FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACQLYN SMITH,

Plaintiff-Appellant,

v.

CLARK COUNTY SCHOOL DISTRICT,

Defendant-Appellee.

No. 11-17398

D.C. No.

2:09-cv-02142-

RLH-LRL

OPINION

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted

May 6, 2013—San Francisco, California

Filed August 21, 2013

Before: William A. Fletcher, Ronald M. Gould,

and Morgan Christen, Circuit Judges.

Opinion by Judge Gould
2 SMITH V. CLARK COUNTY SCHOOL DISTRICT

SUMMARY*

Employment Discrimination

The panel affirmed in part and reversed in part the district

court’s judgment in favor of an employer on claims of

disability discrimination and failure to accommodate under

the Americans with Disabilities Act of 1990.

The panel held that the district court did not abuse its

discretion by granting the employer’s motion for

reconsideration of an order denying summary judgment

because in that order the court committed a clear error of law

by not applying controlling Supreme Court precedent.

The panel held that, in deciding whether the plaintiff was

a “qualified individual” under the ADA, the district court did

not properly apply the framework set forth in Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), for analyzing

the effect of inconsistent statements on applications for

disability benefits. The panel concluded that claims for

disability retirement, disability leave under the Family and

Medical Leave Act, and private insurance disability benefits

do not inherently conflict with an ADA claim because they do

not account for an applicant’s ability to work with a

reasonable accommodation. In addition, the panel held that,

viewing the facts in the light most favorable to the plaintiff,

she had offered sufficient explanations for her inconsistent

statements in her prior benefit applications so that her case

could proceed past summary judgment. Therefore, the panel

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 3

held that the district court erred in granting summary

judgment for the employer, and reversed and remanded for

further proceedings. 

COUNSEL

Michael P. Balaban (argued), Law Offices of Michael P.

Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.

S. Scott Greenberg (argued), Clark County School District,

Office of General Counsel, Las Vegas, Nevada, for

Defendant-Appellee.

OPINION

GOULD, Circuit Judge:

Jacqlyn Smith appeals the district court’s order granting

summary judgment in favor of Clark County School District

on Smith’s claims for disability discrimination and failure to

accommodate under the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. §§ 12101–12213. See Smith v. Clark

County (Smith II), No. 2:09-cv-2142, 2011 WL 4007532

(D. Nev. Sept. 8, 2011) (unpublished). Smith argues (1) that

the district court abused its discretion by granting the School

District’s motion for reconsideration of its initial order

denying summary judgment; and (2) that the district court

erred by granting summary judgment under Cleveland v.

Policy Management Systems Corporation, 526 U.S. 795

(1999). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm in part and reverse in part.
4 SMITH V. CLARK COUNTY SCHOOL DISTRICT

I

Smith worked in the Clark County School District from

1992 to 2008. She first taught elementary school. But in

2001, Smith had a back injury that limited her mobility and

led her to pursue a less physically demanding job within the

school setting. Literary specialist fit the bill. Literary

specialists train and assist elementary school teachers with

teaching and testing student literacy skills, but literary

specialists are not responsible for all of the duties needed to

teach a class of students. Smith earned her literary-specialist

certification in 2004 and took a job as a literary specialist in

the School District. Smith remained a literary specialist in

the School District until 2008. Between 2004 and early 2008,

Smith received positive reviews for her work as a literary

specialist.

In March 2008, the principal at Kesterson Elementary

School told Smith that she would be reassigned to teach

kindergarten for the 2008–2009 school year. Smith objected,

asking to remain in her literary-specialist position because her

back injury prevented her from teaching. According to

Smith, she could not perform the “standing, bending, [and]

stooping required to be an effective kindergarten or

elementary school teacher.” Shortly after this meeting, Smith

aggravated her back while sorting boxes at work, and she was

unable to work as a literary specialist for the rest of the

school year. During the next few months, Smith applied for

family medical leave and disability benefits. These

applications are at the heart of this appeal.

On April 21, 2008, Smith filed a request for leave under

the Family and Medical Leave Act of 1993 (FMLA),

29 U.S.C. §§ 2601–2654. On the request form, Smith’s
SMITH V. CLARK COUNTY SCHOOL DISTRICT 5

doctor explained that Smith was “presently incapacitated”

and could not “work at all until released by [a] doctor.” In

May 2008, Smith applied for and began receiving private

disability benefits through American Fidelity Assurance

Company. In her application for these benefits, Smith stated

that her “dates of total disability” ranged from March 31,

2008 to “Not Sure.” Two months later, Smith sought an

extension to her FMLA benefits and filed an updated form

with her doctor’s statement that Smith was “presently

incapacitated,” would “be out of work indefinitely,” and

could do “no work of any kind until released by a doctor.”

