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Vacca v. Missouri Department of Labor and Industrial Relations

Supreme Court of Missouri, En Banc

March 19, 2019

MATTHEW D. VACCA, Respondent/Cross-Appellant,

          Appeal from the Circuit Court of the City of St. Louis Honorable Julian L. Bush, Judge


         Defendants, the Missouri Department of Labor and former director of the Division of Workers' Compensation, Brian May, appeal the jury verdict awarding Matthew Vacca actual and punitive damages, including substantial future lost wages, on his claim that he was retaliated against for filing a complaint with the Missouri Commission on Human Rights (MCHR) and Equal Employment Opportunity Commission (EEOC) alleging disability discrimination. Defendants make numerous claims of error, but this Court addresses only the claim that judicial estoppel should have been applied to Vacca's claim of future lost wages, as it is dispositive. Judicial estoppel is invoked to protect the dignity of the judicial proceedings and to prevent parties from playing fast and loose with the judicial process by taking inconsistent positions in two different proceedings. The circuit court found Vacca claimed in this case he could have continued to work as an administrative law judge (ALJ) for 20 years, but in his ongoing dissolution proceeding he claimed he was entitled to maintenance because he was totally unable to work. The circuit court nonetheless incorrectly thought it was barred from applying judicial estoppel because the dissolution judgment had been remanded for further proceedings due to evidentiary errors.

         Judicial estoppel is an equitable doctrine. Prior cases, including New Hampshire v. Maine, 532 U.S. 742 (2001), have identified various considerations that courts usually weigh in deciding whether to invoke the doctrine. Other than finding a party took inconsistent positions, no consideration is a fixed prerequisite to application of the doctrine. Here, Vacca was able to successfully convince the court overseeing the dissolution of his marriage to initially award maintenance due to his disability. He also applied for and received long-term disability benefits from the Missouri State Employee Retirement System (MOSERS) based upon his similar claims of being disabled from all work with or without reasonable accommodation. The trial court abused its discretion in refusing to apply judicial estoppel to preclude Vacca from making the inconsistent claim that he was able to work as an ALJ for another 20 years with reasonable accommodations. See id.; Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) (applying judicial estoppel analysis to social security disability benefits recipient pursuing disability discrimination under the Americans with Disabilities Act).

         For these reasons, this Court reverses the judgment without reaching the other issues raised. Because Vacca may have other damages not affected by the application of judicial estoppel to his claim of lost future wages, however, this Court remands the case.


         In 1992, Matthew Vacca became an ALJ in the Division of Workers' Compensation. At about that time, Vacca also was diagnosed with a chronic form of muscular dystrophy.[1]Vacca first reported his disability to his employer in September 1996. From 1996 to 2008, Vacca worked as an ALJ without major issues and with minor alterations in his work life.

         At an unspecified point in 2008, Vacca worked out an arrangement with the then-chief ALJ to allow him to work two days each week at the workplace conducting trials and the other three days at home. This allowed him to handle more trials and less of the office administrative work, which his physical difficulties made more challenging. The parties disagree as to whether this was an accommodation for his disability or a flexible work arrangement for his convenience.

         In 2009, a new chief ALJ was designated. Vacca believed the new chief ALJ was hostile to the work arrangements previously put in place. Tension came to a head in August 2010 when Vacca received his performance evaluation from the new chief ALJ, who rated Vacca as at least "meets" standard for all elements and "exceeds" for some elements. Vacca received an overall rating of "successful."

         Although Vacca's performance ratings were similar to the evaluations given other ALJs, including the chief ALJ herself, Vacca disagreed with this evaluation and refused to sign it because he had always received all "exceeds" standards and an overall rating of "outstanding." Vacca believed his score was artificially lowered in preparation for firing him. The same day Vacca received his performance evaluation, he faxed a letter to the Missouri Department of Labor and Industrial Relations, requesting an application for long-term disability, stating:

I believe I may be disabled from performing the material duties of my job on at my employer's usual place of business on a sustained and permanent basis. However, I'm enrolling in Physical therapy and may recover enough to perform my duties, but the claims process is long and the MOSERS handbook advises to file a claim as soon as possible. Again, I may recover during this period in order to perform the material duties of my job and reserve the right to withdraw this claim. I am making this claim now out of an abundance of caution. I hope I may recover. Enclosed are Forms that need to be filled out by my employer with regards to a Long Term Disability Claim with Standard Insurance.
I plan to continue working as best I can under my Reasonable Accommodation pursuant to the ADA. If I can provide any further information, please call.

(Emphasis in original).

         Two months later, on October 25, 2010, Vacca filed a complaint with the MCHR and EEOC alleging the chief ALJ was giving him unfair evaluations for those portions of his job that he was unable to complete because of his disability.

