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

### JUL 1 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH W. ALDRICH, Plaintiff - Appellant, v. THE BOEING COMPANY, a Delaware Corporation, Defendant - Appellee. No. 96-3413

Appeal from the United States District Court

for the District of Kansas (D.C. No. 95-CV-1083)

Albert F. Kuhl, Law Offices of Albert F. Kuhl, Lene xa, Kansas, for the Plaintiff - Appellee. Mary K. Babcock (Trisha A. Thelen with her on the b rief) Foulston & Siefkin, Wichita, Kansas, for the Defendant - Appellee.

Before PORFILIO , MCKAY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

This case presents a novel question: May an impairm ent be substantially limiting for the purposes of the Americans with Dis abilities Act (“ADA”), 421 Plaintiff also brought a retaliatory discharge cl aim pursuant to both the

ADA and Kansas state law. He does not, however, ap peal the district court’s grant of summary judgment as to that claim. - 2 - U.S.C. §§ 12101-12213, before the date a permanent disability rating has been issued by the treating physician? Answering this q uestion in the affirmative, we reverse the judgment of the district court and rema nd for further proceedings.
I Kenneth Aldrich, a former employee of The Boeing Co mpany, appeals the district court’s order granting summary judgment infavor of Boeing. The district court held that Aldrich was judicially estopped fro m pursuing a claim under the ADA and, alternatively, that he had failed to estab lish that he was a qualified individual with a disability. 1 Aldrich was an assembly worker at Boeing’s facilityin Wichita, Kansas, from September 29, 1988, until he was laid off on J une 8, 1993. Ten months prior to being laid off, Aldrich informed Boeing’s Central Medical Department that he was experiencing pain in his right hand and was having difficulty using hand tools. He was referred to Dr. Harry Morris, a n orthopaedic surgeon, for evaluation. Dr. Morris examined Aldrich in August 1992 and made a preliminary diagnosis of “[c]umulative trauma syndrome manifest ing as flexor tendon tenosynovitis.” Appellee’s Supp. App. at 249. Dr. Morris determined Aldrich- 3 -

was unable to return to work and signed a medical l eave of absence form, scheduling him for reevaluation in four weeks. At two subsequent evaluations in September and October, Dr. Morris noted that Aldric h’s condition had improved; nevertheless, he extended Aldrich’s medical leave o f absence. On November 17, Dr. Morris released Aldrich to retu rn to work, limiting his use of power tools to four hours a day for the first week, but providing for a gradual increase in usage over the course of the fo llowing two weeks. Upon returning to work, however, Aldrich was informed byhis supervisor that there was no work he could do with those medical restrict ions, and was referred to the Personnel Department, where he was immediately plac ed on medical leave. For a brief period in early December, he was given a workassignment at Boeing’s Facilities Department as a member of the “Warn Pool .” According to Boeing, the Warn Pool was created to hold employees during the federally mandated sixty-day notice period prior to an anticipated layoff. Boei ng removed Aldrich from this position when it discovered that he was not subjectto layoff and placed him back on medical leave of absence. Dr. Morris continued to treat Aldrich and evaluate him on a monthly basis. On April 7, 1993, Dr. Morris rated Aldrich as 15% p ermanently partially impaired. He wrote: “It is my impression that the patient can return to work but he must be in a job position where he has no rivett ing [sic], bucking or power- 4 -

equipment use. There should be no repetitive grasp ing, gripping, pushing or pulling as well.” Appellee’s Supp. App. at 256. A ldrich provided Boeing with Dr. Morris’s report on April 19. Approximately one week before he provided this perm anent disability rating to his employer, Aldrich was informed that B oeing had declared a surplus in his job code and that he would be laid off on Ju ne 8, 1993. Three weeks prior to plaintiff’s scheduled termination, Boeing’s Acco mmodation Review Board met to determine whether Aldrich’s permanent restrictio ns could be accommodated by the company. The Board determined that the limitat ions Dr. Morris had imposed on Aldrich prevented him from doing his current job , with or without accommodation, and that no other positions were ava ilable at that time. The Board thus decided that Aldrich would remain on med ical leave of absence until he was terminated on June 8. During the course of these events, Aldrich applied for disability benefits from several sources. On October 17, 1992, he file d a workers’ compensation claim under Kansas law which was eventually settled in 1995 for $30,000. Four months later, Aldrich applied for permanent and tot al disability benefits under a private disability plan offered by Boeing. His app lication for benefits was approved in March 1994.
II2 Specifically, Boeing argues that Aldrich is estop ped because he testified

at the workers’ compensation settlement hearing as follows:

