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January 30, 2004.


The opinion of the court was delivered by: AMY J. ST. EVE, District Judge


Plaintiff Gordon Johnson sued Defendant Exxon Mobil Corporation ("Exxon"), alleging that Exxon violated several anti-discrimination laws when it discharged him. Johnson's sole remaining claim arises under the Age Discrimination in Employment Act ("ADEA").*fn1 For the reasons stated herein, the Court sua sponte grants summary judgment in favor of Exxon as to Johnson's ADEA claim.


  Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Page 2 Attica, 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S, Ct. 2505, 2510 (1986)). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A party will successfully oppose summary judgment only if it presents "definite, competent evidence to rebut the motion." Equal Employment Opportunity Comm'n v. Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). The Court "considers the evidentiary record in the light most favorable to the non-moving party, and draws all reasonable inferences in his favor." Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002).

  A district court may sua sponte grant summary judgment where there are no genuine issues of material fact and where the losing party has been given notice and an opportunity to come forward with its evidence. Osler Inst., Inc. v. Forde, 333 F.3d 832, 836 (7th Cir. 2003); see also Celotex, 477 U.S. at 326, 106 S.Ct. at 2554. Summary judgment should not take a party by surprise. See Choudhry v. Jenkins, 559 F.2d 1085, 1089 (7th Cir. 1977); Goldstein v. Fid. & Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996) ("The party against whom summary judgment is entered must have notice that the court is considering dropping the ax on [it] before it actually falls.").


  I. Undisputed Facts

  Briefly the facts are these.*fn2 Johnson, a fifty-four year old male, worked at Exxon's Joliet Refinery for twenty-eight years. (R. 60-1, Def.'s Statement of Material Facts ¶ 1.) Johnson Page 3 suffers from epilepsy, which affects his judgment, memory and ability to concentrate. (R. 64-1, Pl.'s Statement of Add'l Facts ¶¶ 15-16.) Exxon terminated Johnson on March 14, 2002 after discovering that Johnson used his corporate American Express credit card for his personal use. (Id. ¶¶ 13, 20.) Johnson filed suit against Exxon on July 15, 2002, alleging that Exxon discriminated against him in violation of Title VII, the ADA, and the ADEA.

  II. Johnson's Representations To The Social Security Administration

  On March 5, 2003, approximately one year after Exxon terminated him, Johnson filed an application for Social Security Disability Insurance benefits ("SSDI Application"). In his SSDI Application, Johnson stated under oath that he became unable to work because of his epilepsy on March 14, 2002, the same date Exxon terminated him. Johnson signed his SSDI Application and "affirm[ed] that all information I have given in this document is true."*fn3 (SSDI Application at 4.)

  The Social Security Administration ("SSA") initially rejected Johnson's application for SSDI benefits. Johnson filed a Request for Reconsideration, and on October 22, 2003, the SSA reversed its initial determination and awarded Johnson benefits retroactively to March 14, 2002, the day that Exxon terminated him.

  III. The Parties' Submissions

  Exxon filed a motion for summary judgment on June 8, 2003. In its reply brief, Exxon argued that Johnson was judicially estopped from asserting his ADA claim under Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S, Ct. 1597 (1999). Specifically, Exxon Page 4 argued that Johnson's statements in his SSDI Application were fundamentally inconsistent with his ADA claim.*fn4 (R. 73-1, Def.'s Reply in Supp. of its Mot. for Summ. J. at 13-14.) The Court directed Johnson to file a sur-reply addressing the issue of whether Johnson's ADA claim was barred by his SSDI Application. (R. 76-1, Minute Order.) Johnson responded first that Cleveland did not apply because Johnson did not actually receive SSDI benefits. (R. 77-1, Pl.'s Sur-Reply to Def.'s Mot. for Summ. J. at 3.) He further contended that his health condition worsened after his termination and that he did not apply for SSDI benefits until approximately one year after his termination. (Id.) In conjunction with his sur-reply, Johnson filed an affidavit in which he stated that "As a result of my poor health condition, I became physically incapacitated and could not seek substitute employment. Consequently, on March 5, 2003, approximately one year after my discharge, I filed an application for disability insurance benefits. In the application, I stated that I was unable to work since my last date of employment with Exxon/Mobil." (R. 77-1, Ex. A, Pl.'s Aff. ¶ 4.) The Court denied summary judgment as to Johnson's ADA claim because Johnson had not actually received SSDI benefits.*fn5 (R. 82-1, Minute Order.) Accordingly, the Court did not need to address whether it accepted Johnson's proffered explanation. (See R. 133-1, Minute Order ¶ 6.)

  Exxon filed a motion for reconsideration after learning that the SSA reversed its initial determination and awarded Johnson SSDI benefits retroactively to March 14, 2002, the date of Page 5 his termination. Exxon argued that Johnson was estopped from bringing his ADA claim*fn6 because he actually received and accepted SSDI benefits that were awarded to him on the basis of his representations to the SSA. (R. 92-1, Def.'s Mot. for Partial Reconsideration of their Mot. for Summ. J.) In his response, Johnson reiterated his earlier explanation, stating that his "health condition worsened after his termination. Based on his then existing health condition, Johnson filed an SSDI claim on March 5, 2003. Johnson's statements are accurate when considered in the time period in which they were made." (R. 130-1, Pl.'s Resp. to Def.'s Mot. for Partial Reconsideration at 8.) The Court noted that Johnson represented to the SSA that he was unable to work as of the date of his termination, and that the SSA awarded him SSDI benefits — ...

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