Jackson v. County of Los Angeles

thereafter, Jackson filed a claim for workers’ compensation benefits, alleging injuries to his back, shoulder, and psyche. While the claim was pending, Jackson continued to perform his job satisfactorily. He did not miss any work because of the injury. Nor did he request or require any accommodation to perform his job.

In connection with the workers’ compensation claim, Jackson’s attorney selected two physicians, Drs. Richard Low and Jack Kroeger, to evaluate his injuries.^[1] In a report dated April 16, 1992, Dr. Low found that Jackson suffered from several work-related health problems, including hypertension. Dr. Low stated: “Mr. Jackson is labor disabled based solely upon the condition of worsening hypertension. Furthermore, this condition is now permanent and stationary for purposes of rating.” Under the heading, “Work Restrictions,” Dr. Low advised: “By virtue of the worsening hypertension, and based solely on this condition, the patient is restricted to working in an environment free of emotional stress and strain, and no heavy work as fatigue tends to aggravate these findings and set him up for life threatening complications.”

On September 10, 1992, Dr. Kroeger reported: “The subjective factors of disability are occasional slight to moderate low back pain when getting out of bed in the morning. [H . . . The objective factors of disability include restriction of low back motion with pain on terminal range, tenderness in the area and 50% restricted squatting.” Under the heading, “Work Restrictions,” Dr. Kroeger stated: “Mr. Jackson is to avoid quick back movements and strains, including heavy lifting, repeated bending and stooping.” Under the heading, “Rehabilitation,” Dr. Kroeger wrote: “Mr. Jackson is a Qualified Injured Worker. He is unable to return to his usual occupation as a safety police [officer]. He is eligible for vocational retraining and rehabilitation.”

At the County’s request, Jackson was also evaluated by Randolph Noble, M.D. In a February 1, 1993, report, Dr. Noble concluded: “Mr. Jackson is presently working full time and there does not appear to be an internal medicine disability precluding him from his usual and customary job activities. ['][] . . . [I]t is my opinion that Mr. Jackson could perform his usual and customary occupational duties without restriction. Work preclusions are not indicated.”

In early April 1993, Jackson’s workers’ compensation claim was resolved by way of the parties’ “Stipulations with Request for Award,” which they filed with the Workers’ Compensation Appeals Board. The stipulations

recited that Jackson’s injuries had caused “permanent disability” of 62’A percent “for which indemnity is payable ... in the sum of $48,359.00 . . . .” The stipulations further stated: “The parties mutually agree that Applicant is under a work restriction as follows: HD a) no heavy lifting, repetitive bending and stooping and quick back movements and strains (Dr. Kroeger 9/10/92). [U b) work environment free from emotional stress and strain and no heavy work (Dr. Low 4/16/92).” The stipulations were signed by Jackson, his attorney, and a representative of the County.^[2] On April 8, 1993, a workers’ compensation judge issued an award based on the stipulations. The award expressly incorporated the work restrictions set forth in the stipulations.

By letter dated April 19, 1993, the County’s workers’ compensation administrator informed Adele Harris, who worked in the County’s “retumto-work” unit, of Jackson’s work restrictions. Subsequently, Jackson’s superiors decided that his work restriction mandating a stress-free environment precluded him from continuing to serve as a safety police officer and that there were no accommodations that would permit him to continue in that job.

On April 23, 1993, Jackson’s supervisor told him that he was being relieved of his duties as a safety police officer because there were no positions that were free from emotional stress. In an effort to accommodate Jackson’s work restrictions, the County attempted to find another position for him at the Medical Center or in a different safety police division within the department of health services. The County also provided Jackson with vocational rehabilitation services through Anami Rehabilitation Services, Inc. However, Jackson withdrew from the rehabilitation program after a few weeks. The only position he wanted or would consider was that of safety police officer III. Beginning on or about April 23, 1993, Jackson was placed on a medical leave of absence. At that time, the County still considered him to be an employee.

