Ferini v. Denver Publishing

F I L E D
United States Court of Appeals
Tenth Circuit
JUL 17 1998
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
ROBERT A. FERINI,
Plaintiff - Appellant, No. 97-1470
v. (D. Colorado)
DENVER PUBLISHING COMPANY, (D.C. No. 96-Z-1786)
a Colorado corporation,
Defendant - Appellee.
COLORADO LEGAL INITIATIVES
PROJECT; LEGAL CENTER FOR
PEOPLE WITH DISABILITIES AND
OLDER PEOPLE,
Amicus Curiae.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff and appellant Robert Ferini appeals from the grant of summary
judgment to his former employer, the Denver Publishing Company, in his
discrimination action under the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101–12213. We reverse and remand.
Mr. Ferini is a deaf mute who worked for eighteen years for the Rocky
Mountain News. In August of 1992 he underwent surgery to correct a visual
problem, and he was placed on medical leave following the surgery. On
September 21 or 22, Mr. Ferini returned to work. In mid-October, he began not
reporting to work and, after he failed to call in or find a replacement for himself,
the Rocky Mountain News suspended him for five days. See Appellant’s App. at
14-15. On October 28, he was terminated because he failed to provide
documentation of his medical disability from his doctor, or ask for a leave of
absence, or report back to work following his suspension. Id. at 17.
Following his discharge, Mr. Ferini applied for and received social security
disability benefits, with a disability date of October 26, 1992. The disability was
based on deafness alone, although Mr. Ferini had claimed visual problems as
well. Id. at 31. Mr. Ferini then brought this action under the ADA, claiming his
-2-
termination amounted to discrimination on the basis of his disability in violation
of the ADA.
The Denver Publishing Company filed a motion for summary judgment,
arguing that Mr. Ferini “is estopped form arguing that he is a ‘qualified individual
with a disability’ as defined by the ADA . . . by virtue of the fact that he has
applied for and received social security disability benefits—a requirement of
which is that he be disabled and unable to work.” Denver Publishing’s Motion
for Summary Judgment at 4; id. at 6. The district court granted Denver
Publishing Company’s motion, concluding that, based on a Tenth Circuit case and
a Third Circuit case, “Mr. Ferini is barred from this ADA action because he did
indeed apply and was found to be disabled for purposes of Social Security and,
therefore, for purposes of ADA.” Hr’g on Motion for Summary Judgment at 15;
id. at 106. Mr. Ferini appeals.
Denver Publishing Company concedes on appeal, as it must, that the district
court erred in finding Mr. Ferini judicially estopped from pursuing an ADA claim
after filing for and receiving social security disability benefits. As we recently
explained:
We join the majority of circuits and hold that statements made in
connection with an application for social security disability benefits
cannot be an automatic bar to a disability discrimination claim under
the ADA. Such statements may, however, constitute evidence
relevant to a determination of whether the plaintiff is a “qualified
individual with a disability.”
-3-
Rascon v. U S West Communications, Inc., No. 96-2194, 1998 WL 223465 at *9
(10th Cir. May 6, 1998).
Denver Publishing Company argues, however, that summary judgment was
nonetheless properly granted because “Mr. Ferini did not succeed in raising a
genuine issue of material fact with respect to whether or not he was a qualified
individual with a disability on the date of his discharge because he failed to
present one scintilla of evidence that he could have performed his job with
reasonable accommodation.” Appellee’s Br. at 4. Mr. Ferini responds that he
presented no such evidence because the only basis upon which Denver Publishing
Company sought summary judgment was the erroneous judicial estoppel
argument.
We agree with Mr. Ferini that affirmance of summary judgment for Denver
Publishing Company in this circumstance would be unfair. Denver Publishing
Company’s motion for summary judgment was indeed based completely upon the
judicial estoppel argument, not upon any other alleged weaknesses in Mr. Ferini’s
case. As we have explained previously in a similar situation, “[plaintiff] was not
alerted by the [defendant] below that such evidence had to be shown in order for
her to avoid summary judgment. Accordingly, for us to rely on the absence of
such evidence would, in effect, amount to entry of judgment sua sponte.” Tavery
v. United States, 32 F.3d 1423, 1427 n.5 (10th Cir. 1994); see also Malhotra v.
-4-
Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989) (“When a party moves for
summary judgment on ground A, his opponent is not required to respond to
ground B–a ground the movant might have presented but did not.”). We do note,
however, that on remand Mr. Ferini will be required to establish that he is a
qualified individual with a disability under the ADA, if he is to proceed with his
law suit. Denver Publishing Company is, of course, not foreclosed from filing a
further motion for summary judgment on appropriate grounds.
For the foregoing reasons, we REVERSE and REMAND for further
proceedings consistent with this opinion.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-5-