt. ¶ 105; Pl.’s Resp. ¶ 105.

15

Cavaliere

now collects $2,448 per month in disability benefits.7

Def.’s

Stmt. ¶¶ 106-07; Pl.’s Resp. ¶¶ 106-07.
Cavaliere concedes that she never told the SSA that her
departure from ASI was involuntary, Def.’s Stmt. ¶ 96; Pl.’s
Resp. ¶ 96, explaining this omission in a variety of ways that we
explore in Section II.A. below.

II.

Analysis
On a motion for summary judgment, “[t]he moving party

first must show that no genuine issue of material fact exists,“
Adderly v. Ferrier, 419 Fed. Appx. 135, 136 (3d Cir. 2011)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)),
whereupon “[t]he burden then shifts to the non-moving party to
set forth specific facts demonstrating a genuine issue for
trial.”

Id.

“‘A disputed fact is “material” if it would affect

the outcome of the suit as determined by the substantive law,’”
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915,
925 (3d Cir. 2011) (quoting Gray v. York Newspapers, Inc., 957
F.2d 1070, 1078 (3d Cir. 1992)), while a factual dispute is
genuine “‘if the evidence is such that a reasonable jury could

7

It bears noting that Cavaliere also receives about
$3,000 per month under a private disability policy Unum issued.
Def.'s Stmt. ¶¶ 42-43; Pl.'s Resp. ¶¶ 42-43.
16

return a verdict for the nonmoving party. . . . The mere
existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be
[significantly probative] evidence on which the jury could
reasonably find for the plaintiff.”

Bialko v. Quaker Oats Co.,

434 Fed. Appx. 139, 141 n.4 (3d Cir. 2011) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)) (bracketed
material in original).

We “draw all reasonable inferences in

favor of the nonmoving party, and [we] may not make credibility
determinations or weigh the evidence.”

Eisenberry v. Shaw Bros.,

421 Fed. Appx. 239, 241 (3d Cir. 2011) (quotation marks omitted).

A.

Estoppel And Cavaliere’s Disability Claim
ASI argues that “Cavaliere is estopped from claiming

that she could still perform the essential functions of her job
at ASI -- an essential element of a claim for disability
discrimination -- because she repeatedly took an irreconcilably
conflicting position with the Social Security Administration in
her successful quest for Social Security Disability Insurance
(‘SSDI’) benefits.”

Def.’s Mem. of L. in Supp. of Mot. Summ. J.

17

(“Def.’s Mem.”) at 1.

Cavaliere responds8 that she “has asserted

throughout this matter that she was affected by her difficulties
with traveling,” and that “[a] reasonable jury could find that
Ms. Cavaliere could have performed her job for Defendant without
having to perform the high level of travel that she has [sic]
been previously doing, but that she was unable to find a new

8

Cavaliere also suggests that ASI “has already
admitted in this litigation that Ms. Cavaliere was able to
perform the essential functions of her position at the time of
her termination” in response to Cavaliere’s requests for
admissions, Pl.’s Mem. at 10 (emphasis omitted), and that
“‘[b]ecause admissions are conclusive, they are not weighed
against competing evidence on a summary judgment motion.’” Id.
(quoting Kida v. EcoWater Sys. LLC, 2011 WL 4547006, at *4 (E.D.
Pa. 2011). It is true that Rule 36 admissions are ordinarily
conclusive, and that this practice serves to preserve the
efficacy of the discovery process. As our Court of Appeals
observed nearly sixty years ago, however, the doctrine of
judicial estoppel aims to prevent “playing ‘fast and loose with
the courts’ which has been emphasized as an evil the courts
should not tolerate.” Scarano v. Cent. R.R. Co. of N.J., 203
F.2d 510, 513 (3d Cir. 1953). Though giving conclusive effect to
Rule 36 admissions undoubtedly serves an important interest, the
doctrine of judicial estoppel advances a higher purpose:
protecting the integrity of the courts. We will not permit a
party to play “fast and loose with the courts” just because the
opposing party made an admission that would appear to permit such
sharp practice. Under the circumstances, we will construe ASI’s
presentation of its judicial estoppel argument as a request to
withdraw its admission that Cavaliere was able to perform the
essential functions of her position at the time of her
termination, and will grant this request pursuant to Fed. R. Civ.
P. 36(b).
18

position where she would not be required to travel.”

