United States Court of Appeals 

For the First Circuit 

No. 18-1164 

MAYRA F. PENA, 

Plaintiff, Appellant, 

v. 

HONEYWELL INTERNATIONAL, INC., 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. William E. Smith, U.S. District Judge] 

Before 

Lynch, Stahl, and Lipez, 

Circuit Judges. 

Mark P. Gagliardi for the appellant. 

Neal J. McNamara, with whom Aaron F. Nadich and Nixon Peabody 

LLP were on brief, for the appellee. 

April 26, 2019 
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LYNCH, Circuit Judge. Plaintiff Mayra F. Pena worked as 

a machine operator and associate assembler for defendant Honeywell 

International, Inc. (Honeywell), until Honeywell terminated her 

employment on June 17, 2013, on the basis of job abandonment. Pena 

had not come to work since March 8, 2013. On September 20, 2013, 

Pena applied for Social Security Disability Income (SSDI) 

benefits, asserting that she was totally disabled and had been 

since March 8, 2013. 

On April 16, 2015, Pena filed this suit under the 

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., 

and under various Rhode Island laws, claiming that Honeywell 

terminated her employment on the basis of her disabilities, failed 

to provide her with reasonable accommodations, and retaliated 

against her. After discovery and after she consistently testified 

at her deposition that she was totally disabled as of March 8, 

2013, in accord with her SSDI application statements, the district 

court granted Honeywell's motion for summary judgment on all of 

Pena's claims. It noted, among other things, Pena's deposition 

testimony and her SSDI application. The court correctly held that 

Pena had not met the requirements of Cleveland v. Policy Management 

Systems Corporation, 526 U.S. 795 (1999). We affirm the district 

court's grant of summary judgment in favor of Honeywell. 
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I. 

A. Facts 

We recount the undisputed facts, examining them in the 

light most favorable to Pena. See Murray v. Kindred Nursing 

Centers W. LLC, 789 F.3d 20, 25 (1st Cir. 2015). In or about 2008, 

Honeywell hired Pena as a machine operator and associate assembler 

at its manufacturing facility in Cranston, Rhode Island. Pena 

worked (except for leave) at the facility until March 8, 2013, 

after which she never returned to work. On June 17, 2013, 

Honeywell terminated Pena's employment for job abandonment.

The Cranston facility's various production and assembly 

areas included the respiratory department,1 the molding department, 

the logo department, the quicloc/cedars department, and the SCBA 

area (SCBA stands for "self-contained breathing apparatus"). 

Before 2012, Pena usually worked in the respiratory department. 

In the molding department, unlike other departments, the machines 

run twenty-four hours a day, and emit a new part about every thirty 

seconds. In other departments, the employees can control the 

timing of the machines' operation.2

 1 At her deposition, Pena stated that she worked mainly in 

an area called HEPA, and that the respiratory department and HEPA 

were two different areas of the Cranston facility. 

2 Some Honeywell employees, not claiming disability, 

stated that they preferred to work in areas other than the molding 

department, where they did not have to keep up with the pace of 

the machines and could more easily socialize. 
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In 2012, Honeywell decided that all employees working in 

production and assembly should be cross-trained so that they could 

work as needed in all departments at the Cranston facility, 

including in the molding department. Honeywell believed that it 

was important "to move associate assemblers to departments where 

customer demand was greatest and, as a result, an employee['s] 

inability to work in any particular area would burden the 

production process." This was particularly true in the molding 

department due to its continuous operation. Honeywell then trained 

all of its employees, including Pena, to work in all "assembly 

departments," including the molding department.

In October 2012, Pena was assigned to and worked in the 

molding department under this policy. Pena then took a medical 

leave from November 29, 2012, until January 14, 2013. Pena 

attributed this request for medical leave to her seasonal 

depression. Before this leave, Honeywell had permitted Pena to 

take several other medical leaves of absence totaling twenty-three 

weeks, including from October 14, 2011, to November 21, 2011; from 

December 16, 2011, to February 13, 2012; and from June 22, 2012, 

to August 6, 2012.

When Pena returned to the Cranston facility on January 

14, 2013, she began working in the molding department four hours 

per day, two to three times per week. She worked there without 
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complaint or incident for about one month. She otherwise typically 

worked in the respiratory department.

In late February 2013, Pena complained to the Senior 

Human Resources Generalist, Jose Gouveia, that one of the 

production leaders had told her to go to the molding department. 

Pena says she told Gouveia during that conversation that she did 

not want to work in the molding department because "it was harmful 

to [her] emotionally."3

Pena met with Gouveia, as well as her supervisor, Kevin 

Dyer, and the Health Safety and Environmental Site Leader, Conor 

Ryan, on both March 7 and 8, 2013, about her request not to work 

in the molding department. At the March 7 meeting, Honeywell 

personnel requested that Pena provide a letter from her doctor. 

The next day, Pena provided a letter from her physician, Dr. James 

Greer. Dr. Greer's letter, dated March 4, 2013, stated: 

Currently, [Pena] is reporting exacerbation of 

her anxiety symptoms which are interfering 

with her ability to function. She reports 

that these specifically occur when she is 

being sent to the moulding [sic] room as 

 3 In the same conversation, Pena also told Gouveia that 

"she was diabetic and the breaks were 15 and 30 minutes apart from 

her lunch and she could not be 15 minutes late for her coffee nor 

30 minutes late for her lunch break." Gouveia told Pena that such 

delays were not significant, but if they created a problem he 

"could revisit the breaks issue." Pena responded, "I don't like 

to change my break time, if you want I can get a doctor's note 

stating that I cannot change my breaks." The doctor's notes that 

Pena provided to Honeywell do not address this issue, and Pena 

does not say she ever raised the issue again.
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opposed to the more typical duties to which 

she is accustomed. 

Dr. Greer "request[ed] that [Honeywell] assist her in other 

placements than in this setting," and stated that Pena "is 

completely capable of working in other settings." Dr. Greer's 

letter relied almost entirely on Pena's self-reported symptoms and 

did not contain a specific medical diagnosis. The letter also did 

not explain why the molding department, but not any other 

department or area, exacerbated Pena's symptoms. 

Honeywell concluded that Dr. Greer's letter was 

inadequate to determine what accommodations Pena was requesting 

and whether Honeywell could meet those requests. On March 8, 2013,

Ryan and Gouveia told Pena that the only work available to her was 

in the molding department, so if she refused to do that work, she 

would have to go home. Pena decided to go home, and never returned 

to work after that day.

Within a week, Pena had retained an attorney, Veronika 

Kot. Kot told Pena not to communicate with any Honeywell 

personnel, as Kot would handle all such communications.

Honeywell did not know that Pena had retained counsel, 

and repeatedly attempted to contact Pena to better understand her 

condition and determine what accommodations, if any, would be 

appropriate. In late March 2013, Gouveia sent Pena a Reasonable 

Accommodations Request Form.
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On April 2, 2013, Honeywell's Associate Director of 

Health Services, Dr. Elizabeth Jennison, wrote to Dr. Greer, asking 

for "additional documentation to understand the medical necessity 

for [Pena's] request." Dr. Jennison's letter also asked Dr. Greer 

to "clarify how [Pena's] anxiety symptoms could allow her to work 

in many areas of the plant, while interfering with her ability to 

function in one area of the plant, the molding department, for 

which she is equally qualified and trained," and requested 

supporting medical documentation.4

In early April 2013, Pena submitted the Reasonable 

Accommodations Request Form to Honeywell, which was dated April 2, 

2013. On the form, Pena stated that she was "unable to work in 

molding" because "the noise, speed and overall environment gives 

[her] anxiety, palpitations." On the form, Pena also stated, "I 

had been offered many permanent positions in molding while still 

working through an agency and refused because I knew 11 years ago 

that I could not perform this job." 

