                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1269
GORDON R. JOHNSON,
                                               Plaintiff-Appellant,
                                 v.

EXXONMOBIL CORPORATION,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 02 C 5003—Amy J. St. Eve, Judge.
                          ____________
 ARGUED SEPTEMBER 28, 2005—DECIDED OCTOBER 18, 2005
                   ____________


  Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
  FLAUM, Chief Judge. Gordon Johnson claims that he was
terminated from his job at ExxonMobil Corp. (“Exxon”)
because of his age and because he suffers from epilepsy. He
has therefore filed claims under both the Americans with
Disabilities Act (“ADA”) and the Age Discrimination in
Employment Act (“ADEA”). Johnson has also applied for,
and received, Social Security Disability Insurance (“SSDI”)
benefits. On his application for those benefits, he stated
that he has been unable to work because of his disability,
epilepsy, since the date that he was terminated from Exxon.
Exxon filed a motion for summary judgment, claiming that
Johnson’s SSDI application judicially estopped his claim
2                                               No. 04-1269

that he could have worked “with or without reasonable
accommodation,” an element of his ADA claim. Although
Johnson provided an explanation for the inconsistency
between his SSDI application and his ADA claim, the
district court ruled that this explanation was not sufficient
to overcome Exxon’s summary judgment motion. Immedi-
ately before trial on the ADEA claim was to begin, the court
granted summary judgment, sua sponte, on the ADEA
claim, noting that Johnson’s SSDI application judicially
estopped him from claiming that he “performed to [his]
employer’s legitimate expectations,” which is an element of
a prima facie ADEA claim. Johnson appeals both summary
judgment rulings, claiming that he is not judicially estopped
from bringing either his ADA or his ADEA claim. Johnson
also claims that he did not have an opportunity to respond
to the judicial estoppel arguments with respect to his ADEA
claim; therefore a sua sponte summary judgment ruling was
improper. For the reasons set out below, we affirm the
district court’s summary judgment rulings on both claims.


                     I. Background
   Gordon Johnson was employed at ExxonMobil’s Joliet,
Illinois refinery as an Administrative Line Supervisor for
over 28 years. He was 54 years old and suffered from
epilepsy at the time Exxon fired him.
  Johnson had his first epileptic seizure in 1973. His
condition was severe, and he continued to experience
frequent seizures even after treatment with anti-seizure
medication. His disorder and the medication he took to
treat it affected his judgment, memory, and ability to
concentrate. He was also restricted from driving because of
his seizures. He experienced uncontrollable tremors, and
his medication occasionally made him drowsy and incoher-
ent. Johnson claims that his severe epilepsy makes him
disabled under the ADA.
No. 04-1269                                                3

  Johnson claims that during his employment, he was
consistently harassed by his supervisor for his disability
and his job responsibilities were diverted to younger
employees. Johnson further claims that his supervisor
refused to send him to the training necessary to perform his
job duties and to advance within the work group, sending
younger employees instead.
  On March 11, 2002, Johnson complained to Exxon’s
Human Resources Department that the company was
discriminating against him due to his age and disability. On
March 14, Exxon representatives presented Johnson with
a Notice of Resignation and requested that Johnson volun-
tarily resign from his employment. When he refused to
resign voluntarily, Exxon terminated him. At the time he
was terminated, he was one-and-a-half years away from
retirement.
  Johnson claims that his termination was the result of
discrimination. However, Exxon claims that it was a re-
sult of Johnson’s frequent personal use of a corporate credit
card for personal purchases. Johnson claims that he was
never told that he could not use the credit card for personal
purchases and that he paid the balance with personal
funds. Exxon claims that Johnson attended a business
practice review training course, during which he was told
not to use the card for personal purchases. Exxon also
claims that Johnson signed a “compliance statement”
indicating that he understood the policies described during
the course. Exxon further claims that Johnson had been
approached about the credit card problem on two occasions
before he was finally terminated on March 14.
  Johnson claims that younger, non-disabled employees
were not terminated for using the corporate credit card for
personal purchases. He lists several employees who all
parties admit violated the policy and who were not termi-
nated from their positions. He filed a discrimination suit in
4                                                 No. 04-1269

