In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1759

Nicholas DeVito,

Plaintiff-Appellant,

v.

Chicago Park District, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 4042--Wayne R. Andersen, Judge.

Argued October 2, 2001--Decided November 2, 2001



  Before Posner, Easterbrook, and Evans,
Circuit Judges.

  Posner, Circuit Judge. This is a suit
under the Americans with Disabilities Act
charging that the plaintiff’s employer
failed to accommodate his disability.
After a bench trial, the district judge
found that the plaintiff was physically
inca-pable of working full time, even
with an accommodation, and therefore was
not within the Act’s protections. We
think the judge was right, and that in
any event the plaintiff’s claim is barred
by the doctrine of estoppel.

  The plaintiff was a laborer for the park
district until he injured his back in
1979. The injury precluded his ever
returning to his laborer’s job. In 1985,
however, pursuant to a "light duty"
program of assigning injured employees to
less strenuous jobs until they recover
from their injuries, the plaintiff was
given the job of answering the phone at a
park district office near his home. He
was told he could leave work whenever he
felt pain or stress, and in accordance
with this dispensation he would typically
leave work after only two or three hours,
though he was being paid the full wages
of a laborer who works eight hours a day.

  After four years of this, the park
district fired the plain-tiff after
catching him on videotape twisting,
bending, and climbing in and out of
trucks. At an internal park district
appeal hearing in 1992, he testified that
while ready, willing, and able to return
to any position that was lighter than his
old position of laborer, he still felt
"the same way like from the day I got
hurt" back in 1979. His appeal was turned
down, precipitating this suit.

  The employment provisions of the
Americans with Disabilities Act provide
relief only to persons who are capable,
with or without an accommodation that
would make it possible for them to work
despite a disability, to perform the
essential functions of their job, 42
U.S.C. sec. 12111(8); Morgan v. Joint
Administration Board, No. 00-3859, 2001
WL 1205383, at *1 (7th Cir. Oct. 11,
2001), which in the case of a full-time
job requires that they be capable of
working full time. EEOC v. Yellow Freight
System, Inc., 253 F.3d 943, 949 (7th Cir.
2001) (en banc); Pickens v. Soo Line
R.R., No. 00-1497, 2001 WL 987557, at *3
(8th Cir. Aug. 30, 2001). Oddly, this is
assumed rather than stated in most of the
cases (even Yellow Freight and Pickens
are less than fully explicit), but it is
implicit in the cases that hold that a
"gradual return to full-time work would
have been a reasonable accommodation,"
e.g., Pals v. Schepel Buick & GMC Truck,
Inc., 220 F.3d 495, 498 (7th Cir. 2000),
that the ADA does not require permanent
assignment to a temporary light-duty job,
Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 697 (7th Cir. 1998), and that
regular attendance is an essential
requirement of a job. E.g., Jovanovic v.
In-Sink-Erator Division, 201 F.3d 894,
899-900 (7th Cir. 2000); Waggoner v. Olin
Corp., 169 F.3d 481, 484-85 (7th Cir.
1999). Now it is possible, on the basis
of testimony presented by the plaintiff
at the trial, that he could work full
time at one of the light-duty positions
that the park district has. But the fact
that he had not worked full time for 13
years at the time of the appeal hearing
(or since, so far as we know), the
ostensible reason being his disability,
and his statement at that hearing that he
felt no better than he had felt when he
was first injured, was enough evidence to
enable the district judge to find, as he
did, that the plaintiff was incapable of
working full time.
  But there is a more fundamental
objection to the plaintiff’s claim. The
doctrine of estoppel prevents a litigant
from repudiating a representation that
has reasonably, foreseeably induced
reliance by the person to whom he made
it. E.g., Heckler v. Community Health
Services of Crawford County, Inc., 467
U.S. 51, 59 (1984); Gallegos v. Mt. Sinai
Medical Center, 210 F.3d 803, 811 (7th
Cir. 2000). Even if the representation
was false (indeed that is the usual case
in which the doctrine is applied), the
maker of it is estopped (forbidden) to
deny it and by denying it pull the rug
out from under the unsuspecting person to
whom he had made it.

  Estoppel is a general doctrine of
American law, Dormeyer v. Comerica
Bank-Illinois, 223 F.3d 579, 582 (7th
Cir. 2000), and one form of it, judicial
estoppel, the doctrine that forbids a
party who has won a case on one ground to
turn around in a subsequent case and
repudiate that ground in an effort to win
a second victory, New Hampshire v. Maine,
121 S. Ct. 1808, 1810-11 (2001), has
already been applied in ADA cases much
like this one--cases in which an employee
attempts to whipsaw his employer by first
obtaining benefits or concessions upon a
representation of total disability to
work full time and then seeking damages
for the employer’s failure to accommodate
the disability, which the employee now
seeks to prove was not total after all.
See Lee v. City of Salem, 259 F.3d 667,
674 n. 3, 677 (7th Cir. 2001); Reed v.
Petroleum Helicopters, Inc., 218 F.3d
477, 480 n. 6 (5th Cir. 2000) (per
curiam); Mitchell v. Washingtonville
Central School District, 190 F.3d 1, 7
(3d Cir. 1999); see also Cleveland v.
Policy Management Systems Corp., 526 U.S.
795, 806 (1999); Feldman v. American
Memorial Life Ins. Co., 196 F.3d 783, 791
(7th Cir. 1999); Motley v. New Jersey
State Police, 196 F.3d 160, 165-67 (3d
Cir. 1999).

  The doctrine of judicial estoppel is not
strictly applicable here, because DeVito
obtained benefits upon a claim of total
disability without suing for them. But
the cases we cited after "see also,"
together with our decision in Wilson v.
Chrysler Corp., 172 F.3d 500, 504-05 (7th
Cir. 1999), hold (with or without using
the term "judicial estoppel") that an ADA
plaintiff may be estopped by an
inconsistent representation made to his
employer to obtain benefits. These cases
make perfectly good sense. A false
representation that reasonably induces
detrimental reliance is a classic basis
for estoppel, and there is no reason why
the doctrine should not be available to
employers sued under the Americans with
Disabilities Act as it is to other
defendants. It is not as if the doctrine
of judicial estoppel were something
special, something unrelated to
"ordinary" estoppel, and perhaps
therefore something available in cases to
which the general principles of estoppel
would not apply. The only thing special
about judicial estoppel is that the
misrepresentation is made to a court.

  Since different statutes define total
disability differently, the employee will
sometimes be able to explain away the
apparent inconsistency of his positions;
but not here. The park district was
entitled to rely on the plaintiff’s
implicit representation (implicit in his
behavior in his light-duty job answering
the phone) that he could work no more
than two or three hours a day and on his
explicit representation that his
condition had not improved since the
original injury.

Affirmed.
