                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-1996

McNemar v. The Disney Store Inc
Precedential or Non-Precedential:

Docket 95-1590




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Recommended Citation
"McNemar v. The Disney Store Inc" (1996). 1996 Decisions. Paper 135.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/135


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       UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT



                 No. 95-1590



   LEONARD C. MCNEMAR,

                               Appellant

       v.

   THE DISNEY STORE, INC.,

                               Appellee.




Appeal from the United States District Court
  for the Eastern District of Pennsylvania
           (D.C. No. 94-cv-06997)



   Argued: Tuesday, June 11, 1996

 Before: STAPLETON, GREENBERG and ALDISERT,
              Circuit Judges.

            (Filed July 31, 1996)



                     Alan B. Epstein (argued)
                     JABLON EPSTEIN WOLF & DRUCKER
                     The Bellevue
                     Broad Street at Walnut
                     Ninth Floor
                     Philadelphia, PA 19102-3803

                               ATTORNEY FOR APPELLANT
                               LEONARD C. MCNEMAR

                     Anthony B. Haller (argued)
                     Jill G. Weitz
PEPPER, HAMILTON & SCHEETZ
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103-2799

       ATTORNEY FOR APPELLEE
       THE DISNEY STORE, INC.

Vicki Laden
LEGAL AID SOCIETY OF SAN
   FRANCISCO
Employment Law Center
1663 Mission Street
Suite 400
San Francisco, CA 94103

       ATTORNEY FOR AMICUS
       CURIAE, THE
       EMPLOYMENT LAW CENTER,
       THE LAMBDA LEGAL DEFENSE
       AND EDUCATION FUND, THE
       AIDS LAW PROJECT OF
       PENNSYLVANIA, AND THE
       DISABILITY RIGHTS

       EDUCATION AND DEFENSE
       FUND, INC.

Stephen M. Koslow
AMERICAN ASSOCIATION OF RETIRED
  PERSONS
601 E. Street, N.W.
Washington, D.C. 20049

       ATTORNEY FOR AMICUS
       CURIAE, THE AMERICAN
       ASSOCIATION OF RETIRED

       PERSONS

Richard M. Schall
TOMAR, SIMONOFF, ADOURIAN,
O'BRIEN, KAPLAN, JACOBY &
GRAZIANO
41 South Haddon Avenue
Haddonfield, New Jersey 08033

       ATTORNEY FOR AMICUS
       CURIAE, NEW JERSEY
       EMPLOYMENT LAWYERS'
       ASSOCIATION

Robert J. Gregory (argued)
Room 7032
                               EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION
                               1801 L. Street N.W.
                               Washington, D.C. 20507

                                       ATTORNEY FOR AMICUS
                                       CURIAE, EQUAL EMPLOYMENT
                                       OPPORTUNITY COMMISSION

                               Michael J. Ossip
                               MORGAN, LEWIS & BOCKIUS
                               2000 One Logan Square
                               Philadelphia, PA 19103

                                       ATTORNEY FOR AMICUS
                                       CURIAE, THE CHAMBER
                                       OF
                                       COMMERCE OF THE UNITED

                                       STATES OF AMERICA

                               Ann E. Reesman
                               MCGUINESS & WILLIAMS
                               1015 Fifteenth St., N.W.
                               Suite 1200
                               Washington, D.C. 20005