July 2002.
  In March 2003, Johnson applied for SSDI benefits. On his
application, Johnson stated that he became “unable to work
because of [his] disabling condition” on March 14, 2002, the
same day he was terminated from Exxon. He signed this
application, swearing that the information contained in it
was accurate. The Social Security Administration denied
Johnson’s application.
   Exxon filed a motion for summary judgment on the ADA
claim, arguing that Johnson’s SSDI application judicially
estopped him from claiming that he was able to perform his
job “with or without reasonable accommodation” as of the
date of his termination. Johnson argued that he could
explain the inconsistency. He explained to the court that his
condition worsened shortly after he was fired, rendering
him unable to work, that the application was completed a
year after his total disability, and that Johnson had not
filled out the application himself. The district court initially
denied Exxon’s motion in September 2002, on the ground
that, at the time, Johnson had not received any SSDI
benefits.
  In October 2003, the Social Security Administration
reversed its decision to deny Johnson benefits. It approved
Johnson’s application for SSDI benefits retroactive to his
last date of employment with Exxon.
  In November 2003, the district court granted a motion for
partial reconsideration of Exxon’s motion for summary
judgment on the ADA claim, based on evidence that John-
son was now receiving SSDI benefits. Exxon again argued
judicial estoppel based on the application. Johnson repeated
his explanation for the inconsistency. The district court
granted summary judgment on the ADA claim, holding that
the plaintiff did not adequately explain his inconsistent
statements.
No. 04-1269                                                5

  On Jan. 8, 2004, Exxon filed an additional motion for
summary judgment arguing that Johnson did not have the
evidence necessary to recover any damages at trial under
the ADEA and that therefore it was futile to proceed any
further. The district court denied the motion.
  On January 23, the judge held a jury instruction confer-
ence, as the trial on the ADEA claim was set for January
26. During this conference, Exxon again argued that
Johnson could prove no damages and that the court
should grant summary judgment. The judge requested that
Exxon submit additional authority with respect to the
dismissal of the ADEA claim. Exxon complied, submitting
a letter to the court late in the day on January 23. In that
letter, Exxon argued that Johnson could not establish a
prima facie ADEA claim because of the statements made in
his SSDI application. In that application, he claimed that
he was unable to work as of the date he was terminated,
which contradicted an essential element of his ADEA
claim—that he could perform his job at the level reasonably
expected of him on that date.
  On January 26, the trial date for the ADEA claim, before
the jury selection began, the district court asked Johnson’s
attorney, “What evidence are you going to put on to ex-
plain away the inconsistency between the statement made
to the Social Security Administration and his ability to
work . . . and perform the functions of his job?” Johnson’s
attorney replied that Johnson would testify that the date on
the application was an error, given that he worked a full
day on March 14, 2002. Johnson’s attorney further told the
court that Johnson would testify that he did not file the
application until a year after his disability became total,
which could explain his inability to recall the exact date of
his disability.
  The district court then granted summary judgment on the
grounds that the proffered explanation was not sufficient to
6                                                No. 04-1269

reconcile the two claims and Johnson had been given ample
opportunity to argue the issue in the earlier response to
Exxon’s motion for partial reconsideration. The district
court said that it would be “an exercise in futility” to
continue with the trial when it would only end in a directed
verdict for the defendant at the close of plaintiff’s evidence.
Moreover, the court stated that had Exxon moved for
summary judgment at the time it filed for judgment on the
ADA claim, the court would have granted the motion at that
time. The court then granted summary judgment to Exxon
on the ground that the SSDI application judicially estopped
Johnson from proving an element of his ADEA claim.
  Johnson timely appealed both summary judgment
rulings.


