Talavera v. School Bd. of Palm Beach County

• Decision Date: 24 November 1997
• Docket Number: No. 96-4756,96-4756
• Parties: 122 Ed. Law Rep. 419, 7 A.D. Cases 1025, 11 NDLR P 153, 11 Fla. L. Weekly Fed. C 875 Rosanna TALAVERA, Gerard Talavera, Plaintiffs-Appellants, v. SCHOOL BOARD OF PALM BEACH COUNTY, Anabelle Hart, individually and in her official capacity as Guidance Coordinator for Atlantic High School, James D. Williams, individually and in his official capacity as Assistant Principal at Atlantic High School, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1214

129 F.3d 1214

122 Ed. Law Rep. 419, 7 A.D. Cases 1025,

11 NDLR P 153,

11 Fla. L. Weekly Fed. C 875

Rosanna TALAVERA, Gerard Talavera, Plaintiffs-Appellants, v. SCHOOL BOARD OF PALM BEACH COUNTY, Anabelle Hart,

individually and in her official capacity as Guidance

Coordinator for Atlantic High School, James D. Williams,

individually and in his official capacity as Assistant

Principal at Atlantic High School, et al., Defendants-Appellees.

No. 96-4756.

United States Court of Appeals,

Eleventh Circuit.

Nov. 24, 1997.

Randy D. Ellison, West Palm Beach, FL, for Plaintiffs-Appellants.

Robert J. Gregory, EEOC, Washington, DC, for Amicus EEOC.

Dominick D. Faraci, Palm Beach Gardens, FL, Philip Parrish, Stephens, Lynn, Klein & McNicholas, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

DUBINA, Circuit Judge:

This appeal presents an issue of first impression in this circuit: does a plaintiff's certification on an application for social security disability benefits that she is totally disabled bar her from asserting in a subsequent claim under the Americans With Disabilities Act that she is capable, with reasonable accommodation, of performing the essential functions of her job? We join the majority of our sister circuits and answer the question in the negative.

I. BACKGROUND

Plaintiff Rosanna Talavera ("Talavera") began working for the School Board of Palm Beach County ("the school board") as a secretary in April 1990. She had a one-year, renewable employment contract. Her job required her to stand at a counter for four to five hours each day scheduling appointments for students to see a guidance counselor. In September 1992, Talavera began experiencing back pain and consulted a physician. She claims the doctor told her to elevate her leg and avoid standing for long periods. Talavera requested several workplace accommodations, including the provision of a special chair and a handicapped parking place, but she claims the school board did not provide them.

Talavera's condition worsened. In March 1993, she applied for a transfer to a position in the school board's main office which would have permitted her to sit all day. The school board informed Talavera that she had the job, then called back two days later and told her the position had been "blocked." Immediately thereafter, the school board sent Talavera a letter stating that it would not renew her contract when it expired on June 30, 1993. In early April 1993, the school board involuntarily transferred Talavera to a position in the records filing area. Talavera was unable to perform the job because it required her to stand all day. Talavera became bedridden in May 1993, after which she took unpaid leave until her contract expired.

Talavera has two bulging discs in her back. She has been diagnosed with chronic osteoarthritis and fibroid myalgia. Talavera applied for social security disability ("SSD") benefits in September 1993. Her application included the following statements:

I cannot stand up for more than 5 minutes. I cannot walk more than a few hundred feet....

To try and compensate [at my job] I registered students sitting at my desk. As far as filing I used to take a chair to sit. I also lost a lot of days because at times I wasn't able to leave the house or get out of bed. Since then I wasn't reappointed & lost my job. No provisions were made for my handicap....

I am in extreme pain & have trouble walking. I am in need of medical attention but cannot afford it.... I cannot walk to transportation & be able to climb up stairs to bus or train. I am now homebound.

I feel that my skills are good. However, I can no longer walk, bend, etc. Therefore when an employer sees me I look totally disabled. My mind is intact but my physical appearance is a deterrent. Unfortunately our society is only concerned with your appearance. I am finding it harder and harder to walk.

Disability Report 1-6. In October 1993, the Social Security Administration ("SSA") determined that Talavera was totally disabled and awarded her benefits, which she continues to receive.