Pl.’s Mem.

of L. in Opp’n to Def.’s Mot. Summ. J. (“Pl.’s Mem.”) at 6.
As our Court of Appeals has explained, “[t]o establish
a prima facie case of discrimination under the ADA, a plaintiff
must show that he (1) is disabled, (2) is otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodations by the employer, and (3) has suffered
an adverse employment action as a result of discrimination.”
Irving v. Chester Water Auth., 439 Fed. Appx. 125, 126 (3d Cir.
2011).

As the Supreme Court observed in Cleveland v. Policy

Mgmt. Sys. Corp., 526 U.S. 795, 797 (1999) (quoting 42 U.S.C. §
423(d)(2)(A)) (brackets and ellipsis in original), “[t]he Social
Security Disability Insurance (SSDI) program provides benefits to
a person with a disability so severe that she is ‘unable to do
[her] previous work’ and ‘cannot . . . engage in any other kind
of substantial gainful work which exists in the national
economy.’”
While it might appear, at first glance, that a
plaintiff’s pursuit of SSDI must logically estop her from
asserting the second element of a prima facie case under the ADA,
the statutes differ in one crucial respect: while the ADA
considers whether a plaintiff can perform her job with reasonable
19

accommodations, the SSA does not take such accommodations into
account in determining eligibility for SSDI.

Id. at 803.

As a

result, the Supreme Court has concluded that “pursuit, and
receipt, of SSDI benefits does not automatically estop the
recipient from pursuing an ADA claim.”

Id. at 797. But “an ADA

plaintiff cannot simply ignore her SSDI contention that she was
too disabled to work.

To survive a defendant’s motion for

summary judgment, she must explain why that SSDI contention is
consistent with her ADA claim,” id. at 798 -- that is, her
“explanation must be sufficient to warrant a reasonable juror’s
concluding that, assuming the truth of, or the plaintiff’s goodfaith belief in, the earlier statement, the plaintiff could
nonetheless ‘perform the essential functions’ of her job, with or
without ‘reasonable accommodation.’”

1.

Id. at 807.

Cavaliere’s Representations To The SSA

ASI argues that Cavaliere’s representations to the SSA
cannot be reconciled with the claim that she can perform the
essential functions of her job at ASI, since Cavaliere made “many
definite and unambiguous claims that she was not capable of
working at ASI.”

Def.’s Mem. at 15.

Though Cavaliere did make

categorical and unqualified statements to the SSA such as “I am

20

disabled and unable to work,” Def.’s Stmt. ¶ 93; Pl.’s Resp. ¶
93, our Court of Appeals has cautioned that such statements to
the SSA should be read with the implied qualification “without
reasonable accommodation,” Turner v. Hershey Chocolate USA, 440
F.3d 604, 609 (3d Cir. 2006) -- so that Cavaliere’s statement
above becomes “I am disabled and unable to work without
reasonable accommodation,” which is certainly reconcilable with
the prima facie elements a plaintiff must prove under the ADA.
Rather than focus on Cavaliere’s general descriptions of her
capacity to work, we will instead examine two other types of
statements she made to the SSA regarding (1) the reason she
stopped working at ASI, and (2) particular limitations on her
capacities.9

