UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOTTIE J. CATHCART,
Plaintiff-Appellee,

v.

FLAGSTAR CORPORATION,
                                                                      No. 97-1977
Defendant-Appellant.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-95-370-7-3-AK)

Argued: March 4, 1998

Decided: June 29, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part and reversed in part by unpublished opinion. Judge
Hamilton wrote the opinion, in which Judge Broadwater joined. Judge
Williams wrote a separate opinion concurring in part and dissenting
in part.

_________________________________________________________________

COUNSEL

ARGUED: William Carter Younger, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellant.
Suzanne Elizabeth Coe, Greenville, South Carolina, for Appellee.
Gail S. Coleman, Office of General Counsel, EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae. ON BRIEF: M. Christine Klein, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for
Appellant. Edwin L. Turnage, Travelers Rest, South Carolina, for
Appellee. C. Gregory Stewart, General Counsel, J. Ray Terry, Jr.,
Deputy General Counsel, Vincent J. Blackwood, Acting Associate
General Counsel, Carolyn L. Wheeler, Assistant General Counsel,
Office of General Counsel, EQUAL EMPLOYMENT OPPORTU-
NITY COMMISSION, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Flagstar Corporation1 (Flagstar) appeals the district court's denial
of its renewed motion for judgment as a matter of law following a
jury verdict in favor of Dottie Cathcart in her action alleging disabil-
ity discrimination in violation of the Americans with Disabilities Act
(ADA), see 42 U.S.C. § 12112. On appeal, Flagstar asserts that
because Cathcart successfully claimed to be totally disabled for pur-
poses of Social Security disability benefits, she is judicially estopped
from arguing that she is a "qualified individual with a disability" for
purposes of asserting a claim of disability discrimination in violation
of the ADA. Alternatively, Flagstar argues that the evidence pres-
ented at trial was insufficient to support the jury's finding that Cath-
_________________________________________________________________
1 At the time Cathcart was hired, she was hired by Spartan Foods,
which was later acquired by Flagstar. Since the time this case was insti-
tuted, Flagstar's name has changed again. However, because both parties
and all district court documents refer to the defendant/appellant as Flag-
star Corporation, we will do the same notwithstanding its name change.

                    2
cart was discriminated against because of her disability. Although we
resolve both issues in favor of Cathcart, we affirm in part and reverse
in part the district court's order denying Flagstar's renewed motion
for judgment as a matter of law, affirming the denial of Flagstar's
motion as to Cathcart's disparate treatment claim and reversing the
denial as to Cathcart's reasonable accommodation claim.

I.

Flagstar appeals the district court's denial of its renewed motion for
judgment as a matter of law. Therefore, we consider the evidence
presented at trial in the light most favorable to Cathcart, the nonmov-
ing party. See DeJarnette v. Corning, Inc., 133 F.3d 293, 297 (4th Cir.
1998); Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996),
cert. denied, 117 S. Ct. 1246 (1997).

Flagstar is a food services company that operates a number of res-
taurants, including Hardee's, Denny's, and Quincy's. Cathcart began
her career with Flagstar on November 22, 1976, when she was hired
to perform secretarial jobs and clerical work. Approximately six
months after she was hired, in May 1977, Cathcart was promoted to
a secretarial position in the Construction Area, where she remained
for two years. At approximately the same time that she was promoted,
in June 1977, Cathcart was diagnosed with a vision impairment
known as "optic atrophy." Optic atrophy is a permanent and degenera-
tive eye condition, affecting visual acuity and causing loss of color
vision.

At some time during the two years that Cathcart worked in the
Construction Area as a secretary, computers were introduced into the
workplace at Flagstar. According to Cathcart, her eye condition made
it difficult, if not impossible, to see the computer screen, and in
response to the need to begin using computers, Cathcart asked her
supervisors whether there was any type of magnification that could be
placed on the screen to enable her to see the computer. Cathcart's
supervisors responded that they did not know whether there was any
such magnification, and Cathcart did not pursue the issue further,
thinking that the technology was so new that there may not be any
such assistance available.

                    3
In 1979, Cathcart was transferred to the Human Resources Depart-
ment in the "Support Center" located at the company's headquarters
in Spartanburg, South Carolina. Despite her vision problems, Cathcart
performed her job as a personnel assistant in the Human Resources
Department well and received consistently positive performance
reviews and merit raises. These reviews rated her performance as
above satisfactory to outstanding, depending on the year. In addition,
there were no disciplinary notations in Cathcart's personnel file at any
time.

Toward the end of 1991, Cathcart decided to learn the word pro-
cessing computer software program WordPerfect to enable her to use
a computer in the same manner as her co-workers. To that end, Cath-
cart asked to be permitted to attend a WordPerfect class. However,
when Cathcart went to the class, she had to sit so close to the screen
that she was embarrassed and still had difficulty seeing the screen. At
that time, she asked whether any magnification was available and was
told that it was not.

Shortly thereafter, Cathcart was promoted to Recruiter in the
Human Resources Department, where she was responsible for hiring
"non-exempt" employees. Judy Brown, Director of Human Resources
for the Support Center, promoted Cathcart to the position, in which
Cathcart received a salary for the first time, rather than an hourly
wage. Cathcart had known Brown since 1980 or 1981, and according
to Brown, she had been aware of Cathcart's disability since that time.
Although Cathcart expressed concern when she received her promo-
tion that she could not use a computer because of her vision impair-
ment, Brown responded that Cathcart did not need to worry about that
deficiency. When Cathcart began her job as a recruiter in March
1992, however, all other employees in the Human Resources Depart-
ment, with the exception of Cathcart, used a computer.

In approximately October 1992, Flagstar began moving toward the
use of electronic mail, or "e-mail." At that time, management employ-
ees, including Judy Brown, were given a memorandum stating, "E-
mail is here to stay. It is not an option." (J.A. 434). In addition, the
memorandum provided that "all distributions" would be sent out via
e-mail in the future. (J.A. 433). Every employee in the Support Center
was required to have access to e-mail. According to Cathcart,

                    4
although she could not retrieve e-mail from a computer, she received
copies of department e-mails from Brown's administrative assistant.

On January 26, 1993, Cathcart received her most current perfor-
mance evaluation. Brown completed this evaluation and rated Cath-
cart's performance as "very good," which required "[w]ell above
average performance." (J.A. 429). With respect to Cathcart's
communication/human relations skills, Brown gave her an "A" rating,
stating, "Dottie has an excellent rapport with everyone she deals with.
She handles problem situations very tactfully." (J.A. 430).

In May 1993, Brown was temporarily removed from her position
in the Human Resources Department to serve on a Flagstar special
project called "Project Best." The project explored ways in which
Flagstar could become more technologically advanced, and Flagstar
trumpeted these advances in its newsletter announcing the creation of
a more technically efficient working environment. While working on
Project Best, Brown moved out of her office in the Support Center to
a different building. Brown was full-time with Project Best until
approximately September 1993.

