Filed:   June 20, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                              No. 99-1040
                           (CA-97-150-3-MU)



EEOC,

                                                Plaintiff - Appellant,

          versus


Stowe-Pharr Mills, etc.,

                                                 Defenadnt - Appellee.



                              O R D E R



     The court amends its opinion filed June 19, 2000, as follows:

     On the cover sheet, section 4 -- the word “Argued:” is added

before the February 28, 2000, date.

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,

v.                                                                No. 99-1040

STOWE-PHARR MILLS, INCORPORATED,
d/b/a Pharr Yarns,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-97-150-3-MU)

Argued: February 28, 2000

Decided: June 19, 2000

Before WILKINS, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Wilkins and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Caren Ilene Friedman, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant.
Philip Marshall Van Hoy, VAN HOY, REUTLINGER & TAYLOR,
Charlotte, North Carolina, for Appellee. ON BRIEF: C. Gregory
Stewart, General Counsel, Philip B. Sklover, Associate General
Counsel, Lorraine C. Davis, Assistant General Counsel, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Appellant. Stephen John Dunn, VAN HOY, REUTLINGER
& TAYLOR, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) sued
Stowe-Pharr Mills, Inc. (Stowe-Pharr) under Title I of the Americans
with Disabilities Act (ADA) and Title I of the Civil Rights Act of
1991, alleging that Stowe-Pharr had taken discriminatory employment
action against its former employee, Catherine Treece. The district
court granted summary judgment to Stowe-Pharr, concluding that
Treece's statement ("I [am] unable to work") in her Social Security
Disability Insurance (SSDI) application judicially estopped the EEOC
from asserting that Treece was a "qualified individual with a disabil-
ity" under the ADA. A new Supreme Court case, decided after the
district court ruled, requires a different approach: under Cleveland v.
Policy Management Systems Corporation, 

(1999), a
plaintiff is permitted to explain an apparent conflict between her SSDI
and ADA claims. After considering the parties' briefs and arguments,
which take Cleveland into account, we conclude that the EEOC has
made a sufficient explanation and proffer on Treece's behalf to avoid
summary judgment on the "qualified individual" element of the ADA
claim. Accordingly, we reverse the award of summary judgment to
Stowe-Pharr and remand for further proceedings.

I.

We state the facts in the light most favorable to the EEOC, the non-
movant in the summary judgment proceedings. See Anderson v. Lib-
erty Lobby, 

, 255 (1986). Stowe-Pharr is a textile
manufacturer that operates several production facilities in Gaston
County, North Carolina. Catherine Treece, who has osteoarthritis,
worked in production jobs at Stowe-Pharr plants during four separate
periods. Her first three turns of work were at the Crescent plant in

                    2
1989, the I-85 plant in 1989, and the I-85 plant again in 1990. Stowe-
Pharr claims that Treece was discharged from each of these jobs
because of absenteeism. Nevertheless, Stowe-Pharr was willing to
hire Treece a fourth time, and she went back to work at the Crescent
plant on April 8, 1991. Because of a workforce reduction at the Cres-
cent plant, Stowe-Pharr transferred Treece to its United Spinners plant
on August 3, 1992. About eighteen months later, on February 21,
1994, Treece was transferred at her request to the I-85 plant, where
her husband worked. Unlike the Crescent and United Spinners plants
which had wooden floors, the I-85 plant had concrete floors.

After Treece began working at the I-85 plant, the symptoms of her
osteoarthritis, including pain, fevered inflammation, and extreme
swelling, worsened. On March 26, 1994, Treece took a leave of
absence for surgery (a hysterectomy) that was not related to her osteo-
arthritis. She returned to the plant for work on May 24, 1994. Three
days later, her physician, Dr. Donna Vegeais, determined that work-
ing on concrete floors was exacerbating Treece's osteoarthritis. Dr.
Vegeais instructed Treece to wear support shoes and avoid working
on concrete surfaces. The doctor documented these instructions by
filling out a Stowe-Pharr medical form, which Treece gave to Larry
Gibson, the I-85 plant superintendent on May 27, 1994. When he read
the doctor's orders, Gibson told Treece that Stowe-Pharr did not oper-
ate any plants without concrete floors. Treece knew, however, that the
Crescent and United Spinners plants had wooden floors, and she
requested a transfer to one of those plants. According to Treece, she
could have performed any number of textile mill jobs at Stowe-Pharr,
if she had been allowed to work on a wooden floor.