9

We note that Judge Stengel has synthesized Cleveland
and the jurisprudence of our Court of Appeals on this subject as
requiring “a two-part analysis when an employment discrimination
plaintiff has applied for and received SSDI benefits. First, the
court must determine whether the positions taken by the plaintiff
in his SSDI application and his [discrimination] claim genuinely
conflict. Then, it must evaluate whether the plaintiff’s
explanation for that inconsistency meets the standard set forth
in Cleveland.” Ruhl v. Cty. of Lancaster, 2011 WL 3862257, at *4
(E.D. Pa. 2011). In the context of this framework, Cavaliere’s
statement that she was “unable to work” satisfies the first step
of the analysis, leading us to consider her explanations thereof
and particular representations to SSA in the second.
21

As we have noted, Cavaliere admits that she did not
inform the SSA that she left ASI involuntarily.

Cavaliere

explains this lacuna and her statements to SSA in three ways: (1)
“she filled out what was asked on the forms and . . . the forms
did not inquire [about] the reasons for her separation,” Pl.’s
Resp. ¶ 96 n.6 (citing Cavaliere Dep. at 337); (2) “her statement
was accurate because she ‘never would have left’ had
circumstances not forced me to leave my job, meaning Ed Koehler
not relaying to management that I had a back problem,” id. ¶ 97
n.7 (quoting Cavaliere Dep. at 336-37); and (3) “by left, she
mean[t] gone and that it was not her decision to leave the
company.”

Id. (citing Cavaliere Dep. at 335-36).
Even if we draw all reasonable inferences from the

record in Cavaliere’s favor, her explanations are fanciful.
Cavaliere asserted to the SSA that “‘I left my job in March 2010.
. . .

The denial letter from [Social Security] said I could do

“my job” -- I cannot.
could.’”

I would not leave a [$]130,000 job if I

Def.’s Stmt. ¶ 98 (emphasis omitted); Pl.’s Resp. ¶ 98.

Thus, whether or not the forms inquired about the reasons for
Cavaliere’s separation, she volunteered such reasons to the SSA.
And despite Cavaliere’s theories about the equivalence between

22

the words “left” and “gone,” her use of the verb “leave”10 to the
SSA suggests that her departure was voluntary.11

The unavoidable

implication of Cavaliere’s statements is that she could not do
her job (without reasonable accommodations) and therefore left
voluntarily, and that she would not have left but for her
inability to do her job -- not that ASI terminated her
involuntarily.

There can be little doubt that presenting the

former account to the SSA -- rather than the latter -- helped
Cavaliere’s SSDI application, since a version of the events in
which she voluntarily left a high-paying job due to an inability
to work would bolster the heft of her claims to the SSA that she
was seriously disabled.

Though the parties agree that the latter

10
As defined by the Oxford English Dictionary, leave
means “[t]o depart from, quit, relinquish” -- a definition that
underscores its connotations of voluntariness, as the OED's usage
examples confirm, e.g., "1837 DICKENS Pickw. ii, I think we shall
leave here the day after to-morrow"; "1866 THIRLWALL Lett. II 70,
I do not leave for town until tomorrow."; "1791 BENTHAM Let. 12
May, Wks. 1843 x. 254 So says Lord L. who himself leaves on the
1st." VIII Oxford English Dictionary 777-78, def. II (2d ed.
1989).

11

We use voluntary here to mean that Cavaliere, and
not her employer, made the ultimate choice as to whether she
would continue working. We do not mean that this choice was
freely made in the sense that it was not compelled by
circumstances.
23

account is more accurate, we will hold Cavaliere to the former
account in determining how estoppel applies to her ADA claims.
As for Cavaliere’s specific limitations and symptoms,
she informed the SSA on June 29, 2010 that as a result of her
disability, she could no longer “‘[w]alk long distances -- drive
long distances -- fly on plane -- bend -- lift -- turn[ing],’”
and that her disability affected her ability to dress, bathe, and
feed herself.

Def.’s Stmt. ¶¶ 81-82; Pl.’s Resp. ¶¶ 81-82.

She

also suggested that her disability limited her ability to engage
in an array of activities: lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, stair climbing, completing
tasks, and concentration.

