Aldrich v. Boeing Co., 96-3413

• Decision Date: 01 July 1998
• Docket Number: No. 96-3413,96-3413
• Citation: 146 F.3d 1265
• Parties: 8 A.D. Cases 424, 13 NDLR P 72, 98 CJ C.A.R. 3663 Kenneth W. ALDRICH, Plaintiff-Appellant, v. The BOEING COMPANY, a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1265

146 F.3d 1265

8 A.D. Cases 424, 13 NDLR P 72, 98 CJ

C.A.R. 3663

Kenneth W. ALDRICH, Plaintiff-Appellant, v. The BOEING COMPANY, a Delaware Corporation, Defendant-Appellee.

No. 96-3413.

United States Court of Appeals Tenth Circuit.

July 1, 1998.

Albert F. Kuhl, Law Offices of Albert F. Kuhl, Lenexa, Kansas, for Plaintiff--Appellee.

Mary K. Babcock (Trisha A. Thelen, with her on the brief), Foulston & Siefkin, Wichita, Kansas, for Defendant--Appellee.

Before PORFILIO, McKAY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This case presents a novel question: May an impairment be substantially limiting for the purposes of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, before the date a permanent disability rating has been issued by the treating physician? Answering this question in the affirmative, we reverse the judgment of the district court and remand for further proceedings.

I

Kenneth Aldrich, a former employee of The Boeing Company, appeals the district court's order granting summary judgment in favor of Boeing. The district court held that Aldrich was judicially estopped from pursuing a claim under the ADA and, alternatively, that he had failed to establish that he was a qualified individual with a disability. ¹

Aldrich was an assembly worker at Boeing's facility in Wichita, Kansas, from September 29, 1988, until he was laid off on June 8, 1993. Ten months prior to being laid off, Aldrich informed Boeing's Central Medical Department that he was experiencing pain in his right hand and was having difficulty using hand tools. He was referred to Dr. Harry Morris, an orthopaedic surgeon, for evaluation.

Dr. Morris examined Aldrich in August 1992 and made a preliminary diagnosis of "[c]umulative trauma syndrome manifesting as flexor tendon tenosynovitis." Appellee's Supp.App. at 249. Dr. Morris determined Aldrich was unable to return to work and signed a medical leave of absence form, scheduling him for reevaluation in four weeks. At two subsequent evaluations in September and October, Dr. Morris noted that Aldrich's condition had improved; nevertheless, he extended Aldrich's medical leave of absence.

On November 17, Dr. Morris released Aldrich to return to work, limiting his use of power tools to four hours a day for the first week, but providing for a gradual increase in usage over the course of the following two weeks. Upon returning to work, however, Aldrich was informed by his supervisor that there was no work he could do with those medical restrictions, and was referred to the Personnel Department, where he was immediately placed on medical leave. For a brief period in early December, he was given a work assignment at Boeing's Facilities Department as a member of the "Warn Pool." According to Boeing, the Warn Pool was created to hold employees during the federally mandated sixty-day notice period prior to an anticipated layoff. Boeing removed Aldrich from this position when it discovered that he was not subject to layoff and placed him back on medical leave of absence.

Dr. Morris continued to treat Aldrich and evaluate him on a monthly basis. On April 7, 1993, Dr. Morris rated Aldrich as 15% permanently partially impaired. He wrote: "It is my impression that the patient can return to work but he must be in a job position where he has no rivetting [sic], bucking or power equipment use. There should be no repetitive grasping, gripping, pushing or pulling as well." Appellee's Supp.App. at 256. Aldrich provided Boeing with Dr. Morris's report on April 19.

Approximately one week before he provided this permanent disability rating to his employer, Aldrich was informed that Boeing had declared a surplus in his job code and that he would be laid off on June 8, 1993. Three weeks prior to plaintiff's scheduled termination, Boeing's Accommodation Review Board met to determine whether Aldrich's permanent restrictions could be accommodated by the company. The Board determined that the limitations Dr. Morris had imposed on Aldrich prevented him from doing his current job, with or without accommodation, and that no other positions were available at that time. The Board thus decided that Aldrich would remain on medical leave of absence until he was terminated on June 8.

