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NORRIS v. ALLIED-SYSCO FOOD SERVS.

December 20, 1996

Brenda NORRIS, Plaintiff,
v.
ALLIED-SYSCO FOOD SERVICES, INC., Defendant.



The opinion of the court was delivered by: BRAZIL

 BRAZIL, United States Magistrate Judge.

 I. INTRODUCTION

 Brenda Norris sued her former employer, Allied-Sysco Food Services, Inc. ("Allied"), alleging numerous claims. A jury trial was held. The jury concluded that sex was a motivating factor in a decision or decisions by Allied to deny Norris promotions, but the jury also concluded that Allied would have made the same decision or decisions in the absence of the impermissible motivating factor, meaning that Norris was not entitled to damages for sex discrimination. The jury further concluded that Allied violated the Americans with Disabilities Act (ADA) by terminating Norris, and the jury awarded her $ 300,000 in compensatory damages. The jury found in favor of Allied on all of the plaintiff's other claims. *fn1"

 Viewed in the light most favorable to the plaintiff, the evidence supporting Norris's ADA claim can be briefly summarized as follows. Norris left work on disability due to a back injury and various other ailments in September 1994. Starting around April 1995, Norris asked Allied to permit her to work from home or part-time. Allied either denied this request or took no action on it. Norris remained out on disability until she was terminated in November 1995.

 Allied now moves for judgment as a matter of law on Norris's ADA claim, or, in the alternative, for a new trial on the ADA claim. The arguments that Allied makes in support of this motion can be grouped into three general areas. First, Allied argues that Norris did not present sufficient evidence to enable a reasonable jury to conclude that Norris established the essential elements of her claim that she was terminated in violation of the ADA. Second, Allied contends that the jury's answer to one of the special interrogatories submitted to it represents a finding by the jury that Norris did not ask to be accommodated by being allowed to work from home or part-time. Allied then contends that the jury's verdict for Norris on the ADA claim must have been based on a belief that Allied should have accommodated Norris by giving her an indefinite leave of absence, which, argues Allied, cannot be a "reasonable accommodation" under the ADA as a matter of law. Third, Allied argues that statements by Norris in applications for disability benefits preclude a reasonable jury from finding that Norris was able to perform the essential functions of her position.

 We deny Allied's motion. With respect to Allied's first argument, we conclude that Norris presented sufficient evidence to permit a reasonable jury to find in her favor on each of the essential elements of her claim that she was terminated in violation of the ADA.

 With respect to Allied's second argument, we conclude that the jury's answer to the special interrogatory relied upon by Allied does not represent a factual determination that Norris did not ask Allied about working from home or part-time. Since the jury could have decided that Allied should have accommodated Norris by permitting her to work from home, Allied's argument that indefinite leave cannot be a reasonable accommodation does not help Allied in this case, though the argument does have support in the case law.

 In addressing Allied's third argument (that Norris's statements on disability benefits applications require judgment in favor of Allied), we reexamine an earlier ruling by us that the doctrine of judicial estoppel does not apply to statements in disability applications. While we conclude that judicial estoppel can be applicable in cases such as this one, we hold that Norris should not be judicially estopped by statements on her disability applications from taking the position that she would have been able to perform the essential functions of her position with reasonable accommodation for purposes of the ADA. We further conclude that a reasonable jury could have found that Norris was able to perform the essential functions of her position despite her statements in the disability applications.

 A. Background

 1. The defendant, Allied, distributes food and related goods. At the time she stopped working due to an injury, Norris was employed as a Non-Foods Specialist at Allied. Norris's main duties in this position were selling food-related goods (not foods themselves), mostly supply and equipment, and assisting sales representatives (called "Marketing Associates") in the sale of these goods. Norris's duties required her to drive for long periods and to periodically lift objects weighing about thirty or forty pounds. See Ex. 81.

 B. Norris's Injury / Illness

 2. Norris testified that on September 6, 1994, she injured her back while attempting to assemble a table that Allied had sold to a school. About a month later, Norris fell and broke her knee in an accident that was not job-related. Surgery was performed on Norris's knee in early November of 1994.

 3. Norris's physician, Dr. Alfred Tan, testified that the back injury caused Norris to have acute back pain. Tan testified that during the Fall of 1994 and/or in 1995, Norris also was suffering from chronic fatigue syndrome, irritable bowel disease, neck pain, urinary incontinence, and stress. Tan testified that Norris's back injury prevented her from driving for long periods or lifting heavy objects. He also testified that Norris's condition started to deteriorate in mid-August of 1995.