The physician's portion of the Reasonable Accommodations 

Request Form was left blank, but Pena attached a second letter 

from Dr. Greer dated April 2, 2013. This letter stated that Dr. 

Greer diagnosed Pena as having "Major Depressive Disorder, 

 4 At some point, Honeywell set up an appointment for Dr. 

Greer to come to the Cranston facility in person to discuss Pena's 

condition, but Dr. Greer did not attend because he "didn't have 

time in [his] busy practice" to visit patients' places of work. 
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Recurrent, Severe." The letter stated that Pena "is eager to 

return to work in her previous capacity," and that Dr. Greer could 

"state with a reasonable degree of medical certainty that continued 

assignment to the more recent work setting will result in worsening 

stress and further exacerbation of her condition." Dr. Greer's 

letter did not attempt to explain why his diagnosis of Pena would 

allow her to work everywhere except in the molding department.

On April 8, 2013, Gouveia sent a letter to Pena stating, 

"[y]ou have informed us you signed a release to give your physician 

permission to send your medical records to our medical department; 

however, no[] medical records have been received. As a result, 

and at the moment, we have insufficient information to assess your 

request." The letter also stated that while Honeywell "await[ed] 

the medical information required to assess [her] request," Pena 

had the following options in the meantime: returning to work and 

performing her regular duties, including in the molding 

department, which was "required of all employees in [Pena's] 

position"; remaining on unpaid medical leave; or using any paid 

time off she might have available.

Gouveia sent a follow-up letter to Pena on April 22, 

2013, stating that Honeywell had not yet received any information 

from Pena's physician. That same day, Attorney Kot telephoned 

Gouveia. This was the point at which Honeywell became aware that 

Pena had retained counsel. Honeywell's in-house employment 
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counsel, Jacqueline Rolfs, wrote to Kot later that same day, asking 

her to review Honeywell's correspondence with Pena to understand 

Honeywell's requests for additional medical records.

On April 23, 2013, Kot responded to Rolfs's letter in 

writing, stating that Pena had already provided two doctor's notes, 

and that Honeywell's request for a "release of all her sensitive 

medical records, including mental health records," was an 

"unnecessary and prohibited intrusion upon her privacy."

On April 25, 2013, Rolfs sent a letter to Kot, attaching 

the prior correspondence between Honeywell, Pena, and Dr. Greer. 

This letter detailed Honeywell's attempts to communicate with 

Pena, and stated that Honeywell had not asked for all of Pena's 

records, but rather, only those records that would explain how her 

symptoms prevented her from working in the molding department. 

Rolfs's letter also stated that "Honeywell remains willing to work 

with your client to assess her reasonable accommodation request. 

However, without the cooperation of your client and her physician 

in providing responses to Honeywell's reasonable questions about 

this request, we cannot proceed further in that process." 

Kot responded to Rolfs in a letter dated April 30, 2013, 

accusing Honeywell of violating the ADA and of threatening to 

terminate Pena's employment if she did not return to work without 

accommodations. Kot's letter also stated that she would provide 

another letter from Pena's doctor shortly.
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On May 6, 2013, Kot wrote to Rolfs again, expressing 

concern that Honeywell management had not provided Pena with "the 

appropriate support" and instead had "apparently . . . urged [Pena] 

to quit and apply for SSI [Supplemental Security Income]" 

(Honeywell disputes this). Kot's letter enclosed a memorandum 

from Dr. Greer, stating that Pena "has reported repeatedly and 

consistently" that the molding room was stressful because of "a 

variety of factors which included increased noise levels, chemical 

odors, and the presence of robotics." Dr. Greer's memorandum also 

stated, "I cannot specifically identify particular issues there 

which might exacerbate her stress, but can state with a reasonable 

degree of medical certainty that there is a direct causal 

relationship between her working in that setting and the 

exacerbation of her symptoms." The memorandum attached four 

progress notes from Pena's visits with Dr. Greer that had taken 

place between March 4 and April 22, 2013.

Rolfs sent a letter to Kot on May 22, 2013, stating that 

Dr. Greer's most recent memorandum still did not explain the 

connection between Pena's diagnosis and her ability to work in the 

molding department, because all of the items mentioned were also 

true of work conditions in other departments. The letter explained 

that: 

The noise level in molding is not appreciably 

different than that in respiratory. Indeed, 

employees in both areas are required to wear 
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ear plugs. Nor is there any difference in the 

chemical odors between respiratory and 

molding. In addition, there are robotics in 

both molding and respiratory, and all are 

enclosed. 

The letter stated that "all employees who work on the floor at 

this Honeywell facility will be required to rotate into molding as 

they complete the necessary training. The rotations are as brief 

as 15 minutes, or as long as one week." The letter also stated 

that "[r]espiratory will remain Ms. Pena's primary assignment," 

but that "Ms. Pena and the other employees will rotate among all 

the areas in the facility, not just molding." Rolfs's letter also 

repeated that Honeywell only sought medical records relevant to 

Pena's request for reasonable accommodation. It stated that "no 

one at Honeywell has suggested that Ms. Pena quit and apply for 

SSI." The letter further stated that Dr. Greer had not called

Honeywell's Associate Director of Health Services, Dr. Jennison, 

as Honeywell had requested, and asked that Dr. Greer call Dr. 

Jennison as soon as possible.

Honeywell personnel did not hear from Kot after May 6, 

2013. But the record shows, and her counsel at oral argument 

affirmed, that Pena had counsel at the time of each of the 

following crucial events. 

On June 17, 2013, after Pena had been absent for over 

three months and had used all of her medical leave, Honeywell 

terminated Pena's employment on the basis of job abandonment.
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On September 20, 2013, Pena applied for SSDI benefits. 

Pena was represented by different counsel, Amanda DelFarno, for 

her SSDI application. Pena's SSDI application included the 

statements "I became unable to work because of my disabling 

condition on March 8, 2013," and "I am still disabled." The 

application also stated: 

I know that anyone who makes or causes to be 

made a false statement or representation of 

material fact in an application or for use in 

determining a right to payment under the 

Social Security Act commits a crime punishable 

under federal law by fine, imprisonment, or 

both. I affirm that all information I have 

given in connection with this claim is true. 

That same day, Pena was given an electronic receipt for 

her SSDI application, which stated, "[y]ou declared under penalty 

of perjury that you examined all the information on this form and 

it is true and correct to the best of your knowledge. You were 

told that you could be liable under law for providing false 

information." The receipt stated that Pena should review her SSDI 

application and call the telephone number provided within ten days 

if Pena disagreed with any of the statements in her application. 

Pena does not say that she ever contacted the Social Security 

Administration to change any statements in her SSDI application. 

On September 29, 2015, Pena testified at a hearing before 

an administrative law judge (ALJ). At the hearing, an impartial 

medical expert testified that "the medical evidence of record shows 
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that the claimant has a 'core problem' of a somatoform disorder 

while translating everything to physical symptoms."5 On October 

16, 2015, the ALJ granted Pena's SSDI application in a five-page 

decision, finding that Pena had been suffering from somatoform 

disorder and was totally disabled as of March 8, 2013. 

B. Procedural History 

On April 16, 2015, Pena, represented by new counsel, 

Mark Gagliardi, filed a complaint in Rhode Island Superior Court, 

which Honeywell removed to federal court on the basis of diversity 

jurisdiction. Pena's twelve-count complaint asserted claims under 

the federal ADA, 42 U.S.C. §§ 12101 et seq.; the Rhode Island Civil 

Rights Act of 1990, R.I. Gen. Laws §§ 42-112-1 et seq.; the Rhode 

Island Fair Employment Practices Act, R.I. Gen Laws §§ 28-5-1 et 

seq.; the Civil Rights of People With Disabilities Act, R.I. Gen. 

