Equal Employment Opportunity Commission v. Greater Baltimore Medical Center, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1593

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellant,

v.

GREATER BALTIMORE MEDICAL CENTER, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cv-02418-RDB)

Argued: January 24, 2012 Decided: April 17, 2012

Before GREGORY and KEENAN, Circuit Judges, and Liam O'GRADY,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge O’Grady wrote the
majority opinion, in which Judge Keenan joined. Judge Gregory
wrote a dissenting opinion.

ARGUED: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. Lawrence Joseph
Quinn, TYDINGS & ROSENBERG, LLP, Baltimore, Maryland, for
Appellee. ON BRIEF: P. David Lopez, General Counsel, Lorraine
C. Davis, Acting Associate General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant.
Kristin P. Herber, TYDINGS & ROSENBERG, LLP, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
O'GRADY, District Judge:

The Equal Employment Opportunity Commission (EEOC) sued

Greater Baltimore Medical Center, Inc. (GBMC) under the

Americans with Disabilities Act (ADA), alleging that GBMC had

discriminated against Michael Turner (Mr. Turner), a former GBMC

employee. After discovery, the district court granted GBMC’s

motion for summary judgment, holding that under Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), EEOC had not

offered a satisfactory explanation for the conflict between

EEOC’s claim that Mr. Turner could work “with or without

reasonable accommodation” under the ADA and Mr. Turner’s prior

application for and receipt of Social Security Disability

Insurance (SSDI) benefits. For the following reasons, we affirm

the judgment of the district court.

I.

In reviewing a grant of summary judgment, we view the facts

and draw all inferences in favor of the non-moving party, EEOC.

See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986);

Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).

Mr. Turner began working for GBMC as a unit secretary in

1984. He worked part-time until 1990, when he became a full-

time unit secretary. His responsibilities involved answering

the phone, assisting with security badge access, answering

3
patient call lights, and using the fax machine. In 2005, Mr.

Turner was working as a full-time unit secretary for GBMC’s

postpartum unit when he experienced multiple serious medical

conditions.

In January 2005, Mr. Turner was hospitalized for

necrotizing fasciitis, a life-threatening condition. He

remained hospitalized for the next five months, underwent

intensive treatment and rehabilitation, and was ultimately

released from the hospital in July 2005. Mr. Turner’s

physician, Dr. Nathan Rosenblum, released him to work effective

November 2005. That same month, Mr. Turner was hospitalized

again, this time for a stroke. He left the hospital on December

27, 2005.

Two days later, on December 29, 2005, Mr. Turner applied

for SSDI benefits with the help of his mother, Margaret Turner

(Mrs. Turner). His application stated, in relevant part, “I

became unable to work because of my disabling condition on

January 15, 2005. I am still disabled.” JA 32. The

application indicated that Mr. Turner would notify the Social

Security Administration (SSA) “if my medical condition improves

so that I would be able to work, even though I have not yet

returned to work.” JA 33. A few days later, Mrs. Turner

submitted a function and disability report to SSA stating that

Mr. Turner’s multiple conditions--necrotizing fasciitis, stroke,

4
and diabetes--rendered him unable to work. The SSA approved Mr.

Turner’s application on January 22, 2006 and awarded benefits

retroactive to January 15, 2005, the date at which he was first

hospitalized for necrotizing fasciitis. To date, Mr. Turner

continues to receive monthly SSDI payments.

In January 2006, Mr. Turner notified GBMC that he intended

to return to work. He submitted a form completed by Dr.

Rosenblum indicating that he could return to work as a part-time

unit secretary as early as March 6, 2006, subject to certain

walking, bending, and lifting restrictions. 1 Mr. Turner also

underwent a physical examination by Dr. Paul Valle, of GBMC’s

Employee Health Department. Dr. Valle reported that Mr. Turner

could return to work on a limited part-time basis in a low-

volume area that did not require multitasking, thus ruling out

Mr. Turner’s old unit secretary position. According to Dr.

Valle, Mr. Turner could work safely as a file clerk.