June 29 SSA Submission at P590.

Importantly, when asked “[f]or how long can you pay attention?,”
Cavaliere answered, “not long.”

Id. at P591.

Cavaliere

explained in the same submission that “‘I’m in pain -(chronic),’” Def.’s Stmt. ¶ 84; Pl.’s Resp. ¶ 84, and submitted a
report from Dr. Miller in which he noted her self-report on March
25, 2010 “‘that the pain has become incapacitating [and] she is
unable to continue working.’”

Def.’s Stmt. ¶ 89 (bracketed

material in Def.’s Stmt.); Pl.’s Resp. ¶ 89.

Finally, Cavaliere

suggested in December of 2010 that she “cannot work anymore due
to spodolthesis [sic] -- degenerative arthritis -- fibromyalgia 24

- depression -- OCD -- anxiety.’”

Def.’s Stmt. ¶ 101 (brackets

in Def.’s Stmt.); Pl.’s Resp. ¶ 101.

2.

Reconciling Cavaliere’s Representations

Cavaliere attempts to reconcile these representations
to the SSA.

She contends that she “could have done her job from

home or with less travel,” Pl.’s Mem. at 6, and that (1)
“Defendant did not work with her to have decreased travel instead
of just letting her go,” Pl.’s Stmt. ¶ 58; and (2) “Ms. Cavaliere
requested that she be able to work from home form [sic] Mr.
Koehler, but was told that she would not be allowed to do so.”
Pl.’s Mem. at 6.

Thus, the two “reasonable accommodations” with

which Cavaliere claims she could have performed the essential
functions of her job at ASI -- but without which she was deemed
to be disabled for SSDI purposes -- were traveling less and
working from home.

ASI replies that “Cavaliere never asked ASI

to reduce her travel, nor did ASI ever tell her that she could
not reduce her travel,” Def.’s Reply Mem. in Supp. of Mot. Summ.
J. (“Def.’s Reply”) at 2, and that “Cavaliere testified that she
did in fact work from home while at ASI, and that she did so at
least as of October 2009 -- after the alleged onset of her
condition.”

Id. at 3 (emphasis in original).

25

We must judge

whether a reasonable juror could believe that Cavaliere’s stated
need for accommodations reconciles her application for SSDI and
her claims here under the ADA.
According to ASI, Cavaliere is “ask[ing] this Court to
rule that an ADA plaintiff” can evade estoppel by “claim[ing]
that she could have performed her job with an accommodation that
is not requested of the employer nor identified until after her
termination, and one that she could have exercised of her own
accord”.

ASI contends that “[t]he law does not permit such

manipulation.”

Id. at 6 (emphasis omitted).

We will not opine

as to whether an ADA plaintiff may, as a general proposition,
employ such a gambit.

Our concern is rather with whether such an

argument is available to a plaintiff who represents to the SSA
without qualification that she left her job voluntarily due to
her disability and would not have left but for her inability to
work.
We conclude that such a stratagem will not work.

A

plaintiff cannot consistently represent on the one hand to the
SSA that she voluntarily left her job and would not have left but
for her inability to work, and on the other hand represent to a
court that an accommodation that was known to her at the time of

26

her departure12 and not requested of her employer, would have
allowed her to perform the essential functions of her job.

If a

plaintiff knows that a reasonable accommodation might allow her
to work despite her disability and she does not request it of her
employer, then she cannot claim that it was her inability to work
that was the cause of her voluntary departure.
As ASI correctly notes, Cavaliere has pointed to no
record evidence suggesting that she ever asked anyone at ASI to
provide her with the accommodation of less travel.

Cavaliere’s

alleged representations to Koehler that she could not travel on
specific trips because of her back problems do not constitute a
request for an accommodation.