Several weeks after Brown began working with Project Best, the
Human Resources Recruiter in charge of exempt positions, Kent
Saad, was removed from the department because of a clash with
another employee. Without Brown and Saad, the Human Resources
Department was short-staffed, leaving the remaining employees,
including Cathcart, to handle many more Human Resources responsi-
bilities than usual. According to Flagstar, Cathcart's performance
began to deteriorate during this time period. Brown testified at trial
that while she was working on Project Best, she received approxi-
mately four voice mail messages from Human Resources Department
employees complaining about Cathcart. In addition, Brown testified
that she received a number of complaints from other individuals over
the six-month period between June and November 1993. One former
temporary employee, who had worked at Flagstar just two months,
complained to Brown that Cathcart had given her a"mean look" in
the break room. (J.A. 297).

Brown's supervisor, Edna Morris, the Executive Vice President for
Human Resources at Flagstar, also testified that she received com-

                    5
plaints about Cathcart and that she passed these complaints along to
Brown. According to Morris, these complaints mostly involved alle-
gations that Cathcart was short, and even rude, with certain employ-
ees and, as a result, the employees refused to deal with Cathcart.

Cathcart testified at trial that Brown mentioned complaints that had
been made about her behavior only one time, in September 1993,
when Cathcart was in Brown's office on other business. Brown asked
Cathcart to sit down and told her, "I've had some complaints on you."
(J.A. 66). When Cathcart asked the identity of the complainants,
Brown stated, "I can't tell you that. . . . They've asked me to keep it
confidential." Id. Cathcart testified that the need for anonymity did
not surprise her because it was generally understood in the department
that if anyone had a problem, it was to be kept confidential if they
requested confidentiality. However, Cathcart testified that when she
asked Brown how many complaints had been communicated about
her, Brown "wouldn't look at [her]." Id. Cathcart testified further,
"She wouldn't even look me in the eye. She looked down. And I kept
saying . . ., `How many, Judy? Do you have one or two or three?'"
Id. According to Cathcart, Brown would not look at her and, as if as
an afterthought, said, "Well, we've had problems with Melanie Ross.
Haven't there been problems with her?" Id. Cathcart testified that
Brown never gave her any more names, nor did she tell her how many
people had complained. Cathcart then testified that she wrote a gen-
eral letter of apology addressed, "Dear Flagstar Employee," appar-
ently to be delivered to Ross as a way of apologizing to her while
maintaining the confidentiality of the employee's identity. (J.A. 69,
444). In the letter, Cathcart stated:

          I have been made aware that you feel I was not professional
          as I should have been when you called regarding one of our
          open positions. I am truly sorry if I have hurt your feelings.
          It was not my intention to seem uncaring or to be abrupt
          with you when you called. I take a lot of pride in my job and
          have always felt I was sensitive to everyone's needs.

          Since I can not speak with you, this was the only way I
          could let you know how I feel. Please accept my apology
          and I can assure you it will not happen again.

                    6
(J.A. 444).

In October 1993, Cathcart received a memorandum from Brown's
office, stating that every employee was now required to use e-mail.
Attached to the memorandum was a sign-up sheet for a training ses-
sion. Cathcart testified that she attended the session and sat in the
third row but could not see the large screen with instructions on how
to use e-mail. Cathcart became upset because she could not see the
instructions, and when she returned to her department, she called
Brown and left a voice mail message stating that she had been unable
to see the screen during the e-mail training session and that she
needed assistance in receiving and sending e-mail messages. Cathcart
testified that when Brown had not responded by the next day, she left
a second voice mail message, again requesting assistance with the use
of e-mail. However, Cathcart never received a response to her
request.

Also in the fall of 1993, Brown and Morris began discussions con-
cerning a possible reorganization of the Human Resources Depart-
ment. During these discussions, Morris suggested to Brown that
employees from other Flagstar departments within the Support Center
should work with only one contact person on human resources issues,
rather than dealing with different people for different employee rela-
tions questions, such as recruiting, hiring, payroll, or insurance. To
this end, a new position would be created called a"generalist" posi-
tion, and the person in that position would be the contact person for
certain Flagstar departments, in charge of staffing both non-exempt
and exempt positions, working closely with managers on personnel
issues, and handling disputes involving employees within the desig-
nated departments.

In October 1993, after she had completed her full-time assignment
with Project Best, Brown began to implement the ideas she had dis-
cussed with Morris concerning the reorganization of her department.
In early November 1993, Brown decided to eliminate the two
recruiter positions, including Cathcart's, and replace them with two
generalist positions. At the time she decided that Cathcart's recruiter
position would be eliminated, she also decided that Cathcart would
not be hired in one of the new positions as generalist. According to
Brown, she and Morris made the decision because the generalist posi-

                    7
tions involved "a lot of people skills" and Cathcart had shown an
inability to adjust to difficult situations when she engendered a num-
ber of complaints during Brown's tenure with Project Best. (J.A. 354-
55).

Morris testified at trial that when she and Brown made the decision
not to hire Cathcart for one of the generalist positions, they discussed
Cathcart's eye disability. According to Morris, after she and Brown
determined that Cathcart was not the best fit for the redesigned gener-
alist positions, Morris noted that they could find her a position some-
where else in the company, to which Brown responded that Cathcart
thought she had a problem using computers and that this impairment
might limit her ability to find another position in the company. Morris
then told Brown that there was usually some way to help a particular
employee if he or she needed assistance. Morris and Brown both testi-
fied at trial that Cathcart's vision impairment did not enter into their
decision not to place her in either of the newly created generalist posi-
tions.

In her deposition testimony, however, Morris stated, in response to
the question of whether she believed that the newly created generalist
position would involve the use of a computer, "Yes, in my opinion it
would have." (J.A. 246). Although, at trial, Morris testified that the
ability to use a computer and e-mail was not a requirement for the
generalist position, Cathcart's counsel questioned Morris about her
earlier deposition testimony that at the time the generalist positions
were created she believed the position would involve the use of a
computer. In addition, Cathcart introduced the company description
of the generalist position. This job description lists numerous skills
and behaviors required for the position, including analytical and prob-
lem solving skills, integrity, innovation, and interpersonal skills. In
addition, under a heading entitled, "Experience/Education Required,"
the job description states, "Computer literacy is a plus." (J.A. 443).

On December 3, 1993, Brown and Morris met with Cathcart to
inform her that her recruiter position was being eliminated and that
she would not receive either of the new generalist positions. Brown
and Morris informed Cathcart that she would be paid through the end
of January 1994 and that during those two months, she would be able
to look for another position inside or outside of Flagstar and that she

                     8
would be provided assistance in identifying available positions within
Flagstar.

Several days later, on December 6, 1993, Cathcart met with Mar-
sha Cliff, who was succeeding Brown as Director of Human
Resources. Cliff testified that after speaking with Cathcart, she saw
no reason to change the decision that Brown and Morris had made
concerning Cathcart's employment. Cliff also testified that Cathcart's
vision impairment had nothing to do with her decision to concur in
Morris and Brown's decision not to place Cathcart in the one of the
newly created generalist positions.

