[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 96-4756 

D. C. Docket No. 94-8110-CIV-KMM

ROSANNA TALAVERA, GERARD TALAVERA,

Plaintiffs-Appellants,

versus

SCHOOL BOARD OF PALM BEACH COUNTY,

ANABELLE HART, individually and in her official

capacity as Guidance Coordinator for Atlantic

High School, JAMES D. WILLIAMS, individually

and in his official capacity as Assistant

Principal at Atlantic High School, et al.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(November 24, 1997)

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

DUBINA, Circuit Judge:
2

This appeal presents an issue of first impression in this

circuit: does a plaintiff's certification on an application for

social security disability benefits that she is totally disabled

bar her from asserting in a subsequent claim under the Americans

With Disabilities Act that she is capable, with reasonable

accommodation, of performing the essential functions of her job?

We join the majority of our sister circuits and answer the question

in the negative.

I. BACKGROUND

Plaintiff Rosanna Talavera (“Talavera”) began working for the

School Board of Palm Beach County (“the school board”) as a

secretary in April 1990. She had a one-year, renewable employment

contract. Her job required her to stand at a counter for four to

five hours each day scheduling appointments for students to see a

guidance counselor. In September 1992, Talavera began experiencing

back pain and consulted a physician. She claims the doctor told

her to elevate her leg and avoid standing for long periods.

Talavera requested several workplace accommodations, including the

provision of a special chair and a handicapped parking place, but

she claims the school board did not provide them. 

Talavera's condition worsened. In March 1993, she applied for

a transfer to a position in the school board's main office which

would have permitted her to sit all day. The school board informed

Talavera that she had the job, then called back two days later and

told her the position had been “blocked.” Immediately thereafter,

the school board sent Talavera a letter stating that it would not
3

renew her contract when it expired on June 30, 1993. In early

April 1993, the school board involuntarily transferred Talavera to

a position in the records filing area. Talavera was unable to

perform the job because it required her to stand all day. Talavera

became bedridden in May 1993, after which she took unpaid leave

until her contract expired. 

Talavera has two bulging discs in her back. She has been

diagnosed with chronic osteoarthritis and fibroid myalgia.

Talavera applied for social security disability (“SSD”) benefits in

September 1993. Her application included the following statements:

I cannot stand up for more than 5 minutes. I cannot walk

more than a few hundred feet. . . . 

To try and compensate [at my job] I registered students

sitting at my desk. As far as filing I used to take a

chair to sit. I also lost a lot of days because at times

I wasn't able to leave the house or get out of bed.

Since then I wasn't reappointed & lost my job. No

provisions were made for my handicap. . . .

I am in extreme pain & have trouble walking. I am in

need of medical attention but cannot afford it. . . . I

cannot walk to transportation & be able to climb up

stairs to bus or train. I am now homebound.

I feel that my skills are good. However, I can no longer

walk, bend, etc. Therefore when an employer sees me I

look totally disabled. My mind is intact but my physical

appearance is a deterrent. Unfortunately our society is

only concerned with your appearance. I am finding it

harder and harder to walk.

Disability Report 1-6. In October 1993, the Social Security

Administration (“SSA”) determined that Talavera was totally

disabled and awarded her benefits, which she continues to receive.

Talavera filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) in April 1993. She and her husband
 1

The Talaveras brought suit against several individual defendants, as well. On appeal, they

pursue only their claims against the school board.

4

filed suit in the district court in March 1994. Talavera alleged

that the school board violated her rights under the Americans With

Disabilities Act of 1991 (“ADA”), 42 U.S.C. § 12101 et seq., by

failing to accommodate her disability and then terminating her

because of it. Talavera's husband brought a claim for loss of

consortium.1

 

The district court granted summary judgment in favor of the

school board on two alternative grounds: (1) Talavera was

judicially estopped from claiming she was a “qualified” individual

with a disability under the ADA, having certified to the SSA that

she was totally disabled; and (2) Talavera failed to raise a

genuine issue of material fact as to whether she could perform the

essential functions of her job. Plaintiffs then perfected this

appeal. In addition to the parties' briefs, we have the benefit of

an amicus brief from the EEOC supporting Talavera's position.

