Stella A. Dush v. Appleton Electric ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 96-3289
_____________
Stella A. Dush, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Appleton Electric Company, *
*
Defendant - Appellee. *
_____________
Submitted: March 14, 1997
Filed: August 28, 1997
_____________
Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
_____________
FLOYD R. GIBSON, Circuit Judge.
Appellant Stella A. Dush filed this lawsuit against her former
employer, appellee Appleton Electric Company ("Appleton"), claiming that
Appleton fired1 her in violation of the Americans with Disabilities Act of
1990 ("ADA"), 42 U.S.C. §§ 12101-12213
1
In addition to the wrongful discharge claim, Dush also included in her
Complaint a cause of action premised upon Appleton's alleged harassment of her. The
district court, however, granted the company's motion to dismiss the harassment count,
and Dush does not challenge that decision on this appeal.
(1994 & Supp. I 1995). On motion for summary judgment, the district court2
ruled that Dush's characterization of herself as "totally disabled" in a
previous workers' compensation proceeding estopped her from introducing
evidence in this action that she was, for purposes of the ADA, a "qualified
individual with a disability" at the time of her discharge. Accordingly,
the court reasoned that it would be impossible for Dush to establish a
prima facie case of unlawful discrimination; it thus entered summary
judgment in favor of Appleton, and this appeal followed. Based on our
conclusion that Dush has failed to demonstrate the existence of a genuine
issue of material fact as to an essential element of her claim, we affirm
the district court's judgment.
I. BACKGROUND
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
2
The HONORABLE WILLIAM G. CAMBRIDGE, Chief United States District
Judge for the District of Nebraska.
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neurosurgeon, Dr. John Fox, for treatment. Dr. Fox did not feel that
Dush's ailment required surgery, so he, in turn, instructed Dush to see Dr.
Antonio Manahan, a specialist in rehabilitative medicine, for conservative
care.
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
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work no more than four hours per day,3 and Dush faithfully notified Appleton
of Dr. Manahan's advice to her.
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:
3
It appears that Dush experienced considerable discomfort even when she
adhered to the restrictions Dr. Manahan placed upon her. Via deposition testimony,
Dr. Manahan disclosed that Dush, during a May 19, 1992 appointment with him,
indicated that her "first two hours [of work were] comfortable but the second or the
succeeding -- the rest of the two hours she was having a lot of pain." Appellant's App.
at 374. This point is reinforced by reference to a letter penned by Dr. Manahan on
February 11, 1994. In that correspondence, the physician mentioned that Dush had "a
lot of problems" with her light duty job. Id. at 226.
-4-
Regarding physical abilities and limitations, the injured
worker indicated that she experiences pain following standing
for 10-15 minutes, is unable to climb stairs, unable to bend,
cannot reach when it requires her to bend her back, experiences
numbness in her legs and feet when sitting, has difficulty
walking, except with a grocery cart that she uses for support
when grocery shopping, can only lift a maximum of 5-10 pounds,
without twisting, bending and stooping and is unable to drive
because of her inability to use foot pedals.
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
periods of time while she was employed at Appleton, but on medical leave,
(2) a period spanning from the date of her termination until the date of
the hearing, and (3) "thereafter and in addition thereto, . . . for so
long in the future as [Dush] shall remain totally disabled as a result of
said accident and injury."4 Id. at 73. In approving this award, the court
took note of the fact that Dush had worked for some time in a light duty,
reduced hours job at Appleton. Nonetheless, the presiding officer resolved
that, given Dush's "pain and continuing treatment," she would be "unable
to continue this light duty employment on any long term sustained basis."
Id. at 71.
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
4
Indeed, at oral argument in this appeal, Appleton's attorney informed the panel
that Dush at that time continued to receive total disability benefits.
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accommodations, wrongfully terminated her due to her disability,5 and
harassed her. Elaborating upon her claim of harassment, Dush alleged that
Appleton's behavior caused her to overextend her physical abilities, "which
resulted in her complete, total and permanent disability." Id. at 3. Dush
further explicated that she had "sustained significant physical injury
resulting in her permanent disability," id. at 3-4, and she sought relief
by way of, among other things, compensation for her "loss of earnings
because of her permanent and total disability, and her loss of wages
throughout [her] working life," id. at 4.6
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 court7 precluded her from establishing
5
The district court and the parties have evidently treated the "failure to
accommodate" and "wrongful discharge" grounds for relief as one and the same, so we
will do likewise.
6
During questioning at her deposition, Dush testified that she agreed with the
representation in her Complaint that she had sustained an injury "which resulted in her
complete, total, and permanent disability." Appellant's App. at 194-95.
7
Appleton buttressed its motion with the allegations of total disability contained
in Dush's Complaint, and the company also adverted to certain statements Dush made
in her deposition in this case. For example, when asked whether she agreed "with the
workers' comp[ensation] decision that [she was] totally disabled from the time of [her]
discharge on May 21[, 1993] through the date of th[e workers' compensation] award,"
Appellant's App. at 177, Dush responded, "Yes, I think so," id. at 178.