As a result, Cavaliere cannot

resort to the need for accommodation of less travel to reconcile
her statements to the SSA (that she voluntarily left ASI because
of her inability to work) with the claims she must make before
this Court (i.e., that she is capable of performing the essential

12
We assume in this discussion that we are dealing
with an accommodation whose existence was known to a plaintiff at
the time she ceased working. To be sure, our reasoning would not
hold if this assumption were not true since there is no
contradiction between a plaintiff claiming that (1) she
voluntarily left her position without requesting an accommodation
because of her inability to work and (2) she only later learned
of an accommodation -- perhaps a medical technology -- that might
permit her to work.

27

functions of her position at ASI).

No reasonable juror could

believe that this travel accommodation would allow Cavaliere to
perform a job that she told the SSA she left because of her
(unqualified) inability to work, given that Cavaliere knew that
this accommodation might well have been afforded at the time of
her departure from ASI but she did not request it.
In contrast, Cavaliere has pointed to record evidence
suggesting that she requested the accommodation of working from
home from Koehler, and that this accommodation was denied in
part.

Although Cavaliere was occasionally able to work from

home, she has presented evidence that she was not permitted to
work solely from home.

Even though Cavaliere represented to the

SSA that she voluntarily left ASI because of her (unqualified)
inability to work, she could claim -- at least theoretically -that this latter accommodation -- allegedly requested from and
denied by ASI -- would have allowed her to perform the essential
functions of her job.
But while there is no theoretical bar to this argument,
it nevertheless fails to persuade when juxtaposed against the
details of Cavaliere’s application to the SSA.

As we have noted,

Cavaliere represented in her SSDI application that she (1) had
difficulty with completing tasks and concentration, (2) could not
28

pay attention for long, (3) was in chronic, incapacitating pain,
and (4) could not work due to anxiety, depression, and OCD.

But

none of these conditions has anything to do with where she could
work.

Cavaliere has failed to proffer any explanation as to how

working from home would address these limitations more
successfully than working from ASI's office.

An ADA plaintiff

may not simply point to any accommodation requested from, and
denied by, an employer to explain away representations of
disability made to the SSA.

She must provide a plausible basis

for a reasonable juror to believe that the accommodation would
permit her to work despite her representations of disability to
the SSA.

Cavaliere has provided no such basis.

Her

representations to the SSA therefore estop her from claiming that
a working-from-home accommodation would have allowed her to
perform the essential functions of her job at ASI.
Cavaliere has thus failed to provide an explanation
“sufficient to warrant a reasonable juror’s concluding that,
assuming the truth of, or the plaintiff’s good-faith belief in,
the earlier statement [to the SSA], the plaintiff could
nonetheless ‘perform the essential functions’ of her job, with or
without ‘reasonable accommodation.’”

Cleveland, 526 U.S. at 807.

Because she is thus estopped from making out a prima facie case
29

of discrimination under the ADA, we will grant summary judgment
as to her discrimination claims under Count II of the complaint.

B.

Notice And Cavaliere’s FMLA Claim
ASI argues that “[t]he Court should also dismiss the

remainder of the First Cause of Action of Cavaliere’s Complaint,
alleging that ASI terminated her in retaliation for exercising
her FMLA rights, because Cavaliere cannot show that any of the
people responsible for her termination knew about her alleged
request for FMLA paperwork.”

Def.’s Mem. at 27.

Cavaliere

responds that “[t]his argument misses the mark in terms of the
FMLA activity for which Defendants [sic] retaliated against Ms.
Cavaliere.

Rather, Defendant retaliated against Ms. Cavaliere

for exercising her rights under the FMLA, namely taking time off
for a qualifying serious health condition.”13

Pl.’s Mem. at 12.

ASI replies that “Cavaliere has not proffered any evidence that
Koehler knew the extent of her alleged ailments . . . or that she

13
In her complaint, Cavaliere alleges that
“Plaintiff’s termination was based in substantial part due to
[sic] her FMLA-qualifying absenteeism, FMLA needs, and requests
for FMLA.” Pl.’s Compl. ¶ 26. Based on her response to ASI’s
motion, Cavaliere appears now to have abandoned the claim that
ASI retaliated against her based on her “requests for FMLA.”