Cathcart testified that following her meeting with Morris and
Brown and learning about the elimination of her position, she was
told to contact Deanna Perkins-Bannister, the Flagstar employee who
had previously assisted Cathcart and was hired in one of the new gen-
eralist positions, about obtaining a new position within Flagstar. Cath-
cart testified that she initiated contact with Perkins-Bannister
numerous times each week but that Perkins-Bannister returned her
call only one time. In addition, despite Perkins-Bannister's promise
to mail Cathcart job postings, Cathcart testified that she never
received any. Brown testified, however, that during January and Feb-
ruary 1994, there were four or five positions available at Flagstar for
which Cathcart was qualified. Cathcart interviewed for one of these
positions but was not hired.

Sometime after her meeting with Cliff, Cathcart was informed
about a computer magnification device called "Zoomtech" that
another vision-impaired Flagstar employee used to enable her to see
the computer screen. Perkins-Bannister arranged for Cathcart to meet
with the vision-impaired employee and to receive a demonstration of
Zoomtech. After seeing how the device worked, Cathcart told
Perkins-Bannister that she would need access to Zoomtech if she were
to get a job working with computers. According to Cathcart, although
Flagstar personnel enabled her to see the Zoomtech device, she was
never promised that it would be made available to her. Cliff testified
that although Flagstar never put in writing or committed in a formal
way to providing Cathcart with the Zoomtech technology in the event
that she obtained a position requiring the use of a computer, Flagstar
intended to provide her with that accommodation if it was required.

                    9
In addition to arranging for a demonstration of Zoomtech, in January
1994, Flagstar arranged for Cathcart to meet with a representative
from the South Carolina School for the Deaf and Blind, who demon-
strated other computer equipment used to assist visually impaired
individuals.

Between February 1994 and October 1995, Cathcart applied for
positions at over sixty-two different companies. In addition to sending
her resume, Cathcart visited those employers with human relations or
personnel departments to try to get an interview. Nevertheless, none
of the companies offered to hire her. At the end of January 1994, after
failing to obtain another position within Flagstar, Cathcart was
removed from Flagstar's payroll.

On January 4, 1995, Cathcart filed this action in state court in Spar-
tanburg County, South Carolina, alleging that Flagstar discriminated
against her because of her age and disability. With respect to her
claim of disability discrimination, Cathcart alleged that Flagstar vio-
lated the ADA by failing to provide her with a reasonable accommo-
dation for her disability and by terminating her employment because
of her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). On February
10, 1995, Flagstar removed the case to the United States District
Court for the District of South Carolina.

Three months after filing this suit alleging disability discrimina-
tion, Cathcart sought disability benefits from the Social Security
Administration (SSA). In her application, Cathcart stated that she
became unable to work because of her disability on December 31,
1993, and that she was still disabled. In a handwritten letter, Cathcart
stated that when she first became unemployed in December 1993, she
believed that she would be able to find other employment. However,
in seeking employment, she realized that she could not see well
enough to do the work required for the positions available because
she could not see to use a computer, to use a cash register, or even
to work as a wait-staff person. In ruling on Cathcart's application, the
SSA determined that Cathcart did not meet the legal definition for
blindness until May 24, 1995, at which time her vision met the legal
definition for blindness in both eyes. Because there was insufficient
evidence of legal blindness prior to that date, the SSA denied Cathcart
benefits between December 1993 and May 1995, but awarded bene-

                    10
fits beginning in May 1995. The SSA made this determination based
on the legal definition of blindness and Cathcart's per se eligibility
for benefits because of legal blindness.

On August 16, 1996, Flagstar moved for summary judgment in this
action. On September 24, 1996, the parties agreed to dismiss Cath-
cart's disparate impact age discrimination claim, and on October 29,
1996, a magistrate judge recommended that the district court grant
summary judgment in favor of Flagstar on Cathcart's remaining dis-
parate treatment age discrimination claim but deny summary judg-
ment as to Cathcart's disability discrimination claim. The district
court accepted the magistrate judge's recommendations on December
24, 1996.

From March 31 to April 2, 1996, Cathcart's claim of disability dis-
crimination was tried to a jury. At the close of Cathcart's case and at
the close of all the evidence, Flagstar moved for judgment as a matter
of law pursuant to Federal Rule of Civil Procedure 50(a). These
motions were denied. On April 2, 1997, the jury returned a verdict in
favor of Cathcart. On the verdict form, the jury found: (1) that Flag-
star "failed in its' [sic] duty to make reasonable accommodations for
[Cathcart's] disability in violation of the[ADA]"; and (2) that "Cath-
cart was unjustifiably discharged due to her disability in violation of
the [ADA]." The jury then awarded Cathcart back pay and compensa-
tory damages in the amount of $360,000 but declined to award Cath-
cart punitive damages.

In response, Flagstar filed a renewed motion for judgment as a mat-
ter of law, or in the alternative, for a new trial. The district court
denied Flagstar's post-judgment motion on June 12, 1997. However,
the district court amended the judgment, reducing it from $360,000
to $300,000, to conform to the damages cap imposed by 42 U.S.C.
§ 1981a(b)(3)(D).

In its order, the district court first held that Cathcart was not judi-
cially estopped from asserting a claim of disability discrimination not-
withstanding her assertions to the SSA that she had been disabled and
unable to work since December 31, 1993. The district court reasoned
that there are fundamental differences between the definitions of dis-
ability as used in the ADA and the Social Security Act, precluding the

                    11
application of judicial estoppel where a claimant asserts that she is
disabled for purposes of one act and not the other.

The district court also denied Flagstar's motion for judgment as a
matter of law based on insufficiency of the evidence. Specifically, the
district court held that Cathcart had produced sufficient evidence from
which a reasonable jury could conclude that Flagstar intentionally dis-
criminated against Cathcart on the basis of her disability when mak-
ing certain adverse employment decisions. With respect to Cathcart's
reasonable accommodation claim, the district court held that Cathcart
had also produced sufficient evidence from which a reasonable jury
could conclude that Flagstar failed to reasonably accommodate Cath-
cart's disability and that this failure adversely affected her ability to
do her job.

Flagstar noted a timely appeal.

II.

Flagstar first argues that the district court erred when it permitted
Cathcart to assert that she was a "qualified individual with a disabil-
ity" and, therefore, entitled to protection under the ADA, despite her
earlier representations to the SSA that she was disabled and unable to
work beginning in December 1993. Specifically, Flagstar argues that
Cathcart should be judicially estopped from asserting in this case that
she is capable of performing the essential functions of her job, where
she has previously represented to the SSA that she is entitled to dis-
ability benefits because her disability prevents her from working.
Because the doctrine of judicial estoppel is an equitable doctrine to
be applied at the discretion of the district court, we review a district
court's decision for abuse of discretion. See Talavera v. School Bd.
of Palm Beach County, 129 F.3d 1214, 1220 (11th Cir. 1997);
McNemar v. Disney Store, Inc., 91 F.3d 610, 613, 617 (3d Cir. 1996),
cert. denied, 117 S. Ct. 958 (1997).

