F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A C Q L Y N S M I T H , Plaintiff-Appellant

,

v

.

C L A R K C O U N T Y S C H O O L D I S T R

I C T , Defendant-Appellee

. N o. 11-17398

D.C. No. 2:09-cv-02142- RL H-L RL

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Rog er L . Hunt, Senior District J udg e, Presiding

Arg ued and Submitted May 6, 2013—San F rancisco, California

F iled Aug ust 21, 2013

B efore: W illiam A. F letcher, Ronald M. Gould, and Morg an Christen, Circuit J udg es.

O pinion by

J udg e GouldS M I T H V

. C L A R K C O U N T Y S C H O O L D I S T R

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SUMMARY *

Em ploym ent Discrim ination

The panel affirmed in part and reversed in part the district court’ s j udg ment in f

avor of an employ er on claims o f d i sability discrimination and failure to accommodate unde r the Americans with Disabilities Act of 1990.

The panel held that th e d istrict court did not a buse its d i s cretion by g ranting the employ er’s mot i o n f o r

reco n s i d eration of an order deny ing summary judg ment because in that order the court committed a clear error of law by not apply ing controlling Supreme Court precedent.

The p anel h eld that, in d eciding whether the plaintiff was

a “qualified individual” under the ADA, the district court did
not properly a

pply the framework set forth in C l e veland v

. Policy Mgmt. Sys. Corp.
, 526 U.S. 795 ( 1999), for analy zing the effect of inconsistent statements on applic a t i o n s for disability benefits. The panel concluded that c l a i m s for disability retirement, disability l e a ve under the F amily a nd Medical L eave Act, and private insurance disability benefits do not inherently conflict with an ADA claim because they do
not a ccount for an ap p l i cant’s ability to work with a reasonable accommodation. I n addition, the panel held that, viewing the f

acts in the lig ht most favorable t o t h e plaintiff, she had offered sufficient ex planations for her inconsistent
statements in her prior benefit applications s o that her case could proceed past summary judg ment. Therefore, the panel

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S M I T H V

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held that the district court e rred in g ranting summary judg ment for the employ er, and reversed and r e m anded for further proceeding s.

COUNSEL

Michael P. B alaban (arg ued), L a w Offices of Michael P. B alaban, L as Veg as, Nevada, for Plaintiff-Appellant.

S

. Scott Greenberg (arg

u ed), Clark County School Distr i c t , Office of G eneral Counsel, L as Veg as, N e v ada, for Defendant-Appellee.

OP INION

GOUL D, Circuit J udg e :

J acqly n Smith appeals the district court’s o rder g rant ing
summary judg ment in f

avor of Clark County School District

on Smith’s claims for disability discrimination and failure to accommodat e under the Americans with Disabilities Act o f 1990 (ADA), 42 U.S.C. § § 12101–12213. See Smith v. Clark County ( S

mith II ), No. 2:09-cv-2142, 201 1 W L 4007532 (D. Nev. Sept. 8, 2011) (unpublished). Smith a rg ues (1) that the district court abused its discretion b y g ranting the School District’s motion for reconsideration of its i n i t i al order deny in g s u mmary judg ment; and (2) that the district court erred by gr an t ing summary judg ment under Cleveland v

. Policy Management Systems Corporation
, 52 6 U .S. 795 (1999). W e have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.S M I T H V

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I

Smith worked in the Clark County School District from 1992 to 2008. She f

irst taug ht elementary school. B u t i n 2001, Smith had a b ack in jury that limited her mobility a nd led her to pursue a less phy sically demanding job within the school setting

. L iterary specialist fit the bi l l

. L iterary specialists train and a ssist elementary sc h ool teachers with teaching and testing student literacy skills, but l i t erary specialists are not responsible for all of the d u t i es 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 remaine d a l iterary specialist in the School District until 2008. B etween 2004 and early 2008, Smith received positive reviews for her wor k as a literary specialist.

I n M a rch 2008, the principal at Kesterson Elementary School told Smith that she would b e reassi gn e d to teach kinderg a rten f or the 2008–2009 school y ear. Smith objected, asking to remain in her literary

- specialist position because her back injury pr e v ented h er from teaching

. According to Smith, she could not perform the “s t an ding

, bending

, [ and] stooping requi r e d t o be an effective kinderg arten o r elementary school teacher.” Shortly after this meeting

, Smith
ag g r avated h er back while sorting box es at work, and she was unable to work as a l i t e rary specialist for the rest of the school y ear. During

the nex t few months, Smith applied for family medical le a v e and disability benefits. These applications are at the heart of this appeal.