II. ISSUES

A. Did the district court properly rule that Talavera's

application for SSD benefits judicially estops her from claiming in

this action that she is a “qualified individual with a disability”

entitled to protection under the ADA?

B. Did the district court properly rule that Talavera failed to

raise a genuine issue of material fact as to whether she is a
 2

The school board also seeks summary judgment on the ground that Talavera was not

“disabled” within the meaning of the ADA when the alleged violations occurred. The school

board did not raise this argument before the district court; therefore, we will not consider it now. 

See Rozar v. Mullis, 85 F.3d 556, 564 (11th Cir. 1996).

5

“qualified individual with a disability”?2

III. STANDARDS OF REVIEW

We review a district court's grant of summary judgment de

novo, applying the same standard used by the district court. Scala

v. City of Winter Park , 116 F.3d 1396, 1398 (11th Cir. 1997).

“Summary judgment is appropriate if the record shows no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law.” Id. 

The school board argues that we should review the district

court's application of judicial estoppel for abuse of discretion.

See McNemar v. Disney Store, Inc., 91 F.3d 610, 616-17 (3rd Cir.

1996) (applying abuse of discretion review), cert. denied, 117 S.

Ct. 958 (1997); Yanez v. United States, 989 F.2d 323, 326 (9th Cir.

1993) (same). Although this circuit has not explicitly identified

the applicable standard of review, the language in the few Eleventh

Circuit cases involving judicial estoppel is consistent with abuse

of discretion review. See, e.g., Chrysler Credit Corp. v. Rebhan,

842 F.2d 1257, 1261 (11th Cir. 1988) (“We think it proper simply to

review the bankruptcy court's application of judicial estoppel to

ascertain whether it was consonant with the policy interests which

originally gave rise to the doctrine.”). We note that “[t]he abuse

of discretion standard includes review to determine that the

discretion was not guided by erroneous legal conclusions.” Koon v.
6

United States, ___ U.S. ___, ___, 116 S. Ct. 2035, 2048 (1996).

IV. DISCUSSION

Talavera claims that the school board violated her rights

under the ADA by failing to provide reasonable accommodations for

her disability and terminating her because of her disability. To

establish a prima facie case under the ADA, Talavera must show (1)

that she has a disability; (2) that she is qualified for the

position in question; and (3) that the school board discriminated

against her because of her disability. Pritchard v. Southern Co.

Servs., 92 F.3d 1130, 1132 (11th Cir. 1996), cert. denied, 117 S.

Ct. 2453 (1997); 42 U.S.C. § 12102(2). The ADA defines a

“qualified” individual as “an individual with a disability who,

with or without reasonable accommodation, can perform the essential

functions” of the job she holds or desires. 42 U.S.C. § 12111(8)

(emphasis added). If a qualified individual with a disability

requires a reasonable accommodation to perform the essential

functions of her job, then the ADA requires the employer to provide

the accommodation unless the employer can demonstrate that doing so

would constitute an undue hardship. 42 U.S.C. § 12112(b)(5)(A).

Reasonable accommodations may include job restructuring, part-time

or modified work schedules, and acquisition or modification of

equipment or devices. 42 U.S.C. § 12111(9). 

A. Judicial Estoppel

The district court ruled that Talavera could not establish a

prima facie case because she was judicially estopped from claiming

she was “qualified” under the ADA. The district court found
7

Talavera's application for and receipt of SSD benefits

fundamentally incompatible with her position in this lawsuit that

she could perform the essential functions of her job with

reasonable accommodation. Accordingly, the district court invoked

judicial estoppel. Judicial estoppel “is applied to the calculated

assertion of divergent sworn positions. The doctrine is designed

to prevent parties from making a mockery of justice by inconsistent

pleadings.” McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d

1187, 1192 (11th Cir. 1991) (quoting American Nat'l Bank v. Federal

Dep. Ins. Corp., 710 F.2d 1528, 1536 (11th Cir. 1983)). 