Laws. §§ 42-87-1 et seq.; and the Rhode Island Whistleblower's 

Protection Act, R.I. Gen. Laws §§ 28-50-1 et seq. The Complaint 

alleges that Honeywell failed to provide Pena with reasonable 

accommodations (Counts I through IV), terminated her employment on 

the basis of her disabilities (Counts V through VIII), and 

terminated her employment in retaliation for reporting 

discriminatory conduct (Counts IX through XII). 

 5 Pena states that somatoform disorder is "a form of mental 

illness that can affect different organs and body systems and cause 

bodily symptoms, including pain, neurologic[al] problems, 

gastrointestinal complaints, and sexual symptoms." 
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During discovery, Pena's deposition was taken on 

November 3, 2016. She does not say that she filed any corrections 

to her deposition transcript. After the completion of discovery, 

in February 2017, Honeywell moved for summary judgment on all of 

Pena's claims. Pena's counsel filed an opposition to Honeywell's 

motion for summary judgment on March 28, 2017, the day it was due. 

The opposition attached documents and letters as evidence, but did 

not attach any deposition transcripts. The next day, Pena's 

counsel filed an "addendum" to the opposition, which included six 

deposition transcripts and an affidavit executed by Pena on March 

29, 2017, the day after the opposition had been due. That same 

day, Pena's counsel also filed a statement of undisputed facts and 

a statement of disputed facts. On April 11, 2017, Honeywell filed 

a reply brief, which included objections to Pena's late filings, 

including the affidavit. That same day, Pena filed a motion for 

a retroactive extension to file the "addendum," statement of 

disputed facts, and statement of undisputed facts. Later that 

same day, Honeywell objected to this motion. On April 26, 2017, 

the district court granted Pena's motion for an extension. 

The magistrate judge held a hearing on Honeywell's 

motion for summary judgment on June 19, 2017. On September 22, 

2017, the magistrate judge entered a report and recommendation 

that Honeywell's motion be granted. Pena v. Honeywell Int'l Inc., 

No. CV 15-179 WES, 2018 WL 582579, at *3-*12 (D.R.I. Jan. 29, 
- 15 - 

2018). On January 29, 2018, the district court accepted the report 

and recommendation and granted summary judgment in Honeywell's 

favor on all counts. Id. at *3. Pena timely appealed.

II. 

A movant is entitled to summary judgment if "there is no 

genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law." Fed. R. Civ. P. 56(a). "We 

review the district court's disposition of a summary judgment 

motion de novo, 'scrutiniz[ing] the evidence in the light most 

agreeable to the nonmoving party, giving that party the benefit of 

any and all reasonable inferences.'" Murray, 789 F.3d at 25 

(quoting Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir. 

2005)). If the record is "deficient in vital evidentiary support, 

this may suffice to show that the movant has met its initial 

burden" of "demonstrating the absence of a genuine issue of 

material fact and that it is entitled to judgment as a matter of 

law." Carmona v. Toledo, 215 F.3d 124, 132-33 (1st Cir. 2000). 

A. Allegation Termination Was Based on Pena's Disabilities 

The ADA forbids employers from terminating the 

employment of a "qualified individual on the basis of disability."6 

 6 "Rhode Island courts look to federal case law construing 

the [ADA] in evaluating analogous state law discrimination 

claims." Pena, 2018 WL 582579 at *3 n.1 (citing Hodgens v. Gen. 

Dynamics, 144 F.3d 151, 158 n.1 (1st Cir. 1998); Barber v. Verizon 

New England, No. 05-390-ML, 2006 WL 3524465 at *3 n.1 (D.R.I. Dec. 
- 16 - 

42 U.S.C. § 12112(a). A prima facie case of disability 

discrimination requires the plaintiff to show that (1) she was 

disabled within the meaning of the ADA, (2) she was a "qualified 

individual," and (3) the defendant took an adverse employment 

action against her on the basis of her disability. Tobin v. 

Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005); 42 U.S.C. 

§ 12111(8). 

Under the ADA, a "qualified individual" is "an 

individual who, with or without reasonable accommodation, can 

perform the essential functions of the employment position that 

such individual holds or desires." 42 U.S.C. § 12111(8). By 

contrast, a successful SSDI applicant must be physically and 

mentally impaired such that she cannot do her previous work, or 

"any other kind of substantial gainful work which exists in the 

national economy." Id. § 423(d)(2)(A). This difference creates 

an obvious tension. 

In Cleveland, the Supreme Court reversed a Fifth Circuit 

decision that had created a rebuttable presumption that a 

plaintiff's filing of an SSDI application precluded her from being 

a "qualified individual" under the ADA. 526 U.S. at 799-800, 807. 

The Court remanded to the lower court for the purpose we quote 

later. Id. at 807. 

 

6, 2006); Kriegel v. State of Rhode Island, 266 F. Supp. 2d 288, 

296 (D.R.I. 2003)). We will do the same.
- 17 - 

The Court held that an ADA plaintiff in an employment 

discrimination action is not judicially estopped from establishing 

that she can perform the essential functions of her job with 

reasonable accommodations solely because she has previously 

applied for and received SSDI benefits. Id. at 802. It went on 

from there to establish what a plaintiff must show. Id. at 801-

07. 

The Court stated that the first question was whether 

there was an inconsistency between a plaintiff's prior SSDI 

statements and her position in the ADA litigation. Id. at 802. 

The Court stated that there are "many situations in which an SSDI 

claim and an ADA claim can comfortably exist side by side." Id. 

at 803. The Court noted that while "the ADA defines a 'qualified 

individual' to include a disabled person 'who . . . can perform 

the essential functions' of her job 'with reasonable 

accommodation,'" SSDI "does not take the possibility of 

'reasonable accommodation' into account." Id. (alteration in 

original) (emphasis omitted) (quoting 42 U.S.C. § 12111(9)(B)). 

Instead, SSDI adjudications involve a "five-step procedure that 

embodies a set of presumptions about disabilities, job 

availability, and their interrelation."7 Id. at 804 (citing 20 

 7 Under this scheme, some conditions are presumed to be 

disabling. Cleveland v. Policy Mgmt. Sys. Corp., 120 F.3d 513, 

517 (5th Cir. 1997) (citing 20 C.F.R. § 404.1520(d)), vacated on 

other grounds, 526 U.S. 795, 804 (1999). Pena does not argue that 
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C.F.R. §§ 404.1520, 404.1525, 404.1526, 404.1560). These 

presumptions "eliminat[e] consideration of many differences 

potentially relevant to an individual's ability to perform a 

particular job" under the ADA. Id. Cleveland also noted that 

SSDI benefits are sometimes awarded "to individuals who not only 

can work, but are working," such as those on a statutory nine month 

trial-work period to test their ability to return to work. Id. at 

805 (citing 42 U.S.C. §§ 422(c), 423(e)(1); 20 C.F.R. § 404.1592 

(1998)). 

Cleveland then stated that "[w]hen faced with a 

plaintiff's previous sworn statement asserting 'total disability' 

or the like, the court should require an explanation of any 

apparent inconsistency with the necessary elements of an ADA 

claim." Id. at 807. To defeat summary judgment, the plaintiff's 

"explanation must be sufficient to warrant a reasonable juror's 

concluding that, assuming the truth of, or the plaintiff's goodfaith belief in, the earlier statement, the plaintiff could 

nonetheless 'perform the essential functions' of her job, with or 

without 'reasonable accommodation.'" Id. 

