                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________

                                      No. 97-6017
                               ________________________

                           D. C. Docket No. CV 95-H-2384-NE

PATRICIA TAYLOR, as guardian of
Gary Taylor, a minor,

                                                                           Plaintiff-Appellant,

                                             versus

FOOD WORLD, INC.,
BRUNOS, INC.,

                                                                        Defendants-Appellees.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                     (January 28, 1998)

Before COX and BARKETT, Circuit Judges, and HUNT*, District Judge.

COX, Circuit Judge:



       *
         Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia,
sitting by designation.
I.    BACKGROUND

      Patricia Taylor, as guardian of Gary Taylor, who was a minor at the time this

action was commenced, appeals the district court’s order granting summary judgment

in favor of Food World, Inc. and Bruno’s, Inc. (“Food World”) on the claim that Gary

was terminated in violation of his rights under the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101 et seq.. We reverse and remand.

      Gary suffers from Asperger’s disorder, a form of autism involving pervasive

developmental disorders. As a result of this condition, Gary often speaks more loudly

than necessary and engages in “echolalia,” or constant repetitive speech. Gary is

unable to control these behaviors. Additionally, Gary’s communication and social

interaction skills are impaired, as are certain living and survival skills. For example,

Gary tends to make inappropriate comments or ask personal questions of strangers.

      Gary began working as a utility clerk for Food World on June 20, 1994. As a

utility clerk, his main duties included bagging groceries and assisting customers in

delivering the groceries to their automobiles. In performing his duties, customers and

co-workers observed Gary speaking loudly and sometimes asking customers personal

questions. Three customers complained or made negative remarks to the management

about Gary’s behavior. Others commented favorably on Gary’s attempt to work

despite his disability. On September 13, 1994, the store manager terminated Gary.


                                           2
The manager told Mrs. Taylor that the decision to terminate Gary was based on

customer complaints that Gary was loud, overly friendly, and overly talkative.

       Following Gary’s termination, Mrs. Taylor filed an application on Gary’s behalf

for Supplemental Security Income (SSI) benefits. In the application, Mrs. Taylor

affirmed that Gary was disabled and had been since birth. The Social Security

Administration determined that Gary was disabled, as Gary’s impairment was a “listed

impairment” under the regulations, meaning that Gary’s impairment meets or equals

one of the presumptively disabling impairments listed in the regulations.1 The Social

Security Administration therefore awarded Gary SSI disability benefits.




       1
           The SSA has developed a five-step procedure for evaluating disability claims, which is
as follows:
        (1) The SSA determines whether the claimant is engaged in “substantial gainful activity.”
        If so, the claim is denied; if not, the SSA proceeds to step two.
        (2) The SSA determines whether the claimant has a severe impairment, one that
        significantly limits the ability to do basic work activities. If not, the claim is denied. If
        so, the SSA proceeds to step three.
        (3) The SSA determines whether the claimant has an impairment that meets or equals the
        presumptively disabling impairments listed in the regulations. If so, the claimant is
        awarded benefits without further inquiry. If not, the SSA proceeds to step four.
        (4) The SSA determines whether the claimant is able to perform his past work. If so, the
        claim is denied. If not, the SSA proceeds to step five.
        (5) The SSA determines, based upon the claimant’s age, educational experience, past
        work experience, and residual functional capacity, whether the claimant can perform
        “other work” that exists “in significant number in the national economy.” If so, the claim
        is denied. If not, the SSA awards benefits.
20 C.F.R. §§ 404.1520, 1560(c) (1996).
        Because Gary’s impairment met or equaled a “listed” impairment, he was awarded
benefits at step three.

                                                 3
II.   PROCEDURAL HISTORY

      Mrs. Taylor, as guardian of Gary, sued Food World, alleging that Food World

discriminated against Gary in violation of his rights under the ADA. The district court

granted Food World’s motion for summary judgment and denied Gary’s motion for

partial summary judgment, holding that: (1) Gary was judicially estopped from

contending that he could perform his past job because he subsequently applied for and

received SSI disability benefits; (2) the undisputed facts indicated that Gary could not

perform his essential job functions and therefore was not an “otherwise qualified

individual” under the ADA; and (3) Gary was not entitled to partial summary

judgment because as a matter of law, Gary’s proposed accommodation was not

reasonable.