In October 1993, Jackson filed a charge with the United States Equal Employment Opportunity Commission (EEOC), alleging that the County had violated the ADA. In July 1994, he received a right-to-sue letter from the United States Department of Justice authorizing him to file a civil suit under the ADA within 90 days. The department did not make any determination regarding the merits of Jackson’s claim.

In October 1994, Jackson filed this action, alleging that the County had violated the ADA by failing to accommodate his disability and by terminating his employment on April 23, 1993. Jackson also alleged that the County had treated him as if he had a disability when in fact he did not.

In May 1996, Jackson filed a motion for summary adjudication, seeking to establish the County’s liability under the ADA as a matter of law. For its part, the County moved for summary judgment, arguing that it had not unlawfully discriminated against Jackson. On July 24, 1996, the trial court continued the hearing on both motions and instructed the parties to file supplemental memoranda discussing the effect, if any, of the workers’ compensation award on Jackson’s lawsuit. The parties complied. After the presentation of oral argument, the trial court granted summary judgment for the County. The trial court concluded that, under the doctrine of judicial estoppel, Jackson’s workers’ compensation award precluded his ADA claim. Judgment was entered accordingly.^[3] Jackson filed a timely appeal.^[4]

Discussion

The County contends that the work restrictions imposed on Jackson by the workers’ compensation award rendered him unqualified for employment and that, as a result, the County did not unlawfully discriminate against him because of a disability. We agree.

Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

“A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action], . . . Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. ... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. . . . We must determine whether the facts as

shown by the parties give rise to a triable issue of material fact. ... In making this determination, the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553 , 1558 [ 28 Cal.Rptr.2d 70 ], citations omitted; see also Code Civ. Proc., § 437c, subd. (o)(2).) We accept as undisputed facts only those portions of the moving party’s evidence that are not contradicted by the opposing party’s evidence. (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52 , 56 [ 129 Cal.Rptr. 32 ].) In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. (See Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174 , 1179, fh. 3 [ 214 Cal.Rptr. 746 ]; Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176 , 179 [ 229 Cal.Rptr. 612 ].)

A. The ADA

The ADA makes it unlawful for an employer to “discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” ( 42 U.S.C. § 12112 (a).) A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (Id., § 12111(8).) “Disability” means (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment. (Id., § 12102(2).)^[5] “Reasonable accommodation” includes “[modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.” ( 29 C.F.R. § 1630.2 (o)(ii) (1997).)^[6] “Essential functions” are “the fundamental job duties of the employment position the individual with a disability holds or desires. [They]

This is not surprising since “[throughout its history, judicial estoppel has been a confusing . . . doctrine.” (You Can’t Have It Both Ways, supra, 30 Loyola L.A. L.Rev. at p. 353.) One early decision commented that “[t]his form of estoppel is of vague application . . . , and it is not our purpose to fix its boundaries.” (Associated Creditors’ Agency v. Wong (1963) 216 Cal.App.2d 61 , 67 [ 30 Cal.Rptr. 705 ].) Another court has stated that “[t]he proper application of this doctrine is at best uncertain.” (Ng v. Hudson (1977) 75 Cal.App.3d 250 , 258 [ 142 Cal.Rptr. 69 ].) Yet, it has long been settled that “[o]ne to whom two inconsistent courses of action are open and who elects to pursue one of them is afterward precluded from pursuing the other.” (Schulze v. Schulze (1953) 121 Cal.App.2d 75 , 83 [ 262 P.2d 646 ].) Further, it is well established that, for the doctrine to apply, the seemingly conflicting positions “must be clearly inconsistent so hat one necessarily excludes the other.” (Coleman v. Southern Pacific Co. (1956) 141 Cal.App.2d 121 , 128 [ 296 P.2d 386 ].) Moreover, he doctrine “cannot be invoked where the position first assumed was taken as a result of ignorance or mistake.” (Ibid.)^[7]