Significantly, the plaintiff in Cleveland had argued in 

her brief that her SSDI statements "were made in a forum which 

does not consider the effect that reasonable workplace 

 

her SSDI application relied on a presumption that her condition 

was disabling or that she was on a trial-work period. 
- 19 - 

accommodations would have on the ability to work," and that her 

SSDI statements were "'accurate statements' if examined 'in the 

time period in which they were made.'" Id. The Court rejected 

the plaintiff's argument that this was all that was needed. The 

court remanded the case so that the parties could "have the 

opportunity in the trial court to present, or to contest, [the 

plaintiff's] explanations, in sworn form where appropriate." Id. 

Pena argues that she has given an adequate explanation 

for the apparent inconsistency between her SSDI statements and her 

position in this litigation. She first argues that it is enough 

for her to say in her brief that being disabled under the ADA is 

different from being disabled for SSDI benefits, because the ADA 

takes into account an employer's duty to make reasonable 

accommodations, while SSDI does not. Pena argues that if her SSDI 

application or the ALJ had asked if she needed disability 

accommodations to work, she would have responded "yes." She states 

that this is sufficient to meet her burden under Cleveland. This 

misreads (and would read out of the law) Cleveland's reasoned 

explanation requirement. When the plaintiff in Cleveland made 

these same general arguments, the Court did not accept them; 

rather, it remanded for factual findings. Id. 

This court has interpreted Cleveland before, and 

rejected the argument Pena makes. In DeCaro v. Hasbro, Inc., 580 

F.3d 55 (1st Cir. 2009), we upheld a jury instruction that the 
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standard for receipt of SSDI benefits is different from the 

standard for whether the plaintiff was able, with or without 

reasonable accommodations, to perform the essential functions of 

his job. Id. at 62. We affirmed that the mere fact that the 

employee "received [SSDI] benefits is not in itself necessarily 

fatal to his claim," but that the receipt of SSDI benefits could 

be an admission by the employee of his inability to perform the 

essential functions of his job, and that the question turned on 

"all the facts and circumstances." Id. DeCaro rejected the 

argument that the mere differences in standards was all that a 

plaintiff had to show; the burden was on the plaintiff to offer a 

sufficient explanation. Id. 

In Sullivan v. Raytheon Co., 262 F.3d 41 (1st Cir. 2001), 

we upheld a grant of summary judgment to the employer where the 

plaintiff offered "no evidence to explain" why his prior SSDI 

statements were consistent with his claim that he could perform 

the essential functions of his job with reasonable accommodations. 

Id. at 47. Like here, the plaintiff, in his deposition testimony, 

had "continually and consistently claimed that he was totally 

disabled" from the date the defendant terminated his employment, 

and that his condition had "stayed the same or worsened" after 

that. Id. We stated that to defeat summary judgment, the 

plaintiff needed to produce "evidence to explain this 

discrepancy." Id. 
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Nor has Pena's argument been accepted by any circuit. 

The Third Circuit has held that "simply averring that the [ADA and 

SSDI] statutory schemes differ is not enough to survive summary 

judgment in light of Cleveland. An ADA plaintiff must offer a 

more substantial explanation to explain the divergent positions 

taken, or else summary judgment could never be granted." Motley 

v. N.J. State Police, 196 F.3d 160, 166 (3d Cir. 1999). Under 

Cleveland, "each case should be decided on its unique facts." Id. 

at 164. The Fourth Circuit has held that a plaintiff does not 

"automatically avoid[] summary judgment when the defendant asserts 

that the plaintiff's sworn statement of total disability in her 

SSDI application has negated the 'qualified individual' element of 

her ADA case." E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 

378 (4th Cir. 2000) (emphasis in original). The Seventh Circuit 

has similarly concluded that "[e]xplanations of the sort Cleveland 

requires are, in short, contextual." Lee v. City of Salem, Ind., 

259 F.3d 667, 675 (7th Cir. 2001). The Fifth Circuit has also 

held that a plaintiff's explanation that her SSDI statements "did 

not take into account the prospect of accommodation as contemplated 

under the ADA" is insufficient under Cleveland, at least when the 

plaintiff has also made "specific factual statements which are 

inconsistent with her claim" that she could perform the essential 
- 22 - 

functions of her job. Reed v. Petroleum Helicopters, Inc., 218 

F.3d 477, 479-80 (5th Cir. 2000). 

Pena's second argument is that she has produced evidence 

of a reasoned explanation sufficient to allow a jury to find she 

was a "qualified individual." We agree with the district court 

that she has not met her burden under Cleveland. In her SSDI 

application, Pena offered no qualification of any sort to her 

statement that she was totally disabled as of March 8, 2013. She 

submitted this application under penalty of perjury, and was 

represented by counsel at the time. From the ALJ's decision that 

Pena was totally disabled due to somatoform disorder as of March 

8, 2013, it is evident that cause and that date are what Pena had 

argued to get SSDI benefits. Somatoform disorder is not the 

disability for which Pena had claimed to Honeywell she needed 

reasonable accommodations. This SSDI evidence cuts against her 

and against the argument that she has provided a reasonable 

explanation. 

As the district court noted, Pena's deposition testimony 

does not explain, but rather reinforces, the inconsistency between 

her SSDI application and her claims in this case. Pena was 

represented by counsel at her deposition. During Pena's 

deposition, Honeywell asked Pena several times to explain the 

statements in her SSDI application, and Pena repeatedly stated 

that she was totally disabled as of March 8, 2013. She did not 
- 23 - 

state that she could have performed the essential functions of her 

prior job with reasonable accommodations as of March 8, 2013. 

Honeywell also asked Pena to explain why her SSDI application 

stated that she was unable to work as of March 8, 2013, when her 

ADA claim "assert[s] that if [she] had been given an accommodation, 

[she] could have done [her] job." Pena responded, "[Honeywell] 

asked me, [d]o you want to go back to work, and I said, I don't 

want to see these people ever anymore." Honeywell again asked 

Pena to explain why she stated in her SSDI application that she 

was unable to work as of March 8, 2013. Pena responded, "[w]hen 

you fill out the application, they ask you when was your last day 

of work," but as Honeywell pointed out at the deposition, "[t]hat's 

not what the application says. The application says, 'I became 

unable to work because'" of "my disabling condition on March 8, 

2013." Not only did Pena not explain the discrepancy, but she 

also reaffirmed at her deposition that she was entitled to SSDI 

benefits retroactive as of March 8, 2013. 

Pena attempts to avoid her admissions at deposition 

through several arguments. First, Pena relies on the late 

affidavit she submitted, attempting to explain away her deposition 

admissions with statements not made at deposition and 

contradicting the statements she did make.8 Cleveland itself held 

 8 The affidavit states that (1) Pena's SSDI attorney 

advised her to use March 8, 2013, as the onset date of her 
- 24 - 

that "a party cannot create a genuine issue of fact sufficient to 

survive summary judgment simply by contradicting his or her own 

previous sworn statement (by, say, filing a later affidavit that 

flatly contradicts the party's earlier sworn deposition) without 

explaining the contradiction or attempting to resolve the 

disparity." Cleveland, 526 U.S. at 806. This court also 

"refuse[s] to allow issues of fact to be created simply by 

submitting a subsequent contradictory affidavit." Morales v. A.C. 

Orssleff's EFTF, 246 F.3d 32, 35 (1st Cir. 2001). "When an 

interested witness has given clear answers to unambiguous 

questions [at deposition], he cannot create a conflict and resist 

summary judgment with an affidavit that is clearly contradictory, 

but does not give a satisfactory explanation of why the testimony 

is changed." Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-

5 (1st Cir. 1994). Pena's affidavit is in obvious conflict with 

her deposition testimony, and Pena has not sufficiently explained 

or resolved this disparity. Nothing in Cleveland or in First 

Circuit law permits a plaintiff to do a volte-face from her 

deposition admissions. 

