FLOYD R. GIBSON, Circuit Judge.
Appellant Stella A. Dush filed this lawsuit against her former employer, appellee Appleton Electric Company ("Appleton"), claiming that Appleton fired
Dush injured her back at some uncertain time in December of 1991 while performing a "straight pack" job at Appleton's Columbus, Nebraska plant. As a result, Dush contacted her family physician, Dr. Klutman, during January of 1992. Dr. Klutman referred Dush for physical therapy to Columbus Community Hospital. On doctor's orders, Dush was off work from January 7, 1992 until January 19, 1992, and throughout that period attended seven physical therapy sessions. Dush's physical therapist, Terri Buck, released her to commence light duty work for four hours per day beginning January 21, 1992. Appleton honored these restrictions and promptly transferred Dush to a part-time light duty job.
Upon returning to work, Dush found that her labors caused her to experience severe back pain. Therefore, on January 27, 1992, she once again visited Dr. Klutman, and a CAT scan he ordered revealed a ruptured disc in Dush's lower spine. Though Dush's treating physicians approved her to resume light duty work on February 10, 1992, the discovery of the ruptured disc prompted Dr. Klutman to refer Dush to a neurosurgeon, Dr. John Fox, for treatment. Dr. Fox did not feel that Dush's ailment required surgery,
Dush was again off work from March 3, 1992, the date of her first appointment with Dr. Manahan, until April 19 of that year. On April 19, Dr. Manahan cleared Dush to return to work for four hours per day with the restriction that she not lift more than five to ten pounds. In addition, Dr. Manahan suggested that, over time, Dush might attempt to increase her working hours from four to six and, eventually, eight per day. For the remainder of her tenure with Appleton, however, Dush was unable to regularly perform her job for shifts exceeding four hours.
Between May 1992 and January 1993, Dush submitted to physical exams by three doctors hired by Appleton. She saw Dr. Richard Cimpl on May 4, 1992, and she visited Dr. Michael O'Neil in October. Both of these orthopedic surgeons concurred in the course of treatment chosen by Dr. Manahan. But given Dush's minimal medical improvement over a significant period of time, Appleton asked her to consult Dr. Anil Agarwal on January 5, 1993. Following this appointment, Dr. Agarwal issued a report in which he advised the company that Dush could immediately start working six hour days and could, within two weeks, return to full eight hour shifts. At the same time, though, Dush's personal physician, Dr. Manahan, continued to recommend that she work no more than four hours per day,
Despite her knowledge of the contents of Dr. Agarwal's report, and based upon Dr. Manahan's contradictory instructions, Dush maintained her schedule of four hour work days. On March 1, 1993, Dush's supervisors informed her that if she did not begin working eight hours per day she would be subject to disciplinary action under Appleton's absentee policy. Dush still declined to undertake a customary working schedule. Consequently, in reliance upon Dr. Agarwal's conclusions, the company disciplined Dush in four progressive steps, beginning with an employee consultation on March 18, 1993, and ending with her discharge for absenteeism on May 21, 1993.
On October 19, 1993, Dush filed with the Nebraska Workers' Compensation Court a petition seeking an award of temporary total disability benefits and recovery of medical expenses resulting from the back injury she suffered while employed at Appleton, which was named as the defendant. In her petition, Dush alleged that an accident on January 6, 1992 rendered her "temporarily and totally disabled." Appellant's App. at 214. To support her claim, Dush submitted to the court, inter alia, a "Vocational Evaluation and Earning Capacity Assessment" prepared by North Central Rehabilitation, Inc. This report summarized Dush's subjective complaints of pain as follows:
Id. at 217-18. Not surprisingly, the author of the assessment, Gail Leonhardt, surmised that Dush was "unemployable" when she lost her job at Appleton. Id. at 220.
The workers' compensation court agreed. Following an adversarial hearing, the court determined that Dush was temporarily totally disabled and awarded her medical expenses and appropriate benefits for (1) certain
In early 1995, Dush initiated this suit against Appleton, alleging that the company violated the ADA by "discriminating" against her because of her back injury. Specifically, Dush claimed that the company failed to provide her with appropriate accommodations, wrongfully terminated her due to her disability,
On motion for summary judgment, Appleton asserted that Dush could not recover because she would be unable to prove that she was, at the time of her discharge, a "qualified individual with a disability" under the ADA. In particular, through arguments founded upon principles of collateral and judicial estoppel, Appleton averred that Dush's representations and pleadings of total disability before the Nebraska Workers' Compensation Court and the district court
By a Memorandum Opinion and Order dated August 1, 1996, the district court granted Appleton's motion for summary judgment. Finding persuasive the company's arguments, the court ruled that "an individual who has previously claimed to be totally disabled should be estopped from later claiming to be a `qualified individual with a disability' during the time period in which that individual claimed to have been totally disabled." Appellant's App. at 49. Dush's disagreement with this proposition resulted in her timely perfection of this appeal. While we find it unnecessary in the present matter to adopt a concrete position on the estoppel theory embraced by the district court, we affirm because we conclude that Dush has failed to proffer genuine issues of material fact sufficient to overcome Appleton's summary judgment motion.
