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March 22, 2000


The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.


Presently before the Court is the motion of defendant, Penn-Del Directory Company ("Penn-Del"), for reconsideration (Document No. 17) and the response, reply and sur-reply thereto. For the reasons set forth below, the motion will be denied.

I. Background

Plaintiff James R. Dayoub ("Dayoub") brought this lawsuit alleging that he is disabled and that his employer failed to accommodate his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). This Court denied the motion of Penn-Del for summary judgment, holding that Dayoub was not estopped from bringing this suit by virtue of his earlier application for Social Security Disability Income ("SSDI") benefits and that genuine issues of material fact precluded the grant of summary judgment.

II. Standard

Penn-Del has moved for reconsideration of this Court's denial of Penn-Del's motion for summary judgment. The usual vehicle for a motion for reconsideration is Federal Rule of Civil Procedure 59(e) or 60(b). Indeed, Penn-Del argues the motion as if it were under Rule 59(e), even going so far as to concede that the motion is untimely. However, neither Rule 59(e) nor 60(b) applies because the order Penn-Del seeks to have reconsidered is not a final judgment or order but rather an interlocutory decision. See Davidson v. United States, 1998 WL 314706, at *2 (E.D.Pa. June 15, 1998) (denial of partial motion for summary judgment is not a final judgment, order, or proceeding within Rule 60(b) but rather an interlocutory decision); 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: Civ.3d § 2715 at 264 (West 1998) ("the denial of a Rule 56 motion is an interlocutory order from which no appeal [to the court of appeals] is available until the entry of judgment following the trial on the merits").

A federal district court has the inherent power to reconsider interlocutory orders "`when it is consonant with justice to do so.'" Walker by Walker v. Pearl S. Buck Foundation, Inc., 1996 WL 706714, at *2 (E.D.Pa. Dec.3, 1996) (quoting United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). "`[T]he purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.'" Confer v. Custom Eng'r Co. Employee Health Benefit Plan, 760 F. Supp. 75, 77 (W.D.Pa.) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)), aff'd in part on other grounds and dismissed in part on other grounds, 952 F.2d 41 (3d Cir. 1991); see also Taylor v. Sterling Winthrop, 1995 WL 752446, at *2 (E.D.Pa. Dec.18, 1995). Because of the interest in finality, however, courts should grant motions for reconsideration sparingly. Rottmund v. Continental Assurance Co., 813 F. Supp. 1104, 1107 (E.D.Pa. 1992).*fn1

III. Discussion

Penn-Dell first argues that there has been an intervening change in controlling case law from the United States Supreme Court as well as the Court of Appeals for the Third Circuit which compels this Court to grant summary judgment. See Cleveland v. Policy Management Sys., Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999); Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. 1999). In so doing, Penn-Del reasserts that Dayoub is estopped from bringing this suit. In light of the intervening case law, however, Penn-Del now argues that Dayoub is estopped from bringing this suit because he has not provided a "sufficient explanation" of how his representation of total disability to the Social Security Administration ("SSA") can be reconciled with his contention that he can perform the "essential functions" of his job, with or without accommodation.

In Cleveland, the Supreme Court held that a claim for SSDI benefits is not inherently in conflict with a claim under the ADA and that no "special negative presumption" should apply where an ADA plaintiff has applied for and received SSDI benefits. 119 S.Ct. at 1602. The Court first noted a significant difference between the two statutory schemes: whereas under the ADA a qualified individual includes a disabled person who can perform the essential functions of her job "with reasonable accommodations," the Social Security Administration does not take into account the possibility of reasonable accommodations. "The result is that an 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." Id. The Court further noted that because a determination of SSDI benefits is made pursuant to a five-step procedure which embodies a set of presumptions about disabilities, an individual may qualify for SSDI under the SSA administrative rules and yet, due to special circumstances, remain capable of "performing the essential functions" of his or her job. Id. at 1602-03. Finally, "if an individual has merely applied for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system." Id. at 1603. In sum, the Supreme Court recognized, on the one hand, that there is no presumption against recovery where an ADA also applied for disability benefits but also that "in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim" and that the ADA plaintiff must resolve the contradiction. Id.

In Motley, the Court of Appeals for the Third Circuit held that a plaintiff who had made specific statements about his physical injuries and how they prevented him from doing his job in support of his claim to the SSA that he was totally disabled had not sufficiently reconciled his claim for total disability with his claim that he could perform the essential functions of his job. The Court of Appeals first reasoned that every ADA plaintiff could reconcile a claim for SSDI with his or her ADA claim by merely pointing to the fact that SSDI does not consider the effect that reasonable accommodations have on the plaintiff's ability to work, then summary judgment could never be granted on the basis of judicial estoppel where an ADA plaintiff had applied for SSDI benefits. However, because the Supreme Court recognized that summary judgment would be appropriate in some cases, the Court of Appeals further reasoned that the "plaintiff must, in certain circumstances, provide some additional rationale to explain the plaintiff's apparent about-face concerning the extent of the injuries." Motley, 196 F.3d at 165. The Court of Appeals then explained that the additional justification could entail a discussion of how, under the facts of the plaintiff's case, the differing statutory context makes his or her statements under one scheme reconcilable with claims made under the other. Id.

In Motley, the plaintiff made more than a general allegation of disability to the SSA, offering instead a detailed description of this injuries and their impact on his ability to work. The Court of Appeals reasoned that the difference in the statutory schemes alone could not serve to reconcile the factual contradictions between the plaintiff's statements supporting his claim of total disability with his assertion that he could perform the essential functions of his job as a state trooper. 196 F.3d at 166-67. Accordingly, the Court of Appeals concluded that the plaintiff, who chose to rely solely upon the differences in the statutory schemes, failed to present a sufficient explanation to reconcile his inconsistent statements. Id. at 166.

Although both the Supreme Court and the Court of Appeals for the Third Circuit have recently spoken about the effect of a prior claim for SSDI disability benefits and an ADA claim, neither case compels the result urged by the Penn-Del. In contrast to the situation in Motley, the record is silent as to the representations that Dayoub made in connection with his SSDI claim (other than he was totally disabled with respect to his District Sales Manager job). Thus, this case does not present the type of factual contradictions that were present in Motley.

Moreover, throughout this litigation Dayoub has consistently maintained that he was totally disabled from doing his job as a District Sales Manager. Dayoub has argued that the reasonable accommodation he sought was to fill a vacant position for which he was qualified. His statement that he was totally disabled for purposes of SSDI is therefore not inherently inconsistent with his claim for relief under the ADA or an "apparent about-face concerning the extent of his injuries." Motley, 196 F.3d at 165. Thus, this is not one of those cases in which the earlier SSDI claim genuinely conflicts with a later ADA ...

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