The ADA prohibits discrimination against "a qualified individual
with a disability" with respect to "job application procedures, the hir-
ing, advancement, or discharge of employees, employee compensa-
tion, job training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). A "qualified individual with a

                     12
disability" is defined as "an individual with a disability who, with or
without reasonable accommodation, can perform the essential func-
tions of the employment position that such individual holds or
desires." Id. § 12111(8). In order to be a member of a protected class
under the ADA, then, Cathcart must be able to show that despite her
disability, she could have, with or without reasonable accommoda-
tion, performed the essential functions of her position with Flagstar.
Flagstar argues that because of her statements to the SSA to the effect
that she was unable to work, Cathcart should be judicially estopped
from arguing that she is capable of performing the essential functions
of her position with Flagstar.2

Judicial estoppel is an equitable doctrine that precludes a party
from adopting a position that is inconsistent with a stance taken in
prior litigation. See Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir.
1996), cert. denied, 117 S. Ct. 954 (1997); John S. Clark Co. v. Fag-
gert & Frieden, P.C., 65 F.3d 26, 28 (4th Cir. 1995). The purpose of
judicial estoppel is "to prevent the party from`playing fast and loose'
with the courts, and to protect the essential integrity of the judicial
process." Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 (4th Cir.
1982). We have previously recognized, however, that"courts must
apply the doctrine with caution," and "[t]he `determinative factor' in
_________________________________________________________________
2 In response to Flagstar's argument that the district court abused its
discretion in declining to apply judicial estoppel to preclude Cathcart's
assertion that she is a qualified individual under the ADA, Cathcart
argues that Flagstar waived the affirmative defense of estoppel by failing
to raise this defense in its answer. See Fed. R. Civ. P. 8(c) ("In pleading
to a preceding pleading, a party shall set forth affirmatively . . . estoppel
. . . and any other matter constituting an avoidance or affirmative
defense."). Cathcart correctly points out that judicial estoppel was not
raised by Flagstar, but rather, sua sponte by the district court. However,
Cathcart's waiver argument ignores the fact that judicial estoppel differs
from other estoppel defenses in that its purpose, first and foremost, is to
"protect the essential integrity of the judicial process," rather than the
interests of the opposing party. Allen v. Zurich Ins. Co., 667 F.2d 1162,
1166 (4th Cir. 1982). Because the interests served by the doctrine con-
cern the judicial process more than fairness to the opposing party, it is
appropriate for a court to raise the issue sua sponte, where the opposing
party fails to raise it, and a party's failure to raise the issue does not fore-
close our review.

                    13
the application of judicial estoppel is whether the party who is alleged
to be estopped `intentionally misled the court to gain unfair advan-
tage.'" John S. Clark Co., 65 F.3d at 29 (quoting Tenneco Chems. v.
William Burnett & Co., 691 F.2d 658, 665 (4th Cir. 1982)).

In order for a court to apply judicial estoppel to preclude a party
from asserting a particular position during litigation, several elements
must be met. See Lowery, 92 F.3d at 224. These include: (1) the party
sought to be estopped must be seeking to adopt a position that is
inconsistent with a stance taken in prior litigation; (2) the prior incon-
sistent position must have been accepted by the court; and (3) the
party sought to be estopped must have intentionally misled the court
to gain unfair advantage. See id.

The question, then, is whether the district court abused its discre-
tion in concluding that the requirements for judicial estoppel were not
met in this case. We hold that the district court did not abuse its dis-
cretion in declining to apply judicial estoppel to preclude Cathcart's
assertion that she was a "qualified individual with a disability"
because even if Cathcart's assertion to the SSA that she was disabled
in December 1993 was somehow inconsistent with her subsequent
assertion that she was a "qualified individual with a disability" for
purposes of the ADA, the SSA did not accept Cathcart's assertion of
disability and, therefore, one of the prerequisites to the application of
judicial estoppel was not met.

As set forth above, when Cathcart applied for disability benefits in
April 1995, she stated that she became unable to work because of her
disabling eye condition on December 31, 1993. In ruling on Cath-
cart's application, however, the SSA did not accept Cathcart's asser-
tion that she was disabled in December 1993, finding instead that
Cathcart did not meet the legal definition for blindness until May 24,
1995. Consequently, the SSA rejected Cathcart's claim for benefits
relating to the time period between December 1993 and May 1995.

Because the SSA did not accept Cathcart's assertion that she was
unable to work as of December 1993, the second prerequisite for the
application of judicial estoppel was not met in this case. Accordingly,
the district court did not abuse its discretion in declining to apply the
doctrine of judicial estoppel to preclude Cathcart's assertion in this

                     14
case that at the time her employment was terminated by Flagstar she
was a "qualified individual with a disability" for purposes of her ADA
claim.

III.

Flagstar next appeals the district court's denial of its renewed
motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b) on Cathcart's claims of disability discrimination in
violation of the ADA. We review a district court's denial of judgment
as a matter of law de novo. See DeJarnette, 133 F.3d at 297. A party
is entitled to judgment as a matter of law if "there is no legally suffi-
cient evidentiary basis for a reasonable jury to find for [the nonmov-
ing] party on [a particular] issue." Fed. R. Civ. P. 50(a)(1). In
reviewing the district court's decision, we must consider the evidence
in the light most favorable to the nonmoving party, and we may not
weigh the evidence or substitute our judgment of the facts for that of
the jury. See DeJarnette, 133 F.3d at 297.

"Discrimination" as used in the ADA prohibits not only disparate
treatment because of an employee's disability, see 42 U.S.C.
§ 12112(a), but also the failure to make "reasonable accommodations
to the known physical or mental limitations of . . . an applicant or
employee," id. § 12112(b)(5)(A), and "denying employment opportu-
nities to a job applicant or employee," where the denial of the
employment opportunity "is based on the need . . . to make reasonable
accommodation," id. § 12112(b)(5)(B). See Smith v. Ameritech, 129
F.3d 857, 866 (6th Cir. 1997); Sieberns v. Wal-Mart Stores, Inc., 125
F.3d 1019, 1021-22 (7th Cir. 1997); see also Burch v. Coca-Cola Co.,
119 F.3d 305, 314 (5th Cir. 1997) (recognizing that reasonable
accommodation claim under ADA differs from wrongful termination
claim under ADA), cert. denied, 118 S. Ct. 871 (1998). In this case,
Flagstar argues that Cathcart failed to produce sufficient evidence
from which a reasonable jury could find either type of unlawful dis-
crimination under the ADA and that the district court, therefore, erred
in denying its renewed motion for judgment as a matter of law as to
those claims. We address the sufficiency of Cathcart's evidence with
respect to each of these claims below.

