Taylor v. Food World, Inc.

• Decision Date: 28 January 1998
• Docket Number: No. 97-6017,97-6017
• Citation: 133 F.3d 1419
• Parties: 11 NDLR P 348, 11 Fla. L. Weekly Fed. C 981 Patricia TAYLOR, as guardian of Gary Taylor, a minor, Plaintiff-Appellant, v. FOOD WORLD, INC., Brunos, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1419

133 F.3d 1419

11 NDLR P 348, 11 Fla. L. Weekly Fed. C 981

Patricia TAYLOR, as guardian of Gary Taylor, a minor, Plaintiff-Appellant, v. FOOD WORLD, INC., Brunos, Inc., Defendants-Appellees.

No. 97-6017.

United States Court of Appeals, Eleventh Circuit.

Jan. 28, 1998.

Vernon H. Padgett, Cullman, AL, Daco S. Auffenorde, Auffenorde & Auffenorde, P.C., Huntsville, Al, for Plaintiff-Appellant.

Barbara L. Sloan, EEOC-Office of the General Counsel, Washington, DC, for amicus curiae, EEOC.

Dent M. Morton, John E. Norris, Mark Taliaferro, Burr & Forman, Birmingham, AL, for Defendants-Appellees.

Before COX and BARKETT, Circuit Judges, and HUNT ^*, District Judge.

COX, Circuit Judge:

I. BACKGROUND

Patricia Taylor, as guardian of Gary Taylor, who was a minor at the time this action was commenced, appeals the district court's order granting summary judgment in favor of Food World, Inc. and Bruno's, Inc. ("Food World") on the claim that Gary was terminated in violation of his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.. We reverse and remand.

Gary suffers from Asperger's disorder, a form of autism involving pervasive developmental disorders. As a result of this condition, Gary often speaks more loudly than necessary and engages in "echolalia," or constant repetitive speech. Gary is unable to control these behaviors. Additionally, Gary's communication and social interaction skills are impaired, as are certain living and survival skills. For example, Gary tends to make inappropriate comments or ask personal questions of strangers.

Gary began working as a utility clerk for Food World on June 20, 1994. As a utility clerk, his main duties included bagging groceries and assisting customers in delivering the groceries to their automobiles. In performing his duties, customers and co-workers observed Gary speaking loudly and sometimes asking customers personal questions. Three customers complained or made negative remarks to the management about Gary's behavior. Others commented favorably on Gary's attempt to work despite his disability. On September 13, 1994, the store manager terminated Gary. The manager told Mrs. Taylor that the decision to terminate Gary was based on customer complaints that Gary was loud, overly friendly, and overly talkative.

Following Gary's termination, Mrs. Taylor filed an application on Gary's behalf for Supplemental Security Income (SSI) benefits. In the application, Mrs. Taylor affirmed that Gary was disabled and had been since birth. The Social Security Administration determined that Gary was disabled, as Gary's impairment was a "listed impairment" under the regulations, meaning that Gary's impairment meets or equals one of the presumptively disabling impairments listed in the regulations. ¹ The Social Security Administration therefore awarded Gary SSI disability benefits.

II. PROCEDURAL HISTORY

Mrs. Taylor, as guardian of Gary, sued Food World, alleging that Food World discriminated against Gary in violation of his rights under the ADA. The district court granted Food World's motion for summary judgment and denied Gary's motion for partial summary judgment, holding that: (1) Gary was judicially estopped from contending that he could perform his past job because he subsequently applied for and received SSI disability benefits; (2) the undisputed facts indicated that Gary could not perform his essential job functions and therefore was not an "otherwise qualified individual" under the ADA; and (3) Gary was not entitled to partial summary judgment because as a matter of law, Gary's proposed accommodation was not reasonable.

On appeal, Gary contends that the district court erred in (1) finding that he was judicially estopped from asserting that he was an otherwise qualified individual; (2) holding that there existed no genuine issue of material fact as to whether Gary could perform the essential functions of his job with or without reasonable accommodation; (3) holding that there was no genuine issue of material fact as to whether a reasonable accommodation existed; (4) excluding admissible evidence submitted by Gary; and (5) considering evidentiary submissions that would not be admissible at trial.