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.
-6-
that she could perform the essential functions of her job with or without
reasonable accommodation.
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.
II. DISCUSSION
In her brief, Dush takes care to remind us that Congress enacted the
ADA to counteract "the continuing existence of unfair and unnecessary
discrimination and prejudice [which] denies people with disabilities the
opportunity to compete on an equal basis and to pursue those opportunities
for which our free society is justifiably famous." 42 U.S.C. § 12101(a)(9)
(1994). Appleton does not, and cannot, dispute this laudable purpose of
the Act. When interpreting remedial statutes, however, it is invariably
necessary to temper generalized recitations of legislative purpose with the
precise language used to define a law's parameters. This appeal is
illustrative. To be sure, Congress passed the ADA in a noble effort to
eradicate the widespread and senseless discrimination which had for so long
persisted against those perceived to be "disabled." Nevertheless, a court
of law must venture beyond such sweeping
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abstractions and ask various questions which, without a doubt, will fail
to produce the sort of emotional thunder often engendered by broadly worded
statements of remedial intent, but which are indispensable to a meaningful
application of a statute. One query requires us to ponder who, in fact,
are the intended beneficiaries of a law; in the context of the ADA, we must
consider who, exactly, are those persons against whom Congress desired to
prevent discrimination. As is usually so, Congress has provided the answer
in the language of the statute itself: The ADA was designed to prevent an
employer from discriminating against "a qualified individual with a
disability." 42 U.S.C. § 12112(a) (1994). Congress has supplied even
further direction by explaining that a qualified individual with a
disability is a person "with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds or desires." Id. § 12111(8).
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, 117 S. Ct. 274 (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.
-8-
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, 117 S. Ct. 958 (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
that he was "totally disabled"); Violette v. International Bus. Machs.
Corp., 962 F. Supp. 446, 449 (D. Vt. 1996) ("A finding of . . . a
disability [for social security purposes] estops a plaintiff from claiming
he is a 'qualified individual.'"), aff'd, 116 F.3d 466 (2d Cir. 1997).
Different courts have positioned themselves on the other side of this
dispute, holding that one who represents herself as "totally disabled" for
purposes extraneous to the ADA should still have an opportunity to recover
under that statute. See, e.g., Swanks v. Washington Metro. Area Transit
Auth., 116 F.3d 582, 584-87 (D.C. Cir. 1997) (agreeing with both the Social
Security Administration and the Equal Employment Opportunity Commission
that the receipt of social security disability benefits does not stand as
an absolute bar to ADA claims); Sumner v. Michelin N. Am., Inc., No. CIV.
A. 96-T-313-E, 1997 WL 329588, at *7 (M.D. Ala. June 13, 1997) ("[A] person
may be totally and permanently disabled for workers' compensation purposes
and yet still be able to perform a position's essential functions with or
without reasonable accommodation."); Mohamed v. Marriott Int'l, Inc., 944
F.
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Supp. 277, 281-84 (S.D.N.Y. 1996) (deeming it inappropriate to utilize
judicial estoppel because, among other factors, differences exist in
definitions employed by the relevant statutes); Smith v. Dovenmuehle
Mortgage, Inc., 859 F. Supp. 1138, 1142 (N.D. Ill. 1994) (commenting that
use of judicial estoppel under similar circumstances would "place plaintiff
in the untenable position of choosing between his right to seek disability
benefits and his right to seek redress for an alleged violation of the
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ADA"). Our approach to this issue is less than clear,8 and we do not find
8
Approximately one year ago we issued two opinions which, at first blush, would
appear to make it significantly more difficult to hold that judicial estoppel will, as a per
se rule, prevent a person who has claimed to be totally disabled from subsequently
proving that she is a qualified individual with a disability. In the most notable of these
decisions, Robinson v. Neodata Servs., Inc., 94 F.3d 499, 501-02 (8th Cir. 1996), we
rejected the ADA claimant's contention that her status as "totally disabled" for purposes
of social security benefits proved as a matter of course that she was "disabled" under
the ADA. We observed, "Social Security determinations . . . are not synonymous with
a determination of whether a plaintiff is a 'qualified person' for purposes of the ADA.
At best, the Social Security determination was evidence for the trial court to consider
in making its own independent determination." Id. at 502 n.2 (citation omitted); see
also Eback v. Chater, 94 F.3d 410, 412 (8th Cir. 1996) (quoting with approval a
statement from the Associate Commissioner of Social Security declaring that "the ADA
and the disability provisions of the Social Security Act have different purposes and
have no direct relationship to each other").
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 (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
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it necessary, for instant
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.
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purposes, to authoritatively define our stance on the matter. Rather, we
affirm the district court's entry of summary judgment pursuant to
principles which have more general application to rulings of that sort.