 4. Norris had back surgery on April 19, 1996 (after she was terminated). The surgery had initially been scheduled for the Fall of 1995. Tan testified that the recovery time for the type of surgery Norris had was usually about six months. Tan testified that Norris's condition began to improve in July or August 1996. During trial, Norris stated that she was still suffering from back pain.

 C. Norris's Disability Leave

 5. In September 1994, Norris left work on disability leave. As is documented in detail below, starting in September 1994, Norris sent Allied a series of doctor's notes which stated that Norris would not be able to work for a period which was generally between several weeks to two months from the date of the note. Starting in September 1994, as will also be documented in detail below, Norris filled out a number of claims forms for disability benefits.

 6. Norris filled out a claim for disability benefits for the State of California on September 15, 1994. In this form, Norris responded to the question "What was the first day you were too sick to perform all the duties of your regular or customary work?" by filling in "9/12/94." Norris signed her name below a statement on the form which said, "I hereby claim benefits and certify that for the period covered by this claim I was unemployed and disabled. . . ." On a doctor's certificate attached to the form, Dr. Tan answered "yes" to a question that asked whether Norris had "been incapable of performing his or her regular work." Dr. Tan stated that the approximate date that Norris would be able "to resume regular or customary work" was October 28, 1994. Ex. 862.

 7. On September 16, 1994, Norris sent a memo to Hank Ontiveros, Allied's Director of Human Resources, stating that her doctors would recommended that she take a disability leave as soon as possible. Ex. 233. On September 16, 1994, one of Norris's doctors filled out a "Back to Work" form stating that Norris would be "off medically until October 28, 1994." Ex. 864.

 8. On September 27, 1994, Norris filled out a state disability form similar to the one she filled out on September 15, 1994. Dr. Tan filled out a doctor's certificate similar to the one attached to the form filled out on September 15, 1994, and he again stated that the approximate date that Norris would be able "to resume regular or customary work" was October 28, 1994. Ex. 865.

 9. On October 25, 1994, one of Norris's doctors at the Tri-Valley Orthopedic and Sports Medical Group ("Tri-Valley") *fn3" filled out a form which stated "work status . . . off duty: to be determined on 11-1-94." Ex. 874. On December 1, 1994, a doctor at Tri-Valley filled out a form for Norris, stating "no work status approx 1-1-95." Ex. 876. A form from Tri-Valley entitled "Return to Work Order," dated January 1, 1995, states that Norris would have "no duty until re exam 2-1-95[;] possible return to work end of Feb." Ex. 880. A Tri-Valley "Return to Work Order," dated February 23, 1995, states that Norris would have "no duty until after re exam 3-22-95." Ex. 884.

 10. On March 2, 1995, Norris filled out a claim form for long-term disability (LTD) benefits from the Principal Mutual Life Insurance Company ("Principal"). Principal was an insurer that provided disability coverage for Allied employees. On the form, in response to the question "When did you become wholly unable to work?," Norris answered "9-94." In response to the question "Have you been continuously disabled since you became unable to work?," Norris checked the box marked "yes." Responding to the question "When do you feel you will be able to resume work?," Norris stated "not known." Ex. 887.

 11. When questioned about this form at trial, Norris testified, "I don't know if during that whole time I was wholly unable to do any kind of work . . . . 'Wholly' was on the form. I took off on disability [in September 1994]. I answered [the form] to the best of my ability." Tan testified that he interpreted the language "wholly unable to work" on the form as meaning only that Norris had been wholly unable to work in her occupation as a Specialist.

 12. On March 8, 1995, Dr. Tan filled out an "Attending Physician's Statement" attached to the form Norris filled out on March 2, 1995. In response to the question "Is patient now totally disabled [from the 'patient's job']?," Tan marked the "yes" box. In response to the question "Is patient now totally disabled [from 'any other work']?," Tan marked the "yes" box. In response to the question "Do you expect a fundamental or marked change in the future [with respect to the 'patient's job']?," Tan marked the "no" box. In response to the question "Do you expect a fundamental or marked change in the future [with respect to 'any other work']?," Tan marked the "yes" box. Answering the question "When will/or did patient recover sufficiently to perform duties [with respect to 'any other work']?," Tan marked a box that stated "3-6 months." Tan then answered the question "Would job modification enable patient to work with impairment?" by marking the "no" box. Tan answered the question "Can present job be modified to allow for handling with impairment?" by marking the "no" box. Ex. 887.

 13. A letter from Principal to Norris, dated April 4, 1995, stated that Principal would "review [Norris's] claim for consideration under the Total Disability Section of [her] group life policy." The letter added, "If we determine that you are totally disabled, you would be eligible for this benefit effective June 28, 1995. We will notify you once a decision is made on this claim." Ex. 896.

