F I L E D

United States Court of Appeals

Tenth Circuit

MAY 6 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT A. RASCON,

Plaintiff-Appellee,

v.

U S WEST COMMUNICATIONS,

INC.,

Defendant-Appellant,

_______________________________

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Amicus Curiae.

No. 96-2194

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV-94-524-LH)

E. Justin Pennington (Loretta Medina on the brief), Albuquerque, New Mexico,

for Plaintiff-Appellee.

James E. Hautzinger (Heather Fox Vickles with him on the brief), Sherman &

Howard, Denver, Colorado, for Defendant-Appellant.

C. Gregory Stewart, General Counsel; J. Ray Terry, Jr., Deputy General Counsel;

Gwendolyn Young Reams, Associate General Counsel; Lorraine C. Davis,

Assistant General Counsel and Robert J. Gregory, Attorney, Washington, D.C., on

the brief for Amicus Curiae Equal Employment Opportunity Commission.
2

Before EBEL, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Following a bench trial, the district court entered judgment in favor of Mr.

Rascon on his claim arising under the Americans with Disabilities Act ("ADA"),

42 U.S.C. §§ 12101-12213 (1995). U S West appeals, arguing that the district

court erred in various respects. Finding no error, we affirm.

I. FACTS

Mr. Rascon suffers from posttraumatic stress disorder, presumably as a

result of his service in Vietnam in 1968-69. This case arises from absenteeism

caused by his participation in an in-patient posttraumatic stress disorder treatment

program. While Mr. Rascon was participating in the program, U S West

terminated his employment.

In 1971, Mr. Rascon began working for U S West as a Network Technician

in Albuquerque. Although he received satisfactory to outstanding job

performance ratings, he had problems with anger and fighting in the workplace. 

U S West suspended him eleven times and fired him three times due to fighting;

however, it reinstated him each time.
3

In the early 1980's, U S West sent Mr. Rascon to an in-house anger

management counseling program. A U S West Employee Assistance Counselor

advised him that he had posttraumatic stress disorder. Mr. Rascon's symptoms

included cluster headaches, insomnia, impaired ability to judge situations,

difficulty in concentrating and controlling intrusive memories, flashbacks, anger,

irritability, suspiciousness, hostility, and nightmares. In 1989, Mr. Rascon

attended a posttraumatic stress disorder counseling program through the

Albuquerque Veterans Administration (VA). This program involved individual

therapy and weekly group sessions. Dr. Jose Canive supervised Mr. Rascon’s

therapy at the VA.

In 1991, Mr. Rascon received paid disability leave from U S West in order

to attend a seven-week out-patient treatment program at the VA. U S West

allowed him to work part-time during this treatment program. After completing

the program, Mr. Rascon received additional leave in order to work half days for

a period of three months. Even with this treatment, Mr. Rascon’s posttraumatic

stress disorder symptoms persisted. Dr. Canive, therefore, recommended that Mr.

Rascon seek more intensive treatment from the National Center for Posttraumatic

Stress Disorder in Menlo Park, California. Dr. Canive submitted an application to

the Menlo Park program on behalf of Mr. Rascon.
4

On October 10, 1992, Mr. Rascon received notice that he would be granted

a screening interview for admission into the Menlo Park Program. On January 6,

1993, he informed his supervisor, Lorrie Sullivan, that he would be attending the

screening on January 21, 1993. He told Ms. Sullivan that he had posttraumatic

stress disorder, and he tried to explain to her what it was and why he was seeking

this type of treatment. When Ms. Sullivan became Mr. Rascon’s supervisor (two

months earlier), she did not know what posttraumatic disorder was. She testified

that in January, Mr. Rascon told her he had “this Vietnam syndrome.” Aplt’s

App. vol. IV at 463.

During the January 6th conversation, Mr. Rascon informed Ms. Sullivan

that the program could take anywhere from six weeks to nine months, but that a

four-month duration was likely. He requested a paid leave of absence under U S

West’s disability plan, but he told Ms. Sullivan that he wanted to participate in

the Menlo Park program regardless of whether U S West approved a paid

disability leave. The following day, Ms. Sullivan informed Mr. Rascon that U S

West’s Health Services Department needed further information in order to process

his request for leave. He stated that he did not wish to contact Health Services

and asked Ms. Sullivan to find out what information was needed.

On January 14, 1993 (Mr. Rascon’s last day at work), Mr. Rascon attended

a meeting with management and two union representatives. At that time, Ms.
5

Sullivan advised Mr. Rascon that U S West did not have enough information to

grant a paid disability leave but that U S West would grant unpaid departmental

leaves of absence, thirty days at a time, in order for him to attend the Menlo Park

program. During this meeting with Ms. Sullivan, Mr. Rascon requested that U S

West grant leave for the duration of his treatment, rather than in thirty-day

increments. He reminded her that the estimated duration was four months. Ms.

Sullivan denied this request. Ms. Sullivan did not discuss with Mr. Rascon

various options under U S West’s leave policies, including Personal Leave of

Absence or Anticipated Disability Leave.