      On appeal, Gary contends that the district court erred in (1) finding that he was

judicially estopped from asserting that he was an otherwise qualified individual; (2)

holding that there existed no genuine issue of material fact as to whether Gary could

perform the essential functions of his job with or without reasonable accommodation;

(3) holding that there was no genuine issue of material fact as to whether a reasonable

accommodation existed; (4) excluding admissible evidence submitted by Gary; and

(5) considering evidentiary submissions that would not be admissible at trial.




                                           4
III.   STANDARDS OF REVIEW

       We review de novo the district court’s decision to grant Food World’s motion

for summary judgment and to deny Gary’s motion for partial summary judgment.

See, e.g., Tinney v. Shores, 77 F.3d 378, 380 (11th Cir. 1996).         We review the

district court’s application of judicial estoppel for abuse of discretion. See Talavera

v. School Board of Palm Beach Co., No. 96-4756 (11th Cir. Nov. 24, 1997) (quoting

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 review the district court’s evidentiary rulings for abuse of

discretion. See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997); United States

v. Orr, 825 F.2d 1537, 1543 (11th Cir. 1987).

IV.    DISCUSSION

       Gary claims that Food World discriminated against him in violation of his rights

under the ADA by failing to provide reasonable accommodations for his disability and

by terminating him because of his disability. To prevail on a claim under the ADA,

Gary must show (1) that he has a disability; (2) that he is “qualified” to be a utility

clerk; and (3) that Food World discriminated against him on the basis of his disability.

See Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996), cert.


                                           5
denied, 117 S. Ct. 2453 (1997); see also 42 U.S.C. § 12102(2). A “qualified”

individual for purposes of the ADA is “an individual with a disability who, with or

without reasonable accommodation, can perform the essential functions” of the job.

42 U.S.C. § 12111(8). If a qualified individual with a disability could perform the

essential functions of the job with reasonable accommodation, then the employer is

required to provide the accommodation unless doing so would be an undue hardship

for the employer. See 42 U.S.C. § 12112(b)(5)(A).

       The first element of Gary’s ADA claim is not at issue. Food World does not

contest that Gary has a “disability” as defined by the ADA. Rather, Food World

argues that there is no genuine issue of fact as to whether Gary is “qualified.” The

district court ruled that no genuine issue of material fact existed as to whether Gary

is qualified, basing its decision on alternative grounds. First, the court held that Gary

is judicially estopped from claiming that he is qualified because he applied for and

received SSI disability benefits. As an alternative basis for its holding, the court held

that as a matter of law, Gary’s on-the-job behavior rendered him unqualified for the

position of utility clerk.




                                           6
A.    JUDICIAL ESTOPPEL

      The first issue we address is whether the district court abused its discretion in

applying the doctrine of judicial estoppel. Judicial estoppel “is applied to the

calculated assertion of divergent sworn positions . . . [and] 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) (citation

omitted). The district court reasoned that implicit in both the application for SSI

benefits and the SSA’s determination that Gary is eligible for benefits is the fact that

Gary could not perform his job as a utility clerk or any other work. Further, the

district court was not persuaded that the fact Gary was deemed disabled because his

condition met or equaled a listed impairment compelled a different result. Therefore,

because the district court found that Gary’s representation to the SSA was clearly

contradictory to his position in this action, it ruled that Gary was judicially estopped

from asserting that he is qualified.

      Recently, this court addressed the issue of whether a plaintiff who applies for

and receives disability benefits is per se judicially estopped from later bringing a

claim under the ADA. See Talavera v. School Board of Palm Beach Co., No. 96-4756

(11th Cir. Nov. 24, 1997). After an extensive discussion of the holdings of other courts

of appeals presented with this question, this court determined that a certification of


                                           7
total disability on a disability benefits application is not inherently inconsistent with

being “qualified” under the ADA. See id. This court reasoned that the SSA, in

determining whether an individual is entitled to disability benefits, does not take

account of the effect of reasonable accommodation on an individual’s ability to work.