 

disability, (2) if the SSDI application or the ALJ had asked if 

Pena needed reasonable accommodations to work, she would have 

responded "yes," (3) if Honeywell had granted Pena's 

accommodations request, she would have returned to work and would 

not have applied for SSDI benefits, and (4) Pena filed for SSDI 

benefits because she could no longer work due to her worsened 

depression caused by Honeywell terminating her employment. 
- 25 - 

Second, Pena disclaims responsibility and blames her 

SSDI attorney for choosing March 8, 2013, as the onset date of her 

disabilities. When Honeywell asked her, "[d]id someone advise you 

to use the date March 8, 2013 on your application?", Pena did not 

say she did so on advice of counsel.9

Third, Pena attempts to excuse her admissions in her 

deposition testimony by saying in her brief that she did not 

understand the relevant questioning at her deposition. Pena claims 

that Honeywell's questions were "confusing" and constituted a 

"blatant attempt to trip up Pena into admitting that she is lying 

and trying to manipulate the system." Pena had counsel with her 

at the time, who made no such objections. Pena was also provided 

with an interpreter at the deposition. In any event, the record 

shows that Honeywell asked straightforward questions, was upfront 

about the Cleveland issue, and gave Pena many opportunities to 

explain the discrepancy.

Pena's brief attempts a variant argument that she was 

disabled when she applied for SSDI benefits, that she was not 

disabled on March 8, 2013, and that she became disabled in between. 

She argues that her condition worsened after March 8, 2013, and 

that that worsening was because Honeywell "denied her request for 

 9 Instead, in response to this question, Pena stated that 

from March 8, 2013, she was prescribed heavier dosages of her 

medications. 
- 26 - 

a reasonable accommodation when it sent her home" that day. This 

is a newfound argument and is not supported by the record. That 

Pena's condition worsened later does not mean she was well enough 

to perform the essential functions of her job on March 8, 2013. 

An individual who is totally disabled may still suffer from 

worsened symptoms later. In Pena's sworn SSDI application and at 

her sworn deposition, she gave March 8, 2013, her last day at work, 

as the date on which she became totally disabled. 

Under Cleveland, Pena has "fail[ed] to make a showing 

sufficient to establish the existence of an element essential to 

[her] case, and on which [she] will bear the burden of proof at 

trial," namely, that she is a "qualified individual." See 

Cleveland, 526 U.S. at 806 (quoting Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986)). The district court properly granted 

Honeywell summary judgment as to Pena's claim that her employment 

was terminated because of her disabilities. 

B. Alleged Failure to Accommodate 

The ADA's prohibition of employment discrimination 

includes an employer's failure to make "reasonable accommodations 

to the known physical or mental limitations of an otherwise 

qualified individual with a disability." 42 U.S.C. 

§ 12112(b)(5)(A). To establish a claim for failure to accommodate, 

a plaintiff must produce sufficient evidence for a reasonable jury 

to find that (1) she was disabled within the meaning of the ADA, 
- 27 - 

(2) she was a "qualified individual," and (3) the defendant, 

despite knowing of her disability, "did not reasonably accommodate 

it." See Tobin, 433 F.3d at 107; 42 U.S.C. § 12111(8). 

Pena's failure to accommodate claim requires sufficient 

evidence that she was a "qualified individual." See Tobin, 433 

F.3d at 107; 42 U.S.C. § 12111(8). She has not presented such 

evidence. Rather, the undisputed evidence, as discussed earlier, 

includes admissions at her deposition and in her briefing that she 

was not a "qualified individual," totally apart from the statements 

in her SSDI application. The district court properly granted 

Honeywell's motion for summary judgment as to Pena's failure to 

accommodate claims. 

C. Alleged Retaliation 

Pena's appellate brief argues that Honeywell retaliated 

against her for reporting what she calls "discriminatory" conduct 

to Honeywell's human resources department. But part of her claim 

was not made in the trial court. 

The disposition of Pena's earlier claims does not 

dispose of her retaliation claims. See Calero-Cerezo v. U.S. Dep't 

of Justice, 355 F.3d 6, 25 (1st Cir. 2004). "To prove a claim of 

retaliation, a plaintiff must establish that (1) she engaged in 

protected conduct; (2) she experienced an adverse employment 

action; and (3) there was a causal connection between the protected 

conduct and the adverse employment action." Id. at 25. "Once a 
- 28 - 

plaintiff makes [a prima facie] showing, the burden shifts to the 

defendant to articulate a legitimate, non-retaliatory explanation 

for the adverse action." D.B. ex rel. Elizabeth B. v. Esposito, 

675 F.3d 26, 41 (1st Cir. 2012). "If the defendant does so, the 

burden shifts back to the plaintiff to show that the proffered 

legitimate explanation is pretextual, meaning that the defendant 

was motivated by a retaliatory animus." Id. 

Pena argues on appeal that there are disputed issues of 

material fact as to whether Honeywell retaliated against her by 

terminating her employment because (1) Pena had requested to remain 

in the respiratory department on March 8, 2013, due to her anxiety 

and depression, and (2) Pena had complained to Gouveia in February 

2013 that her supervisor did not honor her request for meal breaks 

at very specific times, when she needed to eat because of her 

diabetes. 

We do not engage the first argument. Pena did not make 

the argument about her request to remain in the respiratory 

department in her opposition to Honeywell's motion for summary 

judgment (or, even belatedly, in her objections to the report and 

recommendation). Pena has also failed to develop this argument on 

appeal, devoting a single sentence to the issue in her brief. For 

both reasons, the argument about retaliation due to her request to 

remain in the respiratory department is waived. See Kozikowski v. 
- 29 - 

Toll Bros., Inc., 354 F.3d 16, 23 (1st Cir. 2003); United States 

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

Pena's argument that she was retaliated against for 

making requests as to break times, described in footnote 3, relies 

solely on temporal proximity in an effort to establish causality. 

Pena points to the fact that her employment was terminated four 

months after she made the complaint about break times. As the 

district court found, this four-month period "cannot carry the 

day." Pena, 2018 WL 582579, at *2. "The cases that accept mere 

temporal proximity between an employer's knowledge of protected 

activity and an adverse employment action as sufficient evidence 

of causality to establish a prima facie case uniformly hold that 

the temporal proximity must be very close." Cherkaoui v. City of 

Quincy, 877 F.3d 14, 28–29 (1st Cir. 2017) (quoting Clark Cty. 

Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). "Without some 

corroborating evidence suggestive of causation . . . a gap of 

several months cannot alone ground an inference of a causal 

connection between a complaint and an allegedly retaliatory 

action." Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010). The 

gap of four months, on its own, is not "very close" for 

establishing causality.10 See Cherkaoui, 877 F.3d at 29.

 10 We have previously explained that "[t]hree and four 

month periods have been held insufficient to establish a causal 

connection based on temporal proximity." Calero-Cerezo, 355 F.3d 

at 25. But see Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, 
- 30 - 

Independently, "[t]he larger picture undercuts any claim 

of causation." Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 

16 (1st Cir. 1997). Here, the district court correctly observed 

that after Pena's single comment to Gouveia about break times, 

"the dialogue between [Pena] and Honeywell was singularly focused 

on the issue of her assignment to the Molding Department." Pena, 

2018 WL 582579, at *12. The evidence overwhelmingly shows that 

Honeywell terminated Pena's employment on the basis of job 

abandonment, and there is insufficient evidence from which Pena 

could establish that this reason was pretextual.