In late August, Smith applied for disability retirement

under the Nevada Public Employees’ Retirement Systems

(PERS) on the basis that she could not perform the duties

required for her current job as a kindergarten teacher,

including standing for long periods of time, bending,

stooping, walking, lifting, and reaching. She also explained

that she could not perform the lifting, bending, and stooping

required for her former job as a literary specialist, but she

could sit to work. Her doctor certified that Smith was

“unable to work due to injury or mental or physical illness.” 

The Nevada Retirement Board approved Smith’s application

for “total and permanent disability” in October 2008.

During this time, Smith was embroiled in heated and

unhappy discussions with the School District over whether

she could work as a kindergarten teacher and how the School

District should accommodate her disability. Smith insisted

that she could not teach in the classroom and repeatedly asked

that the school district accommodate her disability by keeping

her in the literary-specialist position or by transferring her to

another non-teacher position within the School District, such

as a project facilitator. The School District was adamant,
6 SMITH V. CLARK COUNTY SCHOOL DISTRICT

however, that Smith could not remain in the literary-specialist

position and that transferring Smith to another position was

not a reasonable accommodation. Instead, the School District

offered several accommodations for the kindergarten-teacher

position, including a special chair that would reduce Smith’s

need to bend and stoop and a full-time classroom aid to help

with lifting and to minimize Smith’s movement. After an

extended stalemate, the parties failed to reach an agreement. 

Smith resigned from the School District at the end of

September 2008, so she could receive PERS disability

retirement. Smith takes the position that she did not want to

start disability retirement, but felt she had no choice because

she could not work as a kindergarten teacher and she had

used all of her sick leave.

Smith sued the School District in the United States

District Court for the District of Nevada, alleging that the

School District violated the ADA by discriminating against

Smith and by not providing reasonable accommodation. The

School District moved for summary judgment, asserting

(1) that Smith was not a “qualified individual” under the

ADA because she had represented on her applications for

disability benefits that she was permanently disabled; and

(2) that the School District did not deny Smith a reasonable

accommodation. Initially, the district court denied summary

judgment, concluding that triable issues of fact remained

as to both issues. Smith v. Clark County (Smith I), 2:09-cv2142, 2011 WL 1576894, at *4–5 (D. Nev. Apr. 26, 2011)

(unpublished). The School District moved for

reconsideration on the qualified-individual issue, which the

district court granted, finding that it had committed clear

error by not considering whether Smith had offered a

sufficient explanation for the inconsistencies between her

ADA claim and her PERS application. See Smith II, 2011
SMITH V. CLARK COUNTY SCHOOL DISTRICT 7

WL 4007532, at *1–2. Concluding that Smith had not

sufficiently explained the inconsistences, the district court

granted summary judgment for the School District because

Smith’s ADA action was irreconcilable with her PERS

disability retirement. Id. at *2–3. Smith appealed.

II

We review for abuse of discretion the district court’s

decision to grant or deny a motion for reconsideration. See

SEC v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100

(9th Cir. 2010). We review de novo the district court’s grant

of summary judgment. See Hamilton v. State Farm Fire &

Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). “Summary

judgment is appropriate only if, taking the evidence and all

reasonable inferences drawn therefrom in the light most

favorable to the non-moving party, there are no genuine

issues of material fact and the moving party is entitled to

judgment as a matter of law.” Furnace v. Sullivan, 705 F.3d

1021, 1026 (9th Cir. 2013) (quoting Torres v. City of Madera,

648 F.3d 1119, 1123 (9th Cir. 2011)). As we explain below,

under Cleveland, 526 U.S. 795, we apply this summaryjudgment standard, and thus de novo review, to determine the

sufficiency of a plaintiff’s explanation for his or her

inconsistent claims for disability benefits.

III

We must determine (A) whether the district court abused

its discretion by granting the motion for reconsideration, and,

if not, (B) whether the district court erred by granting

summary judgment in favor of the School District. We

conclude that district court did not abuse its discretion by

reconsidering its initial summary-judgment order, but that it
8 SMITH V. CLARK COUNTY SCHOOL DISTRICT

erred by granting summary judgment in favor of the School

District.