                     15
A.

As set forth above, the ADA prohibits employers from discriminat-
ing against employees in hiring, firing, advancement, and other terms,
conditions, and privileges of employment because of a disability. See
42 U.S.C. § 12112(a). As with other types of disparate treatment
claims in an employment discrimination context, a plaintiff may
attempt to prove a violation of the ADA with direct evidence, or the
plaintiff may attempt to prove her claim with circumstantial evidence
by following the proof scheme set forth in McDonnell Douglas Corp.
v. Green. See Sieberns, 125 F.3d at 1022; Taylor v. Principal Fin.
Group, Inc., 93 F.3d 155, 162 (5th Cir.), cert. denied, 117 S. Ct. 586
(1996). Where an appeal follows a trial on the merits, however, we
do not concern ourselves with the specific details of whether a plain-
tiff has established a prima facie case and the particulars of the
burden-shifting proof scheme; rather, we address only the ultimate
issue of whether the plaintiff has established discrimination vel non.
See DeJarnette, 133 F.3d at 297; Jiminez v. Mary Washington
College, 57 F.3d 369, 377 (4th Cir. 1995). Thus, we turn directly to
"the factual inquiry of `whether the defendant intentionally discrimi-
nated against the plaintiff.'" DeJarnette, 133 F.3d at 297 (quoting
Jiminez, 57 F.3d at 377) (internal quotation omitted). In order to
prove intentional discrimination, the plaintiff must show both that the
reason proffered by the employer for the employment action was false
and pretextual, such that discrimination was the real reason for the
action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) ("It is not enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff's explanation of intentional discrimina-
tion.") (emphasis in original).

In this case, Flagstar asserts that Cathcart's recruiter position was
eliminated and new generalist positions were created to consolidate
the responsibility for human resources needs of various Flagstar
departments in one individual. Flagstar asserts that the generalist posi-
tions required more employee relations skills than the old recruiter
position and that, based on the complaints about Cathcart received by
Brown and Morris, it was determined that Cathcart was not the "best
fit" for the new positions. Thus, according to Flagstar, Cathcart was
not denied a generalist position because of her disability, but rather,

                     16
because of her failure to exhibit good employee relations skills in her
recruiter position.3

Because Flagstar has articulated a legitimate, nondiscriminatory
reason for its decision not to award Cathcart a generalist position,
whether the district court erred in denying Flagstar's renewed motion
for judgment as a matter of law turns on whether Cathcart has pro-
duced sufficient evidence from which a reasonable jury could con-
clude that Flagstar's articulated reason was a pretext for disability
discrimination. In support of its articulated reason for failing to place
Cathcart in one of the newly created generalist positions, Flagstar pro-
duced two witnesses--Brown and Morris--who testified to having
received complaints about Cathcart's behavior toward other Flagstar
employees. When pressed at trial, these witnesses named specific
individuals who had complained.

Other evidence calls into question the validity of Flagstar's articu-
lated reasons for its decision not to award Cathcart a generalist posi-
tion, however. First, none of the witnesses specifically named by
Brown as having complained about Cathcart testified at trial. Indeed,
the only employee who testified at trial was a two-month temporary
employee named Teresa Robbins, who complained merely that Cath-
cart had given her a "mean look" while in the break room. (J.A. 297).
Second, according to Cathcart, Brown discussed these complaints
with her only one time, and Brown was less than forthcoming about
who had complained about what and about how many complaints she
had received. Specifically, Cathcart testified that when she asked
Brown how many complaints she had received, Brown would not
look at her. After pressing Brown further, Cathcart testified that
Brown mentioned one employee and asked, "Haven't there been
problems with her?" (J.A. 66). Third, the numerous complaints alleg-
edly received about Cathcart's behavior were never documented in
any manner. Fourth, for seventeen years, Cathcart received only very
favorable evaluations of her performance without any written repri-
_________________________________________________________________
3 We note that Flagstar never defended its decision not to place Cath-
cart in the generalist position on the basis that Cathcart lacked the com-
puter skills necessary to perform that position. Rather, Flagstar
steadfastly asserted, and both Brown and Morris testified, that computer
use was not required for the generalist position. (See J.A. 245, 355).

                    17
mands or a record of complaints. The absence of any documented
complaints is particularly significant when considered in light of the
fact that Cathcart had served for over two years in the recruiter posi-
tion, a position that required extensive human relations skills. Indeed,
in Cathcart's last performance evaluation, Brown gave Cathcart an
"A" rating in communication/human relations skills, stating that Cath-
cart "ha[d] an excellent rapport with everyone she deal[t] with." (J.A.
430). Fifth, although Flagstar asserts that the elimination of Cathcart's
position was due to a department reorganization, of the five members
of the Human Resources Department, only Cathcart lost her job as a
result of the "reorganization" and only the position Cathcart held--the
recruiter position--was eliminated. In addition, the generalist per-
formed many of the same duties Cathcart performed as recruiter.

Because of Cathcart's evidence calling into question the existence
or validity of the alleged complaints lodged against her, and the evi-
dence of her previously spotless employment record, a reasonable
jury could disbelieve Flagstar's articulated reason for not placing
Cathcart in either generalist position. In particular, crediting Cath-
cart's testimony and version of events, as the jury was free to do, the
jury could have reached the conclusion that Brown fabricated the
complaints or, alternatively, that while Brown may have received
some complaints, she used them as a pretext or an excuse not to place
an otherwise competent employee in an available position for which
she was qualified. In reaching this conclusion, the jury could have
reasoned that a few complaints over an admittedly difficult period in
the department would not be sufficient to outweigh the good employ-
ment record of a long-term employee. As we have repeatedly recog-
nized, our role in reviewing a denial of a motion for judgment as a
matter of law precludes us from "weigh[ing] the evidence, pass[ing]
on the credibility of the witnesses, or substitut[ing] our judgment of
the facts for that of the jury." Charleston Area Med. Ctr., Inc. v. Blue
Cross & Blue Shield, 6 F.3d 243, 248 (4th Cir. 1993); see also
DeJarnette, 133 F.3d at 297. In this case, the jury clearly disbelieved
Flagstar's explanation that it failed to place Cathcart in one of the
generalist positions because she lacked the interpersonal skills neces-
sary for that position, and viewed in the light most favorable to Cath-
cart, the evidence supports the jury's conclusion.

Having concluded that Cathcart produced sufficient evidence from
which a reasonable jury could conclude that Flagstar's articulated rea-

                     18
son for choosing not to place Cathcart in a generalist position was
false, we must now decide whether Cathcart produced sufficient evi-
dence that she was discriminated against because of her disability.
Although a close question, we agree that the evidence, when viewed
in the light most favorable to Cathcart, was sufficient to support the
conclusion that her inability to use a computer because of her vision
impairment and, thus, her disability was the motivating factor behind
the decision not to place her in one of the generalist positions. This
evidence included: (1) memoranda circulated beginning in 1992 stat-
ing that Flagstar was moving toward the use of e-mail as the primary
method of intra-office communication; (2) evidence that Flagstar,
through Project Best and the emphasis on computers as the primary
vehicle for communication, was moving inexorably toward increased
reliance on computers in the workplace; (3) testimony that Brown, the
primary decisionmaker, was actively involved in Project Best and the
development of new uses for computer technology to increase Flag-
star employees' efficiency and productivity; (4) Cathcart's testimony
that in October 1993 she received a memorandum stating that all
Human Resources Department employees were required to learn and
to use e-mail; (5) Cathcart's testimony that she twice requested assis-
tance from Brown in being able to use e-mail but Brown never
responded; (6) Flagstar's job description for the generalist position,
providing that computer proficiency was "a plus" under "Educa-
tion/Experience Required"; and (7) Morris' deposition testimony that
in her opinion the generalist positions would involve the use of a
computer. From this evidence, the jury could reasonably conclude
that Brown and Morris preferred and even required that the persons
chosen to fill the generalist positions be able to use a computer; that
the significance of computer use at Flagstar had increased dramati-
cally during the two years Cathcart was a recruiter; and that Brown
was not responsive to Cathcart's requests for assistance in using e-
mail.