Pena now claims that Honeywell's adverse employment 

actions against her actually began the month after she made the 

complaint about break times, when she went home after refusing to 

work in the molding department on March 8, 2013. But again, this 

is belied by the record, because the conversations immediately 

preceding Pena's decision to go home on March 8, 2013, explicitly 

reference her refusal to work in the molding department, and the 

subsequent communications between Honeywell and Pena were 

exclusively focused on her desire to be exempt from working in the 

molding department. The district court properly granted 

 

Inc., 673 F.3d 1, 15 (1st Cir. 2012) (temporal proximity sufficient 

to establish a prima facie case of causality when plaintiff filed 

an EEOC complaint about religious discrimination and was placed on 

active disciplinary status three months later). 
- 31 - 

Honeywell's motion for summary judgment as to Pena's retaliation 

claims. 

III. 

The district court's grant of summary judgment is 

affirmed. 

— Separate Opinion Follows — 
- 32 - 

LIPEZ, Circuit Judge, concurring in part and dissenting 

in part. Judicial estoppel is an equitable doctrine designed to 

safeguard courts from misuse by litigants who attempt to change 

positions in the expediency of the moment. Relying on that 

doctrine to deny plaintiff Pena an opportunity to seek a remedy 

before a jury for disability discrimination, my colleagues 

misapply the Supreme Court's decision in Cleveland v. Policy 

Management Systems Corp., 526 U.S. 795 (1999). Indeed, at the 

heart of Cleveland is a recognition that courts have been too quick 

to find a conflict between claims for Social Security Disability 

Insurance ("SSDI") benefits and claims alleging discrimination 

under the Americans with Disabilities Act ("ADA"). The Court held 

that a plaintiff could pursue a reasonable accommodation claim 

despite an earlier SSDI application asserting total disability if 

she provides an "explanation . . . sufficient to warrant a 

reasonable juror's concluding that, assuming the truth of, or the 

plaintiff's good-faith belief in, the earlier statement, the 

plaintiff could nonetheless 'perform the essential functions' of 

her job, with or without 'reasonable accommodation.'" Id. at 807. 

In this case, the explanation offered by Pena could warrant that 

conclusion by a reasonable jury. Therefore, I respectfully 

dissent.11 

 11 I join only the portion of the majority opinion affirming 

summary judgment for Honeywell on Pena's retaliation claims. 
- 33 - 

I. 

Pena worked at a Honeywell manufacturing facility for 

approximately five years, from 2008 to 2013, primarily in the 

respiratory department. Suffering from anxiety and depression, 

Pena experienced several medical issues throughout that period, 

and the company routinely accommodated her needs by, for example, 

allowing her extended time away from the job. 

In October 2012, after Honeywell decided to cross-train 

employees, Pena trained in the molding room. She took a medical 

leave from November 2012 to January 2013, attributed in part to 

her depression. Upon her return, Pena started working in the 

molding room for eight to twelve hours per week, where she found 

that the pace, noise, smell, and enclosure significantly 

exacerbated her symptoms. Following her complaint about the 

conditions in late February 2013, she was granted a temporary 

reprieve from working in the molding room pending further review. 

On March 8, 2013, she left work after her supervisor refused her 

request not to work there. 

Then followed three months of back and forth between 

Honeywell, Pena's attorney, and her doctor about Pena's desire to 

continue working outside the molding room. She experienced 

worsening anxiety and stress associated with her employment 

uncertainty. Honeywell terminated Pena's employment on June 17, 

2013 for "job abandonment." 
- 34 - 

On September 20, 2013, Pena submitted an application for 

SSDI benefits in which she stated, "I BECAME UNABLE TO WORK BECAUSE 

OF MY DISABLING CONDITION ON March 8, 2013. I AM STILL DISABLED." 

On April 16, 2015, Pena filed this action against Honeywell 

alleging disability discrimination, effectively claiming that she 

could work, albeit with an accommodation. Six months later, on 

October 16, 2015, her SSDI application was approved. Her seemingly 

inconsistent disability and discrimination claims generate the 

judicial estoppel issue before us. 

II. 

A. Judicial Estoppel Principles 

The Supreme Court said virtually nothing in Cleveland 

about the substance of the doctrine of judicial estoppel, but the 

principles governing that doctrine are well-established. The 

purpose of judicial estoppel is to "safeguard the integrity of the 

courts by preventing parties from improperly manipulating the 

machinery of the judicial system." Alt. Sys. Concepts, Inc. v. 

Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004) (citing New 

Hampshire v. Maine, 532 U.S. 742, 750 (2001)). Although 

application of judicial estoppel is "not reducible to any general 

formula[]," several conditions typically drive a court's decision 

to apply the doctrine. New Hampshire, 532 U.S. at 750. First, 

the litigant's earlier and later positions "must be clearly 

inconsistent." Id. (internal quotation marks omitted). Second, 
- 35 - 

the estopped party must have persuaded a court to accept its prior 

position. Alt. Sys. Concepts, Inc., 374 F.3d at 33.12 

In addition, the Court cautioned that judicial estoppel 

is an equitable doctrine, applied as an act of discretion. New 

Hampshire, 532 U.S. at 750. Concerns about fairness inform the 

analysis. Id. at 751; see also James Wm. Moore, 18 Moore's Federal 

Practice § 134.31 (3d ed. 2012) ("Application of the doctrine of 

judicial estoppel should be guided by a sense of fairness, with 

the facts of the particular dispute in mind."). An advantage 

unfairly gained by the litigant -- or a detriment unfairly imposed 

on the other party -- weighs in favor of estoppel. New Hampshire, 

532 U.S. at 751. Judicial estoppel thus disfavors intentional 

inconsistencies and provides leniency for a plaintiff who operated 

in good faith in presenting conflicting positions. See id. at 

753. 

B. The Cleveland Analysis 

In Cleveland, the Court held that there is no presumption 

of judicial estoppel against a claim for failure to accommodate an 

employee's disability when the employee has already received SSDI 

benefits premised on the inability to work. Cleveland, 526 U.S. 

at 805. The Court reasoned that "there are . . . many situations 

 12 Presumably, the ALJ's award of benefits in SSDI cases 

constitutes an acceptance of the prior statement by a court. We 

have that circumstance here. 
- 36 - 

in which an SSDI claim and an ADA claim can comfortably exist side 

by side." Id. at 802-03. Accordingly, a plaintiff may "defeat 

summary judgment" if she can provide "a sufficient explanation" 

for her "two seemingly divergent" claims. Id. at 797, 806-07. 

Cleveland tells us that we must conduct the 

inconsistency analysis "assuming the truth of, or the plaintiff's 

good-faith belief in, the earlier statement." Id. at 807. This 

assumption binds the plaintiff to her prior assertion, 

establishing the contours of the conflict that the plaintiff must 

explain. See, e.g., Lee v. City of Salem, 259 F.3d 667, 674 (7th 

Cir. 2001). Although the Court in Cleveland did not prescribe the 

details of the inconsistency inquiry, the Court indicated that an 

ADA claim could not survive if there were "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. Such irreconcilable assertions of 

fact "present precisely the sort of threat to judicial integrity 

that the doctrine of judicial estoppel was designed to prevent." 

Bos. Gas Co. v. Century Indem. Co., 708 F.3d 254, 264 (1st Cir. 

2013). 

By contrast, an SSDI "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 the 

purposes of the Social Security Act.'" Cleveland, 526 U.S. at 
- 37 - 

802. "So understood, a quasi-legal assertion of this kind does 

not foreclose the possibility that the individual is nonetheless 

'qualified' to work for purposes of the ADA." Lee, 259 F.3d at 

673. The Court's reasoning acknowledged that the two statutes 

reflected contrasting conceptions of disability. Enacted in 1956, 

the SSDI program reflects a view of disability as a certifiable 

medical excuse from work. For some people, disabilities impose 

medical obstacles to employment. Matthew Diller, Dissonant 

Disability Policies: The Tensions Between the Americans with 

Disabilities Act and Federal Disability Benefit Programs, 76 Tex. 

