Jamie C. Bisker v. GGS INFORMATION SERVICES, INC. Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4277
JAMIE C. BISKER,
Appellant
v.
GGS INFORMATION SERVICES, INC.
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-07-cv-01465)
District Judge: Honorable William W. Caldwell
Argued July 8, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: July 24, 2009)
Joseph C. Korsak, Esquire (Argued)
Law Office of Joseph C. Korsak
33 North Queen Street
York, PA 17403-0000
Counsel for Appellant
Vincent Candiello, Esquire (Argued)
Claudia Williams, Esquire
Post & Schell
17 North 2nd Street, 12th Floor

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Harrisburg, PA 17101-0000
Counsel for Appellee
OPINION
AMBRO, Circuit Judge
Jaimie C. Bisker, who suffers from multiple sclerosis (“MS”), brought an action
against her employer, GGS Information Systems, Inc. (“GGS”), in the Western District of
Pennsylvania, alleging a failure to accommodate her disability in violation of both the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201 et seq., and the Pennsylvania
Human Relations Act (“PHRA”), 43 P.S. § 951, et seq. The District Court granted
summary judgment to GGS, holding that, due to the representations Bisker had made
about her condition in her multiple applications for disability benefits, she was “barred by
judicial estoppel from pursuing her ADA and PHRA claims.” Bisker v. GGS Info. Servs.,
Inc., No. 1:CV-07-1465, 2008 WL 4372927, at *3 (M.D. Pa. Sept. 22, 2008). Because
we do not believe that judicial estoppel applies in this case, we vacate the District Court’s
order and remand so that the merits of Bisker’s failure-to-accommodate claims may be
squarely addressed.
I.
Since we write solely for the parties, we recite only those facts necessary to our
disposition. In 1999, Bisker began working at GGS, a York, Pennsylvania company that

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Prior to her first accommodation request, one of Bisker’s supervisors, Patrick1
Carlton, had conducted a “feasibility test” to determine whether Bisker’s work could be
completed from a remote location. Carlton concluded that it would neither be difficult
nor costly to set up a computer in Bisker’s home in such a way that it would replicate her
computer at work.
The parties dispute how seriously GGS took Bisker’s request for an accommodation.2
As we are not reaching the merits of Bisker’s failure-to-accommodate claim, we do not
recite all the facts relevant to that dispute.
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specializes in making parts catalogues. As of 2006, she was working as a “Parts Lister,”
a job that involved reviewing “engineering information,” and, with the aid of a computer,
producing technical illustrations of the various parts. In April of that year, Bisker
requested and received leave from work under the Family Medical Leave Act. Bisker’s
application for leave included a certification from her physician, Dr. Alex Rae-Grant,
which described her as “currently unable to work due to multiple sclerosis symptoms[,]
including weakness, fatigue, pain [and] stiffness.” That same month, Bisker applied for
and received private short-term disability benefits through GGS.
In May 2006, Bisker met with some of her supervisors to discuss being allowed to
work from home to accommodate her disability. No final decision was made at that1
meeting, although (according to Bisker’s deposition) she was repeatedly encouraged to
apply for Social Security Disability Insurance (“SSDI”) in lieu of attempting to resume
work in some capacity. While Bisker waited on a final answer about working from2
home, she made additional requests for private disability benefits. In July 2006, she
submitted an application to extend her short-term disability benefits. In Dr. Rae-Grant’s

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accompanying certification, he noted that, while Bisker was hopeful that she would
eventually be able to return to work, she “continues to complain of multiple symptoms[,]
including overwhelming fatigue, weakness and stiffness in the legs, difficulty
concentrating, pain and paresthesias of legs.” That same month, Bisker successfully
applied for private long-term disability benefits. In her application, Bisker contended that
her condition “[v]aries [from] day to day,” that she had not attempted to resume any work
since leaving her job, and that she does not “know” whether she will return to her “last
occupation.”
On July 21, 2006, Mark Oberdick, GGS’ Human Resources Director, wrote to Dr.
Rae-Grant, inquiring whether, “[b]ased on [Bisker’s] condition, . . . she can perform the
essential functions of her job at home as described in her job description and Physical
Demands Analysis Worksheet.” In addition, Oberdick’s letter claimed that Bisker’s “job
has changed since April,” and that, “[a]s a result, the daily demands to meet certain
deadlines in [Bisker’s] Parts Lister position with the 8-hour workday have significantly
increased.” On August 8, 2006, Dr. Rae-Grant responded, contending that Bisker “is
physically unable to perform the essential function of her job as described in her physical
demands analysis worksheet,” but that she would likely be able to do her job if allowed to
work from home and given seven days to complete 40 hours of work. Oberdick then sent
a letter to Bisker (dated August 15, 2006) formally denying her request for an
accommodation. In the letter, Oberdick contended that changes in the Parts Lister

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position—in particular, the shifting of its focus away from performing the technical
illustrations on site and toward overseeing illustration work being done in India—made it
impossible to perform the job offsite and outside the confines of the normal five-day
workweek.
Shortly after receiving Oberdick’s letter rejecting her accommodation request,
Bisker put in an application with the Social Security Administration (“SSA”) for SSDI
benefits. In her application, she stated that she “became unable to work because of [her]
disabling condition on April 18, 2006,” and described herself as “still disabled.” In
response to the question, “How do your illnesses, injuries, or conditions limit your ability
to work?,” she wrote:
I’m required to sit at a computer 8 hours a day. I requested
accommodation to work at home, was denied. I need to be
able to move around when my legs/arms go numb/stiff. If I
have a muscle spasm, I need to be able to take muscle
relaxers/pain pills and use a massager. When I [take] pills at
work and try to keep working, they affect my performance. I
get fatigued to the point that I need to lay down and take a
nap.
In September 2006, Bisker supplemented her SSDI application. In response to a question
about whether pain affects her “ability to think and concentrate,” she wrote that “I can’t
concentrate while having a spasm and dealing with the pain it causes.” In response to a
question about whether her medication was causing her any side effects, she wrote that it
“[p]uts me in la-la land.” In October 2006, the SSA rejected Bisker’s claim for benefits.
On November 13, 2006, Bisker appealed the denial. In her appeal submission, she wrote