Ms. Sullivan prepared a memorandum, memorializing various aspects of the

January 14th meeting. The memo, which Ms. Sullivan showed to Mr. Rascon

before he left for Menlo Park, reiterated that U S West would reauthorize

additional thirty-day leaves of absence as his treatment progressed, if he provided

adequate information to Health Services. The memo stated that “[i]t would be

best to provide authorization for Health Services to maintain contact and

information sharing with all providers involved in the examination and/or

treatment process. The best way to ensure that this process occurs smoothly is to

complete a release and waiver before absence occurs.” Id. vol. I at 75. The

memo stated that Mr. Rascon or his doctors must apprise Health Services on a

continuing basis that he was following recommended treatment in order for
6

Health Services to reauthorize thirty-day departmental leaves. It further stated

that because Mr. Rascon had not supplied Health Services with what it considered

sufficient information, U S West was denying paid leave.

After Ms. Sullivan showed Mr. Rascon the memo, he signed a release

authorizing U S West’s Health Services Department to maintain contact with his

health care providers and gain access to his medical records. Mr. Rascon

understood from Ms. Sullivan that signing the release was all that was required of

him in terms of U S West accessing information regarding his disability. Id. vol.

II at 86. Mr. Rascon signed two medical releases, one for the VA in

Albuquerque, and one for the Menlo Park program. Id. at 162. The releases were

valid for one year, unless revoked in writing.

The day after the meeting, just before Mr. Rascon left for Menlo Park, he

spoke with Cindy Truitt, a counselor in U S West’s Health Services Department in

Denver. The conversation lasted for approximately one hour. During the

conversation, Mr. Rascon explained his circumstances in detail to Ms. Truitt. Ms.

Truitt informed Mr. Rascon that it was important that his doctors remain in

contact with her. Ms. Truitt testified that she told Mr. Rascon a medical release

was not enough and that it would be necessary for his doctors to remain in contact

with her. Id. vol. V at 668.
7

Following this conversation, Dr. Canive and Ms. Truitt had a telephone

conversation about Mr. Rascon. Just after the conversation, and in response to it,

Dr. Canive mailed Ms. Truitt a letter providing the Health Services Department

with requested information. In his letter, Dr. Canive explained that Mr. Rascon

had been a patient in the posttraumatic stress disorder program at the VA in

Albuquerque. Dr. Canive noted that despite Mr. Rascon’s full cooperation in the

program, his “irritability, anger, suspiciousness, hostility, nightmares, intrusive

memories and insomnia continued to interfere with his daily living.” Id. vol. I at

167. Dr. Canive explained the reasons for his referral of Mr. Rascon to the Menlo

Park program. Dr. Canive stated that as a result of his posttraumatic stress

disorder, Mr. Rascon “has been severely impaired both at work and at home. The

fact that he continued to work in spite of his severe symptoms demonstrates his

high motivation and work ethic.” Id. at 168. Dr. Canive asked U S West to

reconsider Mr. Rascon’s case and grant him some disability income during his

treatment at Menlo Park. He closed his letter by inviting Ms. Truitt to contact

him if she needed further information. After Dr. Canive sent this letter to Ms.

Truitt in early February, nobody from U S West contacted him for more

information about Mr. Rascon. Id. vol. III at 252.

The Menlo Park treatment program admitted Mr. Rascon on January 21,

1993. Upon admission to the program, the doctors there diagnosed him with
8

posttraumatic stress disorder. His treatment in Menlo Park consisted of classes

and intensive group and individual therapy sessions seven days a week, from

approximately 8:00 a.m. to 5:00 p.m.

Mr. Rascon’s first thirty-day departmental leave ran from January 21, 1993

to February 21, 1993. In a letter dated March 10, 1993, U S West authorized a

second thirty-day departmental leave to run from February 22, 1993 to March 22,

1993. In that letter, Ms. Sullivan stated that “[t]he medical department of U S

West has been unable to certify any disability due to inadequate information from

your doctors.” Id. vol. I at 61. However, in addition to her February conversation

with Dr. Canive, in early March, Ms. Truitt spoke with Dr. Bernard Finley, Mr.

Rascon’s treating physician in Menlo Park. On March 4, 1993, Dr. Finley sent

Ms. Truitt a report about Mr. Rascon’s disability and treatment. Dr. Finley’s

report explained the reasons for Mr. Rascon’s admission to the program, the

nature of the therapy, and Dr. Finley’s prognosis. It estimated that Mr. Rascon

would need four months to complete the program. Dr. Finley’s report also noted

that Mr. Rascon “is working hard in treatment and has excellent motivation.” Id.

at 72. Dr. Finley opined that “[t]he outlook for [Mr. Rascon] is quite favorable

for a much improved adjustment at home and at work.” Id. He ended by thanking

Ms. Truitt “for any assistance you can give to this very deserving combat

veteran.” Id.
9

On April 9, 1993, Ms. Sullivan sent Mr. Rascon a letter stating that his

departmental leave had expired on March 22nd. The letter informed him that

Health Services still did not have enough information. The letter stated that if U

S West did not hear by April 23, 1993 that he continued to be receiving beneficial

care or continued to qualify for benefits, then his name would be removed from

the payroll. In effect, then, U S West granted a third thirty-day leave of absence,

from March 22nd to April 23rd.

At some time in April, Dr. Finley discussed with Mr. Rascon U S West’s

request for additional information. Mr. Rascon stated that he was afraid U S

West was “trying to get rid of him.” Id. at 116. He asked Dr. Finley not to send

U S West any further information; however, he did not revoke his medical release

in writing. On April 16th, Dr. Finley spoke with Ms. Truitt about Mr. Rascon. 