This circuit has not addressed the effect of an application

for disability benefits upon a subsequent ADA claim. Numerous

other circuit and district courts have addressed the issue,

including several district courts in this circuit. The holdings of

these courts vary widely.

The Third Circuit has held that a plaintiff who certifies

total disability on an application for benefits is judicially

estopped from later bringing an ADA claim. McNemar v. Disney

Store, Inc., 91 F.3d 610 (3rd Cir. 1996). In McNemar, the

plaintiff (McNemar) was terminated from his position as assistant

manager at a Disney Store for theft after divulging that he was HIV

positive. McNemar then applied for SSD benefits and stated on the

standardized application form that he was totally disabled and

unable to work as of five weeks prior to his discharge. He made

similar statements on applications for forbearance of student loan

payments and state disability benefits. Shortly thereafter,
8

McNemar brought disability claims against the Disney Store under

both the ADA and state law. The district court dismissed the

disability claims on judicial estoppel grounds, and the Third

Circuit affirmed. According to the Third Circuit, “[c]learly

McNemar has asserted inconsistent positions regarding his ability

to work.” Id. at 618. He certified in his applications for

benefits that he was totally and permanently disabled and unable to

work and earn money; but in his disability claims he stated he

could perform the essential functions of his job. Id. The court

further observed that the ADA was not intended to cover people who

are unable to work. Accordingly, the court held that the district

court properly applied the doctrine of judicial estoppel.

Some confusion has arisen regarding the holding in McNemar,

particularly as to whether it created a per se rule of judicial

estoppel. Some courts, along with the EEOC, have interpreted

McNemar as creating a per se rule. See, e.g., Dush v. Appleton

Elec. Co., 124 F.3d 957, 961 (8th Cir. 1997) (stating that the

Third Circuit in McNemar affirmed the district court's application

of “judicial estoppel as a per se bar”); Norris v. Allied-Sysco

Food Servs., Inc., 948 F.Supp. 1418, 1441 (N.D.Cal. 1996) (listing

McNemar as one of the cases holding that judicial estoppel creates

a per se bar); and EEOC Notice No. 915.002, 31 Daily Lab. Rep.

(BNA) E-1 at 14 (Feb. 14, 1997) (criticizing the McNemar court for

failing “to conduct the individualized inquiry mandated by the ADA

definition of 'qualified individual with a disability'”). 

However, in Krouse v. American Sterilizer Co., ___ F.3d ___,
9

(3rd Cir. Sept. 26, 1997), Judge Becker, writing for a panel of the

Third Circuit, responded to the “considerable criticism” of the

McNemar decision and indicated that McNemar articulated a

relatively fact-specific holding. Id. at *6 nn.3 & 5. The

district court in Krouse granted summary judgment on the ground

that the plaintiff was judicially estopped from establishing the

qualifications element of his ADA claim. Although the Third

Circuit affirmed on different grounds, the court stated in a

footnote that “district courts in this circuit are misapplying

McNemar without first considering the unique facts of that case.”

Id. at *6 n.5. The court instructed that “[c]ourts should not

assume that McNemar always bars an individual’s ADA claims merely

because prior representations or determinations of disability exist

in the record.” Id. Another footnote stated that “Judge Becker is

persuaded . . . that McNemar was wrongly decided, and believes that

the court should reconsider it at its first opportunity. Id. at *6

n.4.

Taking into consideration the Krouse court’s discussion of

McNemar, it appears that no court of appeals has adopted the

position that a plaintiff who has claimed total disability on a

benefits application is per se estopped from claiming he could work

with reasonable accommodations under the ADA. However, numerous

district courts have so held, including at least one in this

circuit. See, e.g., Thomas v. Fort Myers Housing Auth'y, 955 F.