While both Brown and Morris testified that Cathcart's inability to
use a computer had no impact on their decision not to award her the
generalist job, the jury was free to disbelieve their testimony. Flag-
star's only other evidence suggesting that Cathcart's inability to use
a computer did not impact the employment decision is its evidence
that it had provided another visually impaired employee with the
magnification technology called "Zoomtech." However, this evidence

                    19
suggests merely that accommodation for Cathcart's disability was
available, not that the particular employment decision at issue was
made without respect to Cathcart's impairment. Notably, while Flag-
star eventually arranged for Cathcart to see "Zoomtech," Flagstar did
not inform Cathcart that "Zoomtech" was available until after the
decision not to place her into one of the generalist positions had been
affected. Indeed, Brown's testimony suggests that she had already
determined not to place Cathcart in one of the generalist positions at
the time she became aware that an accommodation for Cathcart's
visual impairment might be available. Thus, at the time Brown, the
primary decisionmaker, decided not to award Cathcart the generalist
job, she was not even aware of Zoomtech.

Flagstar argues, however, that under our decision in Tyndall v.
National Educ. Ctrs., Inc., 31 F.3d 209 (4th Cir. 1994), the jury's
inference of discriminatory animus on the part of Brown, the primary
decisionmaker, was unreasonable. In Tyndall, we recognized in the
context of a disability discrimination claim that there is a "powerful
inference" of nondiscrimination where the person who makes the
adverse employment decision about which the plaintiff complains is
also the same person who, within a relatively short time span, hired
the plaintiff with knowledge of her disability. See id. at 214-15; see
also Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1318 (4th Cir. 1993)
(applying presumption in age discrimination case); Proud v. Stone,
945 F.2d 796, 797-98 (4th Cir. 1991) (establishing inference of non-
discrimination where hirer and firer are the same). The rationale sup-
porting this inference is that "[f]rom the standpoint of the putative
discriminator, `it hardly makes sense to hire workers from a group
one dislikes . . ., only to fire them once they are on the job.'" Proud,
945 F.2d at 797 (citation omitted and brackets omitted). Although
Cathcart was not hired by Brown, the primary decisionmaker in this
case, she was promoted by Brown to recruiter in early 1992 and,
therefore, the presumption of nondiscrimination would appear to
apply.

However, the evidence in this case suggests that significant
changes occurred in the Flagstar workplace between early 1992 and
late 1993, when Brown made the decision to eliminate Cathcart's
position and not to place her in either of the newly created generalist
positions. Specifically, corporate officials at Flagstar had communi-

                     20
cated their intention to move to e-mail as the primary method of intra-
corporate communication, and the company began to develop numer-
ous initiatives aimed at increasing the use of technology in the work-
place to enhance employee productivity and efficiency. The most
comprehensive initiative, Project Best, drew participants from various
departments of Flagstar, and Brown worked exclusively on Project
Best for several months, even moving her office to another building.
In addition, according to Cathcart, in October 1993 Brown sent a
memorandum to all Human Resources Department employees, stating
that they must learn to use e-mail. Thus, the corporate environment
changed significantly between early 1992 and late 1993, and the
change involved a clear move toward greater use of computers in the
workplace. From this evidence, the jury could reasonably infer that
during this time Brown's attitude toward an employee who, because
of a disability, was unable to use a computer might have changed,
weakening the presumption of nondiscrimination normally applicable
where the hirer and the firer (or the person who promotes and the per-
son who fails to promote) are the same individual. Because of these
corporate changes and Brown's central role in making the changes,
we do not believe that the inference of nondiscrimination applicable
where the hirer and the firer are the same required the jury to con-
clude that Brown did not discriminate against Cathcart because of her
disability.

Particularly in light of Morris' deposition testimony that at the time
the generalist positions were created she believed it would involve the
use of computers and the substantial evidence that Flagstar was mov-
ing inexorably toward increased use of and dependence upon the use
of computers in the workplace, a jury could reasonably conclude that
Cathcart's inability to use a computer because of her vision impair-
ment impacted Brown and Morris' decision not to place her in one of
the generalist positions. In addition, when this evidence is considered
in combination with Cathcart's evidence suggesting that the articu-
lated reason for the employment decision was false, a reasonable jury
could conclude that Cathcart's inability to use a computer because of
her vision impairment was the motivating factor behind the decision
not to award her the generalist job.4 Therefore, we hold that the dis-
_________________________________________________________________
4 Contrary to the dissent's suggestion that we are equating legal blind-
ness with a lack of computer skills and concluding, therefore, that termi-

                    21
trict court did not err when it denied Flagstar's renewed motion for
judgment as a matter of law as to Cathcart's claim that she suffered
an adverse employment action because of her disability.

B.

Flagstar also challenges the district court's failure to grant its
renewed motion for judgment as a matter of law as to Cathcart's
_________________________________________________________________
nating a legally blind employee for a lack of computer skills is the
equivalent of terminating that employee "because of" her disability, we
hold that the evidence in this case was sufficient to support the conclu-
sion that Cathcart was not placed in the generalist position because of her
physical inability to use a computer. There is little evidence in the record
as to whether Flagstar officials blamed Cathcart's inability to use the
computer on her physical impairment or, alternatively, on her lack of
computer skills. The scarcity of such evidence is not surprising, however,
given that Flagstar consistently denied having made the placement deci-
sion based on Cathcart's inability to use the computer at all. However,
where Cathcart's inability to use the computer is discussed by the
decisionmakers--Brown and Morris--it is discussed as being the result
of her physical impairment, not the result of a lack of skills. (See J.A.
244, 295). The dissent's contrary conclusion that Cathcart was not placed
in the generalist position because she lacked the computer skills neces-
sary to perform the job is not supported by any evidence in the record.
To the contrary, this explanation for the decision is one created out of
whole cloth by the dissent.

We note further that although Cathcart's computer skills, or lack
thereof, were never an issue below, the evidence in the record directly
contradicts the dissent's statement that Cathcart"never made a serious
effort to acquaint herself with computer technology" during "the
seventeen-year course of her employment at Flagstar." Infra, at 26. At
least twice, prior to the events of 1993, Cathcart attempted to obtain
computer skills. Specifically, as early as 1979, shortly after computers
were introduced into the Flagstar workplace, Cathcart asked about possi-
ble magnification for the computer. (J.A. 38). Later, in 1991, Cathcart
attempted to attend a WordPerfect training session, only to discover that
she could not see the screen. She requested magnification but was told
that none was available. (J.A. 87-88). The dissent's attempt to fault Cath-
cart for an alleged failure to obtain computer skills serves only to deflect
the focus from the lack of any evidence supporting the dissent's conclu-
sion that it was Cathcart's lack of computer skills, rather than her visual
impairment, that motivated the decisionmakers in this case.

