                         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: December 10, 1997
                                      Filed: March 30, 1998
                                    ___________

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

LOKEN, Circuit Judge.

       Steaphanie Moore appeals 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”), and the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.
(“FMLA”), against her former employer, Payless Shoe Source, Inc. (“Payless”). We
conclude that Moore failed to present the “strong countervailing evidence” needed to



      1
       The HONORABLE GEORGE HOWARD, JR., United States District Judge for
the Eastern District of Arkansas.
defeat summary judgment when an ADA claimant has represented to the Social Security
Administration that she is “unable to work.” Dush v. Appleton Elec. Co., 124 F.3d 957,
963 (8th Cir. 1997). We further agree with the district court that Moore’s chameleonic
FMLA claim fails because Moore either did not work sufficient hours to be eligible or
the claim is time-barred. Accordingly, we affirm.

        We review the grant of summary judgment de novo, viewing facts in the light
most favorable to Moore. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775
(8th Cir. 1995). In June 1991, Moore was injured while working as a Payless store
manager. After receiving temporary total workers compensation disability benefits, she
returned to work that September. Moore’s physician told her not to lift more than 10
lbs., reach overhead with her right arm, or twist, stoop, or bend with her back. Payless
accommodated these restrictions by instructing other store employees to assist Moore
with lifting. Moore suffered a second work-related injury in April 1993, just before
scheduled shoulder surgery. She had the surgery on April 30 and received temporary
total workers compensation disability benefits until August, when she returned to work.
She suffered a third work-related injury in September, went on unpaid leave, and again
applied for workers compensation benefits. On December 20, 1993, she also applied
to the Social Security Administration (“SSA”) for disability insurance benefits. Her
signed application included the following representations:

      I became unable to work . . . on April 22, 1993. I am still disabled. . . .
      I agree to notify the Social Security Administration if my medical
      condition improves so that I would be able to work. . . . I know that
      anyone who makes or causes to be made a false statement or
      representation of material fact in an application . . . commits a crime
      punishable under federal law by fine, imprisonment or both. I affirm that
      all information I have given in connection with this claim is true.

Moore’s treating physician released her to return to work on January 20, 1994. In early
February, she advised Payless that she could return to work. Her supervisor invited her

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to return to her former position, and Moore accepted. However, when Moore requested
the same accommodation she received after her 1991 and 1993 injuries, her supervisor
noted that the physician’s release did not place any restrictions on her return to work.
Moore then furnished a note from another physician restricting her to lifting 15 lbs. and
advising that her right shoulder has a limited range of motion.

        On February 9, 1994, SSA denied Moore’s disability application. On March 31,
Payless advised Moore, “you remain active on our payroll, but we have no work
available which can accommodate your restrictions.” On April 5, Moore petitioned
SSA to reconsider the denial of her disability application. Two weeks later, she testified
at a workers compensation hearing that she was willing to work within her restrictions.
At that hearing, she claimed temporary total disability from September 22, 1993, to
February 22, 1994, and a permanent partial disability equal to fifty percent of the body
as a whole. In June 1994, the workers compensation administrative law judge awarded
her temporary total disability benefits to February 20, 1994, plus a permanent partial
award “equal to an eight percent loss of use of the body as a whole.” SSA denied her
request for reconsideration in December 1994. Moore began work as a sales clerk at
another store in March 1995 but continued to receive health benefits from Payless. She
filed this lawsuit in December 1995, asserting that Payless violated the ADA by refusing
to return her to her former position with a reasonable accommodation of her disability,
and violated the FMLA by constructively discharging her.

                                 I. The ADA Claim.

      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, she was nonetheless qualified to perform the essential
functions of her job with or without reasonable accommodation, and she suffered an
adverse employment decision because of her disability. See Price v. S-B Power Tool,

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75 F.3d 362, 365 (8th Cir.), cert. denied, 117 S. Ct. 274 (1996). The issue on this
appeal is whether Moore presented sufficient evidence that she was qualified to perform
the essential functions of her job despite her ongoing representation to SSA that she was
“unable to work.”

        Judicial estoppel is a seldom-invoked doctrine that protects the integrity of the
judicial process by barring a claim if the claimant has taken an inconsistent position
under oath in a prior judicial or quasi-judicial proceeding. A number of cases have
addressed the question whether judicial estoppel should preclude an ADA plaintiff who
has represented to SSA that he or she is totally disabled from contending that he or she
is a “qualified individual,” that is, disabled but able to perform the essential functions
of a job. Compare Swanks v. Washington Met. Area Transit Auth., 116 F.3d 582, 586-
87 (D.C. Cir. 1997), with McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996),
cert. denied 117 S. Ct. 958 (1997). As the EEOC explained in its amicus curiae brief
in this case, there is no inherent inconsistency between claiming to be eligible for Social
Security disability benefits and claiming to be a qualified person with a handicap under
the ADA, primarily because the Social Security disability standard does not take into
account ability to work with a reasonable accommodation. Compare the Social Security
disability standard in 42 U.S.C. § 423(d), with the ADA definition of qualified person
in 42 U.S.C. § 12111(8). Therefore, this court, like most Circuits to consider the issue,2
has declined to hold the ADA plaintiff judicially estopped to prove he or she is a
qualified individual with a disability for purposes of 42 U.S.C. § 12111(8) simply
because he or she also applied for Social Security disability benefits. See Dush v.
Appleton Elec. Co., 124 F.3d at 962 n.8.