Supp. 1463 (M.D. Fla. 1997); Simon v. Safelite Glass Corp., 943 F.

Supp. 261 (E.D.N.Y. 1996); Reiff v. Interim Personnel, Inc., 906 F.
10

Supp. 1280 (D. Minn. 1995); Nguyen v. IBP, Inc., 905 F. Supp.

1471, 1484-85 (D. Kan. 1995).

At the opposite end of the spectrum, the District of Columbia

Circuit has held that representations on an application for

disability benefits are merely one piece of evidence that an ADA

plaintiff is not “qualified,” rather than an absolute bar. See

Swanks v. Washington Metro. Area Transit Auth'y, 116 F.3d 582 (D.C.

Cir. 1997). In Swanks, the plaintiff (Swanks), who suffered from

spinal bifida, sought and received SSD benefits after he was fired

from his job as a police officer with the transit authority.

Swanks then filed an ADA claim, alleging that the transit authority

refused to accommodate his disability and then fired him because of

it. The district court entered summary judgment for the transit

authority because Swanks' “disability determination renders [him]

unqualified for the position which he held either as it was or with

a reasonable accommodation.” Id. at 584. The court of appeals

reversed. 

The court of appeals began by outlining the SSD application

process. Id. at 584-85. Under the Social Security Act, an

individual is entitled to disability benefits

if his physical or mental impairment or impairments are

of such severity that he is not only unable to do his

previous work but cannot, considering his age, education,

and work experience, engage in any other kind of

substantial gainful work which exists in the national

economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific

job vacancy exists for him.

42 U.S.C. § 423(d)(2)(A). The Act does not address the effect of
 3

The list includes conditions such as certain spinal disorders, certain amputations, epilepsy,

etc. 20 C.F.R. § 404.1520(d).

11

a reasonable accommodation on a claimant's disability status. In

administering the Act, the SSA has developed a five-step procedure

for evaluating disability claims. 20 C.F.R. § 404.1520 (1996).

The five steps are as follows:

(1) The SSA ascertains whether the claimant is currently

engaged in “substantial gainful activity.” If so, the

agency denies the application; if not, it proceeds to

step two.

(2) The agency determines whether the claimant has a

“severe” impairment. If not, the application is denied.

If so, the agency proceeds to step three.

(3) The agency checks whether the impairment is listed as

presumptively disabling in the regulations.3

 If the

claimant's condition is listed, the agency awards with no

further inquiry. If the condition is not listed, the agency

proceeds to step four.

(4) The agency determines whether the claimant is able to

perform his past work. If so, benefits are denied. If not,

the agency proceeds to the final step.

(5) Considering the claimant's age, educational experience,

past work experience, and residual functional capacity, the

agency determines whether the claimant can do “other work”--

i.e., jobs “that exist in significant number in the national

economy.” 20 C.F.R. § 1560(c). If so, the agency denies the
 4

Indeed, the SSA has issued an Information Memorandum explicitly stating that, for the

purpose of the fifth step assessment, “[w]hether or how an employer might be willing (or

required) to alter job duties to suit the limitations of a specific individual would not be relevant.” 

Daniel L. Skoler, Assoc. Comm'r, SSA, DISABILITIES ACT INFO. MEM. at 3, (June 2, 1993) (No.

SG3P2). The Memorandum also stresses that “[h]ypothetical inquiries about whether an

employer would or could make accommodations that would allow return to a prior job would not

be appropriate.” Id.

 5

Both the SSA and the EEOC have taken the position that there is no inherent inconsistency. 

See Swanks, 116 F.3d at 586.

12

application. If not, the agency awards benefits.

After explaining this procedure, the Swanks court pointed out

that “[n]owhere in this five-step process does the Social Security

Administration take account of the possible effect of reasonable

accommodation on a claimant's ability to work.” Swanks, 116 F.3d

at 585. A claimant can be found disabled at the third step if she

has a “listed” impairment, with no inquiry into her actual ability

to work. In addition, a claimant can be deemed eligible for

benefits at the fifth step, where the inquiry focuses on the

general availability of particular types of work and not on whether

a reasonable accommodation would enable a claimant to work. 4

 In

short, an individual can meet the requirements for SSD eligibility

and still be a “qualified individual with a disability” under the

ADA.5 The Swanks court recognized that there is no inherent

inconsistency. 