In April 2006, GBMC told Mr. Turner that because he could

not return to work with the same job classification and hours he

had worked before, GBMC was not obligated to provide him with a

position. GBMC leave policy does not guarantee that an employee

on leave may return to his position, although an employee will

1
It is unclear when Dr. Rosenblum’s work releases were
submitted to GBMC, but the parties do not dispute that they were
submitted.

5
be considered for vacancies for which he is qualified. GBMC

also told Mr. Turner that he would be terminated unless he found

a suitable position before his leave expired on June 30, 2006.

Mr. Turner subsequently declined to apply for a file clerk

position because it required mostly standing and walking and, in

his view, was not challenging enough. JA 279-80, 384. He

applied for a part-time unit secretary position, but on Dr.

Valle’s recommendation, was not considered. JA 389.

On May 15, Dr. Rosenblum again examined Mr. Turner and saw

“no reason . . . that would prevent [Mr. Turner] from working a

full 40 hour week (5-8 hour shifts per week), with no

restrictions.” JA 391. He also observed that Mr. Turner was

“in much better physical condition than any time since 1992[.]”

JA 391. On June 1, Dr. Valle cleared Mr. Turner to return to

work full-time, though not to the unit secretary position. On

June 9, Mr. Turner declined to apply for a float pool file clerk

position because it was located far from his home and required

too much driving.

As foretold, GBMC terminated Mr. Turner’s employment on

June 30, 2006. Since his termination, Mr. Turner has

volunteered over 1,100 hours of his time to GBMC and has applied

to approximately twenty-eight positions at GBMC, ten of which he

was qualified for. GBMC has never rehired Mr. Turner. At no

6
time did Mr. Turner inform the SSA about his improved medical

condition.

In January 2007, in an intake questionnaire submitted to

EEOC, Mr. Turner indicated that his disability would not affect

his ability to work as a unit secretary and that he never

requested a reasonable accommodation from GBMC because he did

not need one. He filed a charge against GBMC with EEOC in

February 2007, and after some years of inactivity, EEOC found

reasonable cause to believe that GBMC had violated the ADA. On

September 14, 2009, EEOC filed this enforcement action.

II.

A.

The ADA prohibits a covered employer from discriminating

“against a qualified individual with a disability because of the

disability of such individual.” 42 U.S.C. § 12112(a). Among

other things, EEOC must show that Mr. Turner is a “qualified

individual with a disability,” that is, “an individual with a

disability who, with or without reasonable accommodation, can

perform the essential functions of the employment

position . . . .” Boitnott v. Corning Inc., No. 10–1769, ---

F.3d ---, 2012 WL 414662, at *2 (4th Cir. Feb. 10, 2012); 42

U.S.C. § 12111(8); see also Martinson v. Kinney Shoe Corp., 104

F.3d 683, 686 (4th Cir. 1997); Doe v. University of Md. Med.

7
Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995). “The term

‘reasonable accommodation’ may include . . . reassignment to a

vacant position.” 42 U.S.C. § 12111(9)(B).

Many persons who experience disabling medical problems

become eligible for programs like SSDI, at least temporarily,

during medical leave. If such a person seeks SSDI benefits and

attempts to bring a claim under the ADA, he may assert

disability in an application for SSDI benefits while

simultaneously asserting that he is a “qualified individual”

under the ADA, that is, he is able to work with or without

reasonable accommodation. A conflict of this sort may appear to

bar the claimant from receiving both disability benefits and ADA

coverage.

The Supreme Court addressed precisely this situation in

Cleveland v. Policy Mgmt. Sys. Corp., in which the plaintiff,

Ms. Cleveland, suffered a stroke affecting her concentration,

memory, and language skills. Cleveland, 526 U.S. at 798. She

improved quickly and returned to work two weeks later, but not

before filing an application for SSDI benefits stating that she

was “disabled” and “unable to work.” Id. at 798-99. After the

SSA denied her application for benefits, she was fired. Id. at

798. Ms. Cleveland then filed suit under the ADA. One week

later, the SSA reversed course and awarded benefits. Id. at

799.

8
 The district court granted summary judgment against Ms.

Cleveland and the Fifth Circuit affirmed, holding that Ms.