      2
        See Griffith v. Wal-Mart Stores, 1998 WL 29870 (6th Cir. Jan. 29, 1998);
Talavera v. School Bd. of Palm Beach County, 129 F.3d 1214 (11th Cir. 1997); Weigel
v. Target Stores, 122 F.3d 461, 467-68 (7th Cir. 1997); Cleveland v. Policy Mgmt. Sys.
Corp., 120 F.3d 513, 516-18 (5th Cir.), petition for cert. filed, 66 U.S.L.W. 3435 (U.S.
Dec. 15, 1997)(No. 97-1008); Swanks, 116 F.3d at 586-87; Kennedy v. Applause, Inc.,
90 F.3d 1477, 1480-82 (9th Cir. 1996).

                                           -4-
       Though we have not invoked judicial estoppel to bar ADA claims in this
situation, we have made it clear that an ADA claimant who made prior sworn
representations to SSA may not cast aside the factual import of those representations.
Thus, the ADA plaintiff is estopped to deny the truth of ongoing sworn statements made
in the SSA disability proceeding, but may attempt to prove that he or she is nonetheless
a “qualified individual with a disability” for ADA purposes. We have put this standard
in concrete terms procedurally: “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 qualified.” Dush, 124 F.3d at 963
(quotations omitted).

       Moore’s submission in response to Payless’s motion for summary judgment fell
significantly short of meeting this “strong countervailing evidence” standard. In the face
of her ongoing representation to SSA that she was “unable to work” -- first made in
December 1993, and reconfirmed when she requested reconsideration of SSA’s initial
denial in April 1994 -- we have only Moore’s affidavit stating that she can perform the
essential functions of her former job as store manager with the accommodation she
received when she returned to work in September 1991 and August 1993. However,
the workers compensation ALJ concluded she should “obtain employment in a
sedentary type of situation commensurate with her physical limitations,” and her
physician restricted her in 1991 to “light duty work.” Because the store manager job
in question is neither sedentary nor light work, Moore’s self-serving affidavit is
unpersuasive. Each time she attempted to return to that position, she reinjured herself
and took 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, 956 F. Supp. 574, 578-
79 (D. Md. 1996). On this record, applying the standard adopted




                                           -5-
in Dush, we conclude that the district court properly granted summary judgment
dismissing Moore’s ADA claim.3

                                II. The FMLA Claim.

       FMLA grants eligible employees up to twelve weeks of leave during any twelve
month period for enumerated circumstances which include “a serious health condition
that makes the employee unable to perform the functions of [her] position.” 29 U.S.C.
§ 2612(a)(1)(D). To be eligible, the employee must have at least 1250 “hours of
service” during the twelve months prior to commencement of leave. 29 U.S.C. §
2611(2)(A). Eligible employees are entitled to reinstatement upon returning from
FMLA leave. 29 U.S.C. § 2614(a)(1). FMLA claims are subject to a two year statute
of limitations that is extended to three years for willful violations. 29 U.S.C. § 2617(c).

       Though Moore received a lengthy medical leave after her September 1993 injury,
she argues that she was also entitled to twelve weeks of FMLA leave in February 1994
because Payless never designated her workers compensation leave as “FMLA leave.”
We suspect this theory is substantively flawed, for it is based upon an interim
Department of Labor regulation regarding when an employer may require that paid
leave be counted as FMLA leave. See 29 C.F.R. § 825.208, 58 Fed. Reg. 31,794,
31,821 (Jun. 4, 1993). But we need not reach the merits of the claim, for it has basic
threshold flaws.



      3
        Had Moore disclosed to SSA that she was released for work by her treating
physician in January 1994 and applied to Payless for her former job with an
accommodation, we would need to consider whether the strict Dush standard should
apply to an ADA plaintiff who has been totally candid with SSA and the court. We
incline to the view that a claimant who seeks relief that may be but is not necessarily
inconsistent, such as Social Security disability benefits and ADA work accommodation,
should receive some credit for complete candor and honesty.

                                           -6-
       The district court initially dismissed this claim because Moore testified that she
was denied FMLA leave in February 1994, when she was ineligible because she had not
worked 1250 hours in the previous twelve months. In her motion to alter or amend to
the district court, Moore then argued that the FMLA violation occurred when her
medical leave began in September 1993. The district court properly rejected that claim
as time-barred because her complaint was filed in December 1995 and did not allege a
willful FMLA violation. On appeal, Moore changes theories again, now arguing that
the alleged violation occurred in September 1993, when she was eligible, and is not
time-barred because it did not accrue until she was denied reinstatement in February
1994. We disagree. If the violation was Payless’s failure to designate her workers
compensation leave as FMLA leave, it occurred and accrued in September 1993 and
is time-barred. On the other hand, if the violation was Payless’s denial of FMLA leave
in February 1994, she was ineligible because she lacked the necessary hours of service.

      The judgment of the district court is affirmed.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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