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A plaintiff suing under the Americans with Disabilities Act cannot be barred from pursuing that claim on the grounds that she previously claimed to be unable to work when seeking Social Security and long-term disability benefits if the ADA claim is premised on a denial of a reasonable accommodation, the 3rd U.S. Circuit Court of Appeals has ruled. In its 24-page opinion in Turner v. The Hershey Co., a unanimous three-judge panel rejected the employer’s argument that plaintiff Janet Turner should be “judicially estopped” from pursuing her ADA claim because the statements in her applications for Social Security Disability Insurance and long-term disability pay conflict with her claim in the lawsuit that she is able to work. “Because these statements did not state categorically that Turner could not work at all or take into account Turner’s entitlement to reasonable accommodation, we see no inconsistency between these statements and her current claim,” Circuit Judge Marjorie O. Rendell wrote in an opinion joined by Circuit Judges D. Michael Fisher and Franklin S. Van Antwerpen. Rendell also found that the trial judge erred in granting summary judgment in favor of Hershey on the grounds that Turner could not show that she was able to perform all of the essential functions of her job. Instead, Rendell found that a jury must decide the issue because Hershey had recently added a new requirement that all workers in Turner’s position rotate among three production lines, including one line that Turner claimed she was unable to work as a result of her back injuries. Rendell found that U.S. District Judge Paul S. Diamond erred when he agreed with Hershey’s argument that its rotation scheme was an “essential function” of the job. According to court papers, Turner began working at Hershey’s plant in Reading, Pa., in August 1985, but was forced to take a “light duty” position in 1999 after the first of several surgeries to correct chronic back problems. At first, Hershey accommodated Turner’s work restrictions, assigning her to work as a “shaker table inspector” on a York Peppermint Pattie line — a post that entailed sitting or standing on the side of the line while repeatedly reaching, stretching, and twisting to maneuver and remove the chocolate-covered and uncovered mint patties. Hershey operated three such lines, but the work on two of the lines was considered easier because it allowed the inspector to remain seated. But in 2001, Hershey discovered that shaker-table inspectors were suffering from repetitive-stress injuries. To address the problem, Hershey instituted a new requirement that inspectors rotate among all three lines daily. The rotation system was intended to allow the inspectors to change positions hourly, to alternate between sitting and standing, and to use both their left and right arms, thus decreasing the likelihood of repetitive-stress injury. But Turner objected to the rotation scheme and refused to work on the line that required standing. Her lawyer wrote a letter to plant management that requested she be exempted from the rotation system, and her doctor submitted a new form that outlined more explicit limits in her work restrictions. Hershey responded by telling Turner that participation in the rotation system was essential to the job because it was designed to prevent injuries to all of the inspectors. As a result, Turner was not allowed to return to work and applied for disability pay. In her ADA suit, Turner’s lawyer, Brooke Martin Boyer of Reading, Pa., alleged that Turner was not completely disabled and could have performed her job if Hershey had accommodated her by exempting her from the rotation system. Hershey lawyers — Michael McAuliffe Miller and Mark A. Fontana of the Harrisburg office of Wolf Block Schorr & Solis-Cohen — moved for summary judgment, arguing that Turner’s claim was fatally flawed because participation in the rotation system was an “essential function” of the job. Diamond agreed and dismissed the suit in November 2004, saying “I conclude that the ADA does not require an employer to ‘accommodate’ a disabled employee if the accommodation would threaten the health and safety of that employee or other employees.” Diamond concluded that the rotation system was an “essential function” of the job, and that since Turner could not perform it, she was not a “qualified individual” under the ADA. If Turner were allowed to limit her work to just two lines, Diamond found it would increase the likelihood that she would suffer from repetitive-stress injuries to her arms or wrists, and that exempting her from the rotation system “would also necessarily limit the rotation system for the other inspectors, thus increasing the likelihood that they would suffer repetitive-stress injuries.” Rendell disagreed, saying “it is not clear to us upon what the district court based these conclusions. The record contains no evidence of any kind that an alternate rotation system — one in which Turner rotated only between [two] lines … and the other shaker-table inspectors accommodated their rotation schedule accordingly — would be likely to cause any adverse health consequences to Turner or others.” The central issue in the case, Rendell found, was whether rotation could truly be considered an “essential” function of the job. Rendell found that several facts weighed against a finding that participating in the rotation system was an essential function of the shaker line position. The written job description, Rendell noted, contained no reference to rotation; the company’s collective bargaining agreement makes no reference to the rotation system; and, prior to 2001, the inspectors had not rotated. But Rendell said it was up to a jury, and not the courts, to make the ultimate factual decision. “While our analysis points in the direction of finding that the rotation policy was not an essential function of Turner’s job, we have historically refused to make such a factual finding on our own, lest we run afoul of our own directive to the district courts that these issues are for the jury to decide,” Rendell wrote. Turner has the right to have her claim decided by a jury, Rendell said, because she has evidence to support a finding that rotating is not an essential function of inspector position. “We hold the district court erred in granting summary judgment and determining that Turner was not a ‘qualified individual’ under the ADA because she could not perform an essential job function. Rather, the fact issue as to ‘essential function’ must be decided by a jury,” Rendell wrote.

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