                      II. Discussion
A. The ADA claim
  To establish a prima facie case under the ADA, a plaintiff
must show that, “with or without reasonable accommoda-
tion,” he can “perform the essential functions of the employ-
ment position that [he] holds.” 42 U.S.C. § 12111(8). John-
son’s SSDI application, which claimed that he was unable
to work because of his disability as of the date of his
termination, would appear to directly contradict this
element of a valid ADA claim. Exxon claims that Johnson’s
ADA claim is therefore judicially estopped.
  The doctrine of judicial estoppel prevents a party from
adopting a position in a legal proceeding contrary to a
position successfully argued in an earlier legal proceeding.
Judicial estoppel is “an equitable concept providing that
a party who prevails on one ground in a lawsuit may not . . .
in another lawsuit repudiate that ground.” United States v.
Hook, 195 F.3d 299, 306 (7th Cir. 1999) (quoting Ogden
Martin Systems of Indianapolis v. Whiting Corp., 179 F.3d
No. 04-1269                                                  7

523, 526 (7th Cir. 1999) (internal quotation marks omit-
ted)). The purpose of this doctrine is to protect the integrity
of the judicial process. New Hampshire v. Maine, 532 U.S.
742, 749 (2001).
  The Supreme Court has found that applicants’ claims
of being disabled on SSDI applications do not automatically
judicially estop ADA claims. In Cleveland v. Policy Manage-
ment Systems Corp., 526 U.S. 795 (1999), the Court held
that, “[D]espite the appearance of conflict that arises from
the language of the two statutes, the two claims do not
inherently conflict to the point where courts should apply a
special negative presumption. . . . That is because there are
too many situations in which an SSDI claim and an ADA
claim can comfortably exist side by side.” Cleveland, 526
U.S. at 802-03. This is so, the Court reasoned, because the
ADA allows for “reasonable accommodation” of the disabil-
ity, while the Social Security Administration does not when
determining SSDI eligibility. Id. at 803. As this Court noted
in Feldman v. American Memorial Life Insurance Co., 196
F.3d 783 (7th Cir. 1999), “Sufficient divergence exists
between the definitions of ‘disability’ under the ADA and
SSDI that, in some circumstances, an individual can claim
truthfully both that she is able ‘to engage in any substantial
gainful activity’ under the SSDI but also a ‘qualified
individual with a disability’ under the ADA. Feldman, 196
F.3d at 790.
  Such is not always the case, however. The Court noted
in Cleveland that “in some cases an earlier SSDI claim may
turn out genuinely to conflict with an ADA claim.” Cleve-
land, 526 U.S. at 805. The Court further stated:
    Summary judgment for a defendant is appropriate
    when a plaintiff “fails to make a sufficient showing to
    establish the existence of an element essential to [her]
    case on which [she] will bear the burden of proof at
    trial.” . . . And a plaintiff’s sworn assertion in an
    application for disability benefits that she is, for exam-
8                                                No. 04-1269

    ple, “unable to work” will appear to negate an essential
    element of her ADA case[—that she can perform the
    essential functions of her job]—at least if she does not
    offer a sufficient explanation. For that reason, we hold
    that an ADA plaintiff cannot simply ignore the appar-
    ent contradiction that arises out of the earlier SSDI
    total disability claim. Rather, she must proffer a
    sufficient explanation.
Id. at 805-06. (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)).
  The Court defined what constitutes a “sufficient explana-
tion” for the apparent contradiction:
    To defeat summary judgment, [an] explanation must be
    sufficient to warrant a reasonable juror’s conclud-
    ing that, assuming the truth of, or the plaintiff’s good-
    faith belief in, the earlier statement, the plaintiff could
    nonetheless “perform the essential functions” of her job,
    with or without “reasonable accommodation.”
Id. at 807.
  Johnson’s claim does not pass this test. Unlike Cleveland,
where the plaintiff’s argued that she made consistent
statements in her ADA claim and the SSDI application,
Johnson merely argues that he was mistaken in his SSDI
application.1 As this court has noted, Cleveland does not
stand for the proposition that defendants should be allowed
to explain why they gave false statements on their SSDI
applications, which is essentially what Johnson seeks to do
here. See Opsteen v. Keller Structures, Inc., 408 F.3d 390,
392 (7th Cir. 2005) (“[C]ontradictions are unacceptable: a