Cleveland’s SSDI application had created “a rebuttable

presumption that the claimant or recipient of such benefits is

judicially estopped from asserting that he is a ‘qualified

individual with a disability.’” Id. at 799-800 (quoting

Cleveland v. Policy Mgmt. Sys. Corp., 120 F.3d 513, 518 (5th

Cir. 1997)) (emphasis in original).

The Supreme Court reversed, rejecting the proposition that

a claimant who asserts disability in an application for SSDI

benefits is presumptively ineligible for ADA relief:

In our view, however, despite the appearance of
conflict that arises from the language of the two
statutes, the two claims do not inherently conflict to
the point where courts should apply a special negative
presumption like the one applied by the Court of
Appeals here. That is because there are too many
situations in which an SSDI claim and an ADA claim can
comfortably exist side by side.

Id. at 802-03. To begin with, SSDI and the ADA have different

statutory purposes. The SSDI program provides monetary benefits

for individuals, whereas the ADA is intended to eliminate

unwarranted discrimination and create equal opportunity. Id. at

801. Moreover, the legal standard used to determine SSDI

eligibility is different from that used to determine status as a

“qualified individual” under the ADA. SSA uses a five-step

eligibility determination that sometimes grants benefits to

9
individuals who “not only can work, but are working.” Id. at

804-05. The conflict between a claimant’s ADA claim and his

SSDI benefits application is therefore not a “purely factual

matter,” but rather a conflict between a legal position on the

one hand, and on the other a “context-related legal conclusion”

roughly equivalent to “I am disabled for the purposes of the

Social Security Act.” Id. at 802. In many cases, therefore, it

is comparing apples and oranges to interpret a charging party’s

application for SSDI benefits as presumptive proof of total

disability under the ADA.

Yet in other cases, a claimant’s application for SSDI

benefits may truly conflict with his claim under the ADA. Then,

the Supreme Court said, a court must determine whether the ADA

plaintiff has offered a “sufficient” explanation of the conflict

between the claim of disability and the ADA claim. Id. at 805-

06. The Court described its approach this way:

When faced with a plaintiff’s previous sworn statement
asserting “total disability” or the like, the court
should require an explanation of any apparent
inconsistency with the necessary elements of an ADA
claim. To defeat summary judgment, that explanation
must be sufficient to warrant a reasonable juror's
concluding that, assuming the truth of, or the
plaintiff’s good-faith belief in, the earlier
statement, the plaintiff could nonetheless “perform
the essential functions” of her job, with or without
“reasonable accommodation.”

Id. at 807. Although the Supreme Court determined that Ms.

Cleveland had offered a sufficient explanation on the record

10
before it, the Supreme Court nevertheless remanded for further

development of the factual record supporting Ms. Cleveland’s

explanation. Id.

B.

This Circuit has applied Cleveland in two reported cases,

both of which illustrate the fact-intensive nature of our task.

In EEOC v. Stowe Pharr-Mills, Inc., 216 F.3d 373, 377, 379-80

(4th Cir. 2000), for example, summary judgment was inappropriate

where the claimant, Ms. Treece, initiated an ADA charge that

facially contradicted her SSDI application, which included the

statement “I became unable to work because of my disabling

condition on March 24, 1994.” Ms. Treece’s continued receipt of

SSDI benefits did not require summary judgment because an SSDI

benefits intake officer had told her that she did not need to

mention that she was limited only in her ability to work on

wooden floors, and because her medical condition had degraded to

total disability only after she was terminated. Id. at 379-80.

Likewise, in Fox v. General Motors Corp., 247 F.3d 169, 177

(4th Cir. 2001), summary judgment against the plaintiff was

improper where his ADA hostile work environment claim did not

overlap temporally with his separate claim for workers’

compensation based on temporary total disability. The plaintiff

had applied for workers’ compensation after leaving the plant

11
where he suffered mistreatment and had shown that his disability

was caused by the hostile work environment. Id. at 178.