MR. BYERS [Attorney for Boeing]: Finally, I just w anted to make sure you understand and you agree that the settlement today for $30,000.00 to be paid in a lump sum is based on the fact and the understanding that your work restrictions are permanent, meaning that they won’t be changed or lifted, and that thes e restrictions prevent you from performing the essential functions of the job as a sheet metal mechanic with or without accommodation? [Kenneth Aldrich]: Yes. Appellee’s Supp. App. at 228. - 5 - Noting that Aldrich filed for and received permanen t and total disability benefits under Boeing’s private disability plan, th e district court held that his ADA claim was barred by the doctrine of judicial es toppel. Boeing insists that Aldrich’s lawsuit is also barred by this doctrine b ecause of his claim for permanent and total disability benefits under Kansa s workers’ compensation law and because of plaintiff’s testimony at a settlement hearing regarding this claim. 2 We reject both views. In Rascon v. U S West Communications , No. 96-2194, 1998 WL 223465 (10th Cir. May 6, 1998), this circuit recently held that the application for, or receipt of, social security disability benefits doe s not estop a plaintiff from pursuing a claim under the ADA. See id. at *6. The logic behind eschewing judicial estoppel of an ADA claim even when the pla intiff has applied for or- 6 -

received disability benefits is that “the ADA takes into consideration whether an individual with a disability can work given reasonable accommodation . The Social Security Act, on the other hand, does not ta ke into consideration whether an accommodation would render the individual able to perform a job.” Id. at *7 (emphasis added) (citations omitted). Consequently , claims for social security benefits, because granted without regard to reasona ble accommodation, are not necessarily inconsistent with a discrimination claim pursuant to the ADA. See id. It follows that, Aldrich is not estopped from pursu ing his ADA claim merely because he applied for and received benefits under Boeing’s private disability plan and the Kansas workers’ compensation statute—those benefits are also awarded without regard to reasonable accommodation. Compare Boeing, Disability and Life Insurance Plans 8 (1990) (defining permanent and total disability for purposes of Boeing’s private disability plan), in Appellee’s Supp. App. at 186, and Kan. Stat. Ann. § 44-510c(a)(2) (1993) (defining “ permanent total disability” under workers’ compensation statute), with 42 U.S.C. § 423(d)(2)(A) (defining “disability” for purposes of social security disability benefits). Boeing argues that plaintiff should nonetheless be estopped from pursuing his ADA claim because he testified at his workers’ compensation settlement hearing that he could not perform his job with or w ithout reasonable- 7 -

accommodation. Were we to adopt Boeing’s approach, however, we would “discourage the determination of cases on the basis of the true facts as they might be established ultimately.” United States v. 49.01 Acres of Land , 802 F.2d 387, 390 (10th Cir. 1986) (quoting Parkinson v. California Co. , 233 F.2d 432, 438 (10th Cir. 1956)). The Federal Rules of Evidence w ell provide the means with which to confront plaintiff with such inconsistency. See Fed. R. Evid. 801(d)(2) (permitting introduction in evidence of prior admis sion by party-opponent). Thus Aldrich’s testimony “may constitute evidence releva nt to a determination of whether the plaintiff is a ‘qualified individual with a disability,’” Rascon , 1998 WL 223465, at *9, but it is not dispositive. Benefit determinations under the Kansas workers’ co mpensation statute are made without regard to reasonable accommodation. T hus, Aldrich’s admission at the settlement hearing was not relevant to the outc ome of the proceedings. We see no reason to deviate from Rascon ’s logic that “statements made in connection with an application for . . . disability benefits c annot be an automatic bar to a disability claim under the ADA” when such benefits are granted without regard to reasonable accommodation. Id.
III The ADA provides that “[n]o covered entity shall di scriminate against a qualified individual with a disability because of t he disability of such individual- 8 -

