Fewer

concurring:

I concur in the majority disposition other than the part relating to judicial estoppel. I would not reach that question but would simply resolve the appeal on the merits.

MEMORANDUM **

John J. Fewer appeals the district court’s grant of summary judgment in favor of Copper & Brass Sales and Thyssen, Inc. (“C & B”) on Fewer’s claims of failure to accommodate, disability and age discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”) and his claim of wrongful termination in violation of public policy.

Fewer’s claims revolve around a central assertion: that he was able to work with little or no accommodation as of October 1, 2001, but C & B would not let him return to his position. However, during Fewer’s five month leave of absence for his back injury, his treating chiropractor, Dr. Gooing, sent C & B eight “Return to Work” notices, and all but two deemed Fewer “totally incapacitated.” In addition, Fewer was awarded disability benefits from the State of California, as well as short-term disability benefits under C & B’s Welfare Plan, based on declarations that he was unable to return to work during this period. Because Fewer failed to “proffer a sufficient explanation” to the district court for these inconsistent positions, the court did not abuse its discretion applying the doctrine of judicial estoppel. Cleveland v.…