Mitchell v. Washingtonville Ctrl. Sch. Dist.

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-7185
• Citation: 190 F.3d 1
• Parties: (2nd Cir. 1999) LAWRENCE A. MITCHELL, JR., Plaintiff-Appellant, v. WASHINGTONVILLE CENTRAL SCHOOL DISTRICT, Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 1

190 F.3d 1 (2nd Cir. 1999)

LAWRENCE A. MITCHELL, JR., Plaintiff-Appellant, v. WASHINGTONVILLE CENTRAL SCHOOL DISTRICT, Defendant-Appellee.

Docket No. 98-7185

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: December 11, 1998

Decided: August 18, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., J.) granting defendant's motion for summary judgment on plaintiff's claim under the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.

Affirmed.

ROBERT E. DINARDO, Jacobowitz and Gubits, LLP, Walden, NY, for Plaintiff-Appellant.

MARK C. RUSHFIELD, Shaw & Perelson, LLP, Poughkeepsie, NY, for Defendant-Appellee.

Before: KEARSE, STRAUB, and SACK, Circuit Judges.

SACK, Circuit Judge:

Lawrence A. Mitchell, Jr. appeals from an order of the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., J.) granting summary judgment to Defendant-Appellee Washingtonville Central School District. Mitchell brought a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., following the termination of his employment as Head Custodian at the Washingtonville High School. In granting summary judgment, the district court held that based on Mitchell's prior representations to the New York Workers' Compensation Board and the United States Social Security Administration in obtaining benefits that he was unable to work because he could not stand or walk, Mitchell was judicially estopped from asserting in the present ADA action that he could function other than in a sedentary position. Concluding that Mitchell therefore failed to show that he was able to perform the essential functions of the Head Custodian position and so make out a prima facie case under the ADA, the district court dismissed his claim.

We affirm.

I. Background

Mitchell began employment with the Washingtonville Central School District in 1987, working as Head Custodian at the Washingtonville High School. According to the job description, the Head Custodian position "involves the general supervision, care, maintenance and protection of a school building which may include the efficient performance of a variety of groundskeeping activities."¹

When Mitchell, whose right leg was amputated above the knee following an automobile accident in 1977 and who wears a prosthesis as a result, started as Head Custodian, his work required him to remain on his feet throughout the day except for two hours each day he spent doing desk work, a short coffee break, and a half hour lunch break. By 1989, the amount of desk work had decreased so that three days a week, aside from his breaks, Mitchell spent the entire time up and about.

Within four months of starting work at the high school, however, Mitchell experienced swelling and pain in his right leg which prevented him from wearing his prosthesis, and at times from coming to work. In addition, beginning in 1989, Mitchell suffered approximately three skin "breakdowns" on his leg each year, lasting for three to four days each time. When this happened, Mitchell was required to limit his use of his prosthesis and take occasional sick leave. These problems resulted from the extensive physical demands of the Head Custodian job, requiring prolonged use of the prosthesis.

Adding to these difficulties, according to Mitchell, the physical size of the high school doubled in 1993 and his work load substantially increased. Following a particularly strenuous day of work on November 5 of that year, Mitchell's leg began to "drain," causing him considerable discomfort. Mitchell thereafter stopped reporting to work and he notified the School District that he had been injured on the job.

In January 1994, Mitchell filed an Employee Claim for Compensation with the New York Workers' Compensation Board, stating that he had been injured at work as a result of "strenuous walking." The School District contested Mitchell's claim. Following a hearing before a Workers' Compensation Judge in June 1994, Mitchell was awarded weekly benefits. The award was also upheld by a decision of the Board, which determined that Mitchell was "totally disabled" from the period November 9, 1993 to July 27, 1994. Revisiting Mitchell's status after that date, the Workers' Compensation Board conducted further hearings in March and June of 1996. At a March 7, 1996 hearing, Mitchell's treating physician, Dr. Robert G. Kulak, testified that Mitchell had to limit his walking and standing and be able immediately to sit down if he experienced pain. Dr. Kulak therefore concluded that Mitchell remained unable to return to his job because he could not stand for any prolonged period. In a decision of October 10, 1996, accepting these assertions and continuing Mitchell's award, Workers' Compensation Judge John Paul Paksarian determined that Mitchell remained under permanent restriction to a sedentary job.