On April 21, 2008, Smith filed a request for leave under
t h e Family a

nd Medical L eave Act of 1993 (F ML A), 29 U.S.C. §§ 2601–2654. On th e r e quest form, Smith’sS M I T H V

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doctor ex plained that Smith was “presently incapacitated” and could not “work at all until released by [ a] do ctor.” I n May 2008, Smith a p p l i ed for and beg an receiving private disability benefits th r o u g h American F idelity Assurance Company

. I n her a

p plication for these b e nefits, Smith stated
t h at her “dates of total disability ” rang ed from Mar c h 3 1
, 2008 to “Not Sure

. ” T wo months later, Smith soug ht an

ex tens ion to her F ML A benefits and filed an updated form with her doctor’s s t a t ement that Smith was “ presently incapacitate d,” would “ be out of work indefinitely ,” a nd could do “no work of any kind until released by

a doctor.”

I n late Aug u s t, Smith a

pplied for disability retirement under the Nevada Public Employ ees’ Retirement Sy stems (PERS) on the basis that she could n o t p erform the duties required for her current jo b as a kinderg arten teacher, including standing for long periods o f time, b ending

, stooping

, walking

, lifting

, and reaching

. She also e x p lained that she c ould not perform the lifting , bending , and stooping required f

or her former job as a literary speci a l i s t , but she

c ould sit to work. Her doctor certified that Smith w a s “unable to work due to injury or mental or phy sical illness.” The N evada Retirement B oard approved Smith’s a pplication for “total and permanent disability ” in October 2008.

During this t ime, Smith was embroiled in heated a nd unhappy d iscussions with the School District o v e r whether she c ould work as a kinderg arten teacher and how the School District sho u ld accommodate her disability

. Smith insisted that she could not teach in the classroom a nd repeatedly asked that the school district accommodate her disability by keeping her in the literary -specialist position or by transferring her to another n on-teacher position within the School District, such

a s a project f

acilitator. The School District w as adama n t ,S M I T H V

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however, that Smith could not remain in the literary -specialist position and that transferring Smith to another position was not a reasonable a ccommodation. I nstead, the School District offered several accommodations for the kinderg arten-teacher position, including a special chair that would reduce Smith’s need to bend and stoop and a f ull-time classroom a id to h elp wit h l i f t i ng and to minimiz e Smith’s movement. After an

ex tended stalemate, the parties failed to reach a n ag r eement. Smith resig n ed fr o m the School District at the end o f September 2008, so she c ould receive PERS d isability retirement. Smith takes the position that she did n ot want to start d isability retirement, b ut felt she had no choice because she c ould not work as a kinderg arten teacher and she h ad used all of her sick leave.

Smith sued the School District in the United States D i s trict Court for the District of Nevada, alleg ing that t h e School District violated the ADA by disc r i minating ag ainst Smith and by not providing reasonable accommodation. The School Dis t r ict moved for summary judg ment, asserting (1) that Smith was not a “qualified individual” under the AD A b ecause she had represented on her applications for disability benefits that she was pe rmanently disabled; a nd (2) that the School Di s t r i c t did not deny Smith a reasonable accommodation. I nitially

, the district court d enied summary judg ment, concluding that triable issues of fact remained

a s t o both issues. Smith v. Clark County ( Smith I ), 2:09-c v

21 4 2
, 2011 W L 1576894, at *4–5 (D. N ev. Apr. 26, 2 011) ( u n p u b l i s h e d )

. T h e S c h o o l D i s t r i c t m o v e d f o r reconsideration on the qualified-individual issue, w h i c h the distri c t c o u r

t g ranted, finding that it had committed clear

error by not considering whether Smith had offered a sufficient ex planation fo r the inconsistencies between her ADA cla i m a n d her PERS a pplication. See S

mith II
, 2011S M I T H V

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W L 4007532, at *1–2. Concluding that Smith h a d not sufficiently ex plained the inconsistences, the dist r ict court g ranted summary judg ment f or the School Distric t because Smith’s A DA action was irreconci l able with h er PERS disability retirement. Id . at *2–3. Smith appealed.