 14. In letters dated March 29, 1995, and April 5, 1995, Ontiveros requested that Norris see a doctor picked by Allied so that Allied could verify Norris's medical condition. Ex. 280, 281. Norris testified that she saw the doctor, Dr. Khalid Baig.

 15. On April 20, 1995, Steve Noon, Allied's Director of Marketing, sent a letter to Norris which stated, "This letter is in anticipation of your return to work this coming Monday, April 24, 1995, in your new position as Sysco Brand Manager -- Non-Foods -- West." The letter further stated, "I'd like you to report to my office at 9:00 a.m. on Monday morning, April 24, 1995." Ex. 282.

 17. Norris testified that Allied sent job descriptions of both the Brand Manager and the Non-Foods Specialist positions to her doctors at Tri-Valley, Dr. Grant and Dr. Malstrom, in April of 1995. See Ex. 277. Norris testified that Dr. Grant obtained the job descriptions in order to determine exactly what Norris's position was to aid his assessment of whether and under what circumstances Norris could be permitted to return to work. Norris testified that Dr. Grant sent a form to Principal stating that Norris could return to work with limited driving and limited duties. *fn4"

 18. On May 3, 1995, a doctor at Tri-Valley filled out a "Return to Work Order" that stated that Norris would have "no duty until re exam [with] Dr. Grant 5-12-95." Ex. 909. On May 5, 1995, Dr. Tan filled out a "Certificate to Return to School or Work" which stated that Norris would be able to return to work on July 31, 1995. Ex. 910. On May 12, 1995, a doctor at Tri-Valley filled out a "Return to Work Order" that stated that Norris would have "no duty until further notice -- pending MRI . . ." Ex. 912. A "Return to Work Order," dated May 19, 1995, from Tri-Valley, stated that Norris would have "no duty until one month[;] awaiting neurology consult." Ex. 914.

 19. Norris sent Allied a "Certificate to Return to School or Work," signed by Dr. Tan on June 7, 1995, which stated that she would be able to return to work on July 10, 1995. Above this certificate, Norris wrote a note to Deborah Barbe, Allied's Benefits and Workers Compensation Supervisor, stating, "I have not heard from principal Mutual on the LTD yet, have you?" Ex. 916. On June 8, 1995, Norris sent Barbe a memo stating that she was attaching a return to work certificate and that she was "looking forward to a full recovery and resuming [her] career." Ex. 917. On June 21, 1995, Norris sent a memo to Barbe which asked for "an update on [her] medical leave status and long term disability insurance status." Ex. 918. A "Return to Work Order" from Tri-Valley, faxed by Norris to Allied and dated June 19, 1995, states that Norris would have "no duty until 4 weeks." Ex. 922.

 20. On July 10, 1995, Dr. Tan wrote a report about Norris that was sent to Principal. The report describes Norris's medical problems and concludes with the following two paragraphs:

 
At her current degree of illness with associated symptoms, [Norris] cannot sit or stand longer than one hour at a time. I recommend that she does not drive more than 45 minutes at a time. She should not lift more than 10 lbs. occasionally; and she should refrain from bending. She should not perform repetitive upper extremity movements. She should not lift or reach above her shoulders. For this reason, Mrs. Norris is unable to perform her duties at her own occupation.
 
At this time, her prognosis is guarded. I anticipate her condition to be stable for the next 2-3 months. If you have any questions, please don't hesitate to contact me.

 Ex. 923. At trial, Tan testified that it was his opinion in July of 1995 that Norris was unable to perform her duties at her occupation, as her duties required driving and lifting. *fn5"

 22. Barbe testified that since the beginning of Norris's disability leave, other than during a brief period in April 1995, Allied always had at least one active (unexpired) medical excuse slip from Norris stating that she was not released to return to work. However, no documentary evidence was introduced at trial showing that Allied was provided with a medical excuse that was effective for the period between October 31, 1995, and November 30, 1995 (the date Norris was terminated).

 23. Most of the "return to work" forms filled out by Norris's doctors had boxes or blanks which stated "light work," "light duty," or "restrictions." In no case were the "light work" or "light duty" boxes or blanks checked or filled in, and in no case did one of Norris's doctors indicate on the "return to work" forms that Norris had any specific "restrictions." Dr. Tan testified that the "return to work" forms he filled out only meant that Norris could not perform her regular occupation.

 D. Evidence Relating to Whether Norris Requested Accommodation

 24. Norris testified that she told Barbe orally that she would like to return to work with accommodations. Norris testified that she asked Barbe whether she could work at home or part-time. Norris testified that these requests were made around April of 1995. In response to a question by defense counsel about why Norris had not asked in writing about the possibility of working from home, Norris answered that she had asked Barbe orally many times. Norris also testified that Dr. Grant told her that she could return to work with limited driving and limited duties.

