15

‐ 2037

‐ cv

Kovaco v. Rockbestos

‐ Surprenant Cable Corp.



## In the



# United States Court of Appeals

**For the Second Circuit**

________

A UGUST T ERM 2015

No. 15

‐ 2037

‐ cv

J OSIF K OVACO

, Plaintiff

‐ Appellant,

v.

R OCKBESTOS

‐ S URPRENANT C ABLE C ORPORATION

, Defendant

‐ Appellee.

________

Appeal from the United States District Court

for the District of Connecticut

________

A RGUED : M AY 13, 2016

D ECIDED : A UGUST 22, 2016

________

Before: N EWMAN

, C ABRANES

, and L OHIER

, 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 factual2 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 L OHIER joins fully in the judgment of the Court and files

a concurring opinion.

________

M ICHAEL J. R EILLY (Angelo Cicchiello, on the brief ),

Cicchiello & Cicchiello, LLP, Hartford, CT, for

Plaintiff

‐ Appellant

.3 S USAN R. O XFORD

, 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

.

J EFFREY R. B ABBIN (Lawrence Peikes, on the brief ),

Wiggin and Dana LLP, New Haven, CT, for

Defendant

‐ Appellee

.

________

J OSÉ A. C ABRANES

, 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 the4 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)

1 See Kovaco v. Rockbestos

‐ Surprenant Cable Corp.

, 979 F. Supp. 2d 252 (D. Conn.

2013).5 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 appellate6 jurisdiction plaintiff’s appeal of so much of the judgment as related

to his CFEPA claim.

B ACKGROUND

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 discuss7 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

2 J.A. 731. “J.A.” refers to the Joint Appendix.8 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

3 J.A. 121–23.

4 J.A. 123.9 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

5 J.A. 114–17.10 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

6 Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P.

, 756 F.3d 73, 93 (2d Cir. 2014)

(quoting Gonzalez v. Thaler

, 132 S. Ct. 641, 652 (2012)).11 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 25 th day of

September, 2013. Judgment became final on May 29,

2015. 10

7 Fed. R. App. P. 3(c)(1)(B).

8 Sahu v. Union Carbide Corp.

, 548 F.3d 59, 65 (2d Cir. 2008) (quoting Shrader v.

CSX Transp., Inc.

, 70 F.3d 255, 256 (2d Cir. 1995)).

9 Id. at 65–66 (brackets omitted) (quoting New Phone Co. v. City of New York

,

498 F.3d 127, 131 (2d Cir. 2007)).

10 J.A. 1169. We note that although Kovaco stated in his notice of appeal that

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.12 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

11 Although we note that the parties dispute whether Kovaco pleaded these

claims in his amended complaint, we assume that he did so for purposes of

deciding whether we have appellate jurisdiction.13 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.

12 See City of New York v. Smokes

‐ Spirits.com, Inc.

, 541 F.3d 425, 453 (2d Cir.

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).

13 See Kowsh v. Bd. of Elections of City of N.Y.

, 99 F.3d 78, 80 (2d Cir. 1996)

(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 130.14 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

15 Konikoff v. Prudential Ins. Co. of Am.

, 234 F.3d 92, 97 (2d Cir. 2000). Although

“[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

. . . .”).15 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

16 We “may affirm the judgment of the district court on any ground

appearing in the record.” Konikoff

, 234 F.3d at 98 (internal quotation marks

omitted).

17 See, e.g.

, Chin v. Port Auth. of N.Y. & N.J.

, 685 F.3d 135, 151 (2d Cir. 2012)

(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).16 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

defendant ʹ s 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

18 Bucalo v. Shelter Island Union Free Sch. Dist.

, 691 F.3d 119, 129 (2d Cir. 2012)

(internal quotation marks omitted).

19 See Chin

, 685 F.3d at 151 (Title VII); Sista

, 445 F.3d at 169 (the ADA); Abdu

‐

Brisson

, 239 F.3d at 466 (the ADEA).

20 Robinson v. Concentra Health Servs.

, 781 F.3d 42, 45 (2d Cir. 2015) (brackets

and internal quotation marks omitted).

21 See Slattery v. Swiss Reinsurance Am. Corp.

, 248 F.3d 87, 92 (2d Cir. 2001)

(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”).17 the essential functions of his job, with or without reasonable

accommodation .” 22

Unlike typical discriminatory

‐ discharge cases in which a

defendant ʹ s 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

22 Sista

, 445 F.3d at 169 (internal quotation marks omitted) (emphasis

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”).

23 See Kovaco

, 979 F. Supp. 2d at 259 (citing Mitchell v. Washingtonville Cent.

Sch. Dist.

, 190 F.3d 1 (2d Cir. 1999); Nieman v. Syracuse Univ. Office of Human Res.

,18 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).19 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.

29 Id. at 803; see also 42 U.S.C. § 423(d)(1)(A) (defining “disability” in part to

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”).

30 Cleveland

, 526 U.S. at 803. Among other examples of how the two claims

could be consistent, the Supreme Court explained that “the nature of an

individual’s disability may change over time, so that a statement about that20 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.

33 Id. at 807. The Court in Cleveland emphasized that the case did not involve

“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

, 59521 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.22 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. 120–29.23 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).

41 See Rodal v. Anesthesia Grp. of Onondaga, P.C.

, 369 F.3d 113, 119 (2d Cir. 2004)

(“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).24 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.

43 See id. (noting that judicial estoppel typically applies if, inter alia

, “a party’s

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 7–8.25 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 Cleveland 44 —it fails to defeat Rockbestos ʹ s motion for summary

44 See Cleveland

, 526 U.S. at 803 (“The result is that 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.” (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”).26 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

45 For example, when asked during his deposition whether he was able to use

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. 1143.27 “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

48 Pl. Suppl. Br. 1, ECF No. 92. By circumscribing this concession to the time

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.28 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

49 We do not mean to foreclose the possibility that a plaintiff such as Kovaco

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.

50 Pl. Br. 35; see id. at 36 (“It was undisputed that the Plaintiff was able to

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).29 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,

51 Robinson

, 781 F.3d at 47; see also Lee v. City of Salem

, 259 F.3d 667, 674 (7th

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).30 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. 46–49.31 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 198.32 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.

60 See J.A. 60 (“Defendant

. . . hereby moves pursuant to Fed. R. Civ. P. 56 for

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. 386–417.33 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.

63 Def. App. 1–7. The District Court “granted” the motion for reconsideration

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.

64 See Jackson

, 766 F.3d at 198. As noted above, ordinarily if a district court

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,34 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.LOHIER, Circuit Judge, concurring: 1

I concur fully in the majority opinion. I write separately to reinforce an 2

important point made by the Equal Employment Opportunity Commission in its 3

amicus brief: A disabled plaintiff can demonstrate that he was qualified for the 4

position under Title VII or the Age Discrimination in Employment Act (the 5

“ADEA”) by showing that he could perform the job with or without a reasonable 6

accommodation. In other words, he “must show only that he possesse[d] the 7

basic skills necessary for performance of [the] job.” Slattery v. Swiss Reinsurance 8

Am. Corp., 248 F.3d 87, 91–92 (2d Cir. 2001) (quotation marks omitted). If this 9

were not the rule, a disabled worker who performed his job with a reasonable 10

accommodation would be unable to establish a prima facie case of discriminatory 11

discharge under Title VII or the ADEA even if he were discharged based on his 12

race, color, religion, sex, national origin, or age. As the majority opinion 13

implicitly recognizes, Title VII, the ADEA, and the Americans with Disabilities 14

Act together work to foreclose that possibility. 15