In her brief, Dush takes care to remind us that Congress enacted the ADA to
Naturally, then, the courts have required an ADA plaintiff to prove as part of her prima facie case that she does, in fact, fall within the class of individuals created by these definitional requirements. See, e.g., Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.) (listing components of prima facie case), cert. denied, ___ U.S. ___, 117 S.Ct. 274, 136 L.Ed.2d 197 (1996). In granting Appleton's motion for summary judgment, the district court determined that Dush's cause of action foundered on this very point. That is, the court believed that Dush could not succeed on her claim because she would be unable to prove that she could, with or without reasonable accommodation, perform the essential functions of her job at Appleton. Underlying the district court's analysis was the fact that Dush had previously represented to the Nebraska Workers' Compensation Court that she was totally disabled and unemployable. According to the court, because she made those allegations before the state administrative tribunal, Dush would be estopped from introducing evidence at trial that she could, after all, perform the essential functions of her job at Appleton. Thus, her suit would necessarily fail due to a dearth of proof on a fundamental element of her prima facie case.
By grounding its order granting summary judgment in principles of estoppel, the district court bounded headlong into what has recently become a hotly litigated and contentious issue. A significant number of federal courts have, like the district court, decided that a person who characterizes herself as "totally disabled" in order to receive state, federal, or even insurance benefits will normally be estopped from proving that she is a qualified individual with a disability within the meaning of the ADA or similar state laws. See, e.g., McNemar v. Disney Store, Inc., 91 F.3d 610, 616-21 (3d Cir.1996) (deciding that district court did not abuse its discretion when it applied judicial estoppel as a per se bar to prevent a disability claimant with AIDS from proving she was a qualified individual with a disability), cert. denied, ___ U.S. ___, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997); Lowe v. Angelo's Italian Foods, Inc., 966 F.Supp. 1036, 1037 (D.Kan.1997) ("[W]hen an employee represents that he or she is totally disabled in order to receive disability benefits, that employee is estopped from claiming that he or she can perform the essential function of the job with or without reasonable accommodation."); Thomas v. Fort Myers Hous. Auth., 955 F.Supp. 1463, 1466 (M.D.Fla.1997) (applying equitable estoppel where ADA plaintiff had received social security benefits based on representation
It is axiomatic that summary judgment is warranted only if, "after viewing the evidence in the light most favorable to the nonmoving party, there exists no genuine
In evaluating whether a genuine issue of material fact exists to show that a person was, at relevant times, a qualified individual with a disability, special attention must be given to the circumstances surrounding the case. Where, as here, the party opposing the motion has made sworn statements attesting to her total disability and has actually received payments as a result of her condition, the courts should carefully scrutinize the evidence she marshals in an attempt to show she is covered by the ADA. The burden faced by ADA claimants in this position is, by their own making, particularly cumbersome, for summary judgment should issue unless there is "strong countervailing evidence that the employee ... is, in fact, qualified." Mohamed, 944 F.Supp. at 282. Typically, "the prior representations [of total disability] carry sufficient weight to grant summary judgment against the plaintiff." Id.; see also Kennedy, 90 F.3d at 1481 (finding summary judgment proper, and avoiding judicial estoppel question, where ADA claimant, who had professed to be "totally disabled" for other purposes, resisted summary judgment with deposition testimony that was "uncorroborated and self-serving"); August v. Offices Unlimited, Inc., 981 F.2d 576, 581-84 (1st Cir.1992) (failing to discern a genuine issue of material fact in analogous situation).
Turning at last to the record before us, and reviewing the entry of summary judgment de novo, see Handeen, 112 F.3d at 1347, we decide that the district court properly concluded there was no genuine issue of material fact as to whether Dush was a qualified individual with a disability on the date of her termination. The evidence presented by Appleton in support of its motion was, to say the least, compelling. Not only had Dush previously labeled herself as "totally disabled" and been adjudicated as such by the Nebraska Workers' Compensation Court, but her Complaint in this very case also averred that Appleton's conduct resulted in her "complete, total and permanent disability." Cf. Garman v. Griffin, 666 F.2d 1156, 1158 (8th Cir.1981) ("Where a party has made a statement in a pleading about his own conduct which is at variance with his position in the matter being litigated, the evidence is generally admitted."). Pertinent medical records are consistent with these representations. Dush's personal physician, Dr. Manahan, reported that Dush had "a lot of problems" even in light duty employment, and the author of a "Vocational Evaluation and Earning Capacity Assessment" regarded Dush as "unemployable" when she lost her job at Appleton. On top of this evidence, which in itself is substantial, lies Dush's sworn testimony during her deposition for this case. In that proceeding, Dush agreed with the state workers' compensation court that she was totally disabled from the time of her discharge, and she additionally stated that her Complaint correctly described her as completely disabled.
