* This order and judgment is not binding precedent, except under the doctrines of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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT A. FERINI,

Plaintiff - Appellant, No. 97-1470

v. (D. Colorado) DENVER PUBLISHING COMPANY, a Colorado corporation,

Defendant - Appellee. (D.C. No. 96-Z-1786)

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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 Publish ing 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 y ears for the Rocky Mountain News. In August of 1992 he underwent surg ery to correct a visual problem, and he was placed on medical leave followi ng the surgery. On September 21 or 22, Mr. Ferini returned to work. I n mid-October, he began not reporting to work and, after he failed to call in o r 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 do ctor, or ask for a leave of absence, or report back to work following his suspe nsion. Id. at 17. Following his discharge, Mr. Ferini applied for andreceived social security disability benefits, with a disability date of Octo ber 26, 1992. The disability was based on deafness alone, although Mr. Ferini had cl aimed visual problems as well. Id. at 31. Mr. Ferini then brought this action under the ADA, claiming his-3-

termination amounted to discrimination on the basis of his disability in violation of the ADA. The Denver Publishing Company filed a motion for su mmary judgment, arguing that Mr. Ferini “is estopped form arguing t hat he is a ‘qualified individual with a disability’ as defined by the ADA . . . by v irtue 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, basedon a Tenth Circuit case and a Third Circuit case, “Mr. Ferini is barred from th is ADA action because he did indeed apply and was found to be disabled for purpo ses of Social Security and, therefore, for purposes of ADA.” Hr’g on Motion fo r Summary Judgment at 15; id. at 106. Mr. Ferini appeals. Denver Publishing Company concedes on appeal, as itmust, that the district court erred in finding Mr. Ferini judicially estopp ed from pursuing an ADA claim after filing for and receiving social security disa bility benefits. As we recently explained: We join the majority of circuits and hold that stat ements made in connection with an application for social security disability benefits cannot be an automatic bar to a disability discrimi nation claim under the ADA. Such statements may, however, constitute evidence relevant to a determination of whether the plaintif f is a “qualified individual with a disability.”-4-

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 sum mary judgment was nonetheless properly granted because “Mr. Ferini di d not succeed in raising a genuine issue of material fact with respect to whet her or not he was a qualified individual with a disability on the date of his dis charge because he failed to present one scintilla of evidence that he could hav e performed his job with reasonable accommodation.” Appellee’s Br. at 4. M r. Ferini responds that he presented no such evidence because the only basis upon which Denver Publishing Company sought summary judgment was the erroneous j udicial estoppel argument. We agree with Mr. Ferini that affirmance of summary judgment for Denver Publishing Company in this circumstance would be un fair. Denver Publishing Company’s motion for summary judgment was indeed ba sed completely upon the judicial estoppel argument, not upon any other alle ged weaknesses in Mr. Ferini’s case. As we have explained previously in a similarsituation, “[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.-5-

Cotter & Co. , 885 F.2d 1305, 1310 (7th Cir. 1989) (“When a party moves for summary judgment on ground A, his opponent is not r equired to respond to ground B–a ground the movant might have presented b ut 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 AD A, 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 fo r further proceedings consistent with this opinion. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge