Appeal from a judgment of the United States District Court for the Eastern District of New York (Korman, J.). DeRosa appeals the district court's grant of summary judgment dismissing his claim of discrimination on account of disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112, on the ground that claims made in connection with his application for Social Security Disability Insurance Benefits barred his claim. Vacated and Remanded.
The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge
Before: POOLER, B.D. PARKER, and RAGGI, Circuit Judges.
Robert DeRosa appeals from a judgment of the United States District Court for the Eastern District of New York (Korman, J.) following an award of summary judgment to the National Envelope Corporation. DeRosa had sued National Envelope, his former employer, alleging discrimination on account of a medical disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112 (the "ADA").
DeRosa argues that the district court incorrectly concluded that, as a consequence of statements he made in application forms for disability benefits, he was judicially estopped from arguing that he was capable of performing the essential functions of his job. We conclude that those statements did not give rise to judicial estoppel. Consequently, we vacate and remand to the district court for further proceedings.
The facts, unless otherwise noted, are not disputed. DeRosa became an employee of National Envelope in 1988, working as a customer service representative. His duties included quoting prices to customers and processing orders. Around 2002, DeRosa suffered a traumatic injury to his right leg. As a long-term result of this injury, DeRosa suffers from venous insufficiency, a condition that can result in swelling, ulcers, and infections. In response, DeRosa's physician instructed him to "limit the dependency of his right leg; . . . avoid sitting or standing for prolonged periods of time; and . . . elevate his leg above his heart at regular intervals." DeRosa's physician also instructed him to, if possible, work from home. National Envelope agreed to this accommodation. It arranged for him to work from home by providing him with remote technology including a telephone, computer, and fax machine. During the two-year period from 2002 to 2004, however, DeRosa's medical condition did not abate, and his physician directed him to continue the prescribed treatment, including working from home, to slow the progression of his condition and to minimize discomfort.
In October 2004, a new chief executive officer of National Envelope decided to rescind the accommodation. He instructed DeRosa that he could no longer work at home, and that he would either have to return to work at the corporation's facilities, or be terminated. DeRosa, understanding that his medical condition would not permit this change, informed his supervisor that he could not return to on-site work. National Envelope then terminated DeRosa's employment. DeRosa alleges that his employer encouraged him to file for social security disability payments. DeRosa and National Envelope disagree on whether, prior to his discharge, he had satisfactorily performed the essential functions of his job. The district court did not resolve this dispute, but for purposes of this appeal, we assume DeRosa performed his work satisfactorily.
After his termination DeRosa applied for Social Security Disability Insurance ("SSDI") benefits. DeRosa's application, filed November 2004, included the sentences "I became unable to work because of my disabling condition on October 13, 2004" and "I am still disabled." In a subsequent portion of his application, DeRosa answered the question, "[h]ow do your illnesses injuries or conditions limit your ability to work?" He replied "[c]an't write, type, sit, stand, walk & lift, reach, grab, bend." DeRosa also explained that his disability caused a change in his job duties in that he "could no longer commute, had to work from home." A different form, issued by the New York State Office of Temporary and Disability Assistance ("NYSOTDA"), and signed by DeRosa in December 2004, included the topic "Social Activities" and within that topic asked "Do you spend time with others? (In person, on the phone, on the computer, etc.)  YES NO If 'YES', describe the kinds of things you do with others." DeRosa checked "yes" in answer to the question, and elaborated by writing "family and social gathering. Spoke on the phone and worked with computer."
Within the same topical group of questions, the form included the question "Describe any changes to your social activities since your illnesses, injuries, or conditions began." DeRosa answered that he was "no longer able to speak on phone or work with computer [due] to pain."
DeRosa sued National Envelope in July 2006, alleging that his termination violated the ADA. Following discovery, National Envelope moved for summary judgment. The district court concluded that DeRosa's statements about phone and computer usage on the SSDI and NYSOTDA forms estopped him from claiming that he was able to perform the essential functions of a customer service representative and that, as a result, he could not establish an essential element of his ADA claim. The court granted summary judgment, and this appeal followed. We review a district court's grant of summary judgment de novo, and we construe the evidence in the light most favorable to the non-moving party. Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004).
A plaintiff alleging a violation of the ADA has the burden of making out a prima facie case, which includes the following elements: "1) he was an 'individual who has a disability' within the meaning of the statute; 2) the employer had notice of his disability; 3) he could perform the essential functions of the job with reasonable accommodation; and 4) the employer refused to make such accommodation." Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 (2d Cir. 2000). Since DeRosa had a disability which was known to his employer and had been accommodated in the past, the only disputed ...