II

W e review for a

buse of d iscreti o n t h e district court’s decision to g r ant or deny a moti o n f o r r econsideration. See SEC v. Platforms W

ireless Int’l Corp.
, 617 F .3d 1072, 1100 (9th Cir. 2010). W e r eview de novo the district court’s g rant of summary j u d g ment. See H amilton v. State Farm Fire & Cas. Co.
, 27 0 F. 3d 778, 7 82 (9th Cir. 2001). “Summary judg men t is appropriate o nly if, taking the e vidence and all reasonable inferences drawn therefrom in the lig h t most favorable to the non-moving part y , t h ere are no g enuine issues of material fact and the moving party i s entitled to judg ment 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 ex plain below, under Cleveland

, 526 U.S. 79 5
, w e apply this summary

judg ment standard, and thus de novo review, to determine the sufficiency of a plaintiff’s ex planation for his or her inconsistent claims for disability benefits.

III

W e must determine (A) w hether the district court abused its discretion by g ranting the motion for reconsideration, and, if not, (B ) whether the d istrict court erred by g ranting
summary judgm e n t in favor of the School District. W e conclude that district court did not a b u s e its discretion b y reconsidering its initial summary -judg ment o rder, but that itS M I T H V

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erred by g ranting su m m a r y j udg ment in favor of the School District.

To state a prima facie case u nder 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 a g ainst because of her disability

. See Nunes v. W

al-Mart Stores, I

nc. , 164 F .3d 1243, 1246 (9th Cir. 1999). A q

ualified individual with a disability is defined

as “an ‘individual with a dis a b i l i ty who, with or without reasonable accommodat ion, can perform the essential functions of the employ

ment pos i t i o n that such individual holds or desires.’” Id

. (quoting 42 U.S.C. § 12111(8)). This

case turns o n whether Smith’s claims f or disability benefits
neg ate her ability to prove that she is a qualified individual under the ADA.

A

Th e d i s t rict court did not abuse its discretion b y reconsidering its prior order. A distri c t c ourt may properly reconsider its decision if it “(1) i s p r es ented with newly discovered evidence, ( 2) c o m m itted 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. A CandS, Inc.
, 5 F .3d 1255, 12 6 3 (9 th Cir. 2003). Clear

error occurs when “ t h e r eviewing court on the entire record is left with the definite and firm conviction that a mistake has b e e n 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 w h e ther Smith g ave a sufficient

ex p lanation for the conflict between her ADA claim a nd herS M I T H V

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PERS application under the Supreme Court’s decision in Cleveland

. S

ee S mith II
, 2011 W L 4007532, at *1–2. I n its initial order, the district court did not mention Cleveland

, a nd instead a naly z ed whether the School D i s t r i c t had conclusively shown that Smith was permanently d isabled. See S mith I
, 2011 W L 1576894, at *4. As we e x p l a i n below, Cleveland
sets the framework for analy z ing how inconsistent statements

on applications for disability benefits affect an ADA c laim. B ecause it is a c l ea r e rror 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.

I t is common for both trial and appellate court s t o reconsider and chang e positions w hen they conclude that they made a mistake. This is routine i n j u d gi ng , and there is nothing odd or improper about i t

. A trial court may reconsider and reach a conclusion contrary to a n earlier decision, a

nd a paradig matic ex ample of when this should be done is when the court made its p r ior decision w ithout considering the leg a l standards in a controlling opinion, such

a s the Cleveland opinion from the United States Supr e m e Court.

B

S m i th nex t asserts that summary judg ment was inappropriate because Cleveland d o es not apply to her c laim,

an d e v e n i f it does, she has provided an ex planation f or her inconsistent s t a tements sufficient to overcome a motion for
summary judg ment. W e reject Smith’s contention that Cleveland is inapplicable. B ut we ag ree that S m i t h has offered a sufficient ex planation for her inconsistent
statement s so that her case may proceed p ast summary judg ment.S M I T H V

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I n Cleveland

, the Supreme Court considered “the lega l effect upon an ADA suit of the application for, or receipt of, d isability benefits.” 526 U .S. at 800. Caroly n Clevel a n d applied for Social Sec u r i ty Disability I nsurance (SSDI ) before filing her ADA suit ag a inst her former employ er. Id

