I concur with the majority regarding Smith's claim for intentional infliction of emotional distress, but I respectfully dissent from the conclusions reached in the majority opinion regarding her handicap discrimination claim. *Page 536
In my view, the trial court correctly granted summary judgment in favor of Dillard Department Stores, Inc. on the handicap discrimination claim for two reasons: one, Smith is judicially estopped from prosecuting this claim for handicap discrimination against Dillard's on the basis that she could perform her job duties if given a reasonable accommodation, because in seeking her workers' compensation benefits, her sworn statements are that she could not work, which resulted in a favorable ruling and an award of disability benefits; and two, she never asked for any accommodation to perform her work. Instead, she maintained she could not work.
In Cleveland v. Policy Mgt. Sys., Corp. (1999), 119 S.Ct. 1597, where the court considered the recipient's receipt of disability benefits and simultaneous claim under the Americans with Disability Act, it stated:
We believe that, in context, these two seemingly divergent statutory contentions are often consistent, each with the other. Thus, pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient's success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could "perform the essential functions" of her previous job, at least with "reasonable accommodation." (Emphasis added.)
The Court further clarified the plaintiff's evidentiary burden in order to withstand a motion for summary judgment in such a case:
* * * When faced with a plaintiff's previous sworn statement asserting "total disability" or the like., the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless "perform the essential functions" of her job, with or without "reasonable accommodation." (Emphasis added.)
In Mitchell v. Washingtonville Central School District (1999),190 F.3d 1, in analyzing Policy Mgt. Sys., Corp., supra, the court noted:
The Supreme Court emphasized that the case before it did not "involve directly conflicting statement about purely factual matters, such as * * * I can/cannot raise my arm above my head,'" and indeed that the decision "leaves the law related to * * * purely factual * * * conflicts where the Court found *Page 537 it."
In its analysis of Mitchell's claim against the school district for terminating him in violation of the Americans with Disabilities Act, the court utilized the estoppel theory and affirmed the trial court's grant of summary judgment. It stated:
* * * Since Mitchell's earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position.
* * *
We also agree with the district court that, once estopped from arguing he could walk and stand and therefore bound to the assertion that he could only do sedentary work, Mitchell could not show that he could perform the essential functions of Head Custodian with a reasonable accommodation. * * *.
See, also, Budd v. ADT Security Sys. (1996), 103 F.3d 699.
In accordance with Cleveland v. Policy Mgt. Sys., Corp., Smith had the burden to explain why her workers' compensation claim and her handicap discrimination claim are consistent. Based on Smith's failure to provide evidence reconciling these positions, a reasonable juror could not conclude her ability to perform the essential functions of her job.
In addition, the estoppel analysis in Mitchell applies here: since Smith's earlier assertions regarding her inability to work and the repeated representations of her physicians to the Bureau of Workers' Compensation that she was unable to work in any capacity had been accepted by the Bureau of Workers' Compensation resulting in an award of temporary total disability benefits based on her diagnosed reflex sympathetic dystrophy condition, judicial estoppel prevents her form advancing a contrary position in this litigation. After repeatedly denying her ability to work in any capacity and stating she could not even accept light duty, modified, or transitional work, she now suddenly claims in this litigation that she could have performed her duties with the use of a stool. However, the record does not reflect she asked Dillard's to provide her with a stool or evidenced any position other than her inability to work in any capacity. Thus, in my view, the trial court after thoroughly analyzing the law, correctly granted summary judgment to Dillard's on this claim.
Accordingly, I dissent from this portion of the majority opinion. *Page 538