                                       ATTORNEYS FOR AMICUS

                                       CURIAE, THE EQUAL

                                       EMPLOYMENT ADVISORY
                                       COUNCIL



                      _____________________

                       OPINION OF THE COURT
                      _____________________

ALDISERT, Circuit Judge.
         Under the particular facts presented here we must
decide whether the teachings of Ryan Operations G.P. v. Santium-
Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996), may be applied in
this case to invoke the doctrine of judicial estoppel.
Specifically, we must decide whether Appellant is judicially
estopped from contending that he is a "`qualified person with a
disability' . . . who, with or without reasonable accommodation,
can perform the essential functions" of a job as contemplated by
the Americans With Disabilities Act, 42 U.S.C.    12111(8),
12112(a), in light of his representations to federal and state
government agencies that he is totally disabled and unable to
work.
         This issue is presented in Leonard McNemar's appeal
from the district court's order granting The Disney Store's
motion for summary judgment on McNemar's discrimination claims
under the Americans With Disabilities Act (ADA), the New Jersey
Law Against Discrimination (NJLAD), and    510 of the Employee
Retirement Income Security Act (ERISA). McNemar appeals also
from the district court's order granting Disney summary judgment
on his New Jersey state law claims for invasion of privacy and
intentional infliction of emotional distress.
         In granting summary judgment, the district court held
that McNemar was judicially estopped from asserting his claims
under the ADA, NJLAD, and ERISA because of his prior sworn
statements, made in his application for Social Security
Disability Insurance benefits and New Jersey state disability
benefits, that he was unable to work because of a disabling
physical condition. The district court further held that McNemar
had failed to satisfy prima facie requirements of his state law
claims of invasion of privacy and intentional infliction of
emotional distress.
         The district court had jurisdiction over Appellant's
ADA and ERISA claims pursuant to 28 U.S.C.    1331. The district
court had supplemental jurisdiction over Appellant's state law
claims pursuant to 28 U.S.C.   1367. This court has jurisdiction
pursuant to 28 U.S.C.   1291. The appeal was timely filed under
Rule 4(a), Federal Rules of Appellate Procedure.
         This court reviews the district court's application of
judicial estoppel for abuse of discretion. Yanez v. United
States, 989 F.2d 323 (9th Cir. 1993); Levin v. Robinson, Wayne &
La Sala, 586 A.2d 1348, 1357 (N.J. Super. Law Div. 1990) (citing
Matter of Cassidy, 892 F.2d 637, 642 (7th Cir. 1990)). This
court has plenary review of the district court's order granting
summary judgment on the state law claims. Kinney v. Yerusalim, 9
F.3d 1067, 1070 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545
(1994).
         Because application of the doctrine of judicial
estoppel always is factually driven, we now will set forth the
facts in extensive narrative detail.

                               I.

         McNemar was employed by The Disney Store, Inc. as an
assistant store manager in Cherry Hill, New Jersey. On October
12, 1993, McNemar was hospitalized for pneumocystis carinii
pneumonia and diagnosed as HIV-positive. Between becoming ill in
October 1993 and being terminated at Disney on November 18, 1993,
McNemar would miss 17 1/2 of 25 work days (68% of his normal
working time).
         McNemar revealed the results of his diagnosis to
Lillian Forcey, the store manager, whom he considered to be his
friend. He did not tell anyone else at the store, but he did
tell other friends, including two people he had worked with at a
Disney store in Delaware before his transfer to Cherry Hill in
1992.
         On November 8, 1993, Joelyn Ale, the Disney Store
District Manager, summoned McNemar to her office, privately
informed him that she had heard rumors that he had tested
positive for HIV, and asked if the rumors were true. Ale
explained that she was informing McNemar of the rumors so that,
should he want to, he could address them. McNemar admits that
Ale was being supportive, offering to help him in any way
possible. However, he told Ale that he was not in fact HIV-
positive, but that he had pneumonia. McNemar thanked Ale for
informing him of the rumors, declined any assistance, and said he
thought he knew the source and would deal with the problem
himself.
          On November 16, 1993, in knowing violation of company
policy, McNemar took two dollars from the store cash register and
asked another employee, Estelle Williamson, to use the money to
purchase cigarettes for him. Because Disney policy requires that
all employees store their personal belongings in lockers in the
back of the store, McNemar had no cash on his person. Rather
than go to his locker to retrieve money from his wallet, McNemar
took the two dollars from the cash register and gave it to
Williamson to purchase the cigarettes. McNemar then discarded
the cash register transaction record, which, according to company
policy, must be signed and filed whenever money from the cash
register is used.
         Williamson purchased the cigarettes and then called
Disney's Loss Prevention Hotline to report that McNemar had taken
money from the register, in violation of Disney's anti-shrinkage
policy. After Williamson returned with the cigarettes, McNemar
took a smoke break in the back of the store, but failed to
retrieve his own money in order to reimburse the cash register.
         McNemar had sole responsibility for closing the store
that night, a procedure that included balancing cash deposits
with receipts. In performing this task, McNemar still did not
replace the cash in the register or put it with the cash deposits
for the day; he simply sealed the cash deposit bags without
replacing any money. Even though the daily balance was discrepant
by the two dollars he had taken, McNemar made no notation or
report of what had occurred.
         Meanwhile, Williamson had reported McNemar's initial
infraction to another assistant manager, Maria Skyrm Brookover.
Brookover checked the register, found that it was two dollars
short, and looked unsuccessfully for a transaction record in the
accordion file where it should have been placed. Brookover
instructed Williamson to call Disney's "Loss Prevention Hotline";
Brookover also called the hotline herself.
         The next morning, November 17, 1996, Evelyn
McCorristin, the assistant manager who opened the store, followed
standard store procedures in checking the previous day's cash
deposits, register amounts, and the safe fund. McCorristin
discovered that the cash deposits were off by two dollars, and
noted the discrepancy. She then counted the register and safe
fund amounts, which were as they should have been, not containing
any extra money. A short time later, Brookover, who was not
working that morning, called McCorristin to ask whether there was
still a dollar shortage; McCorristin told her that there was.
Brookover then told Ale about what had happened the previous day,
confirming that the money was still missing.
         The Disney Store management then began the
investigation procedure it uniformly follows when an employee is
reported for the unauthorized taking of company money or property
for personal use. On November 18, 1996, McNemar's next day of
work, he was interviewed by Ale, in person, and by Jeff Hill, a
Disney Store Loss Prevention Supervisor in Atlanta, by telephone.
During the interview, McNemar admitted to taking the money for
his personal use, after which, at Hill's request, McNemar wrote
and signed a statement recounting his actions in the matter.
         On the basis of this admission, Ale and Hill then
immediately suspended McNemar, asked him for his store keys and
identification, and told him that they would speak to Disney
headquarters in California about whether he should be discharged.
At this point McNemar broke down in tears and apologized for
taking the money, then divulged that he was HIV-positive.
         Ale reported the substance of the interview to Teri
Meiers, Employee Relations Supervisor at California Headquarters.
Upon hearing that McNemar had at the last minute revealed that he
was HIV-positive, Meiers thought it prudent to check with her
superiors before approving a discharge. She consulted with
Michael Frank, Vice President for Human Resources, who felt the
situation was clear-cut and required a discharge, and with Curt
Carlile, then Manager of Training and Employee Relations, who
concurred. Both Frank and Carlile felt that McNemar should not
be penalized less severely than other employees in similar
situations simply because of his disclosure.
         Later that same day, Ale telephoned McNemar and asked
him to come in for another meeting to discuss the decision to
terminate his employment. When McNemar refused to come in, Ale
told him of the decision to discharge him.

