                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 19 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMIE LOWE,

                Plaintiff-Appellant,

    v.                                                    No. 97-3139
                                                    (D.C. No. 93-1233-JTR)
    ANGELO’S ITALIAN FOODS, INC.,                          (D. Kan.)

                Defendant-Appellee.


    EQUAL EMPLOYMENT
    OPPORTUNITY COMMISSION,

                Amicus Curiae.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Jamie Lowe appeals the district court’s order dismissing her claim

alleging violations of the Americans with Disabilities Act (“ADA”) on the basis

that plaintiff was judicially estopped from maintaining such a claim because she

had successfully obtained social security disability benefits. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and, in accordance with our recent decision in

Rascon v. U S West Communications, Inc., No. 96-2194, 1998 WL 223465

(10th Cir. May 6, 1998), we reverse.

      Plaintiff began work for defendant Angelo’s Italian Foods, an Italian

restaurant, in August 1992. Plaintiff’s duties included purchasing and inventory

control for the restaurant. On October 22, 1992, plaintiff gave her supervisor

a letter from her doctor stating that she was suffering from pain and weakness

in her right leg and had neurological problems that caused her to fatigue easily.

The doctor’s note said plaintiff should be allowed to sit down occasionally, and

avoid stooping, bending and carrying anything heavier than fifteen pounds.

Defendant terminated plaintiff that same day. Plaintiff was later diagnosed

with multiple sclerosis.

      Plaintiff filed a complaint asserting ADA, Title VII and pendant state law

claims. The district court granted summary judgment in favor of defendant.


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On appeal, we reversed the grant of summary judgment on her ADA claim,

finding that plaintiff presented evidence creating a genuine issue of fact with

respect to whether her ability to lift, which we held was a “major life activity,”

was substantially impaired. See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d

1170, 1174 (10th Cir. 1996).

      Five months after defendant terminated her employment, plaintiff applied

for, and was awarded, social security disability benefits. The decision of the

administrative law judge (ALJ) stated that plaintiff claimed to be “unable to work

since October 25, 1992 as a result of numbness and weakness caused by multiple

sclerosis.” Appellant’s Appendix, at 210. The ALJ found that plaintiff was

disabled, within the meaning of the Social Security Act. Id. at 212. On remand,

the defendant again moved for summary judgment on plaintiff’s ADA claim,

arguing that plaintiff was estopped from claiming she could perform the essential

functions of her work because she received social security disability benefits

based on her assertion that she was disabled as of October 25, 1992.

      The district court agreed, holding that plaintiff was judicially estopped

from claiming that she could perform the essential functions of her job with or

without accommodation, as is required to assert a claim under the ADA, because,

in order to receive social security disability benefits, she claimed that she was




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disabled and unable to work only three days after she sought an accommodation

from defendant.

       We recently reaffirmed our rejection of the doctrine of judicial estoppel

and joined the majority circuits in holding 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 ADA.” Rascon, 1998 WL

223465, at *9. We recognized that

       the ADA takes into consideration whether an individual with a
       disability can work given reasonable accommodation. See 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.

Id. at *7.

       We concluded that statements made in connection with an application for

social security disability benefits “may, however, constitute evidence relevant to

a determination of whether the plaintiff is a ‘qualified individual with a

disability’” within the meaning of the ADA. See id. at *9.




                                         -4-
      Accordingly, the judgment of the United States District Court for the

District of Kansas is REVERSED and the case is REMANDED for

reconsideration in light of our decision in Rascon.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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