30

ever had to miss work because she was visiting a doctor or
seeking medical treatment.”

Def.’s Reply at 9.

The FMLA provides that “an eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-month
period” for certain medical conditions, including “a serious
health condition that makes the employee unable to perform the
functions of the position of such employee.”
2612(a)(1).

29 U.S.C. §

Under the Act, it is “unlawful for any employer to

discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this
subchapter,” § 2615(a)(2).

The Act’s regulations explain that it

“prohibits an employer from discriminating or retaliating against
an employee or prospective employee for having exercised or
attempted to exercise FMLA rights. . . . [E]mployers cannot use
the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions.”

29

C.F.R. § 825.220(c).
Our Court of Appeals has explained that to succeed on
an FMLA retaliation claim a plaintiff “must show that (1) he took
an FMLA leave, (2) he suffered an adverse employment decision,
and (3) the adverse decision was causally related to his leave.”
Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d
31

Cir. 2004).

In order to take FMLA leave, “[a]n employee shall

provide at least verbal notice sufficient to make the employer
aware that the employee needs FMLA-qualifying leave, and the
anticipated timing and duration of the leave.

Depending on the

situation, such information may include that a condition renders
the employee unable to perform the functions of the job. . . ”
29 C.F.R. § 825.302(c).
ASI ultimately makes two arguments with respect to
Cavaliere’s claim for FMLA retaliation: (1) Cavaliere “conflates
two distinct concepts in FMLA jurisprudence,” since her
“arguments concerning whether ASI was on notice of her
eligibility for FMLA leave bear more on a claim for FMLA
interference than they would on her claim for FMLA retaliation,”
Def.’s Reply at 8 (emphasis in original); and (2) no ASI
decisionmaker knew that Cavaliere was taking FMLA-protected leave
since no decisionmaker knew “the extent of her alleged ailments.”
Id. at 9.
With respect to ASI’s first argument, ASI seems to
confuse the elements of a claim for retaliation under the FMLA.
The question of whether an employer is on notice that an
employee’s leave qualifies for FMLA protection is relevant not
only to claims for FMLA interference but also to claims for FMLA
32

retaliation.14

For a plaintiff to prove the first element of a

retaliation claim under Conoshenti -- that “he took an FMLA
leave,” 364 F.3d at 146 -- he must show that he “provide[d] at
least verbal notice sufficient to make the employer aware that
the employee needs FMLA-qualifying leave.”

§ 825.302(c).

This brings us to ASI’s second argument, that
“Cavaliere has not proffered any evidence that Koehler knew the
extent of her alleged ailments.”

Def.’s Reply at 9.

Cavaliere

has pointed to evidence in the record suggesting that (1) she
told Koehler that her back problems prevented her from making

14

ASI’s argument does raise an interesting question:
for an FMLA plaintiff to prove the third Conoshenti element, must
she show that the decisionmaker who took an alleged adverse
employment decision against her was aware that her leave
qualified for FMLA protection? Our reading of Conoshenti
suggests that the answer to this question is "no". In that
decision, our Court of Appeals stated only that a plaintiff must
show that “the adverse decision was causally related to his
leave,” 364 F.3d at 146 -- not to “his taking of leave under the
FMLA.” Upon reflection, this makes sense. If a plaintiff
informs one supervisor at her employer that she may need to take
leave under the FMLA, then takes leave and experiences an adverse
employment decision at the hands of another supervisor because of
her leave-taking, a right has been violated under the FMLA even
if the second supervisor did not know that the leave qualified
for FMLA protection. In this case, Cavaliere has presented
evidence suggesting that she informed Koehler of her need for
FMLA-qualifying leave, and that Koehler later retaliated against
her for taking such leave -- so that the first and second
supervisors in our hypothetical are here the same individual. We
thus need not reach this question, though we note it in the
interests of analytical precision.
33

specific trips; (2) she told Koehler about her medical conditions
in September of 2009; (3) she wore a brace and shoulder device,
including to work; (4) Koehler told Cavaliere that she needed to
care for her back on multiple occasions; and (5) Koehler told coworkers at ASI that Cavaliere was absent from work because of her
back.