                               II.
         Following his dismissal, McNemar applied for and
received New Jersey state disability benefits, Social Security
disability benefits, and exemption from repayment of an
educational loan from the Pennsylvania Higher Education Agency.
To obtain these benefits, McNemar and his doctors have certified
under penalty of perjury that he has been totally and permanently
disabled and unable to work since October 1, 1993, at least five
weeks before he was discharged by Disney.
         For example, in his November 23, 1993, application for
Social Security Disability Insurance (SSDI) benefits, McNemar
made a sworn statement that he "became unable to work because of
my disabling condition on October 01, 1993." On the same date,
McNemar applied for Supplemental Social Security Income (SSI),
and on that application he stated that he was disabled and was
informed that making false statements would subject him to civil
and criminal penalties.
         On December 2, 1993, McNemar applied for New Jersey
State disability benefits, certifying that his disability was
"AIDS" and that he had been afflicted since October 12, 1993.
On January 11, 1994, McNemar certified to the New Jersey State
Disability Insurance Service that he had been "unable to perform
the duties of [his] regular occupation" since October 12, 1993.
         On his December 2, 1993 application for state
disability benefits, McNemar submitted a statement, signed by Dr.
Roseann Lorenick, his physician at the time, that McNemar had
been disabled and unable to work because of a disability from
"10/93 to present." JA 166. On January 20, 1994, Dr. Lorenick
certified that McNemar had been under her care for the "period of
disability" from "10/14/93 through present" and that "[t]he
patient has been unable to perform all the duties of his/her
regular or usual job (i.e., too disabled to work) from 10/16/93."
JA 169. And on June 15, 1994, Dr. John Turner, a specialist whom
McNemar began seeing in February 1994, certified that "[a]s of
October 13, 1993 Mr. McNemar has been totally and permanently
disabled." JA 179.
         On July 19, 1994, McNemar applied to the Pennsylvania
Higher Education Agency for a deferment from making payments on
his loan principal, on the basis that he was "unable to work and
earn money." JA 178. On July 27, 1994, when completing his
portion of McNemar's loan deferment application, Dr. Turner faced
a choice of certifying that McNemar had (1) a temporary
disability or (2) a total and permanent disability. Dr. Turner
chose the latter, signing the following statement:
         I certify that in my best professional judgment
         [McNemar is] . . . [p]ermanently totally disabled and
         so is unable to work and earn money because of an
         impairment that is expected to continue indefinitely or
         result in death.

JA 178.
                               III.
         On November 17, 1994, McNemar filed a complaint against
Disney which alleged unlawful discrimination in violation of the
ADA and ERISA and which, relying on supplemental jurisdiction,
contained several state law claims. On May 8, 1995, Disney
moved for summary judgment on all of McNemar's claims. On June
16, 1995, McNemar filed his brief in opposition and formally
withdrew, with prejudice, half of his claims because they
provided redundant bases of recovery. On June 30, 1995, the
district court granted Disney's motion and entered judgment in
Disney's favor on all of McNemar's remaining claims, holding that
McNemar was judicially estopped from asserting his claims under
the ADA, NJLAD and ERISA because of his prior sworn statements to
various government agencies that he was totally and permanently
disabled and unable to work. The district court held also that
McNemar had failed as a matter of law to satisfy prima facierequirements
of his state law claims for invasion of privacy and
intentional infliction of emotional distress. This appeal
followed.