. at 798–99. To determine the leg al effect of Cleveland’s SSDI claim u pon her ADA claim, the Supreme Court eng ag ed in a two-part analy sis. F irst, it determined w h e t h e r, as a leg al matter, a cla im under the ADA “inherently conflict[ s] ” with

an SSDI c laim to warrant a “n e g a tive presumption” ag ainst the ADA claim. Id

. at 802; s e e also id

. at 802–05. Second, after finding no inherent c o n flict, the Court analy z e d whether Cleve l an d’s SSDI claim “g enuinely ” conflicted with her ADA claim so as to “neg ate an essential element of her ADA claim.” Id

. at 805–06. W here g enuine conflict ex ists

, the Court held that a plaintiff could overcome summary judg ment by offering a sufficient ex planation for any inconsistency

. Id

. at 806; see a lso Solomon v. Vilsack

, 6 2 8 F .3d 555, 561–62 (D.C. Cir. 2 010) (ex plaining Cleveland ’s two-part a naly sis). 1

Smith a d v o c a t es for a narrow reading of Cleveland that limits its application to inconsistencies between ADA c laims and SSDI claims. The re a soning and the lang uag e o f Cleveland su p p o rts a broader application. Althoug h the de ci s ion considered only SSDI disability benefits, it

1 T h e Su p rem e Co u rt em

p h asized t h a t i t s d ecisio n d id n o t co n s id er

“ directly co n f

lictin g statem en ts ab o u t p u rely f actu al m atters, su ch as ‘ T h e lig h t w as red / g reen ,’ o r ‘ I can /can n o t raise m y arm ab o v e m

y h ead .’ ” Clevela n d

, 5 2 6 U.S. at 80 2 ; see a lso i d

. at 80 7. A lth o u g h t he p arties

co n test th e ap p licati on o f Clevela n d

, n eith er arg u es t h at Sm ith ’ s in co n sisten t statem en t s w ere ab o u t “ p u rely f actu al m atters.” W e ag ree th at Sm ith ’ s co n f

lictin g rep resen tatio n s are sim ilar t o th e st a t em en ts im p ly in g “ co n tex t- related leg al co n cl u s i o n [ s ] ” a d d r essed in Clevela nd

. Id

. at 8 0 2

.S M I T H V

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repeatedly referred to the leg al impact of any application for,

or receipt of, d isability b enefits on a plaintiff’s A D A suit. See Cle ve land

, 526 U.S. at 800, 806, 8 07. I n recog nition o f this broad lang uag e, we have applied Cleveland ’s standard to determine whether a p laintiff’s statements in her applications for state and private disability benefits g enuinely conf l icted wit h h er A DA claim. See Norris v. S ysco Corp.
, 191 F .3d 1043, 1048–49 (9th Cir. 1999). Our sister circuits have also applied Cleveland to d etermine the le ga l effect o f applications for F ederal Employ ee Retirement Sy stem benefits and state-police pension benefits. See Solomon

, 628 F .3d at 561–62 ; B utler v. Vill. of Round Lake Police Dep’t
, 585 F .3d 1020, 1023 (7th Cir. 2009); see also Detz v. Greiner I ndu s ., Inc.
, 346 F .3d 109, 1 17 (3d Cir. 2 003) (“W hile Cleveland only spec i f i c ally addressed a conflict between SSDI and A DA c laims, the a n aly sis is n o t limited in its app l i c a tion to c ases involving those particular statutory and administrative schemes.”). Cleveland is likewise applicable here to d etermine the leg al e f f e c t o f Smith’s disability benefit claims on her ADA action. 2 See Solomon

, 628 F .3d at 561.

Und e r C leveland ’ s framework, we must first determine whether claims for PERS disability re t i r e ment, F ML A disability leave, o r private insu rance disability benefits inherently conflict with an ADA clai m

. See Solomon

, 628 F .3d at 561. W e conclude th a t t hey do not. As with the

2 Sm ith also raises a tem

p o ral arg u

m en t, co n ten d in g th at Clevela n d i s d istin g u ish ab l e b ecau se Sm ith f iled h er P ERS claim af

ter th e Sch oo l District m ad e t

h e relev an t d ecisio n a b o u t acco m m o d atio n

. T h e reco rd d o es n o t su

p p o rt th is arg u m en t

. Sm ith co n tin u ed to co m

m u n icate w ith th e sch o o l d istrict ab ou t acco m m o d atio n u

p u n til th e tim e sh e f

i l ed f o r P ERS b en ef its.S M I T H V

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SSDI cl a im considered in Cleveland