Dr. Finley told Ms. Truitt that Mr. Rascon did not wish him to share any more

information with U S West. According to union representative Bill Spina, Mr.

Rascon's coworker, Mr. Rascon did not wish U S West to know every detail

regarding his disability and its treatment. Id. vol. IV at 478.

On May 14, 1993, U S West sent Mr. Rascon a letter explaining that it had

not received “information regarding your continuing participation in a program

from which you are benefitting.” Id. at 66. The letter stated that because the

information was not forthcoming, U S West could not grant another thirty-day
10

departmental leave. In the letter, U S West informed Mr. Rascon, for the first

time since he had requested leave in January, that he could apply for a personal

leave of up to twelve months. The letter informed him that a personal leave of

absence carried no guarantee of reinstatement. The letter went on to state that if

Mr. Rascon did not apply for a leave of absence by May 24th, U S West would

remove him from the payroll. In effect, then, U S West granted Mr. Rascon

another thirty-day leave, from April 23rd to May 24th.

Mr. Rascon did not apply for personal leave. U S West notified Mr. Rascon

of his termination effective June 7, 1993. The termination letter stated “we are

unable to grant you another 30 day departmental leave of absence.” Id. at 68. At

the time of his termination, Mr. Rascon had four weeks of unused vacation. The

termination letter stated that a check would be mailed to Mr. Rascon’s residence

for this unused vacation.

Each of the letters that U S West sent to Mr. Rascon was sent by certified

mail to his residence and to the treatment facility in Menlo Park. It is disputed

whether Mr. Rascon actually received the letters; however, he was aware of at

least some of them through his conversations with Dr. Finley, who received

copies of the letters. It is undisputed that neither Mr. Rascon nor his wife

communicated directly with U S West while he was in the treatment program.
11

Mr. Rascon was released from the Menlo Park program on June 17, 1993. 

Dr. Canive testified that upon Mr. Rascon’s return from Menlo Park, “his

symptoms were improved and he felt content and happy, and he thought that he

had accomplished something.” Id. vol. III at 256. However, the improvement

that Mr. Rascon made as a result of the program gradually diminished. The

financial difficulties and stress of unemployment exacerbated Mr. Rascon’s

posttraumatic stress disorder symptoms. Id. at 256-57.

U S West’s sickness and accident disability plan informed employees of the

option of applying for social security benefits, which “are in addition to your

benefits” under U S West’s disability plan. Aple’s Supp. App. at 76. While he

was a patient in the Menlo Park program, Mr. Rascon met with financial

difficulties because he was on unpaid leave. Another veteran at the hospital

suggested he contact the Social Security Administration for assistance. Mr.

Rascon applied for Social Security Disability Insurance benefits. In his

application, he stated that he was totally disabled and unable to work. Mr.

Rascon testified that upon completion of his treatment, he intended to relinquish

his benefits and return to work. Aplt’s App. vol. II at 113.

The Social Security Administration initially denied his application;

however, it subsequently found Mr. Rascon disabled and awarded him benefits on

December 19, 1993, six months after he was terminated from U S West. The
12

Administration found Mr. Rascon disabled as of January 21, 1993, the date of his

admission to the Menlo Park program. Mr. Rascon continued to receive social

security disability benefits at the time of trial.

II. DISCUSSION

U S West presents five issues on appeal. U S West argues that the district

court erred in: 1) refusing to apply the doctrine of judicial estoppel to bar Mr.

Rascon’s ADA claim based on statements he had made in connection with his

application for social security disability benefits; 2) finding that Mr. Rascon had

established a prima facie case of disability discrimination; 3) finding that Mr.

Rascon’s requested leave of absence was a reasonable accommodation; 4) finding

that Mr. Rascon provided his employer with sufficient information regarding his

disability and its treatment; and 5) awarding compensatory damages based on a

finding of intentional discrimination.

We review the district court’s findings of fact for clear error and its

conclusions of law de novo. Estate of Holl v. C.I.R., 54 F.3d 648, 650 (10th Cir.

1995). When an issue presents a mixed question of law and fact, we use either

the “clearly erroneous” or the “de novo” standard, “depending on whether the

mixed question involves primarily a factual inquiry or the consideration of legal

principles.” Id. The issue of the application of judicial estoppel presents a legal
13

question, and the remaining issues present mixed questions of law and fact, which

we will delineate as we discuss them.

A. The doctrine of judicial estoppel does not bar Mr. Rascon’s ADA

claim.

“Judicial estoppel bars a party from adopting inconsistent positions in the

same or related litigation.” United States v. 49.01 Acres of Land, 802 F.2d 387,

390 (10th Cir. 1986). U S West argues that because Mr. Rascon, in his social

security application, took a position that U S West views as directly adverse to the

position he now takes in his ADA claim, his lawsuit is barred by the doctrine of

judicial estoppel. We rejected the doctrine of judicial estoppel in Parkinson v.

California Co., 233 F.2d 432, 437-38 (10th Cir. 1956). We again refused to apply

the doctrine in Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509,

1520 n.10 (10th Cir. 1991). Recently we stated that "[w]e wish to make clear that

under the law of this circuit, [an ADA plaintiff] is not judicially estopped from . .