See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 n.3 (9th Cir. 1996)
(regarding it unnecessary to consider judicial estoppel where there was no
genuine issue of material fact relating to pertinent issue).
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 issue of material fact and the moving party is
entitled to judgment as a matter of law." F.D.I.C. v. Bell, 106 F.3d 258,
263 (8th Cir. 1997). After the moving party has fulfilled its burden of
identifying the portions of the record which demonstrate an absence of a
genuine issue of material fact, the nonmoving party must "'set forth
specific facts showing that there is a genuine issue for trial.'" Handeen
v. Lemaire, 112 F.3d 1339, 1346 (8th Cir. 1997) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). To avoid the entry of an
adverse judgment, it is incumbent upon the nonmoving party to support its
case with "more than a scintilla of evidence." Bell, 106 F.3d at 263
(quotation omitted). "Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotation omitted).
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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 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.
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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 was
a qualified individual at the time of her termination. See August, 981
F.2d at 583 (finding "no merit" in contention that relevant date in
wrongful discharge action should be some time other than the date of
termination). The overwhelming majority of medical records and other
evidence show that Dush was completely unable to work as of the day of her
discharge. Though it is admirable that Dush continued to press on through
what apparently was substantial pain, her personal doctor verifies that she
did so only with "a lot of problems." Based on the record as a whole any
rational trier of fact would inevitably decide that by May 21, 1993, Dush
had, as a practical matter, persisted as long as possible and finally found
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it necessary to succumb to the ailment that beset her.9 The Nebraska
Workers' Compensation Court, health care professionals,
9
In reaching this conclusion, we are not unmindful of the fact that Appleton fired
Dush due to her refusal to assume more hours per day. But just because the company
incorrectly believed, based on Dr. Agarwal's report, that Dush could return to work
does not mean that she truly was a qualified individual with a disability. Indeed, Dr.
Agarwal's assessment was not materially different from the evaluation of every other
doctor who had treated Dush -- all encouraged her to gradually return to a normal
working schedule.
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.
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and Dush herself are in accord that she was "totally disabled" and
"unemployable" as of that date, and Dush has not come forth with "strong
countervailing evidence that [she was], in fact, qualified." Mohamed, 944
F. Supp. at 282.
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
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individual with a disability.10 This is because the ADA includes the
concept of "reasonable accommodation," whereas workers' compensation law
does not. Cf. Sumner, 1997 WL 329588, at *7 ("[A] person may be totally
and permanently disabled for workers' compensation purposes and yet still
be able to perform a position's essential functions with or without
reasonable accommodation."). According to Dush, she could have been
totally disabled under Nebraska law, but still have been able to perform
the essential functions of her job with a reasonable accommodation (namely,
reduced hours).11 Compare 42 U.S.C. § 12112(a), (b)(1)(5)(A) (1994)
(clarifying that a "covered entity" must provide "reasonable
accommodations" for qualified individuals with disabilities), with Heiliger
v. Walters & Heiliger Elec., Inc., 461 N.W.2d 565, 574 (Neb. 1990) ("Total
disability may be found in the case of workers who, while not altogether
incapacitated for work, are so handicapped that they will not be employed
regularly in any well-known branch of the labor market. The essence of the
test is the probable dependability with which claimant can sell his
services in a competitive labor market, undistorted by such factors as
business booms, sympathy of a particular employer or friends, temporary
good luck, or the superhuman efforts of the claimant to rise above his
crippling handicaps." (quotation and alteration omitted)). The problem
with this contention, however, is that the workers' compensation court
addressed the
10
Of course, this argument cannot explain away other, equally incriminating,
items of evidence, such as Dush's inclusion within her ADA Complaint of an averment
that she is completely, totally, and permanently disabled.
11
Assuming this is true, it creates somewhat of a paradox for Dush. For, on the
one hand, she seeks to take refuge in the precise definition of "total disability" under
Nebraska law, with the term's accompanying exceptions. At the same time, though, she
asks to be released from her admission on this point because she was not, in actuality,
aware of this definition. We realize that Dush might have intended to proffer these
arguments in the alternative (that is, even if Dush admitted in her deposition that she
was totally disabled, it should not affect her ability to recover under the ADA).
Nonetheless, we cannot help but be troubled by this inherent inconsistency, particularly
when it arises within a case which itself suggests an attempt to succeed on a theory
which conflicts with a party's previous position.
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issue of shorter shifts and specifically ruled that Dush was "unable to
continue this light duty employment on any long term sustained basis." At
least in this case, then, the workers' compensation proceedings in Nebraska
did, indeed, take into account the only reasonable accommodation which Dush
now asserts would have allowed her to perform her job. Consequently, the
state administrative tribunal's characterization of Dush as "totally
disabled" was equivalent to a finding that she was not qualified under the
ADA.
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.
III. CONCLUSION
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.
AFFIRMED.
A true copy.
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Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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