                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                             No. 96-4756.

                 Rosanna TALAVERA, Gerard Talavera, Plaintiffs-Appellants,

                                                   v.

    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.

                                            Nov. 24, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 94-8110-CI-
KMM), K. Michael Moore, Judge.

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

       DUBINA, Circuit Judge:

       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 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 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 "qualified individual with a disability"?2

                                  III. STANDARDS OF REVIEW


   1
    The Talaveras brought suit against several individual defendants, as well. On appeal, they
pursue only their claims against the school board.
   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).
       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, --- U.S. ----, 117 S.Ct. 958, 136

L.Ed.2d 845 (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. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2048, 135

L.Ed.2d 392 (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, --- U.S. ----, 117 S.Ct. 2453, 138 L.Ed.2d 211 (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

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, 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., 126 F.3d 494 (3rd Cir.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 503 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 503

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 503 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.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 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 application. If not, the agency awards benefits.



   3
    The list includes conditions such as certain spinal disorders, certain amputations, epilepsy,
etc. 20 C.F.R. § 404.1520(d).
       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 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.



   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.
       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 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



   6
    The Dush court explicitly declined to reach the issue of judicial estoppel.
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 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


   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.
   8
   The Ninth Circuit also declined to consider whether the doctrine of judicial estoppel applied.
Kennedy, 90 F.3d at 1481 n. 3.
in order to obtain SSD benefits.

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