. making claims that are inconsistent with his prior representations to the [Social 

Security Administration] . . . . The precise impact, if any, of prior SSA

representations on a plaintiff's ADA claim is still an open question in this circuit

and one that we do not decide today." Smith v. Midland Brake, Inc., ____ F.3d

____, No. 96-3018, 1998 WL 110011, at *6 (10th Cir. March 13, 1998). The

district court noted that the doctrine of judicial estoppel has been rejected in this
1We note that various district courts in this circuit have applied the doctrine of

judicial estoppel in this context. See, e.g., Cline v. Western Horseman, Inc., 922 F. Supp.

442, 446-49 (D. Colo. 1996); Nguyen v. IBP, Inc., 905 F. Supp. 1471, 1484-85 (D. Kan.

1995).

14

circuit, and, therefore, refused to apply the doctrine to bar Mr. Rascon’s claim.1

Aplt’s App. vol. I at 54. On appeal, U S West invites us to adopt judicial

estoppel where an ADA plaintiff has applied for or received disability benefits,

but we decline.

In order to prove discrimination under the ADA, a plaintiff must prove that

he or she is “a qualified individual with a disability.” 42 U.S.C. § 12112(a). The

ADA defines a qualified individual with a disability as one “who, with or without

reasonable accommodation, can perform the essential functions of the [job].” 42

U.S.C. § 12111(8). By contrast, in order to secure social security disability

benefits, an applicant must prove that he or she is disabled and unable to work. 

See 42 U.S.C. § 416(i). Thus, on the surface, it appears that a claim of inability

to work is inconsistent with a claim of ability to perform the essential functions of

a job.

Other circuits are divided on whether judicial estoppel should be adopted in

this context. However, the circuits do not align themselves on either side of a

neatly drawn line; rather, the varying approaches to the issue lie along a

continuum. At one end of the continuum is McNemar v. Disney Store, Inc., 91
15

F.3d 610, 618-20 (3d Cir. 1996), upon which U S West relies. The McNemar

court held that a plaintiff with AIDS who claimed an inability to work for

purposes of collecting disability benefits was estopped from arguing that he is a

“qualified individual with a disability” under the ADA. However, a subsequent

Third Circuit panel has noted that “McNemar has been the object of considerable

criticism” because of its failure to take into consideration the differing purposes

of the Social Security Act and the ADA. Krouse v. American Sterilizer Co., 126

F.3d 494, 502 (3d Cir. 1997).

One of the purposes of the Social Security Act is to provide income support

to an individual who is unable to work, perhaps temporarily, because of a

disabling condition. See 42 U.S.C. § 1381. One of the purposes of the ADA is to

provide an opportunity for an individual to work in spite of a disabling condition,

by requiring accommodation and by eliminating discrimination. See 42 U.S.C. §

12101(a)(8) (“[T]he Nation’s proper goals regarding individuals with disabilities

are to assure equality of opportunity, full participation, independent living, and

economic self-sufficiency for [individuals with disabilities].”); see also 42 U.S.C.

§ 12101(b)(1) (“It is the purpose of [the ADA] to provide a clear and

comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.”) Thus, the ADA takes into consideration whether

an individual with a disability can work given reasonable accommodation. See
16

42 U.S.C. § 12111(8) (emphasis added). The Social Security Act, on the other

hand, does not take into consideration whether an accommodation would render

the individual able to perform a job. Therefore, a statement that a person is

disabled for purposes of obtaining social security disability benefits--a

determination made without regard to accommodation--is not necessarily

inconsistent with a statement that a person has been discriminated against in the

workplace on the basis of her disability--a determination made only after giving

due regard to accommodation.

Despite McNemar’s shortcomings, at least one circuit has indicated a

willingness to adopt the Third Circuit’s approach, albeit not applying the doctrine

of judicial estoppel per se. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481-

82 (9th Cir. 1996) (holding, without applying the doctrine of judicial estoppel,

that the plaintiff, who made sworn statements of total disability in a social

security disability application and then testified at her deposition that she was not

totally disabled, failed to raise a genuine issue of material fact as to whether she

was a qualified individual with a disability within the meaning of the ADA); see

also Simon v. Safelite Glass Corp., 128 F.3d 68, 74 (2d Cir. 1997) (applying

judicial estoppel in an age discrimination case, but specifically stating that the

applicability of judicial estoppel to ADA cases will be “left for another day”).
17

Farther along the continuum lies the Fifth Circuit’s pronouncement on this

issue. In Cleveland v. Policy Management Systems Corp., 120 F.3d 513, 518 (5th

Cir. 1997), the court held “that the application for or the receipt of social security

disability benefits creates a rebuttable presumption that the claimant or recipient

of such benefits is judicially estopped from asserting that he is a ‘qualified

individual with a disability.’” The court acknowledged, however, that a person

may simultaneously be a person with a disability under the Social Security Act,

and also a qualified individual with a disability under the ADA. Id. In such a

case, the presumption would be rebutted. Id.