In understanding the doctrine of judicial estoppel, it is helpful to distinguish it from other forms of estoppel. “The distinction between collateral estoppel and judicial estoppel is fairly easy to make; accordingly, courts seldom confuse these two doctrines. Collateral estoppel bars a party from relitigating an issue of ultimate fact that a court already has adjudicated. It deals with the finality of judgment on factual matters that were fully considered and decided. Judicial estoppel, on the other hand, prevents inconsistent positions whether or not they have been he subject of a final judgment. . . . Collateral estoppel deprives a party of the right to relitigate an issue. The rationale is to conserve judicial resources by preventing repetitive litigation. In contrast, judicial estoppel deprives a party only of the right to assert a particular position. . . . Judicial estoppel is designed to maintain the purity and integrity of the judicial process by preventing inconsistent positions from being asserted.” (Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel (1986) 80 Nw. U. L.Rev. 1244 ,1247-1248, fns. omitted (hereafter Precluding Inconsistent Statements);

accord, Teledyne Industries, Inc. v. N.L.R.B. (6th Cir. 1990) 911 F.2d 1214 , 1219-1220.)

Judicial estoppel also differs from equitable estoppel. “A party may invoke equitable estoppel to prevent his opponent from changing positions if (1) he was an adverse party in the prior proceeding; (2) he detrimentally relied upon his opponent’s prior position; and (3) he would now be prejudiced if a court permitted his opponent to change positions. Equitable estoppel ‘focuses on the relationship between the parties,’ and is designed to protect litigants from injury caused by ‘less than scrupulous opponents.’ By contrast, judicial estoppel focuses on ‘the relationship between the litigant and the judicial system,’ and is designed ‘to protect the integrity of the judicial process.’ [^Q ... By definition, equitable estoppel requires privity, reliance, and prejudice because the doctrine concentrates on the relationship between the parties to a specific case. Conversely, none of these elements is or should be required under the judicial estoppel doctrine. . . . The gravamen of judicial estoppel is not privity, reliance, or prejudice. Rather, it is the intentional assertion of an inconsistent position that perverts the judicial machinery.” (Precluding Inconsistent Statements, supra, 80 Nw. U. L.Rev. at pp. 1248-1249, fns. omitted; accord, You Can’t Have It Both Ways, supra, 30 Loyola L.A. L.Rev. at pp. 328-332; Ziegler, Judicial Estoppel: The Doctrine of Preclusion of Inconsistent Positions, 11 Inside Litigation No. 3 (Mar. 1997) p. 15 (hereafter Ziegler); Billmeyer v. Plaza Bank of Commerce, supra, 42 Cal.App.4th at p. 1092; Teledyne Industries, Inc. v. N.L.R.B., supra, 911 F.2d at pp. 1219-1220.)

In accordance with the purpose of judicial estoppel, we conclude that the doctrine should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (See Coleman v. Southern Pacific Co., supra, 141 Cal.App.2d at p. 128; Rissetto v. Plumbers and Steamfitters Local 343, supra, 94 F.3d at pp. 604-605; Hindman v. Greenville Hosp. Sys. (D.S.C. 1996) 947 F.Supp. 215 , 221; Consolidated Stores Inc. v. Gargis (Ala.Civ.App. 1996) 686 So.2d 268 , 274-275; Timothy Christian Schools v. Village (1996) 285 Ill.App.3d 949 [221 Ill.Dec.261, 675 N.E.2d 168 , 173]; Precluding Inconsistent Statements, supra, 80 Nw. U. L.Rev. at pp. 1258-1267; Ziegler, supra, 11 Inside Litigation No. 3 at pp. 16-17.)^[8]

a machine operator, making such products as playground equipment and 60-gallon tanks. The job of machine operator required significant bending, stooping, and stretching, as well as the routine lifting of objects weighing up to 110 pounds. In July 1991, the employee sustained a back injury. He remained out of work for approximately two and one-half years while he sought workers’ compensation benefits. In February 1994, a workers’ compensation judge found that the employee had sustained a disability with a rating of 56 percent and that he “had the permanent work restrictions of lifting no more than 25 pounds and no prolonged bending, stooping, or lifting.” (Id. at p. 1535.) The day after the employee received the workers’ compensation award, he attempted to return to his former job. The employer informed him that he was being terminated because all of the positions at the plant required lifting more than 25 pounds. In rejecting the employee’s contention that he was a “qualified individual with a disability,” the district court invoked the doctrine of judicial estoppel, noting that the workers’ compensation proceeding had determined that “plaintiff was physically unable to perform the essential functions of any job at defendant’s plant as of [his date of termination], even with accommodation.” (Id. at p. 1538.) The district court therefore granted summary judgment for the employer.^[9]