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The District Court had jurisdiction over Bisker’s ADA claim under 28 U.S.C. § 13313
and jurisdiction over her PHRA claim under 28 U.S.C. § 1367. We have jurisdiction over
the District Court’s grant of summary judgment on both claims under 28 U.S.C. § 1291.
Our review of the District Court’s grant of summary judgment is plenary. See Elsmere
Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 416 (3d Cir. 2008).
Bisker’s PHRA claim is analyzed under the same framework as her ADA claim. See4
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). For ease of
reference, we hereafter refer exclusively to her ADA claim.
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that “because I am not sure day to day how bad my disability is . . .[,] I am unable to
work,” and indicated that she had “no additional evidence to submit.” In July 2007, her
SSDI benefits request was granted.
In August 2007, Bisker brought the action that is the subject of this appeal.
Following extensive discovery, both parties moved for summary judgment. In September
2008, the District Court granted summary judgment to GGS based on judicial estoppel.
Bisker, 2008 WL 4372927, at *3. Bisker timely appealed.3
II.
To prevail on her ADA claim, Bisker must show, inter alia, that “[s]he is . . .
qualified to perform the essential functions of the job, with or without reasonable
accommodations.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).4
The District Court concluded that, having obtained SSDI benefits on the basis of her
assertion that she was “unable to work because of [her] disabling condition,” Bisker could
not then turn around and claim to be able to work for ADA purposes. Bisker, 2008 WL
4372927, at *3. More specifically, the Court, applying Cleveland v. Policy Management

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Systems Corp., 526 U.S. 795 (1999), held that Bisker’s failure “to offer sufficient
explanations for the inconsistencies” between what she asserted in her disability benefits
applications and what she must assert in order to prevail in her ADA suit barred her from
pursuing her ADA claim. Bisker, 2008 WL 4372927, at *3.
We disagree. It is true that, under Cleveland, an ADA plaintiff must account for
any inconsistencies between representations made in an SSDI application and the
elements necessary to prevail on the ADA claim or else face judicial estoppel. See
Cleveland, 526 U.S. at 807. Here, however, there was no contradiction that needed to be
explained away in the first place. Cleveland makes clear that there is no necessary
inconsistency in simultaneously representing oneself as unable to work for SSDI purposes
yet able to work for ADA purposes. See id. at 797–98, 802–03. That is because “when
the SSA determines whether an individual is disabled for SSDI purposes it does not take
the possibility of ‘reasonable accommodation’ into account, nor need an applicant refer to
the possibility of reasonable accommodation when she applies for SSDI.” Id. at 803
(emphasis in original).
Thus, Bisker’s general assertion (in her SSDI submissions) that she is unable to
work due to her disability did not commit her to any position as to whether she could
work if reasonably accommodated. See Turner v. Hershey Chocolate USA, 440 F.3d 604,
609–10 (3d Cir. 2006). In fact, Bisker specifically qualified her assertion of disability by
mentioning (in her initial SSDI submission, at least) that she had been denied a prior

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request to work from home. The District Court was therefore incorrect to treat Bisker’s
general claims about being too disabled to work as affecting her subsequent ability to
bring an ADA claim.
The proper focus of the judicial estoppel analysis is not on Bisker’s general
contention that she is unable to work, but rather on the specific factual representations she
made in support of that contention. See Opsteen v. Keller Structures, Inc., 408 F.3d 390,
392 (7th Cir. 2005) (“[A] person who applied for disability benefits must live with the
factual representations made to obtain them, and if these show inability to do the job[,]
then an ADA claim may be rejected without further inquiry.”); Motley v. New Jersey State
Police, 196 F.3d 160, 167 (3d Cir. 1999) (same). But the picture Bisker painted of her
condition in her SSDI submissions is not any different from the one she painted in her
accommodation request. In those SSDI submissions, Bisker stated that she is not “sure
day to day how bad [her] disability is,” and that, when she is having bad days, she finds
herself too fatigued or too affected by her pain medication to concentrate on her work.
That is consistent with how she depicted her condition for accommodation
purposes—namely, as one that prevents her from working on a regular schedule, but
would allow her to put in 40 hours a week if she were given seven days to do so. Nothing
changes if the focus is shifted from her SSDI submissions to her applications for private

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Although Cleveland dealt specifically with the effect of an ADA plaintiff’s prior5
representations in an application for SSDI benefits, courts have generally held that the
Cleveland analysis applies to submissions for private disability benefits as well. See
Turner, 440 F.3d at 607; Opsteen, 408 F.3d at 390; Holtzclaw v. DSC Commc’ns Corp.,
255 F.3d 254, 258–59 (5th Cir. 2001).
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disability benefits, as, in those applications, Bisker similarly stated that her condition5
“[v]aries [from] day to day,” and that it often causes her weakness, fatigue and pain.
In sum, because Bisker did not assert anything in her disability benefits
applications that is inconsistent with what she asserted in her ADA accommodation
request, judicial estoppel does not come into play. Her case turns simply on whether that
accommodation request, which GGS denied, was reasonable. The District Court did not
reach that issue and we decline to do so in the first instance on appeal. Accordingly, we
vacate the District Court’s grant of summary judgment based on judicial estoppel and
remand for further proceedings consistent with this opinion.

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