Instead of transferring Treece to a different plant, Stowe-Pharr
placed her on involuntary leave in late May 1994. Thereafter, on a
number of occasions, she contacted Gibson and the personnel man-
ager, Dan Tallent, to ask about a transfer. Tallent's usual response
was that he did not know of any openings, but he was still trying to
place her. Treece persisted, telling Tallent and Gibson several times
that she had heard of openings at the wooden-floored Crescent and
United Spinners plants; Tallent promised to call and check on what
was available. The company, however, never arranged to transfer
Treece to a plant with wooden floors. She was kept on leave until she
had used the maximum (six months) leave permissible in any given

                    3
year. Stowe-Pharr then terminated her employment on September 14,
1994.

Stowe-Pharr's official (litigation) position as to why it did not
transfer Treece to a wooden-floored plant differs from explanations
given by two plant managers. In its summary judgment papers, the
company said it "does not contend that there were no open positions
in plants with wooden floors to which Treece could have been reas-
signed. Lack of a vacancy is not asserted as a reason that Treece was
not transferred." Edward Gates, the company's personnel director,
confirmed in his deposition that the plants are constantly hiring
because of large turnover. Stowe-Pharr claims that it attempted to
transfer Treece to either the United Spinners or Crescent plant, but the
plant managers would not agree to the transfer because of her past
record of some absenteeism and a "mooning" incident at both plants.
However, Raj Sawhney, manager of technical services at the Crescent
plant, testified that the mooning incident would not have prevented
Treece's return to that plant. (Treece had apparently bared her but-
tocks on the production floor to show off a tattoo.) Sawhney down-
played the incident, characterizing it as one of the "silly things"
people do at work: "People have done worse things and they have
been accommodated, excused for that." Sawhney said that Treece was
not allowed to transfer to the Crescent plant because he did not need
any help there. Rick Wright, plant manager at the I-85 plant, testified
that he could not locate an opening for Treece at a facility with
wooden floors.

In January 1995, approximately seven months after she had been
placed on leave and four months after her termination, Treece applied
for SSDI benefits. At that time, Treece told the Social Security
Administration (SSA) intake officer that she could work with an
accommodation. On the advice of the intake officer, however, Treece
stated in her application that she had been disabled since the time she
took leave in March 1994. Specifically, her application says, "I
became unable to work because of my disabling condition on March
24, 1994." On April 23, 1995, the SSA determined that Treece
became disabled on December 2, 1994, and was entitled to benefits
beginning June 1995. Treece has been receiving SSDI benefits ever
since. It appears that Treece's medical condition has deteriorated
since her termination. By the time she was deposed in 1997, she had

                    4
"serious[ ] doubt[s] that [she] could work in textiles ever again." She
emphasized, however, that she "felt like [she] could still work" at a
wooden-floored plant when she applied for SSDI benefits.

On April 1, 1997, the EEOC sued Stowe-Pharr under the authority
of § 107(a) of the ADA, alleging that the company failed to accom-
modate Treece, placed her on a leave of absence, and subsequently
terminated her, all in violation of Title I of the ADA. The district
court applied the doctrine of judicial estoppel to bar the EEOC from
asserting that Treece was "a qualified person with a disability because
[Treece had] previously taken the position[in her SSDI application]
that she was not." The district court then granted summary judgment
to Stowe-Pharr, holding that the EEOC could not establish that Treece
was a "qualified individual," a necessary element for a case under the
ADA. The EEOC appeals, and we review de novo the district court's
grant of summary judgment. See Nguyen v. CNA Corp., 

,
236-37 (4th Cir. 1995).

II.

The ADA prohibits a covered employer from discriminating
"against a qualified individual with a disability because of the disabil-
ity of such individual." 42 U.S.C. § 12112(a). To prove its case for
Treece, the EEOC must show: (1) that she has a disability, (2) that she
is a "qualified individual" for the employment in question, and (3)
that Stowe-Pharr discharged her (or took other adverse employment
action) because of her disability. Id.; see also Martinson v. Kinney
Shoe Corp., 

, 686 (4th Cir. 1997); Doe v. University of
Md. Med. Sys. Corp., 

, 1264-65 (4th Cir. 1995). Element
two -- whether Treece is a "qualified individual" -- is at issue on this
appeal from summary judgment for the company. A "qualified indi-
vidual with a disability" is one "who, with or without reasonable
accommodation, can perform the essential functions" of her job. 42
U.S.C. § 12111(8). "The term `reasonable accommodation' may
include . . . reassignment to a vacant position." 42 U.S.C.
§ 12111(9)(B). To satisfy the "qualified individual" element, the
EEOC attempted to show that when Treece was placed on involuntary
leave, and later discharged, she still could have worked if she had
been transferred to a vacant position in a plant with wooden floors.
The district court held, however, that the EEOC was judicially estop-

                    5
ped from making this assertion because Treece had said in her SSDI
application that she was unable to work because of her "disabling
condition."