in regard to job application procedures, the hiring , advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual with a disability” is defined as “an individual with a dis ability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or d esires.” 42 U.S.C. § 12111(8). To establish a prima facie case under th e Act, plaintiff must therefore demonstrate “(1) that he is ‘disabled’ within the m eaning of the ADA; (2) that he is qualified—with or without reasonable accommodati on; and (3) that he was discriminated against because of his disability.” Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997) (citing White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir. 1995)).
A The ADA defines the term “disability” as “(A) a phy sical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment ; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Plaintiff contends that he qualified as disabled under the first part of this definition on November 17, 1992—the date Dr. Morris released him to work with restrictions following the3 Plaintiff proffers an alternative argument, asserting that Boeing knew he

was disabled or regarded him as having a disabilityas of January 20, 1993, the date he was first assessed by the Accommodation Rev iew Board. This claim is wholly without merit. Boeing presented uncontroverted documentation establishing that the January 20 review was schedul ed for the purpose of accommodating permanent limitations unrelated to th e diagnosis of flexor tenosynovitis. See Appellee’s Supp. App. at 468, 532-33.

4 The district court’s analysis was limited to whet her the original expected duration of plaintiff’s impairment precluded it fro m being “substantially limiting” as required under the definition of disability at issue in this case. See 42 U.S.C. § 12102(2)(A). Because Boeing does not challenge that flexor tenosynovitis is an impairment or that a major life activity was affect ed, we do not address those elements of the definition for the purposes of this summary judgment appeal, and therefore limit our analysis to whether a temporary impairment can be substantially limiting. - 9 - initial diagnosis of flexor tenosynovitis. 3 The district court rejected that contention, finding instead that he was suffering f rom a “transient nonpermanent condition” and, accordingly, that his impairment wa s not substantially limiting. Appellant’s App. at 875 (citing 29 C.F.R. § 1630.2(j)). 4 While not defined by statute, the regulations imple menting the ADA define the term “substantially limits” as: (i) Unable to perform a major life activity that th e average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration u nder which the average person in the general population can perfor m that same major life activity.- 10 -

29 C.F.R. § 1630.2(j)(1). Several factors are rele vant to the determination of whether an impairment is substantially limiting, in cluding: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2). Although “temporary, non-chronic imp airments of short duration, with little or no long term or permanent impact, are usually not disabilities,” 29 C.F.R. pt. 1630 app., § 1630.2(j) (emphasis added), “an impairment does not necessarily have to be permanent to rise to the lev el of a disability. Some conditions may be long-term, or potentially long-te rm, in that their duration is indefinite and unknowable or is expected to be at l east several months. Such conditions, if severe, may constitute disabilities,” EEOC, Interpretive Manual (1995), reprinted in 2 EEOC Compliance Manual § 902.4(d), at 902-30 (BNA 1997) (“ EEOC Compliance Manual ”). Boeing’s insistence that it had no duty to accommod ate plaintiff under the ADA until plaintiff’s doctor issued a permanent dis ability rating and restrictions in April 1993 is incorrect. To the extent that Boe ing argues that we should adopt a per se rule that an impairment may not be regarde d as a disability until it is rendered “permanent” by either a doctor’s rating orpermanent restrictions, it misconstrues the law. Whether an impairment “subst antially limits” a major life- 11 -