At the other end of the continuum from the Third Circuit's decision in

McNemar is the D.C. Circuit’s approach. In Swanks v. Washington Metropolitan

Area Transit Authority, 116 F.3d 582, 587 (D.C. Cir. 1997), the D.C. Circuit

pointed out McNemar’s failure to address the differing purposes of the Social

Security Act and the ADA. The Swanks court was faced with the issue of

“whether appellant, alleging he was fired due to his disability, is barred from

seeking relief under the Americans with Disabilities Act because he receives

Social Security disability benefits.” Id. at 583. The court, focusing on the

fundamental differences between the Social Security Act and the ADA, stated “in

assessing eligibility for disability benefits, the Social Security Administration

gives no consideration to a claimant’s ability to work with reasonable
18

accommodation.” Id. at 584. The court held that “receipt of Social Security

disability benefits does not preclude ADA relief.” Id. at 583. A holding to the

contrary “would force disabled individuals into an ‘untenable’ choice between

receiving immediate subsistence benefits under the Social Security Act or

pursuing discrimination remedies. Forcing such a choice would undermine the

pro-employment and anti-discrimination purposes of the two statutes . . . .

Nothing in either statute requires disabled individuals to make this choice.” Id. at

586.

The D.C. Circuit was careful to point out that a claimant’s statement in

support of a social security disability claim may still be relevant in an ADA suit. 

Id. at 587. The court cited the example of a claimant who represents to the Social

Security Administration that he or she is unable to perform the essential functions

of a job even with reasonable accommodation. Id. Such an individual, the court

stated, could well be barred from asserting a claim under the ADA. Id.

Besides the D.C. Circuit, several other circuits have rejected the doctrine of

judicial estoppel in this context. See Johnson v. Oregon, No. 96-36191, 1998 WL

181297, at *4 (9th Cir. Apr. 20, 1998) ("[N]either application for nor receipt of

disability benefits automatically bars a claimant from establishing that she is a

qualified person with a disability under the ADA."); Griffith v. Wal-Mart Stores,

Inc, 135 F.3d 376, 381 (6th Cir. 1998) (“'We agree with the D.C. Circuit’s
2The Eighth Circuit has declared that it has not yet “firmly entrenched itself within

any of the camps of divergent opinions on this issue.” Dush v. Appleton Elec. Co., 124

F.3d 957, 962 n.8 (8th Cir. 1997).

19

opinion in [Swanks], that holds that the receipt of disability benefits does not

preclude subsequent ADA relief and rejects the doctrine of judicial estoppel, but

does allow the consideration of prior sworn statements by the parties as a material

factor.'” (quoting Blanton v. Inco Alloys Int’l, Inc., 123 F.3d 916, 917 (6th Cir.

1997))); Talavera v. School Board of Palm Beach County, 129 F.3d 1214, 1220

(11th Cir. 1997) (“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.”); Weigel v. Target Stores, 122 F.3d 461, 466 (7th Cir. 1997) (“the Social

Security Administration’s decision to grant disability benefits to [the plaintiff] is

not determinative as to whether or not she may be considered a ‘qualified

individual’ under the ADA”).2

After considering the varying views of other circuits, we adhere to

Parkinson, 233 F.2d at 432, 49.01 Acres of Land, 802 F.2d at 390, and Chrysler

Credit Corp., 928 F.2d at 1520 n.10, which signaled our refusal to adopt the

doctrine of judicial estoppel. 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
20

ADA. Such statements may, however, constitute evidence relevant to a

determination of whether the plaintiff is a “qualified individual with a disability.”

Because Mr. Rascon was on unpaid leave while he was in the Menlo Park

program, he contacted the Social Security Administration for assistance with his

financial difficulties. U S West argues that in connection with his application for

disability benefits, Mr. Rascon stated that he did not plan ever to return to work. 

Regardless of what may have been Mr. Rascon’s intentions at one time, there is

no evidence that in connection with his application for disability benefits, Mr.

Rascon indicated that he could not perform the essential functions of his job with

reasonable accommodation. There is, however, evidence that he did, indeed, want

to and expect to return to his job after completing the treatment program. Aplt’s

App. vol. II at 113. There is also testimony from Dr. Canive that Mr. Rascon

would have been able to return to his job had U S West not terminated him. 

Aplt’s App. vol. III at 250-51.

Mr. Rascon was committed to an intensive in-patient treatment program. U

S West denied the accommodation that he requested--paid leave to participate in

this program. Therefore, he sought income support via social security disability

benefits. There is nothing inconsistent in Mr. Rascon applying for disability

benefits after having his reasonable accommodation denied. See D’Aprile v.

Fleet Servs. Corp., 92 F.3d 1, 5 (1st Cir. 1996) (“[The plaintiff’s] contention, that
21

she was unable to work because her employer refused to permit a temporary parttime schedule, is entirely consistent with her claim to have been ‘totally disabled’

within the meaning of the [company’s disability] policy”). In fact, U S West’s

company policy included a statement notifying employees of the option of

applying for social security benefits during periods of disability. Aple’s Supp.

App. at 76.

Nothing in Mr. Rascon’s application for disability benefits precludes a

finding that he was a qualified individual with a disability within the meaning of

the ADA. Moreover, this court has repeatedly refused to adopt the doctrine of

judicial estoppel. Thus, we find no error in the district court’s conclusion that

statements Mr. Rascon made in his social security disability application do not bar

relief under the ADA.

B. Mr. Rascon established a prima facie case of disability

discrimination.