                     22
claim that Flagstar failed to reasonably accommodate Cathcart's dis-
ability in violation of 42 U.S.C. § 12112(b)(5). As discussed above,
§ 12112(b)(5) prohibits: (1) not making reasonable accommodations
to known impairments of an applicant or employee, unless such
accommodation would impose an undue hardship, see id.
§ 12112(b)(5)(A); and (2) denying employment opportunities to a job
applicant or employee, where such denial is based on the need to
make reasonable accommodation, see id. § 12112(b)(5)(B). Although
it is somewhat unclear, Cathcart appears to rely on Flagstar's failure
to place her in a generalist position as a violation of the second type
of reasonable accommodation claim set forth in § 12112(b)(5)(B).
Thus, in order to withstand Flagstar's renewed motion for judgment
as a matter of law as to her reasonable accommodation claim, Cath-
cart must show that she was denied an employment opportunity--in
this case, a generalist position--not only because of her disability, but
specifically because of Flagstar's need to reasonably accommodate
Cathcart's disability. See id.

Although, as discussed above, we hold that Cathcart has produced
sufficient evidence from which a jury could reasonably infer that she
was denied a generalist position because of her inability to use a com-
puter, we do not believe that Cathcart has produced sufficient evi-
dence that she was denied a generalist position specifically because
Flagstar did not want to reasonably accommodate that disability.
According to Brown's undisputed testimony with respect to her deci-
sion not to place Cathcart in one of the generalist positions, she first
decided not to place Cathcart in a generalist position in early Novem-
ber when she and Morris had a meeting to discuss the changes to take
place in her department. Morris testified that after they had discussed
the new positions and decided that Cathcart would not be placed in
one of the newly created generalist positions, Morris told Brown that
she felt confident that they could place Cathcart in another position
within the company. Brown responded that Cathcart had a visual
impairment that might hinder Cathcart's ability to be placed in a posi-
tion involving the use of a computer, and Morris explained to Brown
that she believed, based on her experience with Flagstar, that there
would be a way to accommodate Cathcart's disability. This evidence
suggests that at the time Brown decided not to place Cathcart in a
generalist position, she was not aware of any available accommoda-
tion to enable Cathcart to use a computer. While Brown and Morris

                     23
subsequently discussed the possibility of having to accommodate
Cathcart's disability, they did so only after deciding that Cathcart
would not be placed in one of the generalist positions. There simply
is insufficient evidence in the record that the need to accommodate
Cathcart's disability, in particular, was the motivating factor behind
Brown's decision not to place her in a generalist position. Therefore,
we agree with Flagstar that the district court erred when it denied
Flagstar's renewed motion for judgment as a matter of law as to Cath-
cart's reasonable accommodation claim.

IV.

In conclusion, we hold that the district court did not abuse its dis-
cretion in declining to apply the doctrine of judicial estoppel to pre-
clude Cathcart's assertion that she was a "qualified individual with a
disability" for purposes of the ADA, notwithstanding her previous
assertions of disability for purposes of the Social Security Act. With
respect to Flagstar's renewed motion for judgment as a matter of law
as to Cathcart's claims of disability discrimination in violation of the
ADA, we hold that the district court erred in denying that motion as
to Cathcart's reasonable accommodation claim but did not err in
denying that motion as to Cathcart's claim of disparate treatment
because of her disability. Therefore, we affirm in part and reverse in
part the district court's order denying Flagstar's renewed motion for
judgment as a matter of law. Because we hold that Cathcart produced
sufficient evidence from which a reasonable jury could conclude that
she was discriminated against in violation of the ADA, however,
remand is unnecessary, and the district court's judgment in favor of
Cathcart on her disability discrimination claim stands.

AFFIRMED IN PART, REVERSED IN PART

WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

Although I agree with Parts I, II, and III.B of the opinion, I respect-
fully dissent from Part III.A. A close reading of the majority's analy-
sis leads to the conclusion that Cathcart was not"otherwise qualified"
for the generalist position. Therefore, Cathcart cannot qualify for the
protection of the ADA as a matter of law. Additionally, the majority
errs when it equates evidence that Cathcart was terminated for lack

                     24
of computer skills with evidence that she was terminated because of
her disability. As a result, I would remand this case back to the dis-
trict court with instructions to enter judgment in favor of Flagstar.

I.

The ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disabil-
ity of such individual." 42 U.S.C.A. § 12112(a) (West 1995). As a
result, to show a violation of the Act, Cathcart must demonstrate that:
(1) she has a disability; (2) she is otherwise qualified; and (3) she was
terminated because of her disability. See Tyndall v. National Educ.
Ctrs., Inc., 31 F.3d 209, 212 (1994). There is no question that Cath-
cart has a disability. Her condition, optic atrophy, has left her legally
blind. The majority's analysis, however, has convinced me that Cath-
cart does not meet the final two criteria -- qualification for the posi-
tion and discrimination because of disability.

A.

Under the ADA, only individuals who are qualified for the job they
seek may state a claim for discrimination. The ADA defines "quali-
fied individual with a disability" as "an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual
holds or desires." 42 U.S.C.A. § 12111(8). A qualified person must
be "able to meet all of a program's requirements in spite of his handi-
cap." Southeastern Community College v. Davis , 442 U.S. 397, 406
(1979). Consequently, to prove that she was qualified for the general-
ist position Cathcart must produce evidence that: (1) she could "`per-
form the essential functions of the job, i.e., functions that bear more
than a marginal relationship to the job at issue,'" or (2) if not, whether
"`any reasonable accommodation by the employer would enable [her]
to perform those functions.'" Tyndall, 31 F.3d at 213 (quoting
Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)).

As the majority correctly notes, circumstances had changed at
Flagstar during the seventeen years that Cathcart was employed:

                     25
          [C]orporate officials at Flagstar had communicated their
          intention to move to e-mail as the primary method of intra-
          corporate communication, and the company began to
          develop numerous initiatives aimed at increasing the use of
          technology in the workplace to enhance employee produc-
          tivity and efficiency.

Ante at 20-21. Further, the majority concludes that Cathcart's supervi-
sors "required that the persons chosen to fill the generalist positions
be able to use a computer."1Ante at 19. The only logical conclusion
to be drawn from the majority's accurate factual assessment is that
computer use was an "essential function" of the generalist position.
Cathcart's lack of computer skills is undisputed.

