                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3856

P ATRICK L. B UTLER,
                                                  Plaintiff-Appellant,
                                  v.

V ILLAGE OF R OUND L AKE P OLICE D EPARTMENT,

                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 06 C 3366—Charles P. Kocoras, Judge.



   A RGUED S EPTEMBER 17, 2009—D ECIDED O CTOBER 27, 2009




  Before P OSNER, M ANION, and E VANS, Circuit Judges.
   E VANS, Circuit Judge. Patrick Butler, who began working
as a police officer in the little village of Round Lake
(Illinois) in 1997, appeals from a grant of summary judg-
ment dismissing the case he brought against the village
in 2006 under the Americans With Disabilities Act
(ADA). The basis for the dismissal was judicial estoppel.
We begin with the facts.
2                                                No. 08-3856

  The village of Round Lake, a short drive south from
Lake Geneva, Wisconsin, is home to around 8,000 people.
Butler joined its police force in 1997 and was promoted to
sergeant in 2002. As a sergeant, he performed regular
patrol activities and supervised officers on duty. He was
also in charge of field training for new officers. Butler
worked the night shift for six of his seven years of service
on the force.
  In late 2003, Butler’s health took a turn for the worse.
He had breathing problems when walking up a flight of
stairs or jogging 50 feet. He wrote to Charles Foy, the
village police chief, with concerns about his “rapidly
deteriorating” health, citing his blood pressure, night
blindness, and feelings of fatigue and illness. He wanted
to know what the department planned to do with his
hours as he was considering whether or not to buy a Snap-
On franchise.1 The Snap-On opportunity passed him by,
however, and he continued working for Round Lake.
From January 2004 on, Butler repeatedly requested the
day shift from his supervisors and Chief Foy, but the
department wanted a sergeant on each shift, and other
sergeants were assigned to days.
  By May 2004, Butler was struggling; he couldn’t even
walk 50 feet at a time, and it hurt simply to breathe. At
that time he was diagnosed with COPD (chronic obstruc-
tive pulmonary disease, an incurable lung condition that


1
  Based in Kenosha, Wisconsin, it was ranked as the number one
tool franchise in 2009 by Entrepreneur Magazine. http://www.
snapon.com (last visited October 5, 2009).
No. 08-3856                                                 3

makes breathing very difficult) by Dr. Min Lin, who had
been treating him for related symptoms since 1995.2
Butler never returned to work after the diagnosis. In
June, Dr. Lin, who was Butler’s personal physician, in-
formed the department that Butler could return to “light
duty, no running, no fighting, until further notice,” but the
department responded that no light duty was available.
At that time, Round Lake employed 24 to 26 police
officers, including four sergeants with Butler being
second in seniority. Typically, light duty was only
assigned to officers with temporary job-related injuries.
Chief Foy asked Butler to book an appointment with
Dr. Peter Allegretti as Dr. Lin hadn’t provided a full
release. Dr. Allegretti reported that Butler could return
to work but with the permanent restriction of day shifts
only due to his lung disease. In response, Chief Foy wrote
to Butler that he could not return to work until he had
clearance to work any shift assigned by the department. A
couple of days later, Butler filed an application for a
disability pension.
  To adjudicate his request, the Round Lake Police
Pension Board held a hearing where Butler testified that
his duties as sergeant included “patrol,” which involved


2
  COPD is the fourth-leading cause of death in the United
States. It’s a disease which gets worse over time. Severe COPD
may prevent a person from doing even basic activities like
walking. COPD has no cure, and doctors don’t know how
to reverse the damage it does to airways and lungs.
http://www.nhlbi.nih.gov/health/dci/Diseases/Copd/Copd_
WhatIs.html (last visited October 5, 2009).
4                                                No. 08-3856

all the typical activities of a police officer. He said his
pulmonary condition made it impossible to do the
required duties, such as chasing a suspect or wrestling
with an unruly one. Butler supported his application
with certificates of disability from three physicians,
including Dr. Allegretti, who noted that Butler is “perma-
nently disabled from police service, but may perform
duties on a restricted physical basis as follows: No
rotating shifts, no strenuous activity, no wrestling, no
fighting, no running, no constant walking greater than
4 blocks, no carrying more then [sic] 20 lbs. May do sit
down job.” After Butler presented his testimony and
disability certificates, the pension board found that he
qualified as disabled and awarded him benefits. While
continuing to collect his pension, Butler filed this lawsuit.
  To succeed on an ADA claim, a plaintiff must show that,
“with or without reasonable accommodation,” he can
“perform the essential functions” of his job. 42 U.S.C.
§ 12111(8). But accepting Butler’s sworn testimony before
the pension board as true, we cannot see how he could
perform essential police functions—with or without
accommodations. We agree with the district court that
under the principle of judicial estoppel, Butler’s claim
must fail.
  Judicial estoppel provides that a party who prevails on
one ground in a prior proceeding cannot turn around and
deny that ground in a subsequent one. Ogden Martin Sys.
of Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523, 526 (7th
Cir. 1999). It is an equitable concept designed to protect
the integrity of the judicial process and “to prevent liti-
No. 08-3856                                                 5