                                IV.
          The doctrine of judicial estoppel serves a consistently
clear and undisputed jurisprudential purpose: to protect the
integrity of the courts. The Court of Appeals for the Ninth
Circuit recently described this as the basis on which a court has
the discretion to exercise judicial estoppel: "[T]he purpose of
the doctrine is to protect the integrity of the judicial process.
Accordingly, the doctrine of judicial estoppel `is an equitable
doctrine invoked by a court at its discretion.'" Yanez v. U.S.,
989 F.2d 323, 326 (9th Cir. 1993) (quoting Morris v. California,
966 F.2d 448, 452-53 (9th Cir. 1991), cert. denied, 506 U.S. 831,
(citation omitted) (1992)).
         This court has accepted the doctrine of judicial
estoppel at least since Scarano v. Central Railroad Co. of New
Jersey, 203 F.2d 510, 513 (3d Cir. 1953), and consistently has
reiterated the judicial system integrity purpose of the doctrine.
See, e.g., Ryan Operations G.P. v. Santium-Midwest Lumber Co., 81
F.3d 355, 361 (3d Cir. 1996) ("[j]udicial estoppel is intended to
prevent parties from playing fast and loose with the courts by
asserting inconsistent positions"); EF Operating Corp. v.
American Buildings, 993 F.2d 1046, 1050 (3d Cir.), cert. denied,
114 S. Ct. 193 (1993) ("It goes without saying that one cannot
casually cast aside representations, oral or written, in the
course of litigation simply because it is convenient to do so");
Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 121 (3d Cir.
1992), cert. denied, 113 S. Ct. 1645 (1993) (judicial estoppel
"preserves the integrity of the judicial system" by preventing
parties from "assert[ing] a position in this proceeding
inconsistent with the one they previously asserted"); Delgrosso
v. Spang & Co., 903 F.2d 234, 241 (3d Cir.), cert. denied, 498
U.S. 967 (1990) (judicial estoppel "precludes a party from
assuming a position in a legal proceeding that contradicts or is
inconsistent with a previously asserted position"); United States
v. Gleason, 458 F.2d 171, 175 (3d Cir. 1972) (judicial estoppel
is "applied to secure substantial equity").
         McNemar argues that the use of judicial estoppel is
subject to narrow requirements that preclude its use here:
         Thus, in this Circuit, a litigant seeking to judicially
         estop his opponent from asserting a contrary position
         must show that: (1) his opponent had asserted an
         inconsistent position under oath in a prior judicial
         proceeding; (2) the prior statement was accepted by a
         judicial tribunal; (3) he was a litigant to the first
         judicial proceeding; and (4) he would be prejudiced
         unless the opponent is estopped.

Appellant's Br. at 22 (relying on, inter alia, Scarano). We
disagree. The Scarano court was careful to warn that in applying
judicial estoppel, "`each case must be decided upon its own
particular facts and circumstances.'" Scarano, 203 F.2d at 513
(quoting Galt v. Phoenix Indemnity Co., 120 F.2d 723, 726
(App.D.C. 1941)). Moreover, in Ryan Operations this court
recently emphasized that the application of judicial estoppel is
not limited in the formulaic manner urged by Appellant:
              There are many instances in which the assertion of
         inconsistent positions can work to the advantage of a
         party but where there is no identity or relationship
         between those against whom the claim (or defense) is
         asserted. Where the contentions are mutually
         exclusive, it is irrelevant that they are asserted
         against diverse parties for the purposes of determining
         judicial estoppel. The integrity of the court is
         affronted by the inconsistency notwithstanding the lack
         of identity of those against whom it is asserted.

Ryan Operations, 81 F.3d at 360. Thus the doctrine of this court
on judicial estoppel remains rooted in the twin concepts that
have characterized our jurisprudence from our early
pronouncements in Scarano in 1953 to the current refinements
expressed this year in Ryan Operations: judicial estoppel is an
equitable doctrine, invoked by a court in its discretion (1) to
preserve the integrity of the judicial system by preventing
parties from playing fast and loose with the courts in assuming
inconsistent positions, and (2) with a recognition that each case
must be decided upon its own particular facts and circumstances.
         In light of this clearly established rationale, the
district court was well within its discretion to hold that
McNemar "is estopped from arguing now that he is `qualified'
under the ADA and NJLAD." Dist. Ct. Op. at 8-9. Indeed, the
jurisprudence of this court on judicial estoppel would seem to
speak directly to McNemar's situation: "[t]o permit a party to
assume a position inconsistent with a position it had
successfully relied upon in a past proceeding `would flagrantly
exemplify . . . playing "fast and loose with the courts" which
has been emphasized as an evil the courts should not tolerate.'"
Delgrosso, 903 F.2d at 241 (quoting Scarano, 203 F.2d at 513).