Finally, in Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935 , Division Seven of this court declined to apply judicial estoppel to bar an employee’s disability discrimination claim under the FEHA. In Prilliman, the plaintiff, a pilot, was grounded and placed on disability leave after United Airlines learned that he had been diagnosed with acquired immune deficiency syndrome. The plaintiff alleged that United Airlines had failed to accommodate his disability since it had not determined whether he could perform an alternative nonflight job (e.g., pilot instructor). For its part, United Airlines argued that, under the doctrine of judicial estoppel, the employee’s receipt of disability benefits from the company, the Social Security Administration, and the State of California precluded his discrimination claim. (Id. at pp. 944, 946.) According to United Airlines, the employee’s receipt of disability benefits was inconsistent with his contention in the FEHA action that he was able to work in a nonflight job. In addition, on an application for company benefits, the plaintiff’s treating physician had stated that the plaintiff was on “permanent total disability.” (Id. at pp. 943-944, 963.) The Court of Appeal concluded that judicial estoppel did not apply because the plaintiff’s disability discrimination claim was not “clearly inconsistent” with the position he had taken in seeking disability benefits. {Id. at p. 963.)

From these authorities, we discern that the term “disability,” as used in determining income eligibility under benefit programs such as workers’ compensation, is not necessarily used in the same way for purposes of the ADA. However, while “disability” may have different meanings in the two contexts, the findings made in the administrative proceeding may, in some situations, judicially estop an employee from pursuing an ADA claim.

This conclusion is consistent with a recent “enforcement guidance” issued by the EEOC, the agency statutorily charged with administering the ADA. (See 42 U.S.C. §§ 12116 , 12117.)^[10] As the EEOC has explained:

“Because the ADA definitions of the terms ‘disability’ and ‘qualified individual with a disability’ are tailored to the broad remedial purposes of the Act, they differ from the definitions of the same or similar terms used in other laws and benefits programs designed for other purposes. The definitions of the terms used in the Social Security Act, state workers’ compensation laws, disability insurance plans, and other disability benefits programs are tailored to the purposes of those laws and programs. Therefore, representations made under those laws and programs are not determinative of coverage under the ADA. . . .

“The workers’ compensation definitions of ‘disability’ reflect the purposes of workers’ compensation laws. Those laws provide a system for securing prompt and fair settlement of employees’ claims against employers for occupational injury and illness. In that regard, the laws generally require employers to compensate employees who are injured in the course of employment for the resulting loss of earning capacity and for medical care. Thus, workers’ compensation provides benefits to individuals whose earning capacity has been reduced because of a work-related injury. Because of the emphasis on lost earning capacity, the workers’ compensation definitions of disability generally focus on what a person can no longer do rather than on what s/he still is capable of doing with or without reasonable accommodation.

“To receive workers’ compensation benefits, an employee generally must prove that s/he has a compensable ‘disability’ as defined by the applicable workers’ compensation statute. The term ‘disability’ in this context most commonly means loss or reduction of earning power that results from a work-related injury.

“Some [workers’ compensation] statutes, however, do not define ‘disability’ in terms of lost earning capacity. Instead, under these statutes, an injured worker has a ‘disability’ if his/her physical efficiency has been substantially reduced, or if s/he is unable to perform the same work with the same ease as before the injury or is unable to do heavy work that s/he could do before the injury. Under these statutes, the worker has a ‘disability’ even if s/he is employed at the same work and at the same wages as before the injury.

