                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-6017.

          Patricia TAYLOR, as guardian of Gary Taylor, a minor, Plaintiff-Appellant,

                                                 v.

                   FOOD WORLD, INC., Brunos, Inc., Defendants-Appellees.

                                          Jan. 28, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-95-H-
2384-NE), James Hughes Hancock, Senior District Judge.

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

       COX, Circuit Judge:

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


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

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.
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) 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.
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., 129 F.3d 1214 (11th

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

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 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 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


   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., 129 F.3d 1186,
1189 n. 1 (11th Cir.1997); see also Roofing & Sheet Metal Serv. v. La Quinta Motor 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).
        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 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." Wouters v. Martin County, Florida, 9 F.3d 924, 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 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 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 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.

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.