, 5 26 U.S. a t 802–03, there a re situations in w hich PERS, F ML A, and private i n s urance d isability claims can coex ist w ith an A DA cla i m

. B ecause none of these applications account for an applicant’s ability to w ork with reasonable accommodation, it is possible that a p erson could claim he o r she q ualifies for di s ab i l ity benefits and still be able to work if accommoda t e d

. See id

. F or ex ample, the PERS statu t e r e q uires an applicant to be “totally unable” to p erform h i s or her current job or any comparable j o b

, but neither the statute nor the a pplication requires a beneficiary or a p p l i c a n t to say that he or she is unable t o work even with reasonable accommodation. See Nev. Rev. Stat. § 286

. 6 2 0 ( 1 ). Smith’s ADA suit claiming that she can perform her job with reasonable accommodation could prove consistent w ith her disability -benefit appl i c a t i o ns stating that she could n ot perform her job without i t

. 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 d o c tor to e x plain Smith’s ability to work in a limited capacity

. None was stated. B ut this is not enoug h t o m a k e the receipt of PERS benefits inherently inconsistent w ith an ADA claim. Asking if a person can wor k i n a limited capacity is not the same a s asking if that person c an w o r k w i t h reasonable accommodation. W ere we to a c cept the posi t i o n that an application for disability retirement p rohibits the applicant from b ring ing an ADA claim ag ainst his or her employ er, we

w o u l d essentially “g r ant immunity ” to employ ers who succeeded in f

orcing employ ees to a ccept d isability retirement b y deny ing them reasonable accommoda t i on for their disabilities. Solomon , 628 F .3d at 564.S M I T H V

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Also, a s i t u ation 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 employ ment decision. See Cleveland

, 526 U.S. at 805. There i s n o inconsistency between being totally disabled at a particular point in time and in not being totally disabled at a later point in time. B oth the F ML A and the A merican F idelity benefits applications contem p l a te an end to the ap p l i c a n t ’ s inability to work by a sking when the applicant an ticipates returning to w ork. And althoug h a PERS application requires a more permanent disability

, neither the applicant nor the applicant’s doctor is required to say that the applicant c a

n never work ag ain. R a t h e r , both applicant and doctor are a sked present-tense questions about whether the applicant “can” perform her current or former job

or whether she “is unable” to work. B ecause there may be circumstances in which the application for, or receipt of, benefits from PERS, F ML A, or p rivate d i s a bility benefits could coex i s t w i th an ADA claim, we will not a pply a conclusive neg ative leg al presumption ag ainst Smith’s ADA claim. S ee Cleveland

, 526 U.S. at 803, 805. 3

That said, certain state m e n ts made by Smith and her doctors on h er PERS and her F ML A benefit forms appear to conflict with Smith’s ADA claim. See id

. at 805. 4 To prevail

3 In o u r p re- C

levela n d j u

risp ru d en ce, w e s im ilarly rej ected a p er se ru le

o f j u d icial esto p p el th at w o u ld au to m atically bar an A DA claim an t f ro m b rin g in g su it if h e o r s h e ap p lied f o r o r receiv ed d isab ility b en ef its. S ee Jo h n so n v. Oreg o n , 1 4 1 F.3 d 1 3 6 1, 1 3 6 7 (9 th Cir. 1 9 9 8 ).

4 T h e Sch o o l District also co n ten d s th at Sm ith ’ s rep resen tatio n th at sh e

w as “ to tally d isab led ” o n h er A m erican Fid elity b en ef it f o rm is g en u in ely in co n sisten t w ith h er A DA claim

. A lth o u g h it is tru e th at Sm ith m ark ed

o n h er May 2 0 0 8 b en ef

its f o rm th at sh e h ad b een to t ally d isab led sin ceS M I T H V

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on her ADA claim, Smith bears the burden o f p ro v ing 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 h er applications for PERS and F ML A benefits, along with those o f her d o ctors, “appear to neg ate” this essential element of her claim. Id

. Her PERS a pplication
states that Smith “is unable to work” and that s h e c o u l d not perform her current or a ny comparable job. F o r t h is application t o be approved, Smith also h ad to show that she

c o u l d not perform the job she held in the past y ear— h e r position as literary specialist. See Nev. Rev. Stat. § 286.620(1)(c). Similarly

, o n the F ML A application, Smith’s doctor wrote that Smith c ould d o “no work at all until released by [ a] doctor.”

