The? plaintiff ?was ?an ?elementary school teacher. ?Smith suffered a back injury that led her to become a literary specialist because it was less physically demand.? She did that position for four years.? ?The school then reassigned her to be a kindergarten teacher.?? She rejected the position because she could not perform the physical demands.?? ?Soon ?thereafter? she? aggravated ?her back injury and became unable to work.

She applied for FMLA and disability benefits.??? Her doctor stated? she ?was? presently incapacitated and could not work until released by a doctor. ?On her disability application Smith said she wasn?t sure when her total disability would end but that she planned to return to work in August or September. ?She later extended her FMLA leave stating she would be out of work indefinitely.? ?She then applied for disability retirement. ?The reason she applied for disability retirement was that the school district refused to accommodate her disability by assigning her to some ?position? other ?than ?kindergarten ?teacher. The school offered some accommodations for the teacher position.

Smith sued claiming an ADA failure to accommodate violation. ?The district court granted summary judgment? to? the school? district? on? the basis? ?that? ?her?? statements? ?on? ?the?? disability retirement ?claim ?rendered ?her? unqualified ?under the ADA. ?The Ninth Circuit reversed. ?The panel concluded that the Supreme Court?s decision in Cleveland?? v.?? Policy? ?Management?? Sys.?? Corp. applied to retirement benefits as well as disability benefits.???? But ?there ?was ?no ?inherent ?conflict between the retirement application and Smith?s claim she could work if accommodated, because the retirement application doesn?t consider jobs modified by accommodation. ?The court also held that Smith?s failure to claim she was able to work in a ?limited capacity? did not bar coverage under the ?ADA ?because ?that ?too ?isn?t? the ?same ?as working with reasonable accommodation.? ?The panel further reasoned that the retirement form did not? ?preclude?? a?? change?? in? ?medical? ?condition allowing an employee to work in the future.

That all said, the panel noted there were statements in Smith?s applications for retirement and FMLA that were inconsistent with her being qualified under the ADA.?? Under Cleveland the question is whether the employee provides a sufficient explanation for the inconsistencies. ?The court held that the standard is ?not an exceedingly demanding one.? ?It gives plaintiffs with latitude to overcome apparent conflicts. ?Smith?s explanation that the FMLA application was intended to request temporary leave and was not an admission of permanent? ?inability?? to? ?work? ?was? ?sufficient. Smith?s explanation that her retirement application statements were not intended to preclude performing the literacy specialist position with accommodation or another vacant position the school refused to assign to her. The panel held there were genuine disputes of fact whether the school denied her reasonable accommodation.

Smith v. Clark County School Dist., — F.3d — (9th Cir. Aug 21, 2013) (Gould, Fletcher, Christen).