         We are satisfied that the district court's application
of judicial estoppel qualifies under the two-part threshold
inquiry articulated in Ryan Operations: (1) Is the party's
present position inconsistent with a position formerly asserted?
(2) If so, did the party assert either or both of the
inconsistent positions in bad faith -- i.e., "with intent to play
fast and loose" with the court? Ryan Operations, 81 F.3d at 361.
         Clearly McNemar has asserted inconsistent positions
regarding his ability to work. Before the Social Security
Administration he and his physicians have certified under penalty
of perjury that he was totally and permanently disabled. He made
similar representations when he applied for New Jersey state
disability benefits. And when applying for an exemption from
making payments on his student loans, he represented to the state
of Pennsylvania that he was unable to work and earn money. Thus,
McNemar has represented to one federal agency and to the agencies
of two different states that he was totally disabled and unable
to work -- while now, in claiming relief under the American
Disabilities Act, he states that he is "a qualified person with a
disability who, with or without reasonable accommodation, can
perform the essential functions of a job" as contemplated by 42
U.S.C.    12111(8), 12112(a).
         Moreover, well reasoned decisions have judicially
estopped plaintiffs in situations similar to this one from
"speak[ing] out of both sides of [their] mouth with equal vigor
and credibility before [the] court." Riegel v. Kaiser Foundation
Health Plan of N.C., 859 F. Supp. 963, 970 (E.D.N.C. 1994). See,
e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 582-84
(1st Cir. 1992); Garcia-Paz v. Swift Textiles, 873 F. Supp. 547,
554 (D. Kan. 1995); Kennedy v. Applause, Inc., 1994 WL 740765 at
*3-*4 (C.D. Cal. Dec. 6, 1994). McNemar's statements on his
disability benefits application are "unconditional assertions as
to his disability"; he should not now be permitted to "qualify
those statements where the application itself is unequivocal."
Smith v. Midland Brake, Inc. 911 F. Supp. 1351, 1361 (D.Kan.
1995) (citing Scarano, 203 F.2d at 513).