In both of these cases, the analysis under Cleveland

involved careful examination of the factual record to determine

whether the plaintiff had offered a satisfactory explanation for

the apparent contradiction between the disability benefits

application and the ADA claim.

III.

EEOC raises two issues on appeal. First, EEOC argues that

the Supreme Court’s decision in Cleveland does not and cannot

apply to an enforcement action by EEOC. Second, if Cleveland

applies here, EEOC argues that it has sufficiently explained the

contradiction between Mr. Turner’s eligibility for SSDI benefits

and its claim that Mr. Turner can work with or without

reasonable accommodation. We address each in turn.

A.

EEOC argues that Cleveland cannot apply to enforcement

actions like this one. EEOC distinguishes this Court’s decision

in EEOC v. Stowe Pharr-Mills, Inc. because it had no occasion to

determine whether Cleveland could ever permit summary judgment

against EEOC in an enforcement action on behalf of an individual

claimant.

12
 As Stowe Pharr-Mills, Inc. demonstrates, however, the same

analysis properly applies to ADA enforcement actions brought by

EEOC. 216 F.3d at 377-79. It is true that EEOC has a

governmental interest in an enforcement action that is not

merely derivative of the individual claimant’s interest. This

does not mean, however, that a claimant’s statements to other

government agencies are somehow less relevant to an enforcement

action on behalf of the claimant than they are for an action

pursued by the claimant himself. After all, Cleveland did not

consider the nature of the claimant’s interest, but applied

summary judgment principles. See Cleveland, 526 U.S. at 806

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

The proper question is whether the conflict between the

claimant’s disability application and his claim to be a

qualified individual under the ADA presents a genuine issue of

material fact. Id. at 805-06; Stowe Pharr-Mills, Inc., 216 F.3d

at 378; see also Giles v. General Elec. Co., 245 F.3d 474, 484

n.13 (5th Cir. 2001).

To avoid summary judgment in an enforcement action like

this one, therefore, EEOC must make a showing sufficient to

establish a genuine issue of material fact on the essential

elements of its case, and on which it will bear the burden of

proof at trial. Stowe Pharr-Mills, Inc., 216 F.3d at 378. This

13
merely means that EEOC has the same factual burden as would Mr.

Turner pursuing his own ADA claim in federal court.

B.

When presented with an apparent conflict between the

charging party’s claim of disability and his status as a

“qualified individual” under the ADA, the central question is

whether the offered explanation for the conflict would warrant a

reasonable juror's conclusion that, assuming the truth of, or

the claimant’s good faith belief in, the earlier statement, the

claimant could nonetheless perform the essential functions of

his job during the relevant time period. Cleveland, 526 U.S. at

807. Here, the relevant time period runs from the date of Dr.

Rosenblum’s first work release, dated January 23, 2006, to his

termination on June 30, 2006.

EEOC can satisfy the Cleveland test by showing that an

apparent or facial conflict is not a genuine conflict. See

Cleveland, 526 U.S. at 807; Stowe Pharr-Mills, Inc., 216 F.3d at

378; Feldman v. Amer. Mem. Ins. Co., 196 F.3d 783, 790 (7th Cir.

1999) (“The ADA only protects the disabled who can work with or

without reasonable accommodation while SSDI does not consider

reasonable accommodation at all in defining disability.”). If

the conflict is real, EEOC can still avoid summary judgment by

showing that returning to work during the relevant time period

would not have constituted a material change in Mr. Turner’s

14
condition that would trigger his obligation to notify the SSA.

See Cleveland, 526 U.S. at 807; 20 C.F.R. §§ 404.316(b)(3),

404.1594(b)(1) (2012).

C.

There can be little doubt that the conflict between Mr.

Turner’s SSDI application and his ability to work with or

without reasonable accommodation is genuine. Mr. Turner’s SSDI

application, submitted on December 29, 2005, states, “I became

unable to work because of my disabling condition on January 15,

2005,” and, “I am still disabled.” JA 32. Moreover, “I [Mr.

Turner] agree to notify the Social Security Administration . . .

[i]f my medical condition improves so that I would be able to

work, even though I have not yet returned to work.” JA 33. The

record indicates without contradiction that Mr. Turner was

unable to work after he left the hospital on December 27, 2005.