Drawing all reasonable inferences in Cavaliere’s favor, a

factfinder could reasonably conclude from this evidence that
Cavaliere notified ASI (via Koehler) that she needed FMLAqualifying leave -- as the first Conoshenti element requires.
Furthermore, a factfinder could conclude that the decisionmaker
who ultimately took the alleged adverse employment decision
against Cavaliere -- Koehler -- was aware that Cavaliere had
taken leave, as the third Conoshenti element requires.
Of course, ASI contests the evidence described above,
but Cavaliere has at the least carried her burden of showing a
genuine dispute as to whether (1) she provided sufficient notice
to ASI of her need for FMLA-qualifying leave, and (2) Koehler -one of the decisionmakers who participated in her termination -knew she had taken leave.

Inasmuch as these are the only two

aspects of Cavaliere’s FMLA retaliation claim that ASI
challenges, we will deny its motion for summary judgment with
respect to Count I of the complaint.
34

C.

Cavaliere’s Claim For Damages
Finally, ASI argues that “Cavaliere is not entitled to

back pay or front pay damages in this action because the SSA
determined that she was completely disabled as of her last day of
work, and she continues to be disabled through the date of this
motion.”

Def.’s Mem. at 29.

Cavaliere responds that “the

factual inquiry of Ms. Cavaliere’s availability for work is the
same with respect to both her ability to establish her prima
facie case and her ability to recover front and back pay,” and
that since her “disability award should not preclude her from
asserting claims under the ADA . . . . [t]he same rationale
should apply with respect to a plaintiff’s availability to
recover front and back pay damages.”

Pl.’s Mem. at 15.

As Judge Pollak has explained, “[t]he underlying
premise in computing an employment discrimination plaintiff's
award . . . is that the injured worker must be restored to the
economic position in which the worker would have been but for the
discrimination.”

Mason v. Assoc. for Independent Growth, 817 F.

Supp. 550, 553 (E.D. Pa. 1993).

Thus, “in a variety of

situations, a back pay award is reduced, or eliminated entirely,
if the plaintiff has not received -- or, indeed, could not
receive -- offsetting income in the post-discriminatory period,”
35

so that “as a general rule, a claimant will not be allowed back
pay during any periods of disability.”

Id. at 554.

Cavaliere is correct that this general rule would not
apply when a claimant’s disability may be reconciled with her
ability to perform the essential functions of her position if
given reasonable accommodations.

We have already determined,

however, that Cavaliere’s pursuit and receipt of SSDI cannot be
reconciled with her having such an ability to work.

As Cavaliere

suggests, we will apply “[t]he same rationale,” Pl.’s Mem. at 15,
to both her discrimination claim under the ADA and her damages
claims for back pay and front pay.

In both cases, we find that

Cavaliere’s representation to the SSA that she was disabled
beginning on March 8, 201015 -- the date ASI terminated her
employment -- estops her from claiming that she could perform the
essential functions of her position at ASI, so that she can
assert neither claim successfully.

We will therefore grant ASI’s

motion for summary judgment with respect to Cavaliere’s damages
claim for back pay and front pay.

15
Though Cavaliere states that she does not remember
telling SSA that her disability began on this date, we have
already explained that the SSA itself noted her representation to
this effect. Cavaliere’s failure to recall conveying this
information does not create a genuine dispute of fact on this
point, given the SSA’s affirmative statement to the contrary.

36

BY THE COURT:

__\s\Stewart Dalzell

37