During the course of these events, Aldrich applied for disability benefits from several sources. On October 17, 1992, he filed a workers' compensation claim under Kansas law which was eventually settled in 1995 for $30,000. Four months later, Aldrich applied for permanent and total disability benefits under a private disability plan offered by Boeing. His application for benefits was approved in March 1994.

II

Noting that Aldrich filed for and received permanent and total disability benefits under Boeing's private disability plan, the district court held that his ADA claim was barred by the doctrine of judicial estoppel. Boeing insists that Aldrich's lawsuit is also barred by this doctrine because of his claim for permanent and total disability benefits under Kansas workers' compensation law and because of plaintiff's testimony at a settlement hearing regarding this claim. ² We reject both views.

In Rascon v. U S West Communications, 143 F.3d 1324 (10th Cir.1998), this circuit recently held that the application for, or receipt of, social security disability benefits does not estop a plaintiff from pursuing a claim under the ADA. See id. at 1330. The logic behind eschewing judicial estoppel of an ADA claim even when the plaintiff has applied for or received disability benefits is that "the ADA takes into consideration whether an individual with a disability can work given reasonable accommodation. The Social Security Act, on the other hand, does not take into consideration whether an accommodation would render the individual able to perform a job." Id. at 1330 (emphasis added) (citations omitted). Consequently, claims for social security benefits, because granted without regard to reasonable accommodation, are not necessarily inconsistent with a discrimination claim pursuant to the ADA. See id. It follows that, Aldrich is not estopped from pursuing his ADA claim merely because he applied for and received benefits under Boeing's private disability plan and the Kansas workers' compensation statute--those benefits are also awarded without regard to reasonable accommodation. Compare Boeing, Disability and Life Insurance Plans 8 (1990) (defining permanent and total disability for purposes of Boeing's private disability plan), in Appellee's Supp.App. at 186, and Kan. Stat. Ann. § 44-510c(a)(2) (1993) (defining "permanent total disability" under workers' compensation statute), with 42 U.S.C. § 423(d)(2)(A) (defining "disability" for purposes of social security disability benefits).

Boeing argues that plaintiff should nonetheless be estopped from pursuing his ADA claim because he testified at his workers' compensation settlement hearing that he could not perform his job with or without reasonable accommodation. Were we to adopt Boeing's approach, however, we would "discourage the determination of cases on the basis of the true facts as they might be established ultimately." United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986) (quoting Parkinson v. California Co., 233 F.2d 432, 438 (10th Cir.1956)). The Federal Rules of Evidence well provide the means with which to confront plaintiff with such inconsistency. See Fed.R.Evid. 801(d)(2) (permitting introduction in evidence of prior admission by party-opponent). Thus Aldrich's testimony "may constitute evidence relevant to a determination of whether the plaintiff is a 'qualified individual with a disability,' " Rascon at 1332, but it is not dispositive.

Benefit determinations under the Kansas workers' compensation statute are made without regard to reasonable accommodation. Thus, Aldrich's admission at the settlement hearing was not relevant to the outcome of the proceedings. We see no reason to deviate from Rascon's logic that "statements made in connection with an application for ... disability benefits cannot be an automatic bar to a disability claim under the ADA" when such benefits are granted without regard to reasonable accommodation. Id.

III

The ADA provides that "[n]o covered entity shall 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 defined as "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." 42 U.S.C. § 12111(8). To establish a prima facie case under the Act, plaintiff must therefore demonstrate "(1) that he is 'disabled' within the meaning of the ADA; (2) that he is qualified--with or without reasonable accommodation; and (3) that he was discriminated against because of his disability." Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th Cir.1997) (citing White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995)).

A

The ADA defines the term "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Plaintiff contends that he qualified as disabled under the first part of this definition on November 17, 1992--the date Dr. Morris released him to work with restrictions following the initial diagnosis of flexor tenosynovitis. ³ The district court rejected that contention, finding instead that he was suffering from a "transient nonpermanent condition" and, accordingly, that his impairment was not...