Id.; accord Swanks v. Washington Metro. Area Transit Auth’y, 116 F.3d 582, 585

(D.C. Cir. 1997). Accordingly, the determination of whether an individual who has

certified total disability to the SSA is judicially estopped from later bringing a claim

under the ADA will depend upon the specific statements made in the application and

other relevant evidence in the record. See id.

       After examining the record in this case, we conclude that Gary is not judicially

estopped from asserting the claims in question.2 The medical records Gary submitted

to the SSA do not clearly contradict his assertion that he is “qualified” under the

ADA. For example, Gary submitted a Behavioral Assessment conducted by a licensed

psychologist. The psychologist recommended that Gary and his family seek “support

employment with the assistance of a job coach” but also suggested that “Gary and his


       2
           Because the district court applied a per se rule, it did not reach the question of
whether, under the facts and circumstances of this case, Gary is judicially estopped from
asserting that he is “qualified” under the ADA. However, the parties have briefed this issue, and
judicial economy counsels in favor of our addressing it. See Lopez v. First Union Nat’l Bank of
Fl., Nos. 96-4931, 97-4238 at n.1 (11th Cir. Nov. 21, 1997); see also Roofing & Sheet Metal
Serv. v. La Quinta Motors Inns, 689 F.2d 982, 989 (11th Cir. 1982) (“The decision whether to
consider an argument first made on appeal . . . is left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.”) (citations omitted).

                                                 8
family should explore additional social outlets and opportunities.” (R.2-29). Further,

in a discharge summary from Vanderbilt hospital, the attending physician, while

suggesting as a possible option a “sheltered work shop with a group home placement,”

also stated:

      educational and occupational planning for Gary will need to take into
      consideration is [sic] particular pattern of strengths and deficits,
      especially as they relate to major difficulties with nonverbal processing
      and behavioral flexibility. He needs more time than most in adapting to
      novel situations, but otherwise such [sic] strive [sic] in situations that
      are familiar, repetitive, and fairly straight forward in nature. Even
      visual - motor tasks of the relatively uncomplicated nature can be
      performed reasonably well by him provided that he is able to develop
      sufficient familiarity with these.

(R.2-29) (emphasis added). Mrs. Taylor, in responding to a questionnaire for the

SSA, stated that Gary needs supervision, structure, and routine, but did not

affirmatively state that Gary was unable to perform his job at Food World. (R.2-29).

Although both Mrs. Taylor and Gary stated that he had “fits” or “tantrums,” there is

no evidence that he had any of these “fits” or “tantrums” while at work. Therefore,

the record as a whole indicates that judicial estoppel is not warranted in this case.

      B.       OTHERWISE QUALIFIED INDIVIDUAL

      The second issue we address is whether the district court erred in granting

summary judgment in favor of Food World on the ground that Gary was not an

“otherwise qualified individual.” Summary judgment may be granted only when there


                                           9
are no genuine issues of material fact and judgment is appropriate as a matter of law.

Fed. R. Civ. P. 56(c). In evaluating the motion for summary judgment, we must

consider “all the evidence in the light most favorable to the non-moving party.”

Woulters v. Martin County, Florida, 9 F.3d 928, 929 (11th Cir. 1993).

      The district court ruled that as a matter of law, Gary’s on-the-job behavior

rendered him unqualified for the position of utility clerk. It is undisputed that Gary

often spoke loudly and asked customers questions. It is also undisputed that Gary

could perform what Lawrence Jones, the store manager, described as the duties of a

utility clerk - sacking, cleaning, and assisting customers in getting groceries to their

cars. Food World argues, however, that because both sacking and assisting customers

to their cars require customer contact, that interacting appropriately with customers

is also an “essential job function.” Indeed, it seems to us that inherent in the job of

utility clerk is the ability to carry out the tasks of the job without offending customers.

The question, then, is whether as a matter of law, Gary could not, with or without

reasonable accommodation, perform the duties of utility clerk without offending

customers.