In order to establish a prima facie case under the ADA, a plaintiff must

prove: “(1) that he is a disabled person within the meaning of the ADA; (2) that

he is qualified, that is, with or without reasonable accommodation (which he must

describe), he is able to perform the essential functions of the job; and (3) that the

employer terminated him because of his disability.” White v. York Int’l Corp., 45

F.3d 357, 360-61 (10th Cir. 1995).
22

U S West argues that even if this court does not adopt judicial estoppel, the

court should nonetheless find that Mr. Rascon failed to establish a prima facie

case of disability discrimination as a matter of law. U S West contends that Mr.

Rascon failed to establish the second element of his prima facie case--that he

could perform the essential functions of his job--because his sworn statements in

his social security application indicate that he could not work. This argument

essentially rehashes U S West’s judicial estoppel argument, which we have

already rejected. We have considered the statements in Mr. Rascon’s social

security application which are relevant to his ADA claim, and we have found that

they do not bar relief under the ADA. The fact that Mr. Rascon was unable to

work and in need of financial assistance while he was receiving long-term care in

Menlo Park simply does not preclude a finding that he is a qualified individual

with a disability.

The district court found that Mr. Rascon was able to perform the essential

functions of his job “with reasonable accommodation of his need for

[posttraumatic stress disorder] counseling and treatment.” Aplt’s App. vol. I at

35. The question of whether Mr. Rascon was able to perform the essential

functions of his job is a mixed question of law and fact involving primarily a

factual inquiry. Thus, we review this finding for clear error. There are various

pieces of evidence in the record that support such a finding. Dr. Canive, Mr.
23

Rascon’s treating psychiatrist, noted that despite the treatment Mr. Rascon

received at the Albuquerque VA, Mr. Rascon was still having significant

difficulty controlling his symptoms. Nonetheless, Mr. Rascon was able to

continue working at U S West. Dr. Canive opined that Mr. Rascon’s ability to

work in spite of severe posttraumatic stress disorder symptoms was due to his

motivation and work ethic. Because of Mr. Rascon’s continuing symptoms, Dr.

Canive recommended long-term in-patient treatment for Mr. Rascon’s condition. 

Upon completion of the treatment, Mr. Rascon’s condition had improved. In Dr.

Canive’s opinion, Mr. Rascon could have returned to his job at U S West upon

release from the Menlo Park program.

In addition to Dr. Canive’s opinion, Dr. Finley’s report indicated that Mr.

Rascon’s prognosis was good and that he could expect an improvement in his

work life once he had completed treatment. While there is evidence in the record

that Mr. Rascon was having emotional difficulties at work, U S West has not

pointed to any evidence in the record which would tend to prove that Mr. Rascon

could not perform the essential functions of a Network Technician. We cannot

say that the district court erred in finding that Mr. Rascon was able to perform the

essential functions of his job with reasonable accommodation. As to the other

elements of a plaintiff’s prima facie case, U S West does not raise an argument

with respect to the first element, i.e. whether Mr. Rascon has a disability. As to
24

the third element, i.e. whether U S West discriminated against Mr. Rascon on the

basis of his disability, we shall discuss that below.

C. Mr. Rascon’s requested leave of absence was a reasonable

accommodation.

The district court concluded that the leave of absence Mr. Rascon requested

was a reasonable accommodation. Aplt’s App. vol. I at 41-42. U S West argues

that the district court erred in so concluding. This is a mixed question of law and

fact which primarily involves the consideration of legal principles. Thus, we

review the district court's conclusion de novo.

U S West frames the issue as whether attendance is an essential function of

Mr. Rascon’s job. Aplt's Brief at 29. That simply is not the relevant inquiry

when a reasonable accommodation of disability leave is at issue. Under these

circumstances, the question of whether attendance is an essential function is

equivalent to the question of what kind of leave policy the company has. As we

shall discuss, U S West’s own policies offer various kinds of disability leave,

both paid and unpaid.

“Under the ADA, prohibited discrimination includes failure to make

‘reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability.’” Lowe v. Angelo’s Italian

Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996) (quoting 42 U.S.C. §
25

12112(b)(5)(A)). An allowance of time for medical care or treatment may

constitute a reasonable accommodation. Hudson v. MCI Telecommunications

Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). However, an indefinite unpaid leave

is not a reasonable accommodation where the plaintiff fails to present evidence of

the expected duration of her impairment. Id.; see also Myers v. Hose, 50 F.3d

278, 283 (4th Cir. 1995) (holding that “reasonable accommodation does not

require the [employer] to wait indefinitely for [the plaintiff’s] medical conditions

to be corrected”). The Hudson court noted that “[e]xamples of possible

accommodations include ‘permitting the use of accrued paid leave or providing

additional unpaid leave for necessary treatment.’” Hudson, 87 F.3d at 1168

(quoting 29 C.F.R. Pt. 1630, Appendix to Part 1630--Interpretive Guidance to

Title I of the ADA, § 1630.2(o)). The plaintiff in Hudson failed to present

evidence of the expected duration of her impairment, a course of treatment, or a

prognosis; therefore, the court affirmed summary judgment in favor of the

employer.

Hudson is distinguishable from the case at bar. Before Mr. Rascon left for

Menlo Park, he told Ms. Sullivan that the expected duration of his treatment was

estimated at four months. In early March, Dr. Truitt received a report from Dr.