Talavera filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in April 1993. She and her husband filed suit in the district court in March 1994. Talavera alleged that the school board violated her rights under the Americans With Disabilities Act of 1991 ("ADA"), 42 U.S.C. § 12101 et seq., by failing to accommodate her disability and then terminating her because of it. Talavera's husband brought a claim for loss of consortium. ¹

The district court granted summary judgment in favor of the school board on two alternative grounds: (1) Talavera was judicially estopped from claiming she was a "qualified" individual with a disability under the ADA, having certified to the SSA that she was totally disabled; and (2) Talavera failed to raise a genuine issue of material fact as to whether she could perform the essential functions of her job. Plaintiffs then perfected this appeal. In addition to the parties' briefs, we have the benefit of an amicus brief from the EEOC supporting Talavera's position.

II. ISSUES

A. Did the district court properly rule that Talavera's application for SSD benefits judicially estops her from claiming in this action that she is a "qualified individual with a disability" entitled to protection under the ADA?

B. Did the district court properly rule that Talavera failed to raise a genuine issue of material fact as to whether she is a "qualified individual with a disability"? ²

III. STANDARDS OF REVIEW

We review a district court's grant of summary judgment de novo, applying the same standard used by the district court. Scala v. City of Winter Park, 116 F.3d 1396, 1398 (11th Cir.1997). "Summary judgment is appropriate if the record shows no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Id.

The school board argues that we should review the district court's application of judicial estoppel for abuse of discretion. See McNemar v. Disney Store, Inc., 91 F.3d 610, 616-17 (3rd Cir.1996) (applying abuse of discretion review), cert. denied, --- U.S. ----, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997); Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993) (same). Although this circuit has not explicitly identified the applicable standard of review, the language in the few Eleventh Circuit cases involving judicial estoppel is consistent with abuse of discretion review. See, e.g., Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1261 (11th Cir.1988) ("We think it proper simply to review the bankruptcy court's application of judicial estoppel to ascertain whether it was consonant with the policy interests which originally gave rise to the doctrine."). We note that "[t]he abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Koon v. United States, 518 U.S. 81, ----, 116 S.Ct. 2035, 2048, 135 L.Ed.2d 392 (1996).

IV. DISCUSSION

Talavera claims that the school board violated her rights under the ADA by failing to provide reasonable accommodations for her disability and terminating her because of her disability. To establish a prima facie case under the ADA, Talavera must show (1) that she has a disability; (2) that she is qualified for the position in question; and (3) that the school board discriminated against her because of her disability. Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); 42 U.S.C. § 12102(2). The ADA defines a "qualified" individual as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions" of the job she holds or desires. 42 U.S.C. § 12111(8) (emphasis added). If a qualified individual with a disability requires a reasonable accommodation to perform the essential functions of her job, then the ADA requires the employer to provide the accommodation unless the employer can demonstrate that doing so would constitute an undue hardship. 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations may include job restructuring, part-time or modified work schedules, and acquisition or modification of equipment or devices. 42 U.S.C. § 12111(9).

A. Judicial Estoppel

The district court ruled that Talavera could not establish a prima facie case because she was judicially estopped from claiming she was "qualified" under the ADA. The district court found Talavera's application for and receipt of SSD benefits fundamentally incompatible with her position in this lawsuit that she could perform the essential functions of her job with reasonable accommodation. Accordingly, the district court invoked judicial estoppel. Judicial estoppel "is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings." McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d 1187, 1192 (11th Cir.1991) (quoting American Nat'l Bank v. Federal Dep. Ins. Corp., 710 F.2d 1528, 1536 (11th Cir.1983)).

This circuit has not addressed the effect of an application for disability benefits upon a subsequent ADA claim. Numerous other circuit and district courts have addressed the issue, including several district courts in this circuit. The holdings of these courts vary widely.

The Third Circuit has held that a plaintiff who certifies total disability on an application for benefits is judicially estopped from later bringing an ADA claim. McNemar v. Disney Store, Inc., 91 F.3d 610 (3rd Cir.1996). In McNemar, the plaintiff (McNemar) was terminated from his position as assistant manager at a Disney Store for theft after divulging that he was HIV positive. McNemar then applied for SSD benefits and stated on the...