To state a prima facie case under the ADA, Smith must

show (1) that she is disabled within the meaning of the ADA;

(2) that she is a qualified individual with a disability; and (3)

that she was discriminated against because of her disability. 

See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th

Cir. 1999). A qualified individual with a disability is defined

as “an ‘individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires.’” Id. (quoting 42 U.S.C. § 12111(8)). This

case turns on whether Smith’s claims for disability benefits

negate her ability to prove that she is a qualified individual

under the ADA.

A

The district court did not abuse its discretion by

reconsidering its prior order. A district court may properly

reconsider its decision if it “(1) is presented with newly

discovered evidence, (2) committed clear error or the initial

decision was manifestly unjust, or (3) if there is an

intervening change in controlling law.” School Dist. No. 1J

v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 2003). Clear

error occurs when “the reviewing court on the entire record

is left with the definite and firm conviction that a mistake has

been committed.” United States v. U.S. Gypsum Co.,

333 U.S. 364, 395 (1948).

Here, the district court found that it had committed clear

error by not considering whether Smith gave a sufficient

explanation for the conflict between her ADA claim and her
SMITH V. CLARK COUNTY SCHOOL DISTRICT 9

PERS application under the Supreme Court’s decision in

Cleveland. See Smith II, 2011 WL 4007532, at *1–2. In its

initial order, the district court did not mention Cleveland, and

instead analyzed whether the School District had conclusively

shown that Smith was permanently disabled. See Smith I,

2011 WL 1576894, at *4. As we explain below, Cleveland

sets the framework for analyzing how inconsistent statements

on applications for disability benefits affect an ADA claim. 

Because it is a clear error of law to not apply controlling

Supreme Court precedent, we conclude that the district court

did not abuse its discretion by reconsidering its prior order.

It is common for both trial and appellate courts to

reconsider and change positions when they conclude that they

made a mistake. This is routine in judging, and there is

nothing odd or improper about it. A trial court may

reconsider and reach a conclusion contrary to an earlier

decision, and a paradigmatic example of when this should be

done is when the court made its prior decision without

considering the legal standards in a controlling opinion, such

as the Cleveland opinion from the United States Supreme

Court.

B

Smith next asserts that summary judgment was

inappropriate because Cleveland does not apply to her claim,

and even if it does, she has provided an explanation for her

inconsistent statements sufficient to overcome a motion for

summary judgment. We reject Smith’s contention that

Cleveland is inapplicable. But we agree that Smith has

offered a sufficient explanation for her inconsistent

statements so that her case may proceed past summary

judgment.
10 SMITH V. CLARK COUNTY SCHOOL DISTRICT

In Cleveland, the Supreme Court considered “the legal

effect upon an ADA suit of the application for, or receipt of,

disability benefits.” 526 U.S. at 800. Carolyn Cleveland

applied for Social Security Disability Insurance (SSDI)

before filing her ADA suit against her former employer. Id.

at 798–99. To determine the legal effect of Cleveland’s SSDI

claim upon her ADA claim, the Supreme Court engaged in a

two-part analysis. First, it determined whether, as a legal

matter, a claim under the ADA “inherently conflict[s]” with

an SSDI claim to warrant a “negative presumption” against

the ADA claim. Id. at 802; see also id. at 802–05. Second,

after finding no inherent conflict, the Court analyzed whether

Cleveland’s SSDI claim “genuinely” conflicted with her

ADA claim so as to “negate an essential element of her ADA

claim.” Id. at 805–06. Where genuine conflict exists, the

Court held that a plaintiff could overcome summaryjudgment

by offering a sufficient explanation for any inconsistency. Id.

at 806; see also Solomon v. Vilsack, 628 F.3d 555, 561–62

(D.C. Cir. 2010) (explaining Cleveland’s two-part analysis).1

Smith advocates for a narrow reading of Cleveland that

limits its application to inconsistencies between ADA claims

and SSDI claims. The reasoning and the language of 

Cleveland supports a broader application. Although the

decision considered only SSDI disability benefits, it

1 The Supreme Court emphasized that its decision did not consider

“directly conflicting statements about purely factual matters, such as ‘The

light was red/green,’ or ‘I can/cannot raise my arm above my head.’” 