                                V.
         McNemar alleges that in terminating his employment,
Disney violated the Americans With Disabilities Act and the New
Jersey Law Against Discrimination. Because the New Jersey
statute relies on the same analytical framework as does the
federal act, the district court addressed these claims together.
Dist. Ct. Op. at 6-7 (citing Shaner v. Horizon Bancorp., 561 A.2d
1130, 1132 (N.J. 1989)). To qualify for protection against
discrimination under Title I of the ADA, a plaintiff must prove
that he or she is a "qualified person with a disability who, with
or without reasonable accommodation, can perform the essential
functions of the job." 42 U.S.C.     12111(8), 12112(a).
Accordingly, a person unable to work is not intended to be, and
is not, covered by the ADA. See 42 U.S.C.     423(d); see also
H.R. Rep. No. 101-485 (II), 101st Cong. 2d. Sess. 71 (1990),
reprinted in 1990 U.S.C.C.A.N. 353; H.R. Rep. No. 101-485 (III),
101st Cong. 2d. Sess. 35-36 (1990), reprinted in 1990
U.S.C.C.A.N. 458. The New Jersey statute contains a similar
requirement, prohibiting discrimination against handicapped
persons "unless the nature and extent of the handicap reasonably
precludes the performance of the particular employment."
N.J.S.A.   10:5-4.1. Thus to be covered by these statutes,
McNemar had to prove that at all material times he was able to
perform the essential functions of his job, with or without
accommodation. See McDonald v. Commonwealth of Pennsylvania, 62
F.3d 92, 96 (3d Cir. 1995).
          In arriving at its decision, the district court
observed that "most federal courts agree that an employee who
represents on a benefits application that he is disabled is
judicially estopped from arguing that he is qualified to perform
the duties of the position involved." Dist. Ct. Op. at 9; see,
e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 582-84
(1st Cir. 1992) (plaintiff who certified on form for disability
benefits that he was "totally disabled" was precluded as a matter
of law from arguing that he was a "qualified handicapped person"
under Massachusetts law); Garcia-Paz v. Swift Textiles, 873 F.
Supp. 547, 554 (D. Kan. 1995) (plaintiff with multiple sclerosis
who certified on long-term disability benefits application that
she was "unable to perform material duties of work" was estopped
from arguing that she was qualified individual under ADA);
Kennedy v. Applause, Inc., 1994 WL 740765 at *3-*4 (C.D. Cal.
Dec. 6, 1994) (plaintiff with chronic fatigue syndrome who
represented for purposes of obtaining disability benefits that
she was completely disabled was estopped from arguing that she
was qualified under ADA); Riegel, 859 F. Supp. at 967-70
(plaintiff with shoulder injury who claimed for purposes of
receiving disability insurance payments that she was prematurely
disabled was estopped from arguing that she was qualified under
ADA).
         Thus even though this court has not previously applied
judicial estoppel to facts similar to those before us here, other
federal courts have addressed analogous factual situations, and
many have judicially estopped the plaintiffs in those situations
from "speak[ing] out of both sides of [their] mouth with equal
vigor and credibility before [the] court." Riegel, 859 F. Supp.
at 970. That precedential basis, and this court's teachings on
judicial estoppel, clearly support the discretion of the district
court to estop a party from asserting contradictory positions.
         In adjudicating cases brought under the ADA and NJLAD,
courts apply the burden-shifting framework applicable to cases
brought under Title VII of the Civil Rights Act of 1964. See 42
U.S.C.   12117; Zambelli v. Historic Landmarks, Inc., 1995 WL
116669 at *3 (E.D. Pa. Mar. 20, 1995); Shaner, 561 A.2d at 1132.
This framework has three steps: (1) the plaintiff bears the
burden of establishing a prima facie case of discrimination; (2)
the burden then shifts to the defendant, who must offer a
legitimate non-discriminatory reason for the action; and (3) if
the defendant satisfies this burden, the plaintiff must then come
forth with evidence indicating that the defendant's proffered
reason is merely a pretext. See Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973).
         The district court determined that McNemar failed to
establish a prima facie case of discrimination under the criteria
articulated above because he admitted that he was not qualified
to perform his job as Assistant Manager at Disney, and that he is
thus judicially estopped from arguing that he is now "qualified"
under the ADA and the NJLAD. Dist. Ct. Op. at 8-9. Under the
facts of this case, we will not disturb that determination.

                               VI.
         McNemar and the amici challenge the district court's
application of the doctrine of judicial estoppel here, arguing at
great length that the court unjustifiably has stretched the
doctrine to address a problem that properly should be decided by
looking to the legislative purposes of anti-discrimination that
underlie the ADA. This is essentially the position of the court
in Smith v. Dovenmuehle Morg., Inc., 859 F. Supp. 1138, 1141-43
(N.D. Ill. 1994), a case which the district court below studied
and rejected. In Smith, a plaintiff with AIDS received
disability benefits from the Social Security Administration on
the representation that he was disabled, then sued his former
employer under the ADA. In holding that the plaintiff was not
judicially estopped from arguing that he was qualified under the
ADA, the court reasoned that to hold otherwise would put the
plaintiff "in the untenable position of choosing between his
right to seek disability benefits and his right to seek redress
for an alleged violation of the ADA." Id. at 1142. The Smith
court reasoned also that judicial estoppel would frustrate the
ADA's purpose of combatting discrimination against disabled
persons. Id.
         In explaining its disagreement with the Smith court,
the district court below addressed much of the challenge
presented by the amici on the judicial estoppel issue. First,
after recognizing the apparent unfairness of forcing individuals
to choose between seeking disability benefits and suing under the
ADA, the district court concluded that, nevertheless, "there is
no indication that either the United States Congress or the New
Jersey legislature intended to provide disability benefits to
persons capable of obtaining gainful employment, and it is the
province of the legislature rather than this Court to authorize
such a double recovery." Dist. Ct. Op. at 11. Second, the
district court reasoned that because a disabled person who
believes he or she has been the victim of discrimination "retains
the option of filing suit pursuant to the ADA, this Court fails
to understand how the ADA's goals would be thwarted by adopting
the principle of judicial estoppel in this case." Id. at 11-12.
         The Employment Law Center, one of the amici curiae,
argues that because "[t]he Social Security disability system and
the [ADA]'s determination of disability diverge significantly in
their respective legal standards and statutory intent,"
application of judicial estoppel "between them is thus
inappropriate." Amicus Br. of Employment Law Center, et. al., at
4. Similarly, McNemar argues that, because AIDS is listed as a
"presumptive disability" on the Social Security application
forms, his representations that he is "totally and permanently
disabled" do not render him unqualified to perform the job of
Assistant Manager at Disney under the ADA and NJLAD. We
disagree.
         The fact that AIDS is listed as a "presumptive
disability" on the benefit application forms is irrelevant to the
case at hand, because the "presumptive disability" status serves
only to eliminate the requirement that individuals afflicted with
AIDS offer evidence that they are unable to perform their
previous jobs. Whatever the Social Security Administration's
criteria for eligibility for disability benefits, the fact
remains that McNemar told the U.S. Government and the states of
New Jersey and Pennsylvania under penalty of perjury that he was
physically unable to work, and the district court had the
discretion to judicially estop him from taking a contradictory
position in this proceeding.
         Moreover, we are troubled by this argument from
Appellant and two amici, the Employment Law Center and the EEOC,
for it carries the implication that a person afflicted with HIV
somehow should be permitted to misrepresent important
information. The fact that the choice between obtaining federal
or state disability benefits and suing under the ADA is difficult
does not entitle one to make false representations with impunity.
Nothing in the reasoned jurisprudence of judicial estoppel goes
this far. Nothing grants a person the authority to flout the
exalted status that the law accords statements made under oath or
penalty of perjury. Nothing permits one to undermine the
integrity of the judicial system "by playing fast and loose with
the courts by asserting inconsistent positions." Ryan
Operations, 81 F.3d at 358. Nothing vests such immunity.