III. STANDARDS OF REVIEW

We review de novo the district court's decision to grant Food World's motion for summary judgment and to deny Gary's motion for partial summary judgment. See, e.g., Tinney v. Shores, 77 F.3d 378, 380 (11th Cir.1996). We review the district court's application of judicial estoppel for abuse of discretion. See Talavera v. School Board of Palm Beach Co., 129 F.3d 1214 (11th Cir.1997) (quoting 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 review the district court's evidentiary rulings for abuse of discretion. See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997); United States v. Orr, 825 F.2d 1537, 1543 (11th Cir.1987).

IV. DISCUSSION

Gary claims that Food World discriminated against him in violation of his rights under the ADA by failing to provide reasonable accommodations for his disability and by terminating him because of his disability. To prevail on a claim under the ADA, Gary must show (1) that he has a disability; (2) that he is "qualified" to be a utility clerk; and (3) that Food World discriminated against him on the basis of his disability. See 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); see also 42 U.S.C. § 12102(2). A "qualified" individual for purposes of the ADA is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions" of the job. 42 U.S.C. § 12111(8). If a qualified individual with a disability could perform the essential functions of the job with reasonable accommodation, then the employer is required to provide the accommodation unless doing so would be an undue hardship for the employer. See 42 U.S.C. § 12112(b)(5)(A).

The first element of Gary's ADA claim is not at issue. Food World does not contest that Gary has a "disability" as defined by the ADA. Rather, Food World argues that there is no genuine issue of fact as to whether Gary is "qualified." The district court ruled that no genuine issue of material fact existed as to whether Gary is qualified, basing its decision on alternative grounds. First, the court held that Gary is judicially estopped from claiming that he is qualified because he applied for and received SSI disability benefits. As an alternative basis for its holding, the court held that as a matter of law, Gary's on-the-job behavior rendered him unqualified for the position of utility clerk.

A. JUDICIAL ESTOPPEL

The first issue we address is whether the district court abused its discretion in applying the doctrine of judicial estoppel. Judicial estoppel "is applied to the calculated assertion of divergent sworn positions ... [and] 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) (citation omitted). The district court reasoned that implicit in both the application for SSI benefits and the SSA's determination that Gary is eligible for benefits is the fact that Gary could not perform his job as a utility clerk or any other work. Further, the district court was not persuaded that the fact Gary was deemed disabled because his condition met or equaled a listed impairment compelled a different result. Therefore, because the district court found that Gary's representation to the SSA was clearly contradictory to his position in this action, it ruled that Gary was judicially estopped from asserting that he is qualified.

Recently, this court addressed the issue of whether a plaintiff who applies for and receives disability benefits is per se judicially estopped from later bringing a claim under the ADA. See Talavera v. School Board of Palm Beach Co., No. 96-4756 (11th Cir. Nov.24, 1997). After an extensive discussion of the holdings of other courts of appeals presented with this question, this court determined that a certification of total disability on a disability benefits application is not inherently inconsistent with being "qualified" under the ADA. See id. This court reasoned that the SSA, in determining whether an individual is entitled to disability benefits, does not take account of the effect of reasonable accommodation on an individual's ability to work. See id.; accord Swanks v. Washington Metro. Area Transit Auth'y, 116 F.3d 582, 585 (D.C.Cir.1997). Accordingly, the determination of whether an individual who has certified total disability to the SSA is judicially estopped from later bringing a claim under the ADA will depend upon the specific statements made in the application and other relevant evidence in the record. See id.

After examining the record in this case, we conclude that Gary is not judicially estopped from asserting the claims in question. ² The medical records Gary submitted to the SSA do not clearly contradict his assertion that he is "qualified" under the ADA. For example, Gary submitted a Behavioral Assessment conducted by a licensed psychologist. The psychologist recommended that Gary and his family seek "support employment with the assistance of a job coach" but also suggested that "Gary and his family should explore additional social outlets and opportunities." (R.2-29). Further, in a discharge summary from Vanderbilt hospital, the attending physician, while suggesting as a possible option a "sheltered work shop with a group home placement," also stated:

educational and occupational planning for Gary will need to take into consideration is [sic]...