L. Rev. 1003, 1005-06 (1998). Adopted nearly forty years later, 

the ADA reflects the different view that a disability will not 

necessarily foreclose participation in the workforce. Id. The 

ADA thus requires employers to remove barriers, where feasible, 

that impede persons with disabilities from performing the 

essential functions of their jobs. Id. 

The Cleveland Court recognized that, "in context, these 

two seemingly divergent statutory contentions are often 

consistent," such that individuals may qualify for SSDI and also 

remain capable of continuing in their jobs. Cleveland, 526 U.S. 

at 797. In so concluding, the Court rejected the notion that an 

SSDI recipient who seeks ADA protection is necessarily gaining an 

unfair advantage by "double dipping" into two forms of financial 

support for disability. See Diller, Dissonant Disability Policies 
- 38 - 

at 1035 (listing cases in which courts were sidetracked by double 

dipping before Cleveland); Lauren Lowe, Note, What Employees Say, 

or What Employers Do: How Post-Cleveland Decisions Continue to 

Obscure Discrimination, 62 Vand. L. Rev. 1245, 1272 (2009) (listing 

cases after Cleveland). While a plaintiff must do more than merely 

point to the difference in statutory standards for "disability," 

the legal context of the two claims is essential to understanding 

the Cleveland inquiry. See DeCaro v. Hasbro, Inc., 580 F.3d 55, 

62 (1st Cir. 2009). 

III. 

 Applying the inconsistency analysis required by 

Cleveland, and guided by the principles of judicial estoppel, I 

disagree with the majority's conclusion that Pena's SSDI 

application statements "I BECAME UNABLE TO WORK BECAUSE OF MY 

DISABLING CONDITION ON March 8, 2013" and "I AM STILL DISABLED" 

contradict irreconcilably her reasonable accommodation claim, such 

that judicial estoppel is warranted. 

A. The Prior Statement 

The "previous sworn statement" at issue here actually 

consists of the two statements in Pena's SSDI application that she 

"became unable to work" on March 8, 2013 and "[is] still disabled." 

Cleveland instructs us to assume Pena's good-faith belief in these 

two prior assertions. Hence, to assess the ostensible conflict 

between those SSDI assertions and the particulars of her ADA 
- 39 - 

reasonable accommodation claim, we have to understand how Pena 

explains her good-faith belief in these assertions. 

Pena argues that she understood herself to have become 

disabled on March 8 "only after her employer denied her request 

for a reasonable accommodation." Her brief points to her 

deposition, in which she was asked for the date from which she was 

"no longer able to work at all." She responded, "[w]hen I was 

kicked out of that place." When asked if she "agree[d] that since 

March 8, 2013 you have been unable to perform any sort of work," 

she responded, "[y]es." Asked to identify the point when she 

"bec[a]me unable to work at all," she responded, "[t]he same moment 

that they denied me my job without accommodating me." Pena argues 

that it is essential context that this denial preceded her 

representation of disability because this denial framed her 

understanding of her situation when she sought SSDI benefits. 

Her affidavit, filed as part of her opposition to 

Honeywell's motion for summary judgment, makes this exact point: 

"I did not apply for SSDI benefits until September 20, 2013, only 

after I had exhausted every possible effort of getting the needed 

accommodation." Although this affidavit is in the record, the 

district court dismissed its relevance, quoting Cleveland for the 

premise that "a party cannot create a genuine issue of fact 

sufficient to survive summary judgment simply by contradicting his 

or her own previous sworn statement (by, say, filing a later 
- 40 - 

affidavit that flatly contradicts that party's earlier sworn 

deposition) without explaining the contradiction or attempting to 

resolve the disparity." Pena v. Honeywell Int'l Inc., No. CV 15-

179 WES, 2018 WL 582579, at *2 (D.R.I. Jan. 29, 2018) (quoting 

Cleveland, 526 U.S. at 806-07). The district court misses the 

point of this affidavit. Its very purpose is to explain, as 

Cleveland says she must do, how she could have a good-faith belief 

in the truth of her SSDI assertions, while still being able to 

perform the essential functions of her job with a reasonable 

accommodation. 

When Pena filed her SSDI application in September, she 

knew that the accommodation that she had demanded for more than 

three months had been repeatedly and decisively denied to her. 

Given this circumstance, a jury could reasonably find that Pena 

plausibly believed on September 20, 2013 that she became "unable 

to work" as of March 8, 2013. See Lowe, How Post-Cleveland 

Decisions Continue to Obscure Discrimination at 1278 (observing 

that denial of an accommodation may explain the claimant's goodfaith belief in the assertion to the Social Security Administration 

that she was unable to work); see also Diller, Dissonant Disability 

Policies at 1042 (noting that statements of "total disability" on 

a disability benefit application may be based on the individual's 

experience that no employer will employ her because of her 
- 41 - 

disability, even if she could perform the essential elements of 

the job with accommodation). 

The majority wrongly chides Pena because she "offered no 

qualification" for her assertion of disability on her SSDI 

application. Cleveland expressly stated that such qualification 

is not required. Since the SSDI definition of disability does not 

take accommodation into account, an applicant need not "refer to 

the possibility of reasonable accommodation when she applies for 

SSDI." Cleveland, 526 U.S. at 803. The particulars of this case 

reflect the wisdom of that legal proposition. In her affidavit, 

Pena averred: 

When I stated on my SSDI application that I 

was unable to work as of March 8, 2013, I meant 

that I was totally disabled only for the 

purposes of receiving SSDI benefits. The SSDI 

application did not ask if I needed any 

accommodations of a disability in order to 

work and no one at any of the hearings asked. 

Had I been asked, I would have responded, 

"Yes." 

Without question, Pena could supportably argue to a jury that she 

held a good-faith belief in the accuracy of her SSDI application, 

given her understanding of the process, while still being in a 

position to perform the essential functions of her job with a 

reasonable accommodation. 

B. Ability to Perform Essential Functions 

We must now evaluate, pursuant to Cleveland, Pena's 

insistence that, despite her good-faith belief in her SSDI 
- 42 - 

assertions of total disability, she could perform the essential 

functions of the job, as required for her ADA claim. 

The record plainly permits a jury to find that Pena could 

have continued to perform the job she had held before Honeywell 

insisted that she work in the molding room. As Pena describes, 

her years of work at the facility before the rotation requirement 

was imposed reflect her ability to fulfill the requirements of the 

job beyond the molding room. In addition, her efforts to be 

reinstated at Honeywell, including the submission of three 

doctor's notes, constitute further evidence that she could have 

worked with her requested accommodation. In particular, Dr. 

Greer's March 4 letter (delivered to Honeywell on March 8), stated 

that Pena was "completely capable of working in other settings," 

but that she experienced "exacerbation of her anxiety symptoms 

. . . . when she is being sent to the moulding [sic] room as 

opposed to the more typical duties to which she is accustomed."13 

 13 Whether the request not to work in the molding room is a 

reasonable accommodation is a separate question the jury would 

need to answer in evaluating Pena's ADA claim. The district court, 

adopting the report and recommendation of the magistrate judge, 

concluded that if estoppel did not apply, a genuine dispute of 

material facts about "whether rotation to the Molding Department 

was an essential function of Plaintiff's job and whether Plaintiff 

participated in good faith in the interactive process" foreclosed 

summary judgment on the reasonable accommodation claim. Pena, 

2018 WL 582579, at *10. 
- 43 - 

The majority compares Pena's case to Sullivan v. 

