Norris v. Allied-Sysco Food Services, Inc.

• Decision Date: 20 December 1996
• Docket Number: No. C-94-0433 WDB.,C-94-0433 WDB.
• Citation: 948 F.Supp. 1418
• Court: U.S. District Court — Northern District of California
• Parties: Brenda NORRIS, Plaintiff, v. ALLIED-SYSCO FOOD SERVICES, INC., Defendant.

948 F.Supp. 1418

Brenda NORRIS, Plaintiff, v. ALLIED-SYSCO FOOD SERVICES, INC., Defendant.

No. C-94-0433 WDB.

United States District Court, N.D. California.

December 20, 1996.

COPYRIGHT MATERIAL OMITTED

Daniel Ray Bacon, Law Offices of Daniel Ray Bacon, San Francisco, CA, for plaintiff Brenda Norris.

Richard E. Levine, Levine & Skigen, San Francisco, CA, for defendant Allied-Sysco Food Services, Inc.

OPINION AND ORDER ON MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR A NEW TRIAL

BRAZIL, United States Magistrate Judge.

I. INTRODUCTION

Brenda Norris sued her former employer, Allied-Sysco Food Services, Inc. ("Allied"), alleging numerous claims. A jury trial was held. The jury concluded that sex was a motivating factor in a decision or decisions by Allied to deny Norris promotions, but the jury also concluded that Allied would have made the same decision or decisions in the absence of the impermissible motivating factor, meaning that Norris was not entitled to damages for sex discrimination. The jury further concluded that Allied violated the Americans with Disabilities Act (ADA) by terminating Norris, and the jury awarded her $300,000 in compensatory damages. The jury found in favor of Allied on all of the plaintiff's other claims.¹

Viewed in the light most favorable to the plaintiff, the evidence supporting Norris's ADA claim can be briefly summarized as follows. Norris left work on disability due to a back injury and various other ailments in September 1994. Starting around April 1995, Norris asked Allied to permit her to work from home or part-time. Allied either denied this request or took no action on it. Norris remained out on disability until she was terminated in November 1995.

Allied now moves for judgment as a matter of law on Norris's ADA claim, or, in the alternative, for a new trial on the ADA claim. The arguments that Allied makes in support of this motion can be grouped into three general areas. First, Allied argues that Norris did not present sufficient evidence to enable a reasonable jury to conclude that Norris established the essential elements of her claim that she was terminated in violation of the ADA. Second, Allied contends that the jury's answer to one of the special interrogatories submitted to it represents a finding by the jury that Norris did not ask to be accommodated by being allowed to work from home or part-time. Allied then contends that the jury's verdict for Norris on the ADA claim must have been based on a belief that Allied should have accommodated Norris by giving her an indefinite leave of absence, which, argues Allied, cannot be a "reasonable accommodation" under the ADA as a matter of law. Third, Allied argues that statements by Norris in applications for disability benefits preclude a reasonable jury from finding that Norris was able to perform the essential functions of her position.

We deny Allied's motion. With respect to Allied's first argument, we conclude that Norris presented sufficient evidence to permit a reasonable jury to find in her favor on each of the essential elements of her claim that she was terminated in violation of the ADA.

With respect to Allied's second argument, we conclude that the jury's answer to the special interrogatory relied upon by Allied does not represent a factual determination that Norris did not ask Allied about working from home or part-time. Since the jury could have decided that Allied should have accommodated Norris by permitting her to work from home, Allied's argument that indefinite leave cannot be a reasonable accommodation does not help Allied in this case, though the argument does have support in the case law.

In addressing Allied's third argument (that Norris's statements on disability benefits applications require judgment in favor of Allied), we reexamine an earlier ruling by us that the doctrine of judicial estoppel does not apply to statements in disability applications. While we conclude that judicial estoppel can be applicable in cases such as this one, we hold that Norris should not be judicially estopped by statements on her disability applications from taking the position that she would have been able to perform the essential functions of her position with reasonable accommodation for purposes of the ADA. We further conclude that a reasonable jury could have found that Norris was able to perform the essential functions of her position despite her statements in the disability applications.

II. FACTS²

A. Background

1. The defendant, Allied, distributes food and related goods. At the time she stopped working due to an injury, Norris was employed as a Non-Foods Specialist at Allied. Norris's main duties in this position were selling food-related goods (not foods themselves), mostly supply and equipment, and assisting sales representatives (called "Marketing Associates") in the sale of these goods. Norris's duties required her to drive for long periods and to periodically lift objects weighing about thirty or forty pounds. See Ex. 81.