Finley indicating that Mr. Rascon needed approximately four months to complete

the program. In actuality, Mr. Rascon was a patient in the Menlo Park program
26

for a little less than five months. Furthermore, U S West was aware of the nature

of Mr. Rascon’s course of treatment, and U S West was aware of why Mr. Rascon

was undergoing this treatment. Finally, the prognosis from Mr. Rascon’s doctors

was good. His doctors thought that the program was very likely to improve Mr.

Rascon’s work and home life by assisting him to cope with his posttraumatic

stress disorder.

An employer need not make a reasonable accommodation that would cause

"an undue hardship." Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1087

(10th Cir. 1997) (quoting 42 U.S.C. § 12112 (b)(5)(A)). “The employer . . . bears

the burden of persuasion on whether a proposed accommodation would impose an

undue hardship.” Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997). 

“Undue hardship” means “an action requiring significant difficulty or expense”

when considered in light of various factors. 42 U.S.C. § 12111(10)(A). The

factors to be considered in determining whether an accommodation would cause

an employer undue hardship are, among others: the nature and cost of the

accommodation; the number of persons employed by the company; the financial

resources of the company; and the impact of the accommodation upon the

operation of the company. 42 U.S.C. § 12111(10)(B). U S West contends that

the leave which it did grant Mr. Rascon was an extraordinary accommodation and

that it met with difficulties because other employees had to cover Mr. Rascon’s
27

responsibilities. Although U S West characterizes the departmental leaves as

“extraordinary,” in actuality, these leaves of absence were less accommodating

than company policy required, and the corresponding conditions U S West

attached to the leaves of absence were more restrictive than company policy

allowed.

When U S West granted Mr. Rascon back-to-back departmental leaves in

increments of thirty days conditioned on receiving information from Mr. Rascon’s

doctors, it was not following its own policies. Under U S West’s leave policy, an

informal departmental leave of less than thirty days could have been granted by

Ms. Sullivan alone without any approval from U S West’s Health Benefits

Committee. Aplt’s App. vol. III at 368. Furthermore, a departmental leave does

not require validation; that is, an employee is not required to give an explanation

to U S West as to why he or she needs the leave. Aplt’s App. vol. IV at 389.

When an employee requests more than thirty days' leave, as Mr. Rascon did,

then more formal extended leave periods are available. U S West’s Anticipated

Disability Leave of Absence provided for up to six months of unpaid leave with

guaranteed reinstatement. The employee must apply for this leave thirty days in

advance; however, the policy provides that an employee may use vacation time

while waiting on a pending application. The only validation required is that the
28

employee provide U S West a doctor’s statement as proof of a “planned medical

treatment.” Aple’s Supp. App. at 53.

Another option available under U S West’s leave policy is a Personal Leave

of Absence. This option provides for up to twelve months of leave. When

requesting personal leave, an employee does not need to share with U S West the

reasons for the leave. A personal leave comes with no compensation and no

guarantee of reinstatement. Aple's Supp. App. at 60.

U S West also had in place, at the time that Mr. Rascon requested an

accommodation of leave, a sickness and accident disability plan. Under this

policy, because of Mr. Rascon’s seniority with the company, U S West was

required to pay Mr. Rascon’s full salary for a period of thirty-nine weeks and fifty

percent of his salary for an additional thirteen weeks. Id. at 72. In order to be

eligible for this paid disability leave, Mr. Rascon was required to report his

disability to his supervisor, place himself under a physician’s care, follow the

recommended treatment, and furnish satisfactory medical certification. Id. at 73.

Thus, Ms. Sullivan was not following U S West's generous leave policy

when she informed Mr. Rascon that she could not grant him a departmental leave

because he had not provided Health Services with the appropriate information. 

Ms. Sullivan clearly had the authority to grant a departmental leave on her own

without any explanation from Mr. Rascon. Furthermore, aside from departmental
29

leave, there were various other more appropriate and accommodating options

which Ms. Sullivan could have explored with Mr. Rascon, including paid

disability benefits or an unpaid anticipated disability leave. Ms. Sullivan testified

that the reason she did not explore alternatives was because Mr. Rascon did not

request a particular kind of leave. Aplt’s App. vol. III at 375. However, there is

no dispute that Mr. Rascon stated to Ms. Sullivan that even if U S West denied

paid disability leave, he wanted to attend the treatment program in Menlo Park. 

Mr. Rascon was determined to seek treatment even if it meant that U S West

would not pay him during his absence. Any of the alternatives discussed above

would have constituted a reasonable accommodation.

There was no evidence presented to the district court as to U S West’s

overall financial resources. Aplt’s App. vol. I at 50. However, U S West is a

global operation with 50,000 to 60,000 employees. Id. Furthermore, U S West

did not replace Mr. Rascon while he was in Menlo Park, even when it claimed it

could no longer grant departmental leaves that came with guaranteed

reinstatement. Id. Under the circumstances, the fact that Mr. Rascon’s duties

were covered by co-workers while he was on leave does not establish that

granting Mr. Rascon leave until he completed the treatment program would have

caused U S West undue hardship. U S West failed to carry its burden of

demonstrating that any of the alternative accommodations would have caused it
30

undue hardship. Thus, we conclude that leave to attend the Menlo Park treatment

program was a reasonable accommodation.

D. Mr. Rascon provided U S West with sufficient information

regarding his disability.

