Filed: Apr. 17, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1593 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. GREATER BALTIMORE MEDICAL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 f
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1593 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. GREATER BALTIMORE MEDICAL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 fo..
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UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
21
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”).
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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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