activity depends on the individual and the impairme nt. Such determinations are not susceptible to per se rules; they must be made on a case-by-case basis. See 29 C.F.R. pt. 1630 app., § 1630.2(j) (“The determinati on of whether an individual has a disability is not necessarily based on the na me or diagnosis of the impairment the person has, but rather on the effectof that impairment on the life of the individual.”). The regulations and the EEOC ’s interpretive guidelines clearly state that an impairment need not be perman ent in order to rise to the level of a disability. See 29 C.F.R. § 1630.2(j)(2)(iii); EEOC Compliance Manual § 902.4(d), at 902-30. Thus, the issuance of a perma nent disability rating in April 1993 does not necessarily answer the question of wh ether plaintiff’s impairment previously qualified as a “disability.” Plaintiff argues that Boeing had an ADA duty of acc ommodation on November 17, 1992, “when he was released to work byDr. Morris with restrictions.” Appellant’s Br. at 23-24. We disag ree. Dr. Morris’s evaluation on that date anticipated that, by applying a progressi ve work schedule, plaintiff would return to full working capacity within three weeks. Because Aldrich’s impairment was then characterized by his own doctoras being of short duration and negligible long-term impact, we reject Aldrich’ s argument that his impairment was substantially limiting as of Novembe r 17, 1992.- 12 -

From December 9, 1992, however, Aldrich’s medical e valuations become considerably less optimistic. On that date, Dr. Mo rris wrote: “I think at this point with this individual we’re going to find he is justnot going to be able to do repetitive type activities.” Appellee’s Supp. App. at 253. Two months later, Dr. Morris referred Aldrich to a Dr. Gluck for a second opinion. Dr. Gluck wrote: “I think that he has undergone [an] appropriate amountof conservative treatment with continuing significant symptoms. I think ther efore he would be a good candidate for forearm fasciotomy.” Id. at 254. One month later, Dr. Morris again evaluated Aldrich, stating: As long as he watches what he does and utilizes som e work modification and minimal intensive activity he does fairly well. As soon as he goes over that line he begins to have pr oblems. . . . As far as work is concerned he is certainly going to have difficulty going back to what he previously did. I think that at th is point, then, we will state he has reached his maximum medical benef it and we will go ahead and rate him. Id. at 255. Boeing Central Medical received copies of each of these evaluations. Although none of these medical evaluations explicit ly labels Aldrich’s condition as “permanent,” each constitutes evidence sufficient to find that plaintiff’s impairment had become substantially lim iting. Based on the Morris and Gluck statements, a reasonable jury could concl ude that, at some point on or after December 9, 1992, Aldrich’s flexor tenosynovi tis was a severe condition that was permanent or was expected to persist on a long-term basis because its- 13 -

anticipated duration was indefinite, unknowable, orwas expected to be at least several months. See EEOC Compliance Manual § 902.4(d), at 902-30; cf. Katz v. City Metal Co. , 87 F.3d 26, 32 (1st Cir. 1996) (discussing plaint iff’s ability to show disability in light of EEOC interpretive guide lines). The district court thus erred in concluding as a matter of law that plainti ff could not have been disabled under the ADA until his permanent disability rating was issued in April 1993.
B In order to defeat summary judgment, Aldrich must s how not only that he is disabled, but also that he is a “qualified individu al.” To determine whether an individual is qualified under the ADA: First, we must determine whether the individual cou ld perform the essential functions of the job. . . . Second, if (b ut only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to p erform those functions. White , 45 F.3d at 361-62 (quoting Chandler v. City of Da llas , 2 F.3d 1385, 1393- 94 (5th Cir. 1993)). Although Aldrich concedes that he was unable to per form the essential functions of his job, he insists he would have been able to do so with reasonable accommodation. Aldrich brings in support a report prepared by a certified professional ergonomist which concludes that modifi cations to his work environment and/or ergonomic training would have al lowed him to perform the5 The remaining twenty-three jobs Aldrich proffers would not be

