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McNemar v. Disney Store

July 31, 1996






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.

ALDISERT, Circuit Judge.

(Filed July 31, 1996)


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 Section(s) 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. Section(s) 1331. The district court had supplemental jurisdiction over Appellant's state law claims pursuant to 28 U.S.C. Section(s) 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.


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 ...

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