B. Norris's Injury/Illness

2. Norris testified that on September 6, 1994, she injured her back while attempting to assemble a table that Allied had sold to a school. About a month later, Norris fell and broke her knee in an accident that was not job-related. Surgery was performed on Norris's knee in early November of 1994.

3. Norris's physician, Dr. Alfred Tan, testified that the back injury caused Norris to have acute back pain. Tan testified that during the Fall of 1994 and/or in 1995, Norris also was suffering from chronic fatigue syndrome, irritable bowel disease, neck pain, urinary incontinence, and stress. Tan testified that Norris's back injury prevented her from driving for long periods or lifting heavy objects. He also testified that Norris's condition started to deteriorate in mid-August of 1995.

4. Norris had back surgery on April 19, 1996 (after she was terminated). The surgery had initially been scheduled for the Fall of 1995. Tan testified that the recovery time for the type of surgery Norris had was usually about six months. Tan testified that Norris's condition began to improve in July or August 1996. During trial, Norris stated that she was still suffering from back pain.

C. Norris's Disability Leave

5. In September 1994, Norris left work on disability leave. As is documented in detail below, starting in September 1994, Norris sent Allied a series of doctor's notes which stated that Norris would not be able to work for a period which was generally between several weeks to two months from the date of the note. Starting in September 1994, as will also be documented in detail below, Norris filled out a number of claims forms for disability benefits.

6. Norris filled out a claim for disability benefits for the State of California on September 15, 1994. In this form, Norris responded to the question "What was the first day you were too sick to perform all the duties of your regular or customary work?" by filling in "9/12/94." Norris signed her name below a statement on the form which said, "I hereby claim benefits and certify that for the period covered by this claim I was unemployed and disabled...." On a doctor's certificate attached to the form, Dr. Tan answered "yes" to a question that asked whether Norris had "been incapable of performing his or her regular work." Dr. Tan stated that the approximate date that Norris would be able "to resume regular or customary work" was October 28, 1994. Ex. 862.

7. On September 16, 1994, Norris sent a memo to Hank Ontiveros, Allied's Director of Human Resources, stating that her doctors would recommended that she take a disability leave as soon as possible. Ex. 233. On September 16, 1994, one of Norris's doctors filled out a "Back to Work" form stating that Norris would be "off medically until October 28, 1994." Ex. 864.

8. On September 27, 1994, Norris filled out a state disability form similar to the one she filled out on September 15, 1994. Dr. Tan filled out a doctor's certificate similar to the one attached to the form filled out on September 15, 1994, and he again stated that the approximate date that Norris would be able "to resume regular or customary work" was October 28, 1994. Ex. 865.

9. On October 25, 1994, one of Norris's doctors at the Tri-Valley Orthopedic and Sports Medical Group ("Tri-Valley")³ filled out a form which stated "work status ... off duty: to be determined on 11-1-94." Ex. 874. On December 1, 1994, a doctor at Tri-Valley filled out a form for Norris, stating "no work status approx 1-1-95." Ex. 876. A form from Tri-Valley entitled "Return to Work Order," dated January 1, 1995, states that Norris would have "no duty until re exam 2-1-95[;] possible return to work end of Feb." Ex. 880. A Tri-Valley "Return to Work Order," dated February 23, 1995, states that Norris would have "no duty until after re exam 3-22-95." Ex. 884.

10. On March 2, 1995, Norris filled out a claim form for long-term disability (LTD) benefits from the Principal Mutual Life Insurance Company ("Principal"). Principal was an insurer that provided disability coverage for Allied employees. On the form, in response to the question "When did you become wholly unable to work?," Norris answered "9-94." In response to the question "Have you been continuously disabled since you became unable to work?," Norris checked the box marked "yes." Responding to the question "When do you feel you will be able to resume work?," Norris stated "not known." Ex. 887.

11. When questioned about this form at trial, Norris testified, "I don't know if during that whole time I was wholly unable to do any kind of work.... `Wholly' was on the form. I took off on disability [in September 1994]. I answered [the form] to the best of my ability." Tan testified that he interpreted the language "wholly unable to work" on the form as meaning only that Norris had been wholly unable to work in her occupation as a Specialist.

12. On March 8, 1995,...