In April 1994, Mitchell also applied for Social Security disability benefits. In July 1994, after his claim was initially denied, he filed a request for reconsideration, asserting: "I am totally disabled and unable to engage in any type of gainful employment due to being on my feet for long periods of time which resulted in a cyst." Again, the claim was denied and Mitchell appealed once more, this time stating in his written request for a hearing: "I am totally disabled and unable to engage in gainful employment due to being an amputee, my right leg from the knee down. This disability enables me [sic] from any type of prolonged standing or ambulation."

At a hearing on the matter in July 1995 before Administrative Law Judge Thomas P. Dorsey, in response to the question, "Why can't you work now?", Mitchell testified, "I'm not sure I can get anything where I could just sit for the entire time I'd be working." Mitchell further testified that he could stand for only five minutes at a time and that he could not carry any weight. Finally, Mitchell stated that he was in constant pain when he wore his prosthesis.

In a decision dated August 4, 1995, Judge Dorsey accepted Mitchell's representations and determined that he was disabled within the meaning of the Social Security Act, had been disabled since November 10, 1993, and would continue to be unable to work at least through December 31, 1998. The Social Security Administration thereafter began to pay Mitchell disability benefits.

Meanwhile, in November 1994, Peter M. Brenner, Sr., the Superintendent of Schools in Washingtonville, had informed Mitchell that he would recommend that the School District terminate Mitchell's employment "in light of [his] inability to perform the duties of [his] position for in excess of one year's time." Mitchell responded by sending to Superintendent Brenner a letter from Dr. Kulak, addressed "To Whom It May Concern," requesting that "due to his above knee amputation and the need for use of a prosthesis... [Mitchell]... be retrained for a job that is more sedentary ...." Mitchell also informed Brenner that the School District should consider his response "a request for a 'reasonable accommodation' as defined by the American Disabilities Act [sic]." Mitchell stated that Dr. Kulak's letter was "not a work release note. It is an order to secure sedentary employment and to be retrained if necessary." Mitchell advised, however, that "if the position of Head Custodian could be restructured to sedentary duties, my return [to work] may be possible."

On December 21, 1994, the School District informed Mitchell that it had terminated his employment.

Mitchell commenced this action on March 19, 1996, alleging that the School District violated the ADA by failing to provide him with a reasonable accommodation in light of his disability.

In connection with the present action, Mitchell testified at deposition that as of November 1994, after he was fitted with a new prosthesis, he could in fact remain on his feet for four hours a day, could tour the school building, and that he could walk 50 to 75 feet with his prosthesis without stopping and then only have to rest for a minute before continuing. Mitchell further testified that by June 1995, he could stand and walk for five hours a day. Mitchell's vocational expert, Edmund Provder, a certified rehabilitation counselor who examined Mitchell in November, 1996, similarly testified that Mitchell was able to perform the job of Head Custodian once he had received the new prosthesis in 1994.

Mitchell also asserts in this action that as of December, 1994, the School District should have accommodated his disability by restructuring his duties and reassigning the physical duties of the work to other custodians, transferring him to a smaller school within the School District, specifically the Round Hill School, retraining him for a more sedentary job such as courier or bus dispatcher, or granting him an extended leave of absence.

In its opinion and order of January 29, 1998, the district court granted the School District's motion for summary judgment, dismissing Mitchell's ADA claim. The district court determined that because of Mitchell's earlier statements to the Workers' Compensation Board and the Social Security Administration that he was "totally disabled," unable to work, unable to stand, unable to walk, and needed a job where he would be seated, Mitchell was judicially estopped from arguing for purposes of this ADA action that he was capable of doing work in other than a sedentary position. In light of its application of judicial estoppel, the district court held that "the ADA does not require the [School] District to restructure the Head Custodian position to a sedentary one" and that the "accommodations" suggested by Mitchell are unreasonable. As such, the court determined that Mitchell could not show that, restricted to a sedentary position, he was otherwise qualified to perform the...