However, the Swanks court noted that specific representations

a particular individual makes in the benefits application process

may be relevant to a subsequent ADA claim. “For example, ADA

plaintiffs who in support of claims for disability benefits tell
13

the SSA they cannot perform the essential functions of their job

even with accommodation could well be barred from asserting, for

ADA purposes, that accommodation would have allowed them to perform

that same job.” Id. at 587 (emphasis added). Thus, the Swanks

court declined to apply estoppel in all such cases in favor of a

case-by-case inquiry that examines the specific statements a

disability discrimination plaintiff makes in connection with

applications for disability benefits. 

While declining to establish a per se rule of judicial

estoppel, other circuit courts have shown reluctance to hold that

individuals who are “totally disabled” for SSD purposes are covered

by the ADA. In Cleveland v. Policy Mgmt. Sys. Corp., 120 F.3d 513

(5th Cir. 1997), the Fifth Circuit held that there is a “rebuttable

presumption” that an applicant for or recipient of SSD benefits is

not a “qualified individual with a disability.” Id. at 518.

Despite its obvious skepticism, the court stopped short of holding

that all SSD applications should be estopped: “It is at least

theoretically conceivable that under some limited and highly

unusual set of circumstances the two claims would not necessarily

be mutually exclusive . . .” Id. at 517. In Dush v. Appleton

Elec. Co., 124 F.3d 957 (8th Cir. 1997), the Eighth Circuit ruled

that an ADA plaintiff who had characterized herself as “totally

disabled” in a previous workers' compensation proceeding failed to

present evidence showing she was a “qualified individual with a

disability.” Although the court declined to hold that judicial

estoppel precluded all such plaintiffs from proceeding with an ADA
 6

The Dush court explicitly declined to reach the issue of judicial estoppel.

 7

The Sixth Circuit applies judicial estoppel only to “successful assertions made in one

proceeding when a contrary assertion is made in another.” Blanton, 108 F.3d at 109.

14

claim,6

 it made the following observations:

Where, as here, the party opposing the [summary judgment]

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.

Id. at 963 (citation omitted). 

Still other courts of appeals presented with this question

have limited themselves to the facts of their cases, without

articulating any broad rules. See Blanton v. Inco Alloys Int'l,

Inc., 108 F.3d 104 (6th Cir. 1997) (judicial estoppel barred

plaintiff's claim that he was qualified for former position as

extrusion press crew leader because he specifically represented on

disability benefits application that he could not perform that job,

but plaintiff was not estopped from claiming he was qualified for

vacant light duty position);7 D'Aprile v. Fleet Servs. Corp., 92

F.3d 1, 4 (1st Cir. 1996) (ADA plaintiff's statements on

application for disability benefits “may not have constituted [a]

broad admission of incapacity,” so the ADA claim was not

automatically barred); Kennedy v. Applause, Inc., 90 F.3d 1477,

1480-82 (9th Cir. 1996) (examining entire record, including ADA

plaintiff's statements on SSD application, to find no genuine issue
 8

The Ninth Circuit also declined to consider whether the doctrine of judicial estoppel applied. 

Kennedy, 90 F.3d at 1481 n. 3.

15

of fact that plaintiff was not “qualified”); 8 Weigel v. Target

Stores, 122 F.3d 461, 466-67 (7th Cir. 1997) (explaining that an

SSA total disability determination, while relevant, is not

dispositive of the issue of an ADA claimant's status as a

“qualified individual with a disability”).

