United States District Court, D. New Jersey, Camden Vicinage
October 17, 2005.
FRED JACQUES, Plaintiff,
BERLIN BOROUGH BOARD OF EDUCATION, Defendant.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter comes before the court on motion by Defendant
Berlin Borough Board of Education ("Defendant" or the "Board")
for summary judgment of Plaintiff Fred Jacques' ("Jacques") claim
that Defendant discriminated against him on the basis of his
disability in violation of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq. Jacques alleges that the Board
failed to provide reasonable accommodations as required by the
ADA. Defendant now argues that because Jacques was not a
"qualified person with a disability," any failure to provide
accommodations did not violate the ADA. Because a material
question of fact remains as to whether Jacques is a qualified
person with a disability, Defendant's motion will be denied. I. Background
Jacques taught Industrial Arts classes for the Board from 1986
until his retirement in 2002. Throughout his teaching career,
Jacques was completely blind in right eye due to a childhood BB
gun accident. Jacques' monocular blindness caused him minimal
impairment until approximately 1998 when he was diagnosed with
glaucoma in his other eye. Although Jacques received treatment
for the glaucoma, the disease diminished his visual acuity and
exacerbated the challenges arising from his monocular vision.
In response to this increased impairment, Jacques requested
accommodations in a letter to the principal Kathie Conaway
("Conaway") in June of 1999. Jacques allegedly received no reply
and made a second request in March of 2001, again receiving no
response. On February 19 and February 28, 2002, Jacques met with
the Board's Interim Superintendent, Thomas Smith ("Smith"), about
his request for accommodations, and Jacques submitted a letter to
the Board on March 14, specifying the accommodations he believed
he required. Specifically, Jacques requested an aide in certain
classes and the elimination of a homeroom period to reduce
paperwork. Jacques claims that he was never offered
accommodations, in spite of these requests.
In April 2002, Jacques met with Smith and Conaway. Jacques
alleges that Smith told him that he could not teach and encouraged him to pursue disability retirement. Similarly,
Conaway recommended a psychiatric disability retirement. Smith
also told Jacques that he would have to obtain a certification in
order to continue teaching. However, Jacques asserts that the
certification was not required by the New Jersey State Department
On April 23, 2002, Jacques filed for disability retirement. On
his application for disability, Jacques stated that
"complications as a result of eye problems . . . make it
impossible for me to carry out my job." (Jacques Aff. Exhibit E).
Jacques submitted medical examination forms from two doctors in
support of his application for disability retirement,
supplementing his claim that he was unable to work. On or about
May 3, 2002, Dr. Arnold Goldman sent a letter to Smith urging the
Board to provide Jacques with his requested accommodations. A few
days later, on or about May 9, 2002, Jacques sent a letter to
Smith informing him that he was applying for disability
retirement. Jacques' application was granted, and he officially
resigned in a letter dated June 19.
II. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that "there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists when "the
evidence is such that a reasonable jury could find for the
nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The burden of establishing the nonexistence of a "genuine
issue" is on the party moving for summary judgment. Celotex,
477 U.S. at 330. The moving party may satisfy this burden by
either (1) submitting affirmative evidence that negates an
essential element of the nonmoving party's claim; or (2)
demonstrating to the Court that the nonmoving party's evidence is
insufficient to establish an essential element of the nonmoving
party's case. Id. at 331. If the moving party has not fully
discharged its initial burden, its motion for summary judgment
must be denied. Id. at 332. If the moving party satisfies its
initial burden, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial."
The ADA requires employers to provide reasonable accommodations
to qualified individuals with disabilities. 42 U.S.C.A. § 12112
(b)(5)(A).*fn1 A qualified person is "an individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position
that such individual holds or desires." 42 U.S.C.A. § 12111(8).
Defendant contends that Jacques could not perform the essential
functions of his position as a teacher, and therefore was not
qualified under the ADA. Defendant presents no evidence
indicating that Jacques would have been unable to perform his job
functions, aside from the statements made by Jacques and his
doctors in Jacques' application for disability retirement that
his "eye problems" made it "impossible" for him to carry out his
job. Because the New Jersey Division of Pensions and Benefits
determined that Jacques was indeed unable to work and granted
Jacques' disability retirement application on the basis of these
statements, Defendant argues, Jacques should not now be able to
maintain that he actually was able to perform his job duties.
On its face, a plaintiff's eligibility for disability benefits
appears mutuality exclusive with the ability to bring an ADA
claim. An individual cannot receive disability retirement unless
he convinces the responsible agency that he has a disability so
severe that he is "physically or mentally incapacitated for the
performance of duty and should be retired." N.J.S.A.
18A:66-39(b). On the other hand, a plaintiff cannot successfully
bring a claim under the ADA unless he can demonstrate that he is
capable of performing the essential functions of his job, at least with reasonable accommodations.
However, in Cleveland v. Policy Management Systems, Corp.,
526 U.S. 795 (1999), the United States Supreme Court held that
Social Security Disability Insurance ("SSDI") and ADA claims do
"not inherently conflict to the point where courts should apply a
special negative presumption." Id. at 802. Under Cleveland, a
plaintiff's claim that he is "totally disabled" for the purposes
of obtaining disability benefits does not automatically preclude
him from also claiming to be a "qualified individual" under the
ADA, even if the agency granted the request for benefits. Id.
at 798; Detz v. Greiner Industries, Inc., 346 F.3d 109, 115-17
(3d Cir. 2003). Nor does such a claim establish "a strong
presumption against the recipient's success under the ADA." Id.