         On January 3, 2011, Vacca formally submitted an application for long-term disability with MOSERS. Section 104.518[2] provides that a person can qualify for long- term disability if disabled as defined by MOSERS' board of trustees. The board, in conjunction with Standard Insurance Company, created a handbook containing two definitions of disability: "any occupation disability" and "own occupation disability." It provides "any occupation disability" exists when the worker is unable to perform the material duties of any occupation for which he or she has the education, training, or experience. "Own occupation disability" exists when the worker is (1) unable to perform with reasonable continuity the material duties of his or her own occupation and (2) suffers a loss of at least 20% of his or her earnings while still working his or her own occupation. Under "own occupation disability," one can work part-time at the same occupation and still receive "return to work" benefits. The amount of benefits is calculated by deducting the amount earned while working part-time from the payment to which the employee would be entitled if unable to work at all for up to two years.

         Although Vacca actually continued working until June 2011, in his January 2011 application, Vacca specifically stated his last full day of work was July 23, 2010, and August 1, 2010, was the date he "became unable to work at [his] occupation as a result of disability." He did not qualify his statement by saying he could continue to work part-time or with a reasonable accommodation.

         Vacca also attached two physician letters to support his application for long-term disability. Neither of these letters state he could work part-time or with a reasonable accommodation. To the contrary, one physician's letter recommended Vacca quit working at that time, no reasonable accommodations could be made, Vacca was "unable to return" to work, and he would not improve. The other physician letter stated Vacca should cease working the following month due to his progressive disease, Vacca would "never" be expected to markedly improve, and the physician was "unsure whether [Vacca] can physically carry on any kind of work."

         Vacca and both physicians signed the application. Each certified "the answers I have made to the foregoing questions are both complete and true to the best of my knowledge and belief."

         On January 5, 2011, a few days after Vacca applied for long-term disability, an ALJ review committee met to review Vacca's evaluations. On January 7, 2011, the director of the Division of Workers' Compensation, Brian May, contacted Vacca to inform him that the ALJ review committee would be reconvening on January 12, 2011, to discuss his evaluation and that the chief ALJ would be providing the committee with a supplemental report. In her supplemental report, the chief ALJ made reference to Vacca's MCHR/EEOC complaint. She also included that she had no writing or formal acknowledgment of Vacca's modified work schedule. After reconvening, the ALJ review committee issued a vote of no confidence for Vacca, but took no further action. Vacca continued working.

         In February 2011, while his application for long-term disability was pending, Vacca's wife began dissolution proceedings. In his counter-petition, Vacca noted he had applied for long-term disability benefits.

         On May 16, 2011, while the dissolution was pending, MOSERS awarded Vacca long-term disability benefits. The next day, MOSERS sent him a letter explaining in detail the determination, nature, and duration of the benefits. Although Vacca had never stopped performing the material duties of an ALJ, nor had he ever worked part-time, the letters awarded him "own occupation disability" benefits, explaining Vacca was eligible for retroactive "return to work" benefits of $738.22 per month for the two years from October 2008 to October 2010 based on his claim he had been disabled for some years and had been working with accommodations while disabled. After that two-year period, MOSERS awarded Vacca continuing "any occupation disability" benefits because it found he was unable to return to any occupation full-time:

In addition, we have completed a review of your claim to determine whether you meet the second Definition of Disability after it changed on October 29, 2010. Based on our review, you will remain eligible for benefits after October 29, 2010, because you cannot perform with reasonable continuity the Material Duties of Any Occupation for which you have the education, training and experience.

(Emphasis added).

         May received a copy of this letter. Upon receipt of the MOSERS letter, May notified Vacca that as MOSERS had found Vacca entitled to disability benefits as provided in the MOSERS retirement system, he believed this meant Vacca had become "disabled so that he or she is totally incapable of performing any duties of his or her office." May founded this belief on the contents of the letter and section 287.855, which states:

Any administrative law judge or legal advisor who, while so employed, becomes disabled so that he or she is totally incapable of performing any duties of his or her office shall be entitled to disability benefits as provided by the Missouri state employees' retirement system.

         May said he therefore treated Vacca's acceptance of the benefits from MOSERS as a voluntary quit.

         Vacca objected to his termination, arguing he still was able to work if given a reasonable accommodation despite his receipt and acceptance of long-term disability benefits. May disagreed. So, in August 2011 Vacca amended his MCHR/EEOC complaint to include a claim of wrongful termination, in which he asserted he was still able to work with a reasonable accommodation.

         Six months later, Vacca amended his petition filed in his marriage dissolution proceeding to state he was no longer able to work at all:

MATTHEW VACCA is permanently and completely disabled and he is no longer capable of being employed. MATTHEW VACCA currently receives:
Monthly Long Term Disability Income

         Four months later, Vacca confirmed under oath at trial in the dissolution proceeding that he was no longer able to work regardless of accommodation:

[Vacca's Counsel]: Now, let's talk a little bit about this - the employment that you did have at the Division of - of Workers' Compensation. And then we've heard from your boss and it sounds like accommodations were made, et cetera. In your opinion, do you have the ability to - to concentrate and just from a - from a ...

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