                               VII.
         The EEOC argues also that McNemar's sworn
declaration of total disability is "after-acquired evidence" that
has no bearing on the prima facie issue of McNemar's status as a
qualified individual with a disability. Yet the threshold
question in this case, fully examined by the district court, is
precisely whether McNemar is covered by the ADA for purposes of
his prima facie case.
         Nevertheless, the EEOC wants to mix apples -- a
plaintiff's prima facie case -- with oranges -- a defendant's
non-discriminatory-reason. It seeks to analogize this case to
the teachings of McKennon v. Nashville Banner Pub. Co., ___ U.S.
___, 115 S. Ct. 879 (1995), which address the doctrine of "after-
acquired evidence" and establish it as an affirmative defense
that becomes meaningful once the plaintiff has established a
prima facie case of discrimination. At that point, the employer
is required to articulate its non-discriminatory reason and then
may assert its additional defenses, such as after-acquired
evidence, which may limit damages. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 523-24 (1993).
         We emphasize again that the relevant question in this
case is whether McNemar established a prima facie case of
discrimination, and because he has not, Disney has no obligation
even to articulate a legitimate business reason for its decision.
See Hicks, 509 U.S. at 507; Sempier v. Johnson & Higgins, 45 F.3d
724, 730-32 (3d Cir.), cert. denied, 115 S. Ct. 2611 (1995).
Seen in this light, the EEOC's assertion that "[a] plaintiff's
claim cannot be defeated by an issue of qualifications that has
nothing to do with the employer's motivation for the adverse
action" becomes irrelevant, again because that assertion has to
do with Disney's putative pretext for firing McNemar, which is
not a proper concern for the court unless McNemar first has
established a prima facie case that he was qualified for the job.
This he failed to do.

                              VIII.
         We turn now to Appellant's other contentions.

                                A.
         McNemar alleges that Disney violated   510 of ERISA, 29
U.S.C.   1140, because one of the determining factors in Disney's
decision to discharge McNemar was to prevent the vesting of his
pension rights with Disney eleven months later. To establish a
prima facie case under ERISA, McNemar was required to show: (1)
that he belongs to the protected class; (2) that he was qualified
for the position involved; and (3) that he was discharged or
denied employment under circumstances that provide some basis for
believing that the prohibited intent (to interfere with the
employee's attainment of pension eligibility) was present. See
Turner v. Schering-Plough Corp., 901 F.2d 335, 347 (3d Cir. 1990)
(citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1115
(2d Cir. 1988)).
         For the reasons presented above, McNemar cannot
establish the second required element for making a prima faciecase under
ERISA -- that he is qualified for the position
involved. Because McNemar has not, as a matter of law,
established a prima facie case of a   510 violation, the district
court properly entered judgment in favor of Disney on its motion
for summary judgment regarding McNemar's ERISA claim.

                                B.
         New Jersey has recognized that the tort of invasion of
privacy is "not one tort, but . . . comprises four distinct kinds
of invasion of four different interests of the plaintiff, which
are tied together by the common name . . . ." Rumbauskas v.
Cantor, 649 A.2d 853, 856 (N.J. 1994) (quoting Canessa v. J.I.
Kislak, Inc., 235 A.2d 62, [66] (N.J. Super. Law Div. 1967)).
McNemar contends that Disney is liable for two of these: (1)
intrusion upon his seclusion, and (2) public disclosure of
private information. We disagree.