1
  It is also noteworthy that while Johnson has argued to this
Court that his ADA claim should not be estopped by an innocent
mistake on his SSDI application, he has presented no evidence
that he has taken any steps to correct the mistake and relin-
quish the benefits that he received as a result of it.
No. 04-1269                                                9

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 my be
rejected without further inquiry.”).
  The district court’s decision to grant summary judgment
to the defendants on the ADA claim is therefore affirmed.


B. The ADEA claim
  The SSDI application also created problems for Johnson’s
ADEA claim. In order to establish a prima facie case under
the ADEA utilizing the indirect burden shifting method, a
plaintiff must show that he is performing to the employer’s
legitimate expectations. Fuka v. Thomson Consumer Elecs.,
82 F.3d 1397, 1404 (7th Cir. 1996) (citing Collier v. Budd
Co., 66 F.3d 886, 889 (7th Cir. 1995) and Roper v. Peabody
Coal Co., 47 F.3d 925, 926 (7th Cir. 1995)). This standard is
even harder to meet than that of the ADA, which requires
the employer to provide “reasonable accommodation.”
Johnson’s statement on his SSDI application that he was
unable to work facially contradicted any claim that he was
performing to his employer’s legitimate expectations.
  Under ordinary circumstances, that alone would be
enough to affirm the district court’s summary judgment
ruling. However, in this case, Johnson claims that the
district court erred by granting summary judgment sua
sponte. In order to grant summary judgment sua sponte, the
court must give the losing party reasonable notice and a fair
opportunity to present evidence. Celotex Corp., 477 U.S. at
326; see also Caroline Casualty Ins. Co. v. E.C. Trucking,
396 F.3d 837, 842 (7th Cir. 2005) (“Although it is not
favored, a district court may enter judgment sua sponte so
long as the losing party is given notice and an opportunity
to be heard on the underlying issues.” (citing Jones v. Union
Pac. R.R. Co., 302 F.3d 735, 740 (7th Cir. 2002))).
10                                               No. 04-1269

  Johnson argues that Exxon did not raise the judicial
estoppel issue with respect to his ADEA claim until its
letter of additional authority, which was not submitted to
the court until the evening of Friday, Jan. 23, 2004. Since
summary judgment was granted Monday morning, Jan. 26,
2004, Johnson claims that he was not given adequate notice
and opportunity to respond, which makes the district court’s
sua sponte judgment improper.
  This Court does not accept Johnson’s argument. First,
Johnson had ample opportunity to be heard. The issue in
the ADEA claim was similar to the one fully argued with
respect to the ADA claim: namely, whether the SSDI
application judicially estopped Johnson from claiming that
he was able to perform work at the time of his termination.
Johnson had every incentive, as the district court pointed
out before granting summary judgment, to explain any
inconsistency between his SSDI application when respond-
ing to both the original motion for summary judgment on
the ADA claim and the November motion for partial
reconsideration. He had an additional opportunity immedi-
ately before the court granted summary judgment when the
court specifically asked what evidence he intended to
present that day at trial to explain the inconsistency
between his ADEA claim and his SSDI application.
  Plaintiff also had sufficient notice. Because the stand-
ard for an ADEA claim is more exacting than the standard
for the ADA claim, as the ADEA does not allow for “reason-
able accommodation,” plaintiff should have been on notice
that the issue would become relevant at trial. Moreover,
plaintiff did not object at the time of the ruling that he did
not have sufficient notice that his ADEA claim was in peril.
  Because the plaintiff had ample notice and opportunity to
be heard on the judicial estoppel issue, the district court’s
sua sponte ruling was appropriate. We affirm the district
court’s judgment for Exxon on the ADEA claim.
No. 04-1269                                             11

                    III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
summary judgment rulings on both the ADA claim and
the ADEA claim.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—10-18-05