gants from ‘playing fast and loose with the courts.’ ” In re
Cassidy, 892 F.2d 637, 641 (7th Cir. 1990) (citing Scarano
v. Central R. Co., 203 F.2d 510, 513 (3d Cir. 1953)). Its pur-
pose is to prevent a litigant from prevailing “twice on
opposite theories.” Levinson v. United States, 969 F.2d 260,
264 (7th Cir. 1992). In order to secure disability benefits,
Butler said he was unable to perform basic police duties.
Now, in order to claim damages, he says he is, or at least
was, able to perform those duties. This is just the kind
of about-face judicial estoppel seeks to prevent.
  As an initial matter, Butler argues that Round Lake
placed him in a “Catch-22 position” by mandating that
he obtain a disability pension, which would then
preclude him from claiming damages under the ADA.
However, while Round Lake officials encouraged Butler
to apply for a pension if he could not return to work,
there is no evidence that they forced him to do so.
Hence, there was no catch. Butler could have chosen to
sue before getting a pension, but clearly the village was
not going to encourage him to do that.
  Claiming disability benefits and asserting ADA claims
are not always mutually exclusive, but a “plaintiff’s
sworn assertion in an application for disability benefits
that she is, for example, ‘unable to work’ will appear to
negate an essential element of her ADA case—at least if
she does not offer a sufficient explanation.” Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). To be
sufficient, an explanation must “warrant a reasonable
juror’s concluding that, assuming the truth of, or the
plaintiff’s good-faith belief in, the earlier statement, the
6                                                 No. 08-3856

plaintiff could nonetheless ‘perform the essential func-
tions’ of her job, with, or without ‘reasonable accommoda-
tion.’ ” Id. at 807. Even viewing the record in the light most
favorable to Butler, as we must, he has provided no
satisfactory explanation for his inconsistency.
   Cleveland and much of its progeny deal with Social
Security Disability claims, whereas this case involves
Illinois police pension benefits. However, the principles
are pretty much the same. If anything, the estoppel princi-
ple applies more readily here because the pension
board procedure governed by the Illinois Pension Code
has nothing “equivalent to the Social Security listings
that extend benefits automatically to people with
specified conditions, whether or not they can work.”
Opsteen v. Keller Structures, Inc., 408 F.3d 390, 392 (7th Cir.
2005) (contradictions between applications for ERISA
benefits and ADA claims are no more acceptable than
those between SSDI applications and ADA claims).
Instead of automatic grants, the Round Lake Police
Pension Board makes an individualized inquiry to deter-
mine whether the officer is disabled.
  Butler claims that his earlier statement—the one at the
pension hearing—is consistent with his ADA claim
because it refers to then-current abilities as opposed to
earlier time frames when he was supposedly able to
perform his job. We have held that the passage of time
and a concurrent change in a disability can explain an
inconsistency between SSDI and ADA status. Feldman v.
American Mem’l Life Ins. Co., 196 F.3d 783, 791 (7th Cir.
1999). However, Butler fails to offer any evidence that he
could have performed the essential functions of police
No. 08-3856                                                7

work during those earlier time frames, with or without
accommodations. Butler complained of difficulty breathing
from the fall of 2003 on, and by the time he stopped
reporting to work at the end of May 2004—nearly a year
before the pension board hearing—COPD affected him
so badly that he could barely walk a few blocks or climb
stairs. While Round Lake may not be a hotbed of criminal
activity, it would be foolish to put an officer on duty
who cannot walk more than four blocks at a time or
handle a suspect resisting arrest. There is simply no
genuine issue of material fact here to decide.
  The same is true of Butler’s reasonable accommodation
argument. Butler believes his pension and ADA claims
can coexist because the pension board did not consider
whether reasonable accommodation would have allowed
him to continue working. It is true accommodations
were not discussed, and the Court in Cleveland found
that crucial to the plaintiff’s claim. But here, no accom-
modation would have sufficed. Simply switching to the
day shift would not have changed the fact that—as Butler
testified—he could not perform the duties of a Round
Lake police officer.
  Butler now tries to tell us that the duties he talked about
in the hearing weren’t actually the duties required of him.
He thinks the inconsistency between his pension
hearing testimony and his ADA claim can be explained
because, as he puts it, “at issue in the pension hearing
were job functions that were not actually included in the
job description.” We cannot believe, however, that the
Round Lake Police Pension Board would grant disability
benefits based on whether Butler could perform duties
8                                               No. 08-3856

he was not even required to do. In the same vein, Butler
maintains that running and fighting are not part of police
policy and are not “essential functions” for purposes of
the ADA. He makes a lot of noise about whether the
duties of a “street cop” or “command officer” could differ
from those of a “police officer,” “sergeant,” or “patrol
officer” as these terms have been used interchangeably
at times during the pension and litigation processes.
But according to the department’s job description, a
sergeant’s duties include “Field Patrol Activities,” such as
“taking direct action against crime and traffic problems.”
And apart from any policy, the idea that a police
officer need not be able to run or climb a flight of stairs
without getting severely winded is a bit hard to swallow.
  When it comes down to it, quibbling about what it
means to be a “street cop” versus a “police officer” versus
a “sergeant” distracts from the central point. As we
have said, “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.” Opsteen, 408 F.3d at 392. Round Lake needs
police officers that can protect the community, and Butler
proved that he could not meet those expectations in
order to get his pension. He cannot turn around and say,
“But I really can!” for purposes of this lawsuit.
  Accordingly, we A FFIRM the district court’s grant of
summary judgment.



                          10-27-09
