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.
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.
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 substantial gainful activity.'" The Court of Appeals reversed. The court rejected the very argument defendant proffers here:
Even if a finding of disability could have preclusive effect in a private lawsuit, such a finding is consistent with a claim that the disabled person is "qualified" to do his job under the Rehabilitation Act.