reasonable accommodations for different reasons. Boeing pres ented unrebutted affidavits and supporting documentation indicating that no open requisitions existed from November 17, 1992, to June 8, 1993, for sixteen of the jobs. See Appellee’s Supp. App. at 144-45, 150-57, 162-63. B oeing is not required to create positions merely to accommodate Aldrich. See White , 45 F.3d at 362 (citing 29 C.F.R. pt. 1630 app., § 1630.2(o)). Nei ther was Boeing obligated to transfer plaintiff to four of the other remaining p ositions—Plumber Maintenance B, A, and Special, and Millwright B—because transfe r to any of those positions would have constituted a promotion. See 29 C.F.R. pt. 1630 app., § 1630.2(o) (“[A]n employer is not required to promote an indiv idual with a disability as an accommodation.”). Finally, had Boeing transferred Aldrich to any of the last three disputed jobs—Maintenance Oiler, Assembler Su b-Assembly B, and Assembler Installer General B—it would have violate d the seniority provisions of the collective bargaining agreement. This is not required by the ADA. See Milton v. Scrivner, Inc. , 53 F.3d 1118, 1125 (10th Cir. 1995) (holding tran sfer to another job that would violate seniority rights und er collective bargaining agreement unreasonable); see also Kralik v. Durban , 130 F.3d 76, 83 (3d Cir. (continued...) - 14 - essential functions of his original job. The report also states that Boeing could have accommodated Aldrich by transferring him to on e of several positions within his skill and grade level. Viewing the factual record in the light most favora ble to the plaintiff, we see a genuine issue of material fact concerning whe ther work modifications and/or ergonomic training were reasonable accommodations that would have permitted plaintiff to return to his original job a s an assembly worker. We also find evidentiary support for plaintiff’s argument t hat there existed two other positions to which he could have been reassigned as a reasonable accommodation. 5 We consider Boeing’s statements that employees wi th5 (...continued)

1997) (“[A]n accommodation to one employee which vi olates the seniority rights of other employees in a collective bargaining agree ment simply is not reasonable.”); Foreman v. Babcock & Wilcox Co. , 117 F.3d 800, 810 (5th Cir. 1997) (“Following the other circuits which have con sidered this issue, we hold that the ADA does not require an employer to take a ction inconsistent with the contractual rights of other workers under a collect ive bargaining agreement.”); Eckles v. Consolidated Rail Corp. , 94 F.3d 1041, 1051 (7th Cir. 1996) (“[T]he ADA does not require disabled individuals to be acc ommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees.”); Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1114 (8th Cir. 1995) (“The ADA does not require that [the employer] take action inconsisten t with the contractual rights of other workers under a collective bargaining agreement.”); cf. Shea v. Tisch , 870 F.2d 786, 790 (1st Cir. 1989) (employer “not requir ed [under Rehabilitation Act] to accommodate plaintiff further by placing him in a different position since to do so would violate the rights of other employees unde r the collective bargaining agreement”); Carter v. Tisch , 822 F.2d 465, 469 (4th Cir. 1987) (duty to reassi gn under Rehabilitation Act “would not defeat the prov isions of a collective bargaining agreement unless it could be shown that the agreement had the effect or the intent of discrimination”). But see Aka v. Washington Hosp. Ctr. , 116 F.3d 876, 894-897 (D.C. Cir.) (holding terms of collecti ve bargaining agreement only a factor in weighing reasonableness of accommodation), reh’g en banc granted and judgment vacated , 124 F.3d 1302 (D.C. Cir. 1997).

6 Despite Boeing’s general contention that these re cords are inaccurate in places, see Appellant’s Supp. App. at 144, 455, 461, it failed to submit any evidence that this particular entry was incorrect. - 15 - permanent medical restrictions were eligible to be assigned to Factory Service Attendant A positions and several were placed in th ose positions in December 1992 and January 1993. See Appellee’s Supp. App. at 169-170. Additionally, according to Boeing records, a requisition for a Fa ctory Clerk C position was initiated on November 18, 1992 and filled on Februa ry 1, 1993. Id. at 151, 159. 6 Although the records indicate that this position may have been filled by an7In Hudson v. MCI Telecommunications Corp. , 87 F.3d 1167, 1169 (10th