As we said in the beginning, when the district court made its deci-
sion, it did not have the benefit of the Supreme Court's recent deci-
sion in Cleveland v. Policy Management Systems Corporation, 

, 797 (1999) (holding that a claimant's statement of total dis-
ability in an SSDI application "does not automatically estop" her from
asserting in an ADA suit that she can perform her job with reasonable
accommodation). The plaintiff in Cleveland, Carolyn Cleveland,
applied for SSDI benefits and filed an ADA action, making a state-
ment (much like Treece's here) in the SSDI proceeding that appeared
to conflict with her ADA claim. Specifically, after she was fired from
her job, Cleveland sought and received SSDI benefits based on her
sworn statement to the SSA that she was unable to work due to her
disability (a stroke condition). Cleveland also sued her former
employer under the ADA, claiming that she could have continued to
work if the employer had provided reasonable accommodation (train-
ing and more time to complete her work). This apparent contradiction
in Cleveland's SSDI and ADA claims prompted the Supreme Court
to consider whether the claims were mutually exclusive.

The Supreme Court prefaced its analysis by noting that "[a]n SSA
representation of total disability differs from a purely factual state-
ment in that it often implies a context-related legal conclusion,
namely `I am disabled for purposes of the Social Security Act.'"

. Likewise, the same claimant's allegation
in her ADA case that she can perform the essential functions of her
job with reasonable accommodation is a statement of one of the nec-
essary elements of her ADA claim. 

Such statements, made
to support different claims, appear to be inconsistent. They do not,
however, "involve directly conflicting statements about purely factual
matters." 

Thus, the Cleveland Court said it was not disturb-
ing the law in the various circuits dealing with "purely factual contra-
dictions" in summary judgment proceedings. 

807.

After recognizing that Carolyn Cleveland's seemingly conflicting
statements were not purely factual, but involved legal conclusions, the
Supreme Court proceeded to analyze whether her ADA and SSDI

                    6
claims could be compatible. The Court's review of relevant provi-
sions of the ADA and the Social Security Act revealed that "both
[acts] help individuals with disabilities, but in different ways." 

The ADA prohibits a covered employer from discriminating
against a "qualified individual with a disability," namely, a person
who can "perform the essential functions" of her job "with or without
reasonable accommodation." 42 U.S.C. §§ 12112(a), 12111(8). The
Social Security Act's SSDI program provides benefits to a person
with a disability so severe that she is "unable to do [her] previous
work" and "cannot . . . engage in any other kind of substantial gainful
work which exists in the national economy." 42 U.S.C.
§ 423(d)(2)(A). The Social Security Administration does not take the
issue of reasonable accommodation into account when it decides that
a person is disabled for SSDI purposes. For that reason, an SSDI
applicant need not "refer to the possibility of reasonable accommoda-
tion when she applies" for those benefits. 

.
The differences between the two acts led the Supreme Court to con-
clude that there are "many situations in which an SSDI claim and an
ADA claim can comfortably exist side by side." 

"an ADA suit claiming that the plaintiff can perform her job with rea-
sonable accommodation may well prove consistent with an SSDI
claim that the plaintiff" is unable to work. 

This does not mean, however, that an ADA plaintiff automatically
avoids summary judgment when the defendant asserts that the plain-
tiff's sworn statement of total disability in her SSDI application has
negated the "qualified individual" element of her ADA case. Rather,
she is required to proffer a sufficient explanation for any apparent
contradiction between the two claims. In the end, to avoid summary
judgment, she must "make a showing sufficient to establish" a genu-
ine issue of material fact on the "element essential to [her] case, and
on which [she] will bear the burden of proof at trial." 

(quot-
ing Celotex Corp. v. Catrett, 

, 322 (1986)). (Cleveland
does not mandate an analysis under the doctrine of judicial estoppel.
The standard summary judgment framework is used instead.) The suf-
ficiency of the required explanation is to be measured as follows:

          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

                     7
          the necessary elements of an ADA claim. To defeat sum-
          mary judgment, that explanation must be sufficient to war-
          rant a reasonable juror's concluding that, assuming the truth
          of, or the plaintiff's good faith belief in, the earlier state-
          ment, the plaintiff could nonetheless "perform the essential
          functions" of her job, with or without "reasonable accommo-
          dation."

The Supreme Court remanded Carolyn Cleveland's case to
give her the opportunity to explain, by sworn statement, the apparent
discrepancy between her SSDI statement that she was unable to work
because of disability and her ADA assertion that she could perform
the essential functions of her job.