The evidence presented during trial showed that during the
seventeen-year course of her employment at Flagstar, Cathcart never
made a serious effort to acquaint herself with computer technology.2
She also never sought an accommodation that would enable her to use
a computer. Although Zoomtech3 was readily available, that program
would not be sufficient to cure all of her computer related deficiency.
Zoomtech could help Cathcart read the computer screen, but it could
not provide computer training. The majority concedes as much when
it agrees that the jury verdict finding liability on Cathcart's failure to
accommodate claim under 42 U.S.C.A. § 12112(b)(5)(B), was not
supported by the evidence presented at trial.
_________________________________________________________________

1 During trial the question of whether the generalist position required
computer use was hotly contested. Deanna Perkins Bannister, a woman
who filled one of the generalist positions after Cathcart was terminated,
testified that it would be possible to perform the functions of the general-
ist position without the use of a computer.
2 There was neither an allegation in the complaint nor evidence pres-
ented at trial that Flagstar had discriminatorily prevented Cathcart from
obtaining adequate computer training throughout the course of her
employment.
3 Zoomtech is a software package that enables those with vision impair-
ments to read the computer monitor. The features of the computer pro-
gram are not fully discussed in the record. It is apparent, however, that
the program enlarges the size of the letters on the screen.

                    26
Therefore, based upon the majority's conclusions that computer
skills were an essential part of the human resources generalist position
and that Flagstar did not fail to accomodate her, I believe that Cath-
cart was not a "qualified individual with a disability." Thus, her ADA
claim must fail as a matter of law.

B.

An additional flaw in the majority's analysis is that it equates evi-
dence that Cathcart was terminated because she lacked computer
skills with evidence that she was terminated because of her disability.
Because I believe that "legally blind" and"has computer skills" are
not mutually exclusive categories, I cannot countenance the majori-
ty's determination that evidence that Cathcart was terminated for her
lack of computer skills is legally sufficient proof that she was termi-
nated because of her disability.

The majority cites seven items of evidence in support of its conclu-
sion that sufficient evidence was presented at trial such that a reason-
able jury could conclude that Cathcart was terminated because of her
disability. All of the evidence relied upon by the majority, however,
directly relates to Cathcart's lack of computer skills: (1) memoranda
circulated beginning in 1992 stating that Flagstar would be using e-
mail as its primary means of intra-office communication; (2) Flag-
star's increasing emphasis on computer use throughout the corpora-
tion as indicated by the importance of Project Best; (3) Brown,
Cathcart's former supervisor, was on the Project Best committee and
was heavily involved in computerizing Flagstar; (4) Cathcart's testi-
mony that she and the other members of the human resource depart-
ment received a memorandum stating that everyone in the department
must learn to use e-mail; (5) Cathcart's testimony that she left phone
messages requesting assistance from Brown regarding use of e-mail
on two occasions but Brown did not respond; (6) the job description
for the human resources generalist position provided that computer
proficiency was a plus; and (7) Morris' deposition testimony that the
generalist position would require computer use. See ante at 19. Unless
one makes the inferential leap that having computer skills and being
legally blind are mutually exclusive categories, none of this evidence
implicates Cathcart's disability. Cathcart did not produce sufficient

                    27
evidence of a causal link between her termination and her disability
so that such an inference is reasonable.

"Federal courts do not sit as a super-personnel department that
reexamines an entity's business decisions," Harvey v. Anheuser-
Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994) (internal quotation
marks omitted), and the law does not require employers to make wise
decisions regarding which employees it will retain and which it will
terminate at times of corporate downsizing or reorganization, see
Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996), cert. denied, 117
S. Ct. 683 (1997). Rather, the law mandates only that employment
decisions be made on non-discriminatory bases. See id.; Faulkner v.
Super Valu Stores, Inc., 3 F.3d 1419, 1434 (10th Cir. 1993). Thus,
evidence that a corporation made a decision to terminate a seventeen-
year employee with a good employment history is not itself legally
actionable. Firing a long-term employee is only actionable if it occurs
under circumstances that indicate a violation of one of several statutes
enacted to prevent discrimination in the workplace. See, e.g., Age
Discrimination in Employment Act of 1967, 29 U.S.C.A. §§ 621-634
(West 1985 & Supp. 1998) (prohibiting age discrimination); Rehabili-
tation Act, 29 U.S.C.A. §§ 701-797 (West 1985 & Supp. 1998) (pro-
hibiting discrimination because of disability by federally funded
entities); Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e
- 2000e-17 (West 1994) (prohibiting discrimination on the basis of
race, color, religion, sex, or national origin); Pregnancy Discrimina-
tion Act, 42 U.S.C.A. § 2000e(k) (West 1994) (incorporating preg-
nancy discrimination into Title VII's definition of discrimination
because of sex); Americans with Disabilities Act of 1990, 42
U.S.C.A. §§ 12101-12213 (West 1995) (prohibiting discrimination
against individuals with disabilities).

The ADA does not protect an individual from termination because
she lacks computer skills. Lack of computer skills is a recognized
legitimate, non-discriminatory reason for termination, see Christopher
v. Adam's Mark Hotels, 137 F.3d 1069, 1072 (8th Cir. 1998) (holding
that employee with bipolar disorder terminated because she lacked
computer skills was dismissed for a legitimate nondiscriminatory rea-
son under ADA); cf. Miller v. Butcher Distris. , 89 F.3d 265, 267-68
(5th Cir. 1996) (holding that fifty-seven year old woman did not state
a claim under the ADEA because she was dismissed for lack of com-

                    28
puter skills); Hartsel, 87 F.3d at 800-802 (holding that employer's
decision to place a man with more computer experience in a position
was not violative of either Title VII or ADEA), and Cathcart's lack
of computer skills is undisputed.

Further, there is no evidence in the record demonstrating any con-
nection between the emphasis on computers in the new generalist
position and any desire by any individual at Flagstar to prevent Cath-
cart from holding that position because of her disability. Rather, as
the majority notes, Flagstar had made a corporate decision to reorga-
nize in a manner that emphasized technology as a route to efficiency.
A corporate decision to emphasize computers affects all levels of the
company, including the human resources department. During trial
there was never any evidence presented that Flagstar's decision to
computerize was in any way designed to dislodge disabled employees
generally or Cathcart specifically. Nor is such a conclusion a reason-
able inference that could be drawn from the evidence presented.

The majority's rationale rests upon an equation of legal blindness
with lack of computer skills. This assumption simply does not hold
water. Many legally blind individuals obtain computer skills and are
able to be productive additions to a high-technology based environ-
ment. See, e.g., Stacy J. Willis, High-Tech Training Opens New Vis-
tas: Foundation Links the Blind with Computers and Careers, Ariz.
Republic, May 21, 1997, at EV 8, available in , 1997 WL 8365030
(noting that computer training has opened up career avenues for the
blind). In fact, as demonstrated during trial, Flagstar had at least one
legally blind individual in its workforce who had the requisite com-
puter skills to perform an entirely computer-based job through the use
of Zoomtech computer software.

Because no evidence was presented indicating that Cathcart was
terminated because of her disability, Flagstar's renewed motion for
judgment as a matter of law should have been granted.

II.

In summary, the evidence presented at trial demonstrates only that
Cathcart was terminated because she lacked the requisite computer
skills to continue her job in the reorganized Flagstar human resources

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department. No evidence was presented indicating that her disability
played a role in her termination, or that she was the victim of discrim-
inatory animus because of her disability. As a result, no reasonable
jury could conclude based on the evidence presented that Cathcart
was terminated because she was legally blind. Therefore, I would
remand this case to the district court with instructions to enter judg-
ment in favor of Flagstar.

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