                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 97-2110
                                   ___________

Steaphanie Moore,                       *
                                        *
      Plaintiff - Appellant,            *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Payless Shoe Source, Inc.,              *
                                        *
      Defendant - Appellee.             *
                                   ___________

                                 Submitted: July 13, 1999
                                     Filed: August 16, 1999
                                   ___________

Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

       Steaphanie Moore appealed the district court’s1 grant of summary judgment
dismissing her claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101
et seq. (“ADA”), against her former employer, Payless Shoe Source, Inc. (“Payless”).
Applying the standard articulated in Dush v. Appleton Elec. Co., 124 F.3d 957, 963
(8th Cir. 1997), we affirmed, concluding that Moore failed to present the “strong


      1
       The HONORABLE GEORGE HOWARD, JR., United States District Judge for
the Eastern District of Arkansas.
countervailing evidence” needed to defeat summary judgment when an ADA claimant
has represented to the Social Security Administration that she is “unable to work.”
Moore v. Payless Shoe Source, Inc., 139 F.3d 1210 (8th Cir. 1998). The Supreme
Court granted Moore’s petition for a writ of certiorari and remanded for further
consideration in light of Cleveland v. Policy Management Systems Corp., 119 S. Ct.
1597 (1999). Moore v. Payless Shoe Source, Inc, 119 S. Ct. 2017 (1999) (mem.). For
the following reasons, we reinstate our prior decision.

       In June 1991, Moore was injured while working as a Payless store manager. She
returned to work in September 1991 under a physician’s restriction that she lift no more
than ten pounds and avoid twisting, stooping, and bending. Payless accommodated
these restrictions by instructing other store employees to assist Moore with lifting. She
suffered a second work-related injury in April 1993 and received temporary total
workers compensation disability benefits, returning to work in August. She suffered
a third work-related injury in September 1993, went on unpaid leave, and again
received workers compensation benefits. On December 20, 1993, she applied for
Social Security disability benefits, representing that she was “unable to work.”
Moore’s treating physician released her to return to work on January 20, 1994. In early
February, Payless invited her to return to her former position without restrictions.
Moore responded by furnishing a physician’s note restricting her to lifting not more
than fifteen pounds and advising that her right shoulder has a limited range of motion.
Payless advised Moore, “you remain active on our payroll, but we have no work
available which can accommodate your restrictions.” Moore claims that Payless
violated the ADA by refusing to reinstate her with the accommodations afforded her
when she returned to work in September 1991 and August 1993.

       The ADA prohibits an employer from discriminating against “a qualified
individual with a disability because of the disability.” 42 U.S.C. § 12112. To avoid
summary judgment dismissing her ADA claim, Moore must show that at the time in
question she was disabled but was nonetheless qualified to perform the essential

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functions of her job with or without reasonable accommodation. See 42 U.S.C.
§ 12111(8). In our prior opinion, we declined to invoke the doctrine of judicial
estoppel to bar Moore’s ADA claim, but we stated “that an ADA claimant who made
prior sworn representations to SSA may not cast aside the factual import of those
representations” in her ADA case. Moore, 139 F.3d at 1212-13. Quoting from our
prior opinion in Dush, we held that “prior representations of total disability carry
sufficient weight to grant summary judgment against the [ADA] plaintiff absent strong
countervailing evidence that the employee is in fact” a qualified individual with a
disability. Id. at 1213.

       In Cleveland, the Supreme Court agreed that “a plaintiff’s sworn assertion in an
application for disability benefits that she is, for example, ‘unable to work’ will appear
to negate an essential element of her ADA case -- at least if she does not offer a
sufficient explanation.” 119 S. Ct. at 1603. But the Supreme Court articulated a
somewhat different summary judgment standard than our standard in Dush:

      When faced with a plaintiff’s previous sworn statement asserting “total
      disability” or the like, the court should require an explanation of any
      apparent inconsistency with the necessary elements of an ADA claim. To
      defeat summary judgment, that explanation must be sufficient to warrant
      a reasonable juror’s concluding that, assuming the truth of, or the
      plaintiff’s good faith belief in, the earlier statement, the plaintiff could
      nonetheless “perform the essential functions” of her job, with or without
      “reasonable accommodation.”

Id. at 1604. We must reconsider our prior decision under this new standard.

       In response to Payless’s motion for summary judgment, Moore presented an
affidavit by a licensed occupational therapist, Pat Hames, who had evaluated Moore’s
physical work limitations. Hames averred:



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      Ms. Moore’s limitations restrict her to physical work demands normally
      classified as Sedentary, as defined by the Dictionary of Occupational
      Titles, without accommodation. . . . After reviewing job descriptions
      submitted by Payless . . . Payless’ job descriptions would be classified as
      Medium work under the Dictionary of Occupational Titles. Assuming
      these descriptions are accurate, Ms. Moore would be unable to perform
      the position of Store Manager.

Thus, the summary judgment record contains undisputed evidence that Moore is unable
to perform the essential functions of her prior position without accommodation. The
focus of Moore’s claim is instead on the issue of accommodation. In her own affidavit
she averred:

             10. I am now working at Hobby Lobby as sales clerk. I cannot lift
      large objects, but the store accommodates my disabilities by asking other
      personnel to assist me to lift heavy objects when needed. I believe that
      Payless Shoe Source could do the same because it did so earlier. But,
      Payless has refused. I am able to work as a sales clerk with reasonable
      accommodations.

Moore argues that this affidavit raises a genuine issue of material fact as to whether she
is able to perform the essential functions of her job as a Payless store manager with
reasonable accommodation. We disagree.

       There is no evidence that Moore advised Payless at the time in question “what
accommodation specific to her position and workplace was needed.” Mole v.
Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir.), petition for cert. filed,
67 U.S.L.W. 3773 (U.S. Jun. 22, 1999) (No. 98-1990). Moreover, there is no evidence
that Moore’s position as a Hobby Lobby sales clerk, and her former position as a
Payless store manager, are so similar that a reasonable accommodation at one would
suffice at the other. Moore seeks to fill these evidentiary gaps with the contention that
Payless simply needed to afford her the same accommodation it had previously

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provided. But the record refutes this contention. Each time Moore returned to the
store manager position in 1991 and 1993 -- with the accommodation she now alleges
is sufficient to make her able to perform the job -- she reinjured herself and was forced
to take an extended leave of absence. An employee who is “unable to come to work
on a regular basis [is] unable to satisfy any of the functions of the job in question, much
less the essential ones.” Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir.
1997); see Foremanye v. Board of Community College Trustees




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