These statements cast some d o u bt o n Smith’s ability to prove that she is a qualified individual who could w ork with

or without accommodation, especially w h en Smith insisted that she be allowed to remain in her li terary -specialist position. However, summary judg ment adver s e to Smith is inappropriate if she has g iven sufficien t ex planation for in c o n s i stencies in her prior benefits applications. W e consider w hether, viewing the facts i n the lig h t most favorable to Smith, he r ex planations are sufficient to avoid
summary judg ment.

W e conclude that this question should be review e d de

novo because it is a leg al concl usion about whether the

March 3 1
, 20 0 8
, sh e st a t e d t w o lin es later th at sh e p lan n ed to retu rn to

w o rk in A u g u s t o r Sep tem b er 2 0 0 8

. Becau se Sm ith said th at sh e in ten ded
to retu r n t o w o rk aro u n d th e tim e th at sh e w o u ld h av e started as a k in d erg arten teach er, w e d o n o t co n sid er th is ap p l icatio n to b e in co n sisten t

w ith Sm ith ’ s A DA claim

.S M I T H V

. C L A R K C O U N T Y S C H O O L D I S T R

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inconsistency mad e it appropriate to g rant summary judg ment, a

nd we traditionally revie w summary judg ment decisions de n ov o

. A s we previously noted, Cleveland requires us to apply the s u m m a ry -judg ment standard to determine whether “in ligh t o f the prior statements made b y

a plaintiff when [ s] he was s e e k i n g d isability benefits,

. . . a reasonable juror [ c ould] f i nd in [ h] er favor on [h] er ADA claim.” Norris
, 191 F .3d at 1049. I n doing so, we look at the facts in the lig ht most favor a ble to the p laintiff. W e took a similar a pproach to reviewing c laims o f inconsistency before Cleveland

. See Fredenburg v. C o n t r a Costa Cnty. D ep’t of Health Servs.
, 172 F .3d 1176, 1179 (9th Cir. 1 999) ( e x plaining the court’s “ clear p reference” to rev i e w inconsistent statements “along wi t h o t her evidence to see whether t hey were so damag ing that no rational trier of fact could rule in the plaintiff’s favor”).

The School District arg ues that Smith has not provided a

s u fficient ex planation for these inconsistencies. I t 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. T he district court l i kewise concluded that Smith had not g iven a sufficient ex p lanation to reconcile these inconsistencies. Smith II , 2011 W L 4007532, at *2–3. W e disag ree.

Cleveland ’s sufficient-ex plan at i on standard is not an

ex c e eding ly demanding o ne. I t “ g ives ADA plaint iffs wide latitude to over c o m e apparent conflicts” between their disability applicat i o n s and their ADA claims. Parker v

. Columbia Pictures Indus.

, 204 F .3d 326, 333 (2d Cir. 2000). B ut plaintiffs cannot ig nore the inconsistencies between their claims either. To defeat summary judg ment, a plaintiff mustS M I T H V

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I C T 16

g ive an ex planation that is sufficient for a reasonable juror to conclude “that, assuming the truth of, or the plaintiff’s g oodfaith belief in, the earlier st a t e m ent, the plaintiff could nonetheless ‘perform the essential functions’ of her job, with

or without ‘reasonable accommodation.’” Clev e land

, 526 U.S. at 807.

Under t h i s standard, we conclude that Smith g ave sufficient ex p l a n ations for the inconsistencies b e tween her ADA claim and h er PERS a n d F ML A applications to survive
summary judg ment. S m i th ex plains that her F ML A applications requested temporary disability le ave and were not an admission of permanent inability to work. Althoug h brief, this ex planation is s u ff i c i e n t to warrant a reasonable juror to conclude that Smit h could perform the essential functions of e ither a class r o om teacher or a r e assig n ed position with or without reasona b l e accommodation. See Norris
, 191 F .3d at 1047, 1049 (finding sufficient plaintiff’s

ex p lanation that when she and her doctor said plaintiff was disabled they meant “that she could not e ng ag e in her reg ular occupation at that t i m e ” )