“[U]nlike the ADA definition of ‘qualified individual with a disability,’ the workers’ compensation definitions of ‘disability’ do not distinguish between marginal and essential functions and do not consider whether an individual can work with reasonable accommodation. In many workers’ compensation cases, a person has a ‘total disability’ when s/he is unable to do certain tasks, even if those tasks are marginal functions or if s/he could perform them with reasonable accommodation. Thus, a person may be ‘totally disabled’ for workers’ compensation purposes and yet still be able to perform a position’s essential functions with or without reasonable accommodation. [U . . . fid . . . Accordingly, an individual receiving workers’ compensation benefits still may be entitled to protection under the ADA.” (EEOC Enforcement Guidance on the Effect of Representations Made in Applications' for Benefits on the Determination of Whether a Person Is a “Qualified Individual with a Disability” Under the Americans with Disabilities Act of 1990, in Avoiding Workplace Litigation (PLI Litig. & Admin. Practice Course Handbook Series No. H4-5261 (1997) pp. 151-164, fns. omitted, cited with approval in Swanks v. WMATA (D.C. Cir. 1997) 116 F.3d 582 , 586 [ 325 App.D.C. 238 ].)

In this case, the County acknowledges that it removed Jackson from his job and placed him on an extended medical leave because of his disability. In granting summary judgment, the trial court did not invoke judicial estoppel based on any representations Jackson had made in seeking workers’ compensation benefits (e.g., that he was “disabled”). Nor did the trial court rely on Jackson’s receipt of disability benefits or on the finding in the workers’ compensation proceeding that he had a “permanent disability” (with a rating of 65 percent). Rather, the trial court found that judicial estoppel barred Jackson’s ADA claim because of the position he took in the workers’ compensation proceeding with respect to his work restrictions. We agree.^[11]

Workers’ compensation awards may be based upon stipulations between the parties. (Lab. Code, § 5702.) A “Stipulations with Request for Award” is

assigned to a workers’ compensation judge, who will either make findings and an award based on the stipulations, set the matter for hearing to take testimony, or conduct further investigation into the matter. (Cal. Workers’ Compensation Practice (Cont.Ed.Bar 3d ed. 1985) § 5.41, pp. 174-175; Lab. Code, § 5702.) All medical reports and other documentary evidence must be submitted with the stipulations so that the workers’ compensation judge can ensure that the stipulations are fair to the applicant. (Cal. Workers’ Compensation Practice, supra, § 5.41, p. 175.) “If the stipulation does not adequately reflect the disability of the applicant, it [is] not. . . accepted by the workers’ compensation judge as the basis for his or her award.” (Draper v. Workers’ Comp. Appeals Bd. (1983) 147 Cal.App.3d 502 , 507 [ 195 Cal.Rptr. 248 ]; accord, Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784 , 792-793 [ 239 Cal.Rptr. 841 ].)

Here, the “Stipulations with Request for Award” stated that the parties had “mutually agree[d]” that Jackson was under a restriction that his “work environment [be] free from emotional stress and strain and no heavy work.” The stipulations cited Dr. Low’s April 16, 1992, report as support for that restriction. Dr. Low had found that “[b]y virtue of. . . worsening hypertension, and based solely on this condition, the patient is restricted to working in an environment free of emotional stress and strain, and no heavy work as fatigue tends to aggravate these findings and set him up for life threatening complications.” The workers’ compensation judge accepted the parties’ stipulations and approved the work restriction as part of the award.^[12]

To prevail on his ADA claim, Jackson must establish that he is a “qualified individual with a disability.” (See 42 U.S.C. § 12112 (a); Bultemeyer v. Fort Wayne Community Schools, supra, 100 F.3d at p. 1284.) In other words, Jackson must prove that he could perform the essential functions of the job he held or desired, with or without reasonable accommodation. ( 42 U.S.C. §12111 (8).) To make such a showing, Jackson would have to assert a position in this action that is totally inconsistent with the position he successfully pursued in the workers’ compensation proceeding. The doctrine of judicial estoppel forecloses that attempt.