The record in this case already contains sworn statements by
Treece that explain the apparent contradiction between her SSDI
claim and the ADA claim brought on her behalf. In her deposition
Treece testified that no doctor had told her to stop working in the tex-
tile industry. Dr. Vegeais had simply instructed her not to work on
concrete floors. At the time of her termination Treece believed that
if she had been transferred to a plant with wooden floors, she could
have continued to work in a production job. Further, according to her
affidavit, Treece told the SSA intake officer that she could work with
reasonable accommodation. However, in applying for SSDI benefits,
Treece was not required to "refer to the possibility of reasonable
accommodation." 

The intake officer thus advised her to
state on her application that she was unable to work due to her dis-
ability. She followed the intake officer's advice. It follows, says the
EEOC, that the routine language Treece used on her SSDI application
in January 1995 -- "I [am] unable to work because of my disabling
condition" -- did not take into account whether she could have
worked with reasonable accommodation. This explanation is suffi-
cient for a reasonable juror to conclude that Treece's SSDI statement
does not contradict her assertion in this (the ADA) case that she could
have worked if Stowe-Pharr had accommodated her with a transfer to
a wooden-floored plant. Accordingly, Treece's statement in her SSDI
application does not preclude the EEOC from establishing a triable
question on the "qualified individual" element of the ADA claim it
presses for Treece.

                    8
Stowe-Pharr argues that even if the EEOC has proffered an expla-
nation sufficient to harmonize Treece's SSDI claim and the EEOC's
ADA claim, it is still entitled to summary judgment. According to the
company, the record as a whole does not present a genuine factual
dispute as to whether Treece was a "qualified individual," that is, a
person who "with . . . reasonable accommodation" could "perform the
essential functions" of her job. After examining the evidence prof-
fered by both sides, we must disagree with Stowe-Pharr.

Stowe-Pharr points to the following statements from Treece's affi-
davit to argue that she could not work, even with reasonable accom-
modation: she sometimes used a cane, she climbed stairs one step at
a time, and when she walked for long periods of time, her kneecap
"would slide out of joint." The EEOC responds that Treece did not
use her cane at the plant, that climbing stairs did not appear to be an
essential function of her job, and that her kneecap problem (which
was only triggered by "long periods" of walking) did not prevent her
from doing her job. Stowe-Pharr also refers to further statements by
Treece to support its argument. At her deposition in November 1997
Treece testified, "I'm totally disabled now." She added that she "seri-
ously doubt[ed]" whether she "could work in textiles ever again." In
her affidavit Treece said that after late 1994 she had to sit while work-
ing in her kitchen. Treece's deposition testimony clearly referred to
her condition in November 1997, not her condition when she was
placed on involuntary leave in May 1994 or terminated in mid-
September 1994. The statement in Treece's affidavit may be
explained in the same way: it appears that Treece did not begin the
practice of sitting down to do kitchen work until some time after the
adverse employment actions by the company. Of course, the date of
an adverse employment decision is the relevant date for determining
whether a plaintiff is a "qualified individual with a disability." See
Griffith v. Wal-Mart Stores, Inc., 

, 380 (6th Cir. 1998),
cert. denied, 

(1999).

The EEOC proffered evidence of its own to show that Treece was
able to work with reasonable accommodation, that is, in a wooden-
floored plant, when she was placed on involuntary leave and later dis-
charged. Her doctor said that Treece's "only restriction" was that she
"wear support shoes" and "avoid walking on concrete constantly."
The doctor added that Treece should "work on[a] soft surface (not

                     9
concrete)" and that she could do a job that even required "frequent
walking on [a] softer surface." Treece explained in her deposition that
she could have worked on a wooden floor when she was terminated.
Indeed, from the time Treece was placed on leave in May 1994 until
she was discharged in September 1994, she made repeated requests
to Stowe-Pharr for a transfer to a plant with wooden floors. Moreover,
when Treece's friends and neighbors, who were Stowe-Pharr employ-
ees, told her about openings at the company's wooden-floored plants,
she passed the information on to management at her old plant. Thus,
the EEOC has made a sufficient showing to defeat Stowe-Pharr's
motion for summary judgment on the "qualified individual" element
of the ADA claim.

We summarize our review of the summary judgment record with
Cleveland's language in mind: a reasonable juror could conclude that
(1) the EEOC has sufficiently explained why Treece's SSDI state-
ment is consistent with what she is saying in the ADA claim and that
(2) she could "perform the essential functions" of her job with "rea-
sonable accommodation." See 

. The district
court therefore erred in holding that the EEOC cannot establish that
Treece was a "qualified individual." The award of summary judgment
to Stowe-Pharr on this ground is reversed, and the case is remanded
for further proceedings.

REVERSED AND REMANDED

                    10