                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3609
                                    ___________

Rodney J. Cook,                      *
                                     *
            Appellant,               *
                                     * Appeal from the United States
     v.                              * District Court for the District
                                     * of Nebraska.
Union Pacific Railroad Company,      *
                                     *    [UNPUBLISHED]
            Appellee.                *
                                ___________

                              Submitted: October 20, 2009
                                 Filed: January 20, 2010
                                  ___________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Rodney Cook was a locomotive engineer for Union Pacific (UP) from 1978
until he injured his back in 1996. As a result of the back injury, Cook filed a Federal
Employer's Liability Act (FELA) claim in Colorado state court. In his FELA
complaint, Cook alleged his injuries were permanent, disabling, and incapacitating for
the indefinite future. Cook testified during his 1999 FELA trial that he would be
concerned for the safety of his co-workers and the general public if he returned to
work. Cook received a jury verdict of $610,000 for his FELA claim.

       In June 2001 and on numerous occasions thereafter, Cook requested that UP
reinstate him as a locomotive engineer. UP declined to do so, citing the FELA record
and the statements Cook made during the course of that case. In December 2004,
Cook supplied a doctor's note to UP which cleared him for full duty as a railroad
engineer. UP informed Cook that he was required to submit to a return-to-work
physical. Cook called the medical office a few days later and was told that his file had
been placed "on hold."

       In January 2005, Cook filed a charge of discrimination with the Nebraska Equal
Opportunity Commission (NEOC) and the Equal Employment Opportunity
Commission (EEOC), alleging that he was being discriminated against based upon a
record of disability in violation of the Americans with Disabilities Act (ADA). At a
hearing before an NEOC Administrative Law Judge (ALJ), Cook testified with regard
to his various daily physical activities. The ALJ ultimately decided that Cook did not
establish a record of disability and that he was estopped from arguing that he could
perform the duties of locomotive engineer. Cook attempted to appeal this decision to
the Nebraska state courts, but did not timely request that an administrative record be
prepared. Instead, Cook requested, and received, a right-to-sue letter from the EEOC
and commenced this action.

      Following cross-motions for summary judgment, the district court1 granted
summary judgment in favor of UP. Cook v. Union Pac. R.R. Co., No. 4:07CV3241,
2008 WL 4540164 (D. Neb. Oct. 7, 2008). The district court found that judicial
estoppel prevented Cook from taking materially different positions in two judicial
proceedings. See, e.g., New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)
(discussing judicial estoppel factors: a party's later clearly inconsistent position which
would threaten judicial integrity and give the party an unfair advantage). After
reviewing the district court's grant of summary judgment de novo, Davenport v.
University of Arkansas Board of Trustees, 553 F.3d 1110, 1112 (8th Cir. 2009), we


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

                                           -2-
affirm the district court's conclusion that judicial estoppel bars this action. See 8th
Cir. R. 47B.
                        ______________________________




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