Cleveland, 526 U.S. at 802; see also id. at 807. Although the parties

contest the application of Cleveland, neither argues that Smith’s

inconsistent statements were about “purely factual matters.” We agree

that Smith’s conflicting representations are similar to the statements

implying “context-related legal conclusion[s]” addressed inCleveland. Id.

at 802.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 11

repeatedly referred to the legal impact of any application for,

or receipt of, disability benefits on a plaintiff’s ADA suit. 

See Cleveland, 526 U.S. at 800, 806, 807. In recognition of

this broad language, we have applied Cleveland’s standard to

determine whether a plaintiff’s statements in her applications

for state and private disability benefits genuinely conflicted

with her ADA claim. See Norris v. Sysco Corp., 191 F.3d

1043, 1048–49 (9th Cir. 1999). Our sister circuits have also

applied Cleveland to determine the legal effect of

applications for Federal Employee Retirement System

benefits and state-police pension benefits. See Solomon,

628 F.3d at 561–62; Butler v. Vill. of Round Lake Police

Dep’t, 585 F.3d 1020, 1023 (7th Cir. 2009); see also Detz v.

Greiner Indus., Inc., 346 F.3d 109, 117 (3d Cir. 2003)

(“While Cleveland only specifically addressed a conflict

between SSDI and ADA claims, the analysis is not limited in

its application to cases involving those particular statutory

and administrative schemes.”). Cleveland is likewise

applicable here to determine the legal effect of Smith’s

disability benefit claims on her ADA action.2See Solomon,

628 F.3d at 561.

Under Cleveland’s framework, we must first determine

whether claims for PERS disability retirement, FMLA

disability leave, or private insurance disability benefits

inherently conflict with an ADA claim. See Solomon,

628 F.3d at 561. We conclude that they do not. As with the

2 Smith also raises a temporal argument, contending that Cleveland is

distinguishable because Smith filed her PERS claim after the School

District made the relevant decision about accommodation. The record

does notsupport this argument. Smith continued to communicate with the

school district about accommodation up until the time she filed for PERS

benefits.
12 SMITH V. CLARK COUNTY SCHOOL DISTRICT

SSDI claim considered in Cleveland, 526 U.S. at 802–03,

there are situations in which PERS, FMLA, and private

insurance disability claims can coexist with an ADA claim. 

Because none of these applications account for an applicant’s

ability to work with reasonable accommodation, it is possible

that a person could claim he or she qualifies for disability

benefits and still be able to work if accommodated. See id. 

For example, the PERS statute requires an applicant to be

“totally unable” to perform his or her current job or any

comparable job, but neither the statute nor the application

requires a beneficiary or applicant to say that he or she is

unable to work even with reasonable accommodation. See

Nev. Rev. Stat. § 286.620(1). Smith’s ADA suit claiming

that she can perform her job with reasonable accommodation

could prove consistent with her disability-benefit applications

stating that she could not perform her job without it. See

Cleveland, 526 U.S. at 803.

The School District makes much of the fact that the PERS

application contained a space for Smith’s doctor to explain

Smith’s ability to work in a limited capacity. None was

stated. But this is not enough to make the receipt of PERS

benefits inherently inconsistent with an ADA claim. Asking

if a person can work in a limited capacity is not the same as

asking if that person can work with reasonable

accommodation. Were we to accept the position that an

application for disability retirement prohibits the applicant

from bringing an ADA claim against his or her employer, we

would essentially “grant immunity” to employers who

succeeded in forcing employees to accept disability

retirement by denying them reasonable accommodation for

their disabilities. Solomon, 628 F.3d at 564.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 13