In distinguishing the test for SSDI eligibility from the ADA
standard, the Cleveland Court observed that "[w]hen the [Social
Security Agency ("SSA")] determines whether an individual is
disabled for SSDI purposes, it does not take the possibility of
`reasonable accommodation' into account." Id. at 803.*fn2
Consequently, a request for accommodations under the ADA does not inherently conflict with an application for SSDI because "the ADA
considers whether a person might be able to perform her job `with
reasonable accommodation,' while that possibility is ignored when
determining disability for SSDI purposes." Detz,
346 F.3d at 117 (citing Cleveland, 526 U.S. at 802). A claim of inability
to work made in the context of an application for disability
benefits, therefore, does not necessarily estop a claim of
ability to work in the context of the ADA. The meaning of
"inability to work" are different in the two contexts.
Nevertheless, "a plaintiff `cannot simply ignore' her previous
statements to the SSA" and "must explain why that SSDI contention
is consistent with' her subsequent assertion in connection with
her ADA claim." Detz, 346 F.3d at 116 (quoting Cleveland,
526 U.S. at 798). The plaintiff bears the burden of demonstrating the
consistency of the two assertions and cannot simply contradict
his previous statement. Detz, 346 F.3d at 116 (quoting
Cleveland, 526 U.S. at 806).
To satisfy this burden at the summary judgment level, the
plaintiff's explanation must be adequate to enable a reasonable
juror to find that the plaintiff could perform his job with
reasonable accommodations, in spite of the truth of the statement
on his application for benefits. Cleveland, 526 U.S. at 807;
Detz, 346 F.3d at 118 ("[T]he plaintiff must proceed from the
premise that his previous assertion of an inability to work was true, or that he in good faith believed it to be true, and he
must demonstrate that the assertion was nonetheless consistent
with his ability to perform the essential functions of his
While Jacques acknowledges the truth of the statement on his
disability retirement application that it was "impossible" for
him to carry out his job, he also claims that "[a]t all relevant
times, I was able to perform the duties of teacher with the Board
with reasonable accommodations such as with the provision of an
aide and reduced number of classes." (Jacques Aff. ¶ 27)
(emphasis added). He explains the discrepancy between his
retirement application and his ADA allegations on the basis that
the "statement on my disability application did not take into
account my ability to perform my job duties with reasonable
accommodations such as the provision of an aide for certain
classes." (Jacques Aff. ¶ 19). Jacques provided evidence in the
form of an affidavit that his statement in his application for
disability retirement was based on the fact that "the Board had
previously ignored my requests and not provided accommodations."
(Jacques Aff. ¶ 19). Consequently, Jacques argues, his two
statements were consistent because he could perform his job with
reasonable accommodation, but could not perform his duties
without such accommodations.
Jacques' explanation is consistent with the Cleveland Court's determination of the kind of explanation that would
resolve an apparent conflict between an application for
disability benefits and a claim of failure to accommodate under
the ADA. Cleveland, 526 U.S. at 806 ("[A]n ADA suit claiming
that the plaintiff can perform her job with reasonable
accommodation may well prove consistent with an SSDI claim that
the plaintiff could not perform her own job (or other jobs)
without it.") (emphasis in original). Accordingly, for the
purposes of defeating a motion for summary judgment, Jacques
sufficiently accounts for the discrepancy between his request for
disability retirement and his ADA claim.
Defendant argues that Jacques' explanation is inadequate
because his previous statements on his retirement application
make it clear that he could not perform the essential functions
of his teaching position, even with accommodations. Defendant
contends that Jacques stated specifically in his application that
his impaired vision prevents him from supervising students or
doing paperwork, both of which are essential functions of
Jacques' teaching job. Consequently, Defendant argues, Jacques'
case is more analogous to Motley v. New Jersey State Police,
196 F.3d 160 (3d Cir. 1999), than Cleveland.
In Motley, the Third Circuit held that a former state trooper
was not a "qualified individual with a disability" because
"Motley offered detailed descriptions of his injuries and their impact on his ability to work." Motley, 196 F.3d at 166.
These descriptions constituted factual assertions of Motley's
limitations that were unaffected by the difference in statutory
schemes. Specifically, in his application for disability, Motley
claimed: "painful and recurring headaches," "intense back pain,"
inability to sit more than twenty minutes or sleep more than two
or three hours, and "`extreme pain' in his left knee" that
rendered him unable to stand without pain. Id. at 167. Motley
provided no explanation of how he could perform the essential
functions of a state police officer with these particular
Unlike Motley, Jacques has provided evidence suggesting that an
aide in certain classes and exemption from a homeroom period
would adequately enable him to perform his job. Defendant argues
that because supervising a class and doing paperwork are
essential functions of teaching, this Court should hold as a
matter of law that Jacques cannot be qualified to teach with his
visual impairment. However, such a conclusion would amount to an
unlawful "irrebuttable presumption that  blindness made [a
teacher] incompetent to teach sighted students." Gurmankin v.
Costanzo, 556 F.2d 184, 187 (3d Cir. 1977). Furthermore, Jacques
provided evidence, including his own statements and those in
letter from Dr. Arnold Goldman, written in May 2002, suggesting
that Jacques could perform his tasks if accommodated. (Jacques Aff. ¶ 21, 27, Exhibit H). Jacques has therefore provided
adequate evidence to enable a reasonable jury to find that he was
at all times able to perform the essential functions of his job,
in spite of his statement on his application for disability
Accordingly, Defendant has failed to demonstrate that no
reasonable jury could find that Jacques was a qualified person
with a disability, and summary judgment must be denied.
The accompanying Order shall issue today.
© 1992-2005 VersusLaw Inc.