Mrs. Turner later submitted a form called a “Function Report”

(dated January 9, 2006) in which she described Mr. Turner’s

symptoms and impairment. JA 38-45. She noted severe disability

in his left arm or hand, use of a bedside commode with hand

rails, left-sided weakness requiring assistance, leg bracing,

inability to drive, inability to lift more than 2-3 pounds,

severely limited ability to stand, bend over and back, and

walking. JA 39-43. Mr. Turner’s reported disabilities included

not only those caused by his stroke, but also by his medical

15
problems from early 2005. Taken together, the SSDI application

and documentation reasonably communicated that Mr. Turner was

and would continue to be totally or almost-totally disabled.

Consistent with the application, the SSA awarded benefits

to Mr. Turner on January 22, 2006. JA 673, 677-79. Mr. Turner

continued to receive SSDI benefits at the time of the district

court’s decision. JA 30. Mr. Turner did not revise his

statements to SSDI, and apparently never notified the SSA about

a change in his condition. JA 14, 66, 130.

These reported disabilities conflict with the multiple work

releases provided by Dr. Rosenblum to GBMC on January 23, 2006,

February 28, 2006, March 6, 2006, and May 15, 2006. Except for

the May 15 release, each imposed some work restrictions. They

all indicated that Mr. Turner could have returned to work,

directly contradicting the assertion in his SSDI application

that he was and continued to be unable to work. There is no

indication that the conflict could be resolved “with reference

to variance between the definitions of ‘disability’ contemplated

by the ADA and SSDI.” Feldman, 196 F.3d at 791. At the time of

his SSDI application, Mr. Turner represented that he was unable

to work and would continue to be unable to work. If Mr. Turner

told GBMC in good faith that he could return to work, then he

had no reason to believe that his earlier representations of

disability were still accurate. See Lee v. City of Salem, 259

16
F.3d 667, 676 (7th Cir. 2001) (assuming for the purposes of

Cleveland analysis that claimant was not deliberately distorting

the truth in SSDI application).

EEOC argues that Mr. Turner’s eventual participation in the

Ticket to Work program resolves any conflict with his prior

statements about his disability. It does not. In any event,

Mr. Turner began participating in the “Ticket to Work” program

in 2009, almost two years after filing his ADA charge and well

beyond the relevant time period. JA 530.

D.

We next turn to whether Mr. Turner’s good-faith belief in

the accuracy of his SSDI application is reconcilable with his

ADA claim. Assuming that Mr. Turner believed in good faith that

his SSDI application was accurate, this belief must be somehow

have been consistent with his subsequent failure to notify SSA

that he was no longer disabled. The central question is

therefore whether Mr. Turner could have reasonably believed that

his improved physical condition would not trigger his obligation

to notify SSA about the change in his condition. 2

2
SSA regulations state, in relevant part: “If you are
entitled to cash benefits or to a period of disability because
you are disabled, you should promptly tell us if—
(1) Your condition improves;
(2) You return to work;
(3) You increase the amount of your work; or
(4) Your earnings increase.”
(Continued)
17
 The answer is clearly “no.” Mr. Turner, with the

assistance of his mother, submitted documentation showing

without qualification that he was unable to work. JA 45. There

is no evidence that Mr. Turner told the SSDI intake officer that

he could have continued working with or without reasonable

accommodation at that time. See Stowe Pharr-Mills, Inc., 216

F.3d at 379. The record supports the contrary conclusion: after

Mr. Turner’s significant medical problems in 2005, his

unqualified representations of disability in his SSDI

application were clearly intended to be taken at face value.

SSA would have been justified in interpreting such stark

assertions of disability - supported by later filings and never

revised - as demonstrating Mr. Turner’s inability to work. The

mere possibility that Mr. Turner might have been able to work at

the time of his benefits application cannot adequately explain

the inconsistency; the record must contain evidence supporting

the explanation. Measured from a baseline of total or near-

total disability, any change in Mr. Turner’s condition allowing

him to work with or without reasonable accommodation would have

been material. See Lee, 259 F.3d at 672; 20 C.F.R.