Raytheon Co., 262 F.3d 41 (1st Cir. 2001), in which we affirmed 

summary judgment for the employer because the plaintiff made 

repeated claims that he was totally disabled and provided "no 

evidence" that he could work with an accommodation. Id. at 48. 

The facts here are strikingly different. Pena has developed a 

record that would support a jury finding that she could have 

continued to work at Honeywell with her requested accommodation. 

At summary judgment, courts are obliged to draw record inferences 

on behalf of the nonmovant. Yet the majority draws every inference 

against Pena. 

Honeywell also attempts to undercut Pena's ADA claim by 

pointing out that she sought an accommodation for anxiety and 

depression until June 2013, but she was deemed "totally disabled" 

by somatoform disorder as of March 2013. The company argues that, 

given her total disability, she would not have been able to work 

even if her anxiety and depression had been accommodated. 

Honeywell's argument, however, ignores Cleveland's admonition that 

ostensibly conflicting legal conclusions derived from different 

disability processes must be evaluated in their legal context. 

As Cleveland noted, the SSDI program provides for 

categorical determinations of eligibility for benefits to 

facilitate the processing of the large number of cases handled by 

the Social Security Administration. See 526 U.S. at 804. Pursuant 
- 44 - 

to the five-step eligibility procedure, an individual may be deemed 

totally disabled without regard to her actual ability to work if 

her condition "meet[s] or equal[s]" an impairment in the enumerated 

list of impairments. Id. at 804. The eligibility finding in such 

a case stems from the "regulatory determination that most 

individuals with certain disabilities cannot work." Anne E. 

Beaumont, Note, This Estoppel Has Got to Stop: Judicial Estoppel 

and the Americans with Disabilities Act, 71 N.Y.U. L. Rev. 1529, 

1567 (1996). 

The ALJ determined that Pena has "somatoform disorder," 

one of the listed impairments under SSDI regulations, based on the 

testimony of an impartial medical expert at the SSDI hearing. 

Because Pena met the severity criteria for a finding of categorical 

disability, the ALJ bypassed individual review of her capacity for 

work. This procedural history undermines Honeywell's argument 

that the ALJ determined that Pena is incapable of working even 

with an accommodation. It also exposes the baselessness of the 

majority's assumption that Pena argued somatoform disorder to the 

ALJ. As noted, the only statements in the record that Pena made 

in the course of her SSDI application are that she "became unable 

to work" on March 8, 2013 and "[is] still disabled." 

The majority nonetheless erroneously compares Pena's 

circumstances to cases in which the plaintiff made specific, 

"purely factual" statements about disability that were 
- 45 - 

incompatible with the undisputed job requirements. Unlike those 

cases in which the plaintiffs' descriptions of their injuries 

conflicted with their asserted ability to work with an 

accommodation, Pena's blanket statement of disability in her SSDI 

application does not belie her ADA claim. For example, in Reed v. 

Petroleum Helicopters, Inc., 218 F.3d 477 (5th Cir. 2000), cited 

by the majority, the plaintiff made "specific factual statements" 

about her inability to sit for an extended period, which the court 

found incompatible with her claimed ability to fly a helicopter. 

Id. at 480. 

Likewise, in Motley v. New Jersey State Police, 196 F.3d 

160 (3d Cir. 1999), also cited by the majority, the plaintiff 

claimed headaches, backpain, and knee aches when standing and 

running, and he had been found "totally and permanently 

incapacitated for state police officer duties" by the state police 

medical board. Id. at 166. On that record, the plaintiff's 

"sole[]" reliance on the difference between the statutory schemes 

was "fatal." Id. at 167; see also Feldman v. Am. Mem'l Life Ins. 

Co., 196 F.3d 783, 791-92 (7th Cir. 1999) (concluding that 

plaintiff's SSDI benefits application assertions that she could 

not drive long distances, work a six- to eight-hour day, or carry 

a briefcase were incompatible with her ADA claim that she could 

work as a traveling salesperson); Parker v. Columbia Pictures 

Indus., 204 F.3d 326, 333 (2d Cir. 2000) (holding that "summary 
- 46 - 

judgment may be appropriate under Cleveland where the SSDI and ADA 

claims 'involve directly conflicting statements about purely 

factual matters'") (quoting Cleveland, 526 U.S. at 802); cf. Felix 

v. N.Y. City Transit Auth., 154 F. Supp. 2d 640, 651 (S.D.N.Y. 

2001), aff'd, 324 F.3d 102 (2d Cir. 2003) (holding judicial 

estoppel unwarranted where, inter alia, the plaintiff "stated in 

general terms that she could not work as a result of her disabling 

condition without offering particular facts as to that 

condition"). Pena's SSDI application did not include specific 

factual assertions. Rather, the conflict here between Pena's 

asserted inability to work and her asserted ability to work with 

accommodation is exactly the nuanced contradiction that Cleveland 

recognized as "often" permissible. Cleveland, 526 U.S. at 797. 

Indeed, in a similar case, the Third Circuit concluded 

that limited prior factual assertions did not foreclose a finding 

that the plaintiff could perform the essential functions of her 

job. In Turner v. Hershey Chocolate U.S., 440 F.3d 604 (3d Cir. 

2006), the employer Hershey decided to require rotation of 

employees among three different assembly stations in July 2001. 

Id. at 607. Turner objected that she could not do one of the 

rotations, which required standing, bending, and twisting, was 

considered more difficult, and was not part of her job requirements 

up to that point. Id. Hershey determined that Turner could not 

continue to work in her position without this rotation, and "she 
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was deemed a disabled employee." Id. On a subsequent SSDI 

benefits application, Turner stated that she had been unable to 

work since July 2001, and she was awarded total disability benefits 

from that time. Id. The Third Circuit determined that Turner was 

not judicially estopped from pursuing an ADA claim: 

As discussed in Cleveland, this statement of 

inability to work must be read as lacking the 

qualifier of reasonable accommodation, which did 

not apply for purposes of her SSDI application, but 

does apply for purposes of her ADA claim. Thus, in 

her SSDI application, Turner was saying, in effect, 

"I am unable to work without reasonable 

accommodation." This statement is not inconsistent 

with her ADA claim, in which she is saying, in 

effect, "I am able to work with reasonable 

accommodation." 

Id. at 610. To the extent that Turner made a factual assertion 

about pain that limited her ability to work, the court found it 

did not "foreclose the possibility that she could perform [her 

job] with reasonable accommodation." Id. at 609. It therefore 

remanded the case to allow a jury to decide her ADA claim. Id. at 

610, 613. 

The parallels to this case are evident: the asserted 

date on which the plaintiff was "unable to work" for purposes of 

SSDI benefits does not "foreclose the possibility" that, at the 

same time, she could have continued working with a reasonable 

accommodation. In the absence of an irreconcilable factual 

conflict, her prior disability claim and her ADA claim could be 
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reconciled. Hence, judicial estoppel was not required under 

Cleveland. 

IV. 

Pena's case does not implicate any of the considerations 

warranting the application of judicial estoppel. The district 

court found her case "sympathetic," without any "indication that 

she ha[d] taken any positions in bad faith." See Pena, 2018 WL 

582579, at *9. There is also no indication of her gaming the 

system or of causing an unfair detriment to Honeywell. Rather, a 

reasonable jury could conclude from this record that Pena believed 

herself unable to work because of Honeywell's emphatic rejection 

of her request for an accommodation and that she could have 

continued to work if provided that accommodation. Pena's 

explanation is thus sufficient to show that her two claims are 

reconcilable and that judicial estoppel should not be applied to 

foreclose her pursuit of ADA relief. Cleveland requires nothing 

more. Pena was entitled to bring her ADA claim to a jury. I 

therefore dissent from the majority's decision denying her that 

opportunity.