Cir. 1996), this court held that “a reasonable allo wance of time for medical care and treatment may, in appropriate circumstances, co nstitute a reasonable accommodation.” Boeing’s decision to place Aldrich on medical leave of absence may have been such an accommodation. See id. at 1168-69; see also Burch v. Coca-Cola Co. , 119 F.3d 305, 318 n.11 (5th Cir. 1997) (employer’ s decision to (continued...) - 16 - employee with Category A rights, they are inconclus ive on this point because the individual who filled this position is unnamed. Se e id. Even if the position was filled by someone with Category A rights in February, that does not defeat plaintiff’s claim that the Factory Clerk C position was available as an accommodation prior to February. Because Category A rights do not allow one employee to bump another, it is of no consequence t hat someone with such rights ultimately filled the position. Plaintiff may prev ail so long as he was “disabled” prior to February 1 and he is able to show that tra nsfer to the Factory Clerk C position was a reasonable accommodation. Because we conclude that a reasonable jury could de termine that plaintiff’s impairment was substantially limiting for purposes of the ADA, we must also conclude that plaintiff may have been eligible for a Factory Service Attendant A or a Factory Clerk C position as early as December 1992. A genuine issue of material fact remains as to whether reasonable acco mmodation was feasible, either in the form of job modifications or transferto a vacant position for which appellant was qualified. 77 (...continued)

retain employee on suspension with full pay may hav e been a reasonable accommodation) (citing Hudson , 87 F.3d at 1169); Hankins v. The Gap, Inc. , 84 F.3d 797, 801 (6th Cir. 1996) (“paid sick leave, pa id personal days, a voluntary time off program, and ample and flexible vacation t ime” constitute reasonable accommodation); 29 C.F.R. pt. 1630 app., § 1630.2(o ) (reasonable accommodations “could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary tre atment”); 29 C.F.R. pt. 1630 app., § 1630.15(b) & (c) (“[A]n employer . . . may, in appropriate circumstances, have to consider the provision of leave to an emplo yee with a disability as a reasonable accommodation, unless the provision of l eave would impose an undue hardship.”). Because Boeing does not contend, howe ver, that it reasonably accommodated Aldrich by providing him with leave ti me, we decline to answer that question on appeal. - 17 - C With respect to the final element of the prima faci e case—whether plaintiff was discriminated against on account of his disabil ity—the record contains ample evidence that Boeing placed plaintiff on involuntary medical leave because of his flexor tenosynovitis. The prima facie case require s nothing more. See White , 45 F.3d at 361 n.6 (noting that third element of primafacie case is satisfied when employer admits disability played a role in the dis puted decision). Thus, to the extent plaintiff’s claim is premised on Boeing’s fa ilure to reinstate him prior to his scheduled termination, the record is replete wi th evidence that such failure was a direct result of his alleged disability. Plaintiff’s claim, however, is slightly more comple x than a mere allegation of failure to reinstate. Plaintiff consistently ar gued below, as he does here, had- 18 -

Boeing offered him an accommodation, he would have survived the reduction-inforce that resulted in his termination on June 8, 1 993. Although Aldrich concedes that the reduction-in-force was validly implemented , he notes that he would not necessarily have been dismissed had Boeing transferred him to a vacant position because that position might not have been subject t o the reduction-in-force. To the extent plaintiff’s claim is premised on the arg ument that workplace modifications or ergonomic training would permit hi m to perform his original job, his own concession that the reduction-in-force was based solely on seniority limits his claim to one for backpay through June 8, 1993, because he cannot show discrimination caused the termination—he can only s how that discrimination was the basis for being placed on involuntary medical l eave. If, however, plaintiff prevails on a theory that tr ansfer to a Factory Service Attendant A position would have been a reasonable a ccommodation, there is evidence before us that supports Aldrich’s claim th at he may have remained in that position through early July. See Appellant’s App. at 639, 649-50 (listing start dates and termination dates of employees in F actory Assistant A positions). There is no evidence in the record that the employe e placed in the Factory Clerk C position on February 1, 1993, was ever terminated . Thus, there remains a further issue of material fact as to whether plaint iff’s employment would have continued past June 8, 1993, and, if so, for how lo ng. We, of course, do not- 19 -

resolve this issue on appeal and note only that pla intiff may be able to establish that his tenure at Boeing would have been of longerduration depending on the nature of the accommodation.
We REVERSE the judgment of the district court and REMAND for further proceedings.