The question of whether Mr. Rascon provided U S West with sufficient

information about his disability and its treatment is a question of fact, namely,

what information did U S West require, according to its policy, in order to grant

leave to an employee. Thus, we review the district court's determination for clear

error. We have already discussed at length the course of events that took place in

this case. Briefly, we reiterate that Mr. Rascon himself made contact with his

supervisor, Ms. Sullivan, and with Ms. Truitt in Health Services before he left for

Menlo Park. With both of them, he discussed in detail his disability and his need

for treatment. When U S West denied paid disability leave, he asked Ms. Sullivan

for an unpaid leave to attend the entire treatment program. Before he left for

Menlo Park, Mr. Rascon signed two medical releases, one for Dr. Canive and one

for Dr. Finley.

As we discussed above, in order to be eligible for paid disability leave, Mr.

Rascon was required to report his disability to his supervisor, place himself under

a physician’s care, follow the recommended treatment, and furnish satisfactory

medical certification to U S West. Both of Mr. Rascon’s doctors, Dr. Canive and
31

Dr. Finley, provided U S West, at various times before and during Mr. Rascon’s

treatment in Menlo Park, information regarding Mr. Rascon’s disability, his

course of treatment, his prognosis, and the expected duration of his treatment. 

Although there is evidence that Mr. Rascon intended to revoke his medical

release, he did not, in fact, do so.

Moreover, as we have discussed above, various leave options available

under U S West’s policy did not require an employee to share any information

whatsoever with U S West. Another option, anticipated disability leave, required

that the employee provide U S West with a doctor’s statement as proof of a

“planned medical treatment.” Aple's Supp. App. at 53. The information provided

by either Dr. Canive or Dr. Finley would appear to satisfy this condition. 

Considering the evidence adduced at trial, we cannot say that the district court’s

finding that Mr. Rascon provided U S West sufficient information concerning his

disability and treatment was clearly erroneous.

E. The district court did not err in awarding compensatory damages.

In a case of “unlawful intentional discrimination,” a court may award the

plaintiff compensatory damages. 42 U.S.C. § 1981a. A finding of intentional

discrimination is a finding of fact, which we review for clear error. Anderson v.

City of Bessemer City, N.C., 470 U.S. 564, 573 (1985). “We must give great
32

deference to the factual determinations of the original finder of fact, who has the

exclusive ability to assess the demeanor and the tone of the witness’ testimony.” 

Thompson v. Rockwell Int’l Corp., 811 F.2d 1345, 1350 (10th Cir. 1987).

In ADA cases where a discriminatory practice involves the provision of a

reasonable accommodation, compensatory damages may not be awarded where the

employer “demonstrates good faith efforts, in consultation with the person with

the disability who has informed the [employer] that accommodation is needed, to

identify and make a reasonable accommodation that would provide such

individual with an equally effective opportunity and would not cause an undue

hardship on the operation of the business.” 42 U.S.C. § 1981a(a)(3). U S West

claims that the district court erred in finding that it did not make a good faith

effort to accommodate Mr. Rascon’s disability.

U S West argues that it had accommodated Mr. Rascon’s disability in the

past, when it provided anger management counseling to Mr. Rascon and when it

granted him leave to attend the out-patient treatment program in Albuquerque. 

However, what is at issue in this case is Mr. Rascon’s request for an

accommodation to attend an intensive treatment program for his disability when

prior treatment proved ineffective. The district court did not err when it found a

lack of good faith efforts on the part of U S West.
33

U S West claims that it would have granted Mr. Rascon unpaid

departmental leave to attend the entire Menlo Park program had Mr. Rascon

complied with its requests for additional information. However, we do not find

clearly erroneous the district court's findings that Mr. Rascon provided U S West

with minimally sufficient information regarding his disability and its treatment or

that U S West failed to comply with its own disability and leave policies because

validation and explanations were not even required for Ms. Sullivan to grant a

departmental leave.

Taking all of this into consideration, the district court found that U S

West’s explanation as to why it did not grant Mr. Rascon leave--lack of

information--was, in reality, a pretext for discrimination. Aplt’s App. vol. I at 53. 

Thus, the court found that U S West intentionally discriminated against Mr.

Rascon on the basis of his disability. Aplt’s App. vol. I at 44. After having

carefully examined the evidence before the district court, we are not left "'with

the definite and firm conviction that a mistake has been committed'" in its finding

of intentional discrimination. See Anderson, 470 U.S. at 573 (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
34

III. CONCLUSION

In summary, the district court correctly refused to apply the doctrine of

judicial estoppel. The district court did not err in concluding that Mr. Rascon

established a prima facie case of discrimination under the ADA. We agree with

the district court's legal conclusion that Mr. Rascon's requested accommodation, a

leave of absence to attend the treatment program in Menlo Park, was reasonable

and would not have caused U S West undue hardship. The court did not clearly

err in finding that Mr. Rascon provided U S West sufficient information regarding

his disability and its treatment, to the extent that information was even necessary,

for U S West to grant Mr. Rascon either paid or unpaid leave. Neither did the

court err in finding that U S West’s stated reason for denying Mr. Rascon leave

and for terminating him was a pretext for discrimination. Finally, the district

court’s award of compensatory damages for U S West’s intentional discrimination

was not clearly erroneous. Accordingly, we AFFIRM the judgment of the district

court.