§ 404.1588(a) (2012). And the record shows that Dr. Rosenblum

20 C.F.R. § 404.1588(a) (2012). See also 20 C.F.R. pt. 404,
subpts. D & P (2012).

18
reported consistent improvement in Mr. Turner’s condition,

starting in January 2006, less than a month after Mr. Turner

left the hospital. It is implausible that Mr. Turner could have

in good faith failed to notify SSA of such a change in his

condition.

EEOC argues that because GBMC and other potential employers

refused to hire Mr. Turner, he could have inferred in good faith

that he was truly disabled and therefore was not obliged to tell

SSA about his changed condition. This argument fails for three

reasons. First, Mr. Turner asserted at deposition that he did

not believe he needed reasonable accommodation to perform his

job duties and that he never asked for one. JA 28-29. He could

not have maintained a good faith belief in his ability to return

to work without reasonable accommodation and simultaneously

believed that he had no obligation to inform SSA of the change

in his condition. Second, had Mr. Turner believed in good faith

that he was completely disabled, as his SSDI application

indicated, he would not have attempted to return to work, as the

record shows that he did. Third, even if Mr. Turner had later

concluded that he was not disabled, this course correction would

have been irrelevant. As the Seventh Circuit has said,

Cleveland “nowhere spoke of a change of heart . . . as an

acceptable way to reconcile the potential inconsistency between

SSDI and ADA claims.” Lee, 259 F.3d at 677.

19
 EEOC next argues that a reasonable juror could reconcile

the inconsistency with reference to SSA’s five-step process for

determining SSDI eligibility, which involves a presumption that

certain applicants are disabled. 3 Although a presumption of

disability and a claim of ability to work may turn out to be

consistent, it does not follow that they are consistent.

Cleveland did not say that the mere existence of a presumption,

or even a showing that a particular claimant’s eligibility was

determined using a presumption, is a sufficient factual

explanation. Rather, the eligibility determination is merely

one factor in a claimant’s showing that his claim is consistent

with status as a “qualified individual.” See Cleveland, 526

U.S. at 804. EEOC points to no evidence in the record (and we

have found none) that at the time of his SSDI application, Mr.

Turner was able to work.

EEOC next argues that because Mr. Turner did not

affirmatively misrepresent his improved condition to SSA, his

mere “passive receipt” of disability benefits does not mandate

this kind of scrutiny. But Cleveland was not principally

concerned with distinguishing between active and passive

representations. Rather, its focus was resolving factual

3
EEOC indicates that Mr. Turner was considered eligible for
SSDI benefits because he was presumed disabled under this test.
Appellant’s Br. at 51-54.

20
conflicts generated by contradictory representations. As

already explained, the factual conflict here is unresolvable.

IV.

We emphasize that our holding is limited to the issues

raised on appeal by EEOC. We in no way condone GBMC’s refusal

to reinstate Mr. Turner. Quite the contrary. We are deeply

concerned about GBMC’s attempts to prevent a partially disabled

former employee from returning to work after he was cleared to

return without restriction. Our result is nonetheless mandated

by the plain language of the ADA and the relevant case law. The

district court’s judgment is therefore affirmed.

AFFIRMED

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GREGORY, Circuit Judge, dissenting:

After combating illness and a stroke, Michael Turner

attempted to return to work at GBMC, where he had been an

outstanding and devoted employee for more than twenty years.

Although his doctor cleared him to return to work, and although

GBMC’s doctor cleared him to work with some limitations, GBMC

refused to give Turner his job back and repeatedly denied him a

new one. Instead, it fired him. Since his termination, Turner

has volunteered more than 1,100 hours at GBMC and sought dozens

of paying jobs there. GBMC has steadfastly refused to rehire

him. The EEOC alleged that GBMC’s actions violated the ADA.

The district court, however, granted summary judgment against

the EEOC on the ground that Turner’s application for and receipt

of SSDI benefits precluded the EEOC from bringing its

enforcement action under the ADA. Because I believe that ruling

was erroneous and a jury should be able to weigh whether the

EEOC proved the elements of its case, I respectfully dissent.