      Jones testified that one customer contacted him directly to complain about

Gary. (R.4-31-Ex.a at 98-99). He also testified that manager Jeff Robertson reported

that a customer asked if Gary was on drugs or drunk and that manager Ben Spivey


                                            10
reported that a customer asked if Gary was on drugs. (R.4-31-Ex.a at 88-89). Jones

testified that manager Margaret Smith “may have” come to him with complaints (R.4-

31-Ex.a at 92). When asked further questions about Ms. Smith, Jones stated that she

complained to him several times about Gary being loud and making comments to

customers, but he could not remember the substance of any specific complaint, and

he did not testify that Ms. Smith’s complaints to him were based on any customer

complaints to her. In fact, Ms. Smith testified that no customers complained directly

to her. (R.4-31-Ex.b at 17). Jones also testified that he received customer complaints

about other employees “all the time,” (R.4-31-Ex.a at 101), and that he would not

terminate a person solely because a customer complained; only if the customer

complained on several occasions would it constitute a reason to terminate an

employee. (R.4-31-Ex.a at 104).

      Manager Connie Case testified that she was unaware of any complaints from

customers about Gary’s behavior. (R.4-31-Ex.k at 10). Manager Jeff Robertson

testified that other than the one customer who indicated to Robertson that he thought

Gary was drinking, he was aware of no other problems or complaints with Gary’s job

performance.    (R.4-31-Ex.f at 17).    Cashier Peggy Birmingham, who worked

frequently with Gary, testified that she never saw a customer take offense at any of

Gary’s remarks and that she never heard him say anything offensive. (R.4-31-Ex.d


                                         11
at 15- 16). She also testified that Gary was friendly and cheerful and welcomed the

customers to Food World. (R.4-31-Ex.d at 23). Employee Dudley testified that no

customers complained to her about Gary. (R.4-31-Ex.i at 8-9). Employee Rutledge

testified that she received no complaints and that Gary caused no disruptions. (R.4-

31-Ex.q at 7-9). Employee Jenkins testified that she never saw Gary engage in

behavior she considered inappropriate. (R.4-31-Ex.h at 11). Bobbi Evans, another

cashier who worked with Gary, testified that she never saw Gary do anything that

would be considered offensive and that she never heard customers complain about

Gary’s conduct. (R.4-31-Ex.kk).

      Gary testified that he inquired as to whether couples were married and as to the

ages and names of customers’ children. He testified that he once told a customer that

she needed to buy more groceries because she was too skinny and that he asked a

customer if there was anything wrong with his toilet. (R.3-30 at 29-33). Peggy

Birmingham stated that Gary asked customers who frequented the store how their

children were doing if their children were not with them. (R.4-31-Ex.d at 15, 26).

      We do not think that the record shows, as a matter of law, that Gary could not

carry out the tasks of his job without offending customers. One customer complained

to Jones about Gary’s behavior and two customers commented that Gary appeared to

be drunk or on drugs, but did not comment that he was performing his job poorly or


                                         12
that Gary had said anything offensive. Other managers and many employees testified

that they received no complaints and observed no inappropriate behavior. Although

Gary did ask customers questions, there is an issue of fact as to whether these

questions were offensive or inappropriate. Because a genuine issue of material fact

exists as to whether Gary was “qualified,” summary judgment on this ground is

precluded.

      Gary raises one other issue which we address briefly. The issue is whether the

district court erred in denying Gary’s motion for partial summary judgment on the

grounds that Food World failed to investigate any possibility of a reasonable

accommodation. The district court, in denying Gary’s motion, held that Gary’s

proposed accommodation of reassignment was not reasonable as a matter of law. We

conclude that the district court did not err in denying Gary’s motion for summary

judgment. On remand, the burden will be on Gary to show that he is “qualified.” A

“qualified” individual is one who can perform the job “with or without

accommodation” 42 U.S.C. § 12111(8). Thus, if Gary asserts that a particular

reasonable accommodation would have enabled him to perform his essential job

functions, then the burden is on Gary to prove the existence and reasonableness of

such accommodation. See Willis v. Conopco, 108 F.3d 282 (11th Cir. 1997). We need

not address the other issues raised by Gary in light of our disposition in this case.


                                          13
14
V.    CONCLUSION

      We conclude that Gary is not judicially estopped from bringing an action under

the ADA. Moreover, the record indicates that issues of fact remain as to whether Gary

was “qualified” to be a utility clerk. We therefore reverse the district court’s grant of

summary judgment and remand this case for further proceedings consistent with this

opinion.

      REVERSED and REMANDED.




                                           15