Also, a situation could arise in which a person makes a

representation on one of these disability-benefit forms about

his or her present ability that differs from his or her ability at

the time of the relevant employment decision. See Cleveland,

526 U.S. at 805. There is no inconsistency between being

totally disabled at a particular point in time and in not being

totally disabled at a later point in time. Both the FMLA and

the American Fidelity benefits applications contemplate an

end to the applicant’s inability to work by asking when the

applicant anticipates returning to work. And although a

PERS application requires a more permanent disability,

neither the applicant nor the applicant’s doctor is required to

say that the applicant can never work again. Rather, both

applicant and doctor are asked present-tense questions about

whether the applicant “can” perform her current or former job

or whether she “is unable” to work. Because there may be

circumstances in which the application for, or receipt of,

benefits from PERS, FMLA, or private disability benefits

could coexist with an ADA claim, we will not apply a

conclusive negative legal presumption against Smith’s ADA

claim. See Cleveland, 526 U.S. at 803, 805.3

That said, certain statements made by Smith and her

doctors on her PERS and her FMLA benefit forms appear to

conflict with Smith’s ADA claim. See id. at 805.4 To prevail

3

In our pre-Cleveland jurisprudence, we similarly rejected a per se rule

of judicial estoppel that would automatically bar an ADA claimant from

bringing suit if he or she applied for or received disability benefits. See

Johnson v. Oregon, 141 F.3d 1361, 1367 (9th Cir. 1998).

4 The School District also contends that Smith’s representation that she

was “totally disabled” on her American Fidelity benefit form is genuinely

inconsistent with her ADA claim. Although it is true that Smith marked

on her May 2008 benefits form that she had been totally disabled since
14 SMITH V. CLARK COUNTY SCHOOL DISTRICT

on her ADA claim, Smith bears the burden of proving that

she is a qualified individual who can perform the essential

functions of a particular job. Cleveland, 526 U.S. at 806. 

Smith’s statements in her applications for PERS and FMLA

benefits, along with those of her doctors, “appear to negate”

this essential element of her claim. Id. Her PERS application

states that Smith “is unable to work” and that she could not

perform her current or any comparable job. For this

application to be approved, Smith also had to show that she

could not perform the job she held in the past year—her

position as literary specialist. See Nev. Rev. Stat.

§ 286.620(1)(c). Similarly, on the FMLA application,

Smith’s doctor wrote that Smith could do “no work at all until

released by [a] doctor.”

These statements cast some doubt on Smith’s ability to

prove that she is a qualified individual who could work with

or without accommodation, especially when Smith insisted

that she be allowed to remain in her literary-specialist

position. However, summary judgment adverse to Smith is

inappropriate if she has given sufficient explanation for

inconsistencies in her prior benefits applications. We

consider whether, viewing the facts in the light most

favorable to Smith, her explanations are sufficient to avoid

summary judgment.

We conclude that this question should be reviewed de

novo because it is a legal conclusion about whether the

March 31, 2008, she stated two lines later that she planned to return to

work in August or September 2008. Because Smith said that she intended

to return to work around the time that she would have started as a

kindergarten teacher, we do not consider this application to be inconsistent

with Smith’s ADA claim.
SMITH V. CLARK COUNTY SCHOOL DISTRICT 15

inconsistency made it appropriate to grant summary

judgment, and we traditionally review summary judgment

decisions de novo. As we previously noted, Cleveland

requires us to apply the summary-judgment standard to

determine whether “in light of the prior statements made by

a plaintiff when [s]he was seeking disability benefits, . . . a

reasonable juror [could] find in [h]er favor on [h]er ADA

claim.” Norris, 191 F.3d at 1049. In doing so, we look at the

facts in the light most favorable to the plaintiff. We took a

similar approach to reviewing claims of inconsistency before

Cleveland. See Fredenburg v. Contra Costa Cnty. Dep’t of

Health Servs., 172 F.3d 1176, 1179 (9th Cir. 1999)

(explaining the court’s “clear preference” to review

inconsistent statements “along with other evidence to see

whether they were so damaging that no rational trier of fact

could rule in the plaintiff’s favor”).

The School District argues that Smith has not provided a

sufficient explanation for these inconsistencies. It contends

that Smith cannot reconcile her representation that she could

not work as a literary specialist with her repeated requests to

remain in the literary-specialist position as a reasonable

accommodation. The district court likewise concluded that

Smith had not given a sufficient explanation to reconcile

these inconsistencies. Smith II, 2011 WL 4007532, at *2–3. 

We disagree.

Cleveland’s sufficient-explanation standard is not an

exceedingly demanding one. It “gives ADA plaintiffs wide

latitude to overcome apparent conflicts” between their

disability applications and their ADA claims. Parker v.

Columbia Pictures Indus., 204 F.3d 326, 333 (2d Cir. 2000). 