                                1.
         New Jersey has adopted   652B of the Restatement
(Second) of Torts, which states:
         One who intentionally intrudes, physically or
         otherwise, upon the solitude or seclusion of another or
         his private affairs or concerns, is subject to
         liability to the other for invasion of his privacy, if
         the intrusion would be highly offensive to a reasonable
         person.

Figured v. Paralegal Technical Services, Inc., 555 A.2d 663, 666
(N.J. Super. App. Div. 1989) (quoting 3 Restatement (Second) of
Torts   652B (1977)). Although the intrusion need not be by
physical intrusion, the examples set forth in the Restatement all
contain elements of involuntariness. See Rumbauskas, 649 A.2d at
857.
         McNemar argues that Disney is liable for intrusion upon
his seclusion because Joelyn Ale asked him whether he was HIV-
positive. However, Ale's inquiry does not appear to have imposed
an aspect of involuntariness on McNemar; indeed, McNemar has
admitted that Ale's intent in the conversation about his
condition was to be supportive, not confrontational. JA 30.
McNemar certainly was not compelled to, and in fact did not, tell
Ale about his condition. In light of this evidence, Ale's
inquiry hardly was coercive, let alone "highly offensive to a
reasonable person," and thus was not an invasion of privacy under
New Jersey law.
                                2.
         On the second basis of invasion of privacy -- public
disclosure of private information -- McNemar alleges that Disney
invaded his privacy by publicly disclosing private facts when, in
late November 1993, an assistant store manager told Julia Walsh,
a friend of McNemar's, that he had resigned because he had AIDS.
To state a claim for public disclosure of private facts, a
plaintiff must demonstrate (1) that the defendant has given
publicity to matters that actually were private, (2) that
dissemination of such facts would be offensive to a reasonable
person, and (3) that there is no legitimate interest of the
public in being apprised of the facts publicized. Bisbee v. John
C. Conover Agency, Inc., 452 A.2d 689, 691-92 (N.J. App. Div.
1982) (adopting 3 Restatement (Second) of Torts   652D).
         The Restatement defines "publicity" as follows:
         "Publicity" . . . means that the matter is made public,
         by communicating it to the public at large, or to so
         many persons that the matter must be regarded as
         substantially certain to become one of public knowledge
         . . . . Thus it is not an invasion of the right to
         privacy . . . to communicate a fact concerning the
         plaintiff's private life to a single person or even to
         a small group of persons.

Restatement (Second) of Torts 652D, Comment (a). The evidence
of McNemar's publicity consists primarily of allegations of (1) a
disclosure by a store manager to McNemar's aunt and uncle that he
"had resigned because it was too much" on his health, and (2) a
disclosure by an unidentified store employee to a friend of
McNemar's who already knew that he was HIV-positive. JA 284,
724-5. Clearly, as a matter of law, these allegations are not
sufficient to state a prima facie case of invasion of privacy for
publicity given to private facts. Accordingly, the district
court properly granted Disney's motion for summary judgment on
this element of McNemar's claim.

                                C.
         New Jersey law requires that a plaintiff who claims
intentional infliction of emotional distress meet four
requirements: (1) that the defendant acted recklessly or
intentionally; (2) that the conduct was extreme and outrageous;
(3) that the defendant's actions were the proximate cause of the
plaintiff's distress; and (4) that the plaintiff actually
suffered severe emotional distress. Figured, 555 A.2d at 665
(quoting Buckley v. Trenton Savings Fund Soc., 544 A.2d 857,
[863] (N.J. 1988) and Restatement (Second) of Torts    46 (1965)).
         McNemar's contention is unpersuasive because Disney's
conduct was not extreme and outrageous, which under New Jersey
law means conduct "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized
community." Figured, 555 A.2d at 665. The record does not offer
any evidence to suggest that Disney's discharge of McNemar was
extreme and outrageous. McNemar admits that his discharge was
handled in a discreet manner, and that the reasons for his
discharge were not disclosed to others. JA 39-40. Moreover,
there is no evidence that Disney harassed McNemar in any way; and
termination of employment does not, without evidence of
harassment, support a claim of intentional infliction of
emotional distress. See Heckroth v. Amer. Tel. & Tel., 1991 WL
157302 at *5 (E.D. Pa. Aug. 9, 1991) (citing Borecki v. Eastern
Int'l Mat. Corp., 694 F. Supp. 47, 61 (D.N.J. 1988)). McNemar
has not alleged harassment by Disney. Accordingly, the district
court properly granted summary judgment in favor of Disney on
McNemar's intentional infliction of emotional distress claim.
                      * * * * * * * * * * *
         We have considered all arguments presented by the
parties and conclude that no further discussion is necessary.
         The judgment of the district court will be affirmed.
