Moore v. Payless Shoe Source Inc.

• Decision Date: 13 July 1999
• Docket Number: No. 97-2110,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,97-2110
• Citation: 187 F.3d 845
• Parties: (8th Cir. 1999) STEAPHANIE MOORE,, v. PAYLESS SHOE SOURCE, INC., Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 845

187 F.3d 845 (8th Cir. 1999)

STEAPHANIE MOORE, PLAINTIFF-APPELLANT, v. PAYLESS SHOE SOURCE, INC., DEFENDANT-APPELLEE.

No. 97-2110

U.S. Court of Appeals, Eighth Circuit

Submitted: July 13, 1999

August 16, 1999

Appeal from the United States District Court for the Eastern District of Arkansas.

Before Bowman, Floyd R. Gibson, and Loken, Circuit Judges.

Loken, Circuit Judge.

Steaphanie Moore appealed the district court's¹grant of summary judgment dismissing her claims under the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (" ADA"), against her former employer, Payless Shoe Source, Inc. (" Payless"). Applying the standard articulated in Dush v. Appleton Elec. Co., 124 F.3d 957, 963 (8th Cir. 1997), we affirmed, concluding that Moore failed to present the "strong countervailing evidence" needed to defeat summary judgment when an ADA claimant has represented to the Social Security Administration that she is "unable to work." Moore v. Payless Shoe Source, Inc., 139 F.3d 1210 (8th Cir. 1998). The Supreme Court granted Moore's petition for a writ of certiorari and remanded for further consideration in light of Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 (1999). Moore v. Payless Shoe Source, Inc, 119 S. Ct. 2017 (1999) (mem.). For the following reasons, we reinstate our prior decision.

In June 1991, Moore was injured while working as a Payless store manager. She returned to work in September 1991 under a physician's restriction that she lift no more than ten pounds and avoid twisting, stooping, and bending. Payless accommodated these restrictions by instructing other store employees to assist Moore with lifting. She suffered a second work-related injury in April 1993 and received temporary total workers compensation disability benefits, returning to work in August. She suffered a third work-related injury in September 1993, went on unpaid leave, and again received workers compensation benefits. On December 20, 1993, she applied for Social Security disability benefits, representing that she was "unable to work." Moore's treating physician released her to return to work on January 20, 1994. In early February, Payless invited her to return to her former position without restrictions. Moore responded by furnishing a physician's note restricting her to lifting not more than fifteen pounds and advising that her right shoulder has a limited range of motion. Payless advised Moore, "you remain active on our payroll, but we have no work available which can accommodate your restrictions." Moore claims that Payless violated the ADA by refusing to reinstate her with the accommodations afforded her when she returned to work in September 1991 and August 1993.

The ADA prohibits an employer from discriminating against "a qualified individual with a disability because of the disability." 42 U.S.C. 12112. To avoid summary judgment dismissing her ADA claim, Moore must show that at the time in question she was disabled but was nonetheless qualified to perform the essential functions of her job with or without reasonable accommodation. See 42 U.S.C. 12111(8). In our prior opinion, we declined to invoke the doctrine of judicial estoppel to bar Moore's ADA claim, but we stated "that an ADA claimant who made prior sworn representations to SSA may not cast aside the factual import of those representations" in her ADA case. Moore, 139 F.3d at 1212-13. Quoting from our prior opinion in Dush, we held that "prior representations of total disability carry sufficient weight to grant summary judgment against the [ADA] plaintiff absent strong countervailing evidence that the employee is in fact" a qualified individual with a disability. Id. at 1213.

In Cleveland, the Supreme Court agreed that "a plaintiff's sworn assertion in an application for disability benefits that she is, for example, 'unable to work' will appear to negate an essential element of her ADA case -- at least if she does not offer a sufficient explanation." 119 S. Ct. at 1603. But the Supreme Court articulated a somewhat different summary judgment standard than our standard in Dush:

"When faced with a plaintiff's previous sworn statement asserting "total disability" or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless "perform the essential functions" of her job, with or without "reasonable accommodation."

Id. at 1604. We must reconsider our prior decision under this new standard.

In response to Payless's motion for summary judgment, Moore presented an affidavit by a licensed occupational therapist, Pat Hames, who had evaluated Moore's physical work limitations. Hames averred:

"Ms. Moore's limitations restrict her to physical work...