To counter these damaging facts, Dush first maintains that she satisfactorily performed her job until the time that she was fired. Though this circumstance assuredly has some relevance to the appeal sub judice, its significance pales in comparison to the contrary evidence collected by Appleton. In any event, in a case like this one, where wrongful discharge is the focus of our inquiry, the key concern is whether the employee
Dush also contends that we should discount the statements she made in her deposition because she is a layperson with "no information or knowledge as to the legal definition of th[e] term `total disability[.']" Appellant's App. at 30. The force of Dush's assertion does not escape us, and we cannot rule out the possibility that, in a proper situation, we might see fit to look past a nonlawyer's unknowing and unintended concession on a discrete question of law. This, however, is not that case. Dush's knowledge of the exact legal definition of the term "total disability" is irrelevant in light of further testimony she gave at her deposition. Importantly, she indicated that she believes the phrase to mean that she "couldn't work at all." Thus, notwithstanding Dush's alleged ignorance of the law, the transcript of her deposition reveals that she defines the term in a manner completely at odds with the concept of being a qualified individual with a disability. As such, we are comfortable that Dush possesses a clear enough understanding of "total disability" to justify holding her to her admission.
Finally, Dush posits that being "totally disabled" for purposes of Nebraska's workers' compensation law has no bearing on the question of whether she is a qualified individual with a disability.
Essentially, Dush has attacked the evidence against her on a number of fronts, advancing diverse arguments in support of her theory that certain aspects of the record are of minimal probative value. As discussed above, while some of Dush's claims are, in principle, sound, they are weakened by the circumstances of this case. In any event, even were we to disregard one or the other piece of evidence Appleton has proffered, the record as a whole would remain sufficient to justify summary judgment. In the end, despite Dush's valiant attempts to refute the wealth of facts showing that she was not a qualified individual with a disability, the evidence she has mustered does not represent "strong countervailing evidence" sufficient to defeat summary judgment. The record as a whole could not give rise to a genuine issue of material fact on the question of whether Dush, "with or without reasonable accommodation, [could] perform the essential functions of [her job at Appleton]." 42 U.S.C. § 12111(8). As a result, the district court correctly entered summary judgment in favor of the company.
Because Dush has failed to establish a genuine issue of material fact on an essential element of her prima facie case, we affirm the district court's judgment.
In an eleventh hour affidavit submitted in opposition to Appleton's motion for summary judgment, Dush insisted that, as a layperson, she had "no information or knowledge as to the legal definition of th[e] term `total disability[.']" Id. at 30. At the deposition itself, however, Dush confirmed that she understood "total disability" to mean that she "couldn't work at all." Id. at 192-93.
Less than five months after releasing the Robinson and Eback decisions, we rendered an opinion in Budd v. ADT Sec. Sys., 103 F.3d 699 (8th Cir.1996) (per curiam). In that case, we indicated that the district court had properly applied estoppel to preclude an ADA claimant from proving he could perform the job in question where, in applying for social security and disability insurance benefits, the claimant "made representations about his own physical abilities that [were] completely at odds with the theory of his lawsuit." Id. at 700; cf. Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768, 771-72 (8th Cir.1987) (deciding only that § 504 of the former Rehabilitation Act did not cover those who, without question, could no longer perform their jobs), cert. denied, 485 U.S. 938, 108 S.Ct. 1116, 99 L.Ed.2d 277 (1988).
Because we determine that summary judgment was otherwise justified, it would be unwise at this juncture for us to attempt to reconcile these cases. Instead, we leave for another day the question of whether and to what extent judicial estoppel, or some other form of estoppel, will operate to prohibit someone who has formerly claimed to be "totally disabled" from making out a prima facie ADA case. We do find it necessary to mention, with due respect to the D.C. Circuit, that we do not think this Court has, as yet, firmly entrenched itself within any of the camps of divergent opinions on this issue. See Swanks, 116 F.3d at 586 (suggesting this Court has held that the receipt of disability benefits does not preclude subsequent ADA relief). As we see it, the issue, at least for the time being, remains open in our Circuit.
Still, it is our task to decide whether any rational juror could find that Dush was a qualified individual with a disability on May 21, 1993. As to that point in time, the evidence is almost uniform that Dush was not qualified under the ADA, but was rather "totally disabled" and "unemployable." Cognizant of the enhanced burden Dush faces under the present circumstances, we hold that she has not advanced "strong countervailing evidence" that would cause reasonable minds to differ over whether she was able to perform the essential functions of her job, with or without accommodation, on the date of her discharge.