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June 10, 1994

SHAWN L. SMITH, Plaintiff,


The opinion of the court was delivered by: RUBEN CASTILLO

The defendant, Dovenmuehle Mortgage, Inc., moves for summary judgment on plaintiff's claims for violation of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq., ("ADA") (Count I), and intentional infliction of emotional distress (Count III). For the reasons set forth below, defendant's motion is denied.


 The following facts are undisputed unless otherwise noted. Plaintiff Shawn Smith was an employee of Defendant Dovenmuehle Mortgage, Inc. ("Dovenmuehle") from February 1985 until the date of his termination on October 8, 1992. Complaint P 6. Smith was diagnosed as being infected with Human Immunodeficiency Virus ("HIV") in March 1990. Joint Final Pretrial Order, Exhibit A-1 ("Stipulated Facts"), P 3. At some point prior to his termination, Smith's HIV infection ripened into full-blown AIDS. The parties disagree on whether Smith told anyone at Dovenmuehle about his condition prior to his termination. Smith claims that July 1992 he told his immediate supervisor, Mary Przybyla, that he had AIDS and that from that point on, she was distant and hostile to Smith. Plaintiff's Local Rule 12(n) Statement ("Plaintiff's Facts"), P 17; Complaint PP 12, 13. Dovenmuehle denies that Przybyla was aware that Smith had AIDS prior to his termination. Defendant's Response to Plaintiff's Local Rule 12(n) Facts, ("Defendant's Response"), P 17.

 Smith's seven-year tenure at Dovenmuehle was marked by several promotions. Complaint P 6. In December 1990 he was promoted to Manager of the Collections Department, and in May 1991 he became the Assistant Vice President and Manager of the Customer Service Department, the position he held at the time of his termination. Stipulated Facts, PP 2, 4. In early 1992, Smith was working on a project involving the recertification of 12,500 GNMA loans. Plaintiff's Facts, P 5. On September 16, 1992, GNMA's outside auditors sent Dovenmuehle a list of loans which were past due for recertification. Stipulated Facts, P 10. The letter informed Dovenmuehle that it must complete the recertification by October 16, 1992 or risk losing the entire GNMA portfolio. Plaintiff's Facts, P 6. In order to meet the deadline, Dovenmuehle incurred approximately $ 240,000 in costs. Stipulated Facts, P 12. The parties disagree about who was to blame for these events. According to Dovenmuehle, Smith was directly responsible because he failed to inform his supervisors of the backlog. Defendant's Response, P 27. Smith, however, claims that Dovenmuehle's management knew that the project would not be completed on time. Plaintiff's Facts, P 6. Dovenmuehle fired Smith on October 8, 1992. Stipulated Facts, P 13.

 After he was fired, Smith applied for, and was denied, benefits under Dovenmuehle's disability program. Stipulated Facts, P 20. Smith also applied for disability benefits from the Social Security Administration ("SSA") on October 26, 1992. Id., P 17. In his application, Smith stated that he was suffering from AIDS, peripheral neuropath, and HIV wasting syndrome, and that his condition made him stop working on October 7, 1992. Defendant's Local Rule 12(m) Facts ("Defendant's Facts"), P 8, Exhibit 5 at 1. Smith's doctor, Andrew Pavlatos submitted a medical evidence report to the Illinois Bureau of Disability Determination Services on or about December 21, 1992 stating that "due to impaired cognitive skills [Smith] can only do ADLS [activities of daily living]." Id., P 8, Exhibit 3.

 The SSA awarded Smith monthly disability benefits from October 7, 1992. Stipulated Facts, P 21. Although Smith claims that by November 1992 he had recovered from his disability sufficiently to perform the essential functions of his former job, he claims he was unable to find another job in his field because his work record was marred by his allegedly pretextual termination. Plaintiff's Facts, P 27. In March 1994, Smith obtained a job as a full-time administrator for a non-profit organization. Stipulated Facts, P 22. He has informed the SSA of his current employment status and continues to receive social security benefits as part of a nine-month trial period. Plaintiff's Facts, PP 30, 31.

 After obtaining a Notice of Right to Sue from the EEOC on December 15, 1993, Smith filed this lawsuit against Dovenmuehle on January 21, 1994. Smith alleges that Dovenmuehle terminated him and denied him benefits because he has AIDS in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111 et seq. ("ADA") and the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. ("ERISA"). In addition, Smith invokes this court's supplemental jurisdiction over his state common law claim for intentional infliction of emotional distress. Smith is seeking back pay, attorney's fees, costs, punitive damages, reinstatement to his former position, and an injunction enjoining Dovenmuehle from engaging in any discriminatory practices against employees with AIDS. Dovenmuehle has moved for summary judgment on the ADA claim, arguing that Smith is judicially estopped from recovering under the ADA because he has represented to the SSA that he is "disabled" and receives social security benefits as a result. Dovenmuehle further argues it is entitled to summary judgment on Smith's claim for intentional infliction of emotional distress because the conduct alleged was not outrageous as a matter of law. *fn1"


 Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 98 L. Ed. 2d 486, 108 S. Ct. 488 (1987), and draw all inferences in the nonmovant's favor, Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50; Flip-Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 102 L. Ed. 2d 249, 109 S. Ct. 261 (1988). This court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. There is no issue for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 A. ADA Claim

 Defendant first argues that it is entitled to summary judgment on plaintiff's ADA claim for back pay and reinstatement because plaintiff is judicially estopped from proving that he is qualified for his former position because he has represented to the SSA that he was disabled and could not perform his job. *fn2"

 The doctrine of judicial estoppel prevents a party who has successfully maintained a position in one proceeding from asserting the contrary in another proceeding. Levinson v. United States, 969 F.2d 260, 264 (7th Cir.), cert. denied, 121 L. Ed. 2d 441, 113 S. Ct. 505 (1992). The function of judicial estoppel is to protect the integrity of the judicial process and prevent it from being manipulated by "chameleonic litigants." Id. Judicial estoppel consists of three elements: the later position must be clearly inconsistent with the earlier position, the facts at issue must be the same in both cases, and the party to be estopped must have been successful in convincing the first court to adopt its position. Id. Because a genuine issue of material fact exists as to whether the position taken by plaintiff before the SSA is inconsistent with the position taken by plaintiff in this lawsuit, defendant's motion for summary judgment on the ADA claim is denied.

 The Seventh Circuit recently has stated that a finding of disability by the Social Security Administration can not be construed as a judgment that the plaintiff is unable to do his job. Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992). The district court in Overton originally granted summary judgment for the defendant due, in part, to the SSA's finding that the plaintiff was entitled to disability benefits because he was "'unable to perform any ...

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