I.

The district court erred in holding that an EEOC

enforcement action can be barred under Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795 (1999), by a charging party’s assertion

that he is disabled for the purposes of the Social Security Act.

As discussed at length in the majority opinion, Cleveland

22
addressed the apparent inconsistency between an individual’s

“context-related legal conclusion, namely, ‘I am disabled for

the purposes of the Social Security Act,’” and that same

individual’s ADA suit asserting an ability to work. 526 U.S. at

802. Recognizing that an “SSDI claim and an ADA claim can

comfortably exist side by side,” the Court rejected the adoption

of a rebuttable presumption of estoppel in such cases. Id. at

802-03. Instead, the Court held that the individual “must

proffer a sufficient explanation” for the inconsistency. Id. at

806. A central premise underlying the Court’s decision is that

it was the same party who took seemingly contrary legal

positions in the SSDI application and the ADA lawsuit.

This case, in contrast, involves two different parties’

context-related legal representations -- Turner’s assertion in

the proceedings before the SSA and the EEOC’s assertion in this

action. While it is true that the EEOC is seeking relief on

Turner’s behalf, it cannot be said that the EEOC made a prior

inconsistent statement in Turner’s SSDI application. Its action

should not be barred through the happenstance of an unemployed

victim having applied for and received SSDI benefits. Moreover,

the Supreme Court has repeatedly recognized that “the EEOC is

not merely a proxy” for the individuals for whom it seeks

relief. Gen. Tel. of the NW v. EEOC, 446 U.S. 318, 326 (1970).

Rather, the Court has observed, “[w]hen the EEOC acts, albeit at

23
the behest of and for the benefit of specific individuals, it

acts also to vindicate the public interest in preventing

employment discrimination.” General Telephone, 446 U.S. at 326.

Barring EEOC enforcement actions based on a charging

party’s legal assertions of disability in SSA proceedings is not

only contrary to a long line of Supreme Court cases refusing to

apply estoppel against the government, it is also contrary to

public policy. The EEOC’s enforcement actions typically seek

not only victim-specific relief but also injunctive relief such

as training, posting of notices, and reporting requirements. As

discussed above, these enforcement actions not only benefit the

individuals on whose behalf the agency sues, but also benefit

the public, which has an interest in the eradication of

employment discrimination.

Finally, it cannot be said that allowing EEOC enforcement

actions to proceed despite a charging party’s representations of

disability before the SSA confers an “unfair advantage” on the

EEOC or an “unfair detriment” on employers such as GBMC who have

not paid the disability benefits. New Hampshire v. Maine, 532

U.S. 742, 751 (2001) (stating that a consideration in whether to

apply judicial estoppel is “whether the party seeking to assert

an inconsistent position would derive an unfair advantage or

impose an unfair detriment on the opposing party”).

24
 In sum, because Cleveland applied where the same party took

potentially conflicting legal positions and because the EEOC is

not a proxy for Turner but instead serves to benefit the

public’s interest in the eradication of employment

discrimination, I would hold that an EEOC’s lawsuit under the

ADA cannot be barred by a charging party’s representations of

disability to the SSA.

II.

Even assuming arguendo that an EEOC action can be barred

under Cleveland on the same terms as that of a private party,

the court still erred in granting summary judgment. Contrary to

the district court’s conclusion, there are a number of ways a

reasonable jury could reconcile Turner’s SSDI statements and

continued receipt of benefits with the EEOC’s ADA claim, as

required by Cleveland, to overcome summary judgment. For

example, a jury could find that Turner had a good-faith belief

in his SSDI assertion of disability because that is how GBMC

treated him when it refused to give him his job back or to hire

him for a new position despite his dozens of applications and

superb work history. Turner’s good-faith belief that he was

still disabled for the SSA’s purposes can be reconciled with the

EEOC’s lawsuit asserting that Turner was qualified under the

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ADA. Accordingly, the grant of summary judgment should be

reversed, and the case should be remanded for trial.

III.

For the reasons set forth above I respectfully dissent.

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