But plaintiffs cannot ignore the inconsistencies between their

claims either. To defeat summary judgment, a plaintiff must
16 SMITH V. CLARK COUNTY SCHOOL DISTRICT

give an explanation that is sufficient for a reasonable juror to

conclude “that, assuming the truth of, or the plaintiff’s goodfaith belief in, the earlier statement, the plaintiff could

nonetheless ‘perform the essential functions’ of her job, with

or without ‘reasonable accommodation.’” Cleveland,

526 U.S. at 807.

Under this standard, we conclude that Smith gave

sufficient explanations for the inconsistencies between her

ADA claim and her PERS and FMLA applications to survive

summary judgment. Smith explains that her FMLA

applications requested temporary disability leave and were

not an admission of permanent inability to work. Although

brief, this explanation is sufficient to warrant a reasonable

juror to conclude that Smith could perform the essential

functions of either a classroom teacher or a reassigned

position with or without reasonable accommodation. See

Norris, 191 F.3d at 1047, 1049 (finding sufficient plaintiff’s

explanation that when she and her doctor said plaintiff was

disabled they meant “that she could not engage in her regular

occupation at that time”). Because “the nature of an

individual’s disability may change over time,” Cleveland,

526 U.S. at 805, it is possible that Smith could have been

completely incapacitated in April, or even August, but still

able to work with or without accommodation during the

2008–2009 school year. Even if Smith had not recovered by

the beginning of the school year, it may have been reasonable

for the School District to accommodate Smith’s disability

through an extended leave of absence. See Humphrey v.

Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001) (“A

leave of absence for medical treatment may be a reasonable

accommodation under the ADA.”).
SMITH V. CLARK COUNTY SCHOOL DISTRICT 17

A reasonable juror could likewise find that Smith’s PERS

application is consistent with her ADA action. Smith

explains that the PERS application did not account for her

ability to perform the literary-specialist position with the

accommodation that she be able to sit down regularly or lie

down when needed. This explanation is consistent with

Smith’s PERS application in which she stated that she could

perform the “sitting” duties of the literary-specialist position. 

It is also consistent with Smith’s assertions, including in her

complaint, that she could work as a literary specialist because

it allowed her to sit during the day and it was not as

physically demanding as teaching kindergarten. Her doctor’s

note dated May 1, 2008, which requests that Smith “be kept

in her present position as a literary specialist where minimal

physical exertion is required,” also supports this explanation. 

A reasonable juror could reconcile the apparent inconsistency

between Smith’s PERS application and her claim that she is

a qualified individual under the ADA. See Cleveland,

526 U.S. at 807 (accepting Cleveland’s explanation that her

SSDI application did not account for the effect of reasonable

accommodation on her ability to work).

Smith further explains that her PERS application is not

inconsistent with her request to be accommodated through

reassignment to a vacant project-facilitator position. A

person can be a qualified individual under the ADA if “[s]he

can ‘perform the essential functions of a reassignment

position, with or without reasonable accommodation, even if

[she] cannot perform the essential functions of the current

position.’” Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th

Cir. 2006) (quoting Hutton v. Elf Atochem N. Am., Inc.,

273 F.3d 884, 892 (9th Cir. 2001)). Nothing in the record

shows that Smith or her doctor represented that Smith could

not work as a project-facilitator if reassigned to that position. 
18 SMITH V. CLARK COUNTY SCHOOL DISTRICT

So, even setting aside the question of Smith’s ability to

perform the duties of a literary specialist, a reasonable juror

could find that Smith is a qualified individual because she

could perform the essential functions of a different reassigned

position.

We hold that, viewing the facts in the light most favorable

to Smith, a reasonable juror could conclude that Smith’s

applications for disability benefits are consistent with her

ADA claim. The statements relied upon by the School

District may be admitted in evidence and weighed by the

jury, but they should not be preclusive of Smith’s claim at the

summary-judgment stage. Because triable issues of fact

remain, the district court erred by granting summary

judgment for the School District.5 We reverse and remand for

proceedings consistent with this opinion.

The parties shall bear their own costs.

AFFIRMED IN PART; REVERSED IN PART.

5 Clark County urges us to affirm on the alternate ground that Smith was

not denied reasonable accommodation. We decline to do so. We agree

with the district court that genuine issues of material fact exist as to

whether Smith or the School District proposed reasonable

accommodationsthat would allowSmith to retain employment. See Dark,

451 F.3d at 1088–91 (concluding summary judgment was inappropriate

when plaintiff showed his proposed accommodations, including

reassignment, were reasonable on their face).