. B ecause “the nature of an individual’s disability may c h ang e over t i me,” Cleveland

, 526 U.S. at 805, it is p ossible tha t Smith could h ave been completely incapacitated in April, o r even Aug ust, but still ab l e to w ork with or without a c commodation during the 2008–2009 school y ear. Even if Smith had not recovered b y the beg inning of the school y ear, it may have been reasonable for the School District to accommodate Smith’s d i s ability throug h a n ex tended leave of absence. See Humphrey v

. Mem’l Hosps. Ass’n
, 239 F .3d 1 128, 1135 (9th Cir. 2001) (“A leave of absence for medica l t r e a tment may be a reasonable accommodation under the ADA.”).S M I T H V

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A reasonable juror could likewise find that Smith’s PERS applica t i on is consistent with her ADA action. Smith

e x plains that the PERS application did not account for h e r ab i l i t y to perform the literary

- specialist position with the accommodation that she be a b l e to sit down r eg ularly or lie down when n e e d e d

. This ex planation is consistent with Smith’s PERS application in which she stated that she could perform the “ sitting ” d

uties of the literary -specialist position. I t 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 w a s not a s phy sically demanding as teaching kinderg arten. H er doctor’s
note dated May 1
, 2008, which requests that S mith “ be k ept in her present position as a literary specialist where minimal phy sical ex ertion is required,” also supports this ex p lanation. A reasonable juror could reconcile the apparent inconsistency between Smith’s PERS application and her claim that she is

a q ualified individual under the ADA. See Cl e ve l and

, 526 U .S. at 807 (accepting Cleveland’s ex p l a n at i on that her SSDI application did not account for the effect of reasonable accommodation on her ability to work).

Smith f urther ex p lains that her PERS application is not i n c onsistent with h er request to be accommodated throu gh reassig nment to a v acant project-facilitator p osition. A
person can be a qualified individual under the ADA if “[ s] he

can ‘perform the essential f unctions of a reassign m e nt position, with or without reasonable accommodation, e ven if [ she] cannot p e r f

o rm the essential functions o f the current position.’” Dark v. Curry C n t y

. , 451 F .3d 1 078, 1089 (9th Cir. 2006) ( quoting Hutton v

. Elf Atochem N. A m

. , I n c. , 273 F .3d 884, 892 (9th Cir

. 2 0 0 1 )). Nothing in the record shows that Smith or her doctor represented that Smith could
not work a s a project-facilitator if reassig ned to that position.S M I T H V

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So, even setting aside the question of Smith’s ability to perform t h e duties o f a literary specialist, a reasonable juror could find that Smith is a qual ified individual b ecause she could perform the essential functions of a different r e assig n ed position.

W e hold that, viewing the facts in the lig ht most favorable
to Smi t h

, a reasonable juror could conclude that Smith’s applications for disability benefits a re consistent w ith her ADA c laim. The s t a tements relied u pon by the School Di s t rict may b e admitted in evidence a nd weig hed by the jury

, but they should not be preclusive of Smith’s claim at the
summary -judgm en t stag e. B ecause triable issues of fact remain, t he district court e rred by g ranting summary judg ment for the School District. 5 W e reverse and remand for proceeding s consistent with this opin ion.

The parties shall bear their own costs.

AF F IRMED IN P ART; REVERSED IN P ART.

5 Clark Co u n ty u rg es u s to af f irm o n th e altern ate g ro u n d th at Sm ith w as

n o t d en ied reaso n ab le a c c o m m o d atio n

. W e d eclin e to d o s o

. W e ag ree

w i t h th e d istrict co u rt th at g en u i n e issu es o f m aterial f act ex ist as t o

w h e t h e r S m i t h o r t h e S c h o o l D i s t r i ct p ro p o sed reaso n a b l e

acco m m o d atio n s th at w o u ld allo w Sm ith to retain em p lo y m en t. See Da rk

, 4 5 1 F.3 d at 10 8 8

– 9 1 (co n clu d i n g su m m ary j u d g m en t w as i n ap p ro p riate

w h en plain tif

f sh ow ed h i s p ro p o s ed acco m m o d atio n s, i n clu d in g reassig n m en t, w ere reaso n ab le o n th eir f ace).