 25. Norris testified that in response to her inquiries about working from home or part-time, Barbe either told her that she would get back to her or that Norris should talk to Ontiveros about the matter. Norris testified that Allied never responded to her inquiries about working at home or part-time. Norris also testified that Barbe and Ontiveros told her between May and July of 1995 that she had to be fully recovered to be permitted to return to work.

 26. Barbe testified that she talked to Norris several times per month or per week during Norris's disability. Barbe testified that Norris never asked her about working at home or part-time. Barbe testified that Norris never discussed with her in any way working from home or part-time or returning to work with light duty. Barbe testified that Norris never requested reasonable accommodation or indicated a need for accommodation. Barbe testified that Norris never indicated that she was ready to return to work. Barbe also testified, however, that Norris expressed a desire to return to work when she could. Frank Damante, Allied's President, testified that he was not aware of any request by Norris to return to work or to be accommodated.

 27. Norris also contended at trial that certain written inquiries she made to Allied constituted or reflected requests for accommodation. Norris inquired, in a letter to Ontiveros dated April 24, 1995, "Would you please provide me with information on any programs designed to facilitate employees returning to work from an injury or serious illness?" Ex. 904. *fn6"

 28. Ontiveros responded, in a letter dated May 1, 1995, as follows:

 Ex. 289.

 29. In a memorandum to Barbe dated June 21, 1995, Norris wrote:

 
I would also appreciate an update on my medical leave status and long term disability insurance status. As I have discussed with you previously, my financial situation is adding further to my distress. If there are any options that Allied Sysco/Sysco offers employees on disability, please advise me as soon as possible.

 Ex. 918.

 30. Barbe responded, in a letter dated June 30, 1995,

 
All options available to employees of Allied Sysco who are on disability have been extended to you. This includes the coordination of all available sick and vacation time with state disability, and the application for Long Term Disability coverage after an individual has met the six (6) month waiting period. Ex. 303.

 31. Norris contended that the inquires in her letters of April 24, 1995, and June 21, 1995 (about "programs designed to facilitate employees returning to work from an injury or serious illness" and "options that Allied Sysco/Sysco offers employees on disability"), were inquiries about returning to work with accommodation. Barbe testified that Allied understood the inquiry about "programs designed to facilitate employees returning to work from an injury or serious illness" as an inquiry about rehabilitation programs. Barbe testified that she did not understand the inquiry about "options that Allied Sysco/Sysco offers employees on disability" to be an inquiry about returning to work with accommodation but understood the inquiry to be related to Norris's concerns about her financial situation.

 32. While Allied disputes Norris's claim that she requested accommodation, it is undisputed that Allied did not make any efforts to accommodate Norris. Damante testified that no efforts were made to accommodate Norris and that Allied did not make any inquiries in their communications with Norris about accommodation. Barbe testified that Allied never engaged in any kind of interactive process with Norris to determine whether some sort of accommodation could permit Norris to return to work.

 E. Norris's Termination

 33. On November 30, 1995, Allied terminated Norris, effective December 1, 1995. Allied notified Norris about the termination and explained the termination in a letter, which stated, in relevant part,

 
As you know, your Family and Medical Leave Act leave ended several months ago. Due to your continuing unavailability for work, despite the expiration of your leave and the exhaustion of all vacation and sick time, the Company has determined that it will no longer hold your position open. Thus, your employment with Allied-Sysco Food Services, Inc., is terminated effective December 1, 1995.

 Ex. 316.

 F. Norris's Receipt of Disability Benefits

 35. On February 14, 1996, Principal sent a letter to Norris. The letter stated, "I am pleased to tell you that we are approving your claim under the Total Disability Section of your Group Life Policy." The letter continued, "This letter will provide you with important information about your benefits." In a section entitled "Benefit Information," the letter stated "As long as you remain unable to work at any occupation, your life insurance in the amount of $ 111,000.00 will continue without further premium payment." Ex. 929. No documentary evidence was introduced showing that Norris received any long-term disability benefits from Principal prior to February 1996.

 36. Norris testified that she was still receiving long-term disability benefits from Principal at the time of trial. When asked at trial about whether she was receiving "total disability" benefits, Norris answered, "I don't quite know how to answer this . . . it [the letter from Principal] says 'total disability,' and I don't think I'm totally -- I don't know that that's been determined yet."

 G. Evidence Relating to Essential Functions of Norris's Position

 37. On December 21, 1994, Allied offered Norris the position of "Sysco Brand Manager -- West." Ex. 247. Norris and Damante each testified ...


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