 We agree with the majority of our sister circuits that a

certification of total disability on an SSD benefits application is

not inherently inconsistent with being a “qualified individual with

a disability” under the ADA. A certification of total disability

on an SSD application does mean that the applicant cannot perform

the essential functions of her job without reasonable

accommodation. It does not necessarily mean that the applicant

cannot perform the essential functions of her job with reasonable

accommodation. Whether in any particular situation there is an

inconsistency between applying for SSD benefits and bringing an ADA

claim will depend upon the facts of the case, including the

specific representations made in the application for disability

benefits and the nature and extent of the medical evidence in the

record. However, we do hold that an ADA plaintiff is estopped from

denying the truth of any statements made in her disability

application. Our basis for this holding is that an ADA plaintiff

should not be permitted to disavow any statements she made in order

to obtain SSD benefits. 

After examining the record in this case, we hold that the
16

district court abused its discretion in applying a per se rule of

judicial estoppel. Talavera stated on her application that she had

great difficulty walking and standing for any length of time.

However, she made no statements indicating that she could not

perform her job if she were accorded reasonable accommodation. To

the contrary, she stated that “[n]o provision was made for my

handicap” at work. Disability Report 1-6. She also explained: “I

feel that my skills are good. However, I can no longer walk, bend,

etc. Therefore when an employer sees me I look totally disabled.

My mind is intact but my physical appearance is a deterrent.

Unfortunately our society is only concerned with your appearance.”

Id. These statements indicate that Talavera felt she remained able

to work. They are not inconsistent with her position in the ADA

claim that she was “qualified.” Therefore, per se judicial

estoppel is not warranted in this case.

B. “Qualified Individual with a Disability”

As for the district court's alternative ruling, we hold that

genuine issues of material fact preclude summary judgment on the

question of whether Talavera was “qualified” under the ADA. Thus,

the district court erred by finding that summary judgment would be

warranted even if judicial estoppel were not applied. The district

court pointed to Talavera's statements in her SSD benefits

application that she could not stand more than five minutes, walk

more than 100 feet, nor bend; that at times she could not get out

of bed or leave the house; that she was home-bound; and that her

doctor told her she was “totally disabled.” Dist. Ct. Op. at 9. 
17

The district court properly considered those statements as true

because, as we have pointed out, Talavera is estopped from denying

any statements she made in her SSD application. However, there is

still a dispute of fact as to whether Talavera's problems walking

and standing rendered her unable to perform the essential functions

of her job, with accommodation. 

Talavera sought permission to perform her filing and

scheduling duties while seated in a chair. She also requested a

handicapped parking place to minimize the distance she had to walk

to and from the cafeteria. Finally, she applied for and received

a different secretarial position within the school board which

would have involved sitting all day, but the school board “blocked”

the transfer and decided not to renew Talavera's contract. It is

not clear from the present record whether these accommodations

would have been reasonable or whether they would have enabled

Talavera to perform the essential functions of her job. Indeed,

the record does not indicate what the essential functions of

Talavera's job were (either her initial position in the guidance

office or the position for which she sought a transfer). However,

Talavera presented the affidavits of her doctors and a

rehabilitation expert, who averred that Talavera could have

continued to work had the school board limited her need to stand

and walk by providing her with a wheelchair, ergonomically correct

chair, or sedentary position; and restricted her lifting.

Additionally, Talavera states that the only reason she was

homebound was that after her termination she was unable to keep her
18

car, and her physical limitations prevented her from using public

transportation. This evidence renders inappropriate summary

judgment on the issue of Talavera's ability to perform her job with

reasonable accommodation. 

V. CONCLUSION

We decline to adopt the position that SSD recipients are

judicially estopped in all circumstances from bringing claims under

the ADA. In this case, accepting Talavera's SSD application

statements as true, those statements do not rule out the

possibility that she could perform the essential functions of her

job with reasonable accommodation. Moreover, the record indicates

that issues of fact remain as to whether Talavera was “qualified”

under the ADA. We reverse the district court's grant of summary

judgment and remand this case for further proceedings consistent

with this opinion.

REVERSED AND REMANDED.