After receiving the workers’ compensation award, the only job Jackson wanted or would consider was that of safety police officer III. Yet, at his deposition, Jackson admitted that all of the duties of a safety police officer in involve stress. That admission is not surprising given the responsibilities of a safety police officer III, as described in Jackson’s performance evaluations and in the formal class specification for the job. Moreover, in opposing summary judgment, Jackson submitted a declaration from a physician (Dr. George Smith) who stated: “ ‘[Stress’ is unavoidable in our daily lives and, certainly, in our work. ... An excellent employee who seeks to challenge his or her capacity to perform in accepting difficult complex tasks may be under as much ‘stress’ as an employee who, through lack of qualification or suitability for a job, is challenged to do the minimum necessary for acceptable performance. In addition, conflict between employees or between an employee and a supervisor are ‘stressful’ situations that may arise in any employment setting.” Indeed, when David Zamorano, who works in the Medical Center’s human resources department, was asked at his deposition whether he knew of any jobs that are free of stress and strain, he replied, “I don’t believe there are any.”

On this record, we find that the elements of judicial estoppel have been satisfied. First, Jackson has taken two positions: In the workers’ compensation proceeding, he agreed with Dr. Low’s assessment that he had to have a stress-free job; in this action, he claims that he could perform the essential functions of a safety police officer III. Second, both positions were taken in judicial or quasi-judicial administrative proceedings. Third, Jackson was successful in asserting the first position: The requirement of a stress-free job appeared in the parties’ “Stipulations with Request for Award” (which Jackson and his attorney signed), and the workers’ compensation judge adopted the stipulations in making the award. Fourth, the two positions are totally inconsistent: Jackson cannot have a stress-free work environment and perform the essential functions of a safety police officer III. The County has classified that job as “arduous” for good reason, and Jackson has admitted that all of the duties of a safety police officer III involve stress. Nor was a reasonable accommodation possible. Despite the County’s efforts to rehabilitate Jackson and find him an alternative job, he withdrew from the rehabilitation program and indicated that the only job he wanted was that of safety police officer III.^[13] Finally, Jackson’s first position—that he needed a stress-free work environment—was not the result of ignorance, fraud, or

mistake. Jackson knowingly agreed to the work restriction based on the report of Dr. Low, who evaluated Jackson at his attorney’s request. The parties’ stipulations recited the work restriction in language taken almost verbatim from Dr. Low’s report.^[14]

In closing, we comment briefly on the evidence submitted by Jackson in opposing summary judgment, none of which created a triable issue of material fact. First, although Dr. Noble—the physician selected by the County—found that Jackson was not subject to any work restrictions, the parties did not base their stipulations for the award on his report, nor did the workers’ compensation judge rely on it in making the award. Second, we find irrelevant the testimony of Jackson’s expert that the 65 percent disability rating did not prevent Jackson from performing the essential functions of his job with or without accommodation. We have concluded that judicial estoppel barred Jackson’s ADA claim based on the work restriction mandating a stress-free environment, not on the finding of permanent disability or the particular disability rating. Lastly, the fact that Jackson may have been performing his job satisfactorily before the workers’ compensation award does not mean the County should have allowed him to continue in that job after the award. Jackson expressly agreed in the workers’ compensation proceeding to be bound by the work restriction recommended by Dr. Low, and the workers’ compensation judge included that restriction in the award. The requirement that Jackson work in a stress-free environment precluded his continued performance as a safety police officer Ed, just as it bars his ADA claim. The doctrine of judicial estoppel ensures that Jackson will not “speak out of both sides of [his] mouth . . . before this court.” (Reigel v.

Kaiser Foundation Health Plan of N.C. (E.D.N.C. 1994) 859 F.Supp. 963 , 970.)^[15]

Disposition

The judgment is affirmed.

Ortega, Acting P. J., and Dunn, J.,^[16] concurred.

Appellant’s petition for review by the Supreme Court was denied March 11, 1998.