Detz v. Greiner Ind Inc

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

10-8-2003

Detz v. Greiner Ind Inc

Precedential or Non-Precedential: Precedential

Docket No. 02-3752

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PRECEDENTIAL

Filed October 7, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3752

RALPH B. DETZ,

Appellant

v.

GREINER INDUSTRIES, INC.

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 01-cv-05096)

District Judge: Honorable Franklin S. VanAntwerpen

Argued July 29, 2003

Before: SCIRICA, Chief Judge, RENDELL and

AMBRO, Circuit Judges.

(Filed: October 7, 2003)

James A. Nettleton, Jr.

Jerome C. Finefrock [ARGUED]

Nettleton & Finefrock

1834 Oregon Pike

Lancaster, PA 17601

Counsel for Appellant

Rory O. Connaughton [ARGUED]

Hartman, Underhill & Brubaker

221 East Chestnut Street

Lancaster, PA 17602

Counsel for Appellee

2

OPINION OF THE COURT

RENDELL, Circuit Judge.

Ralph Detz lost his job with Greiner Industries on

November 26, 1997. Detz subsequently convinced the

Social Security Administration (“SSA”) that, as of the date

of his termination by Greiner, he was “disabled” and

“unable to work.” Detz was awarded Social Security

Disability Insurance (“SSDI”), and he continues to collect

those benefits. In 2001 Detz brought an action against

Greiner alleging wrongful termination in violation of the Age

Discrimination in Employment Act (“ADEA”) and the

Pennsylvania Human Relations Act (“PHRA”). To establish a

prima facie case under the ADEA and the PHRA, Detz

asserts that, at the time of his termination, he was qualified

for the position he held at Greiner and was capable of

continuing to perform it.

The District Court found that Detz was judicially

estopped from proceeding on his claim of age

discrimination, due to his earlier statements to the SSA

regarding his disability and inability to work, and granted

summary judgment in favor of Greiner on all claims. The

issue before us is whether Detz’s statements regarding his

disability for SSDI purposes should preclude his

subsequent claim that, for the purposes of the ADEA and

the PHRA, he was “qualified” for his position at Greiner and

can thus pursue a wrongful termination action under the

ADEA and PHRA. We hold that his failure to adequately

reconcile the two contrary positions is fatal to his prima

facie showing of age discrimination, and we will, therefore,

affirm.

I.

Greiner Industries, Inc., is a mechanical contractor and

manufacturer located in Mount Joy, Pennsylvania. As such,

Greiner’s work force engages in a variety of construction-

related services throughout Lancaster County, including

welding, duct work, structural steel fabrication, and sand

3

blasting. Due to the cyclical nature of work in the

construction industry, Greiner periodically suffers

downturns in its business and, in response, occasionally

reduces the size of its work force.

Ralph Detz was employed by Greiner Industries on three

separate occasions beginning in 1979. Each of these

periods of employment ended when Detz was let go due to

downturns in Greiner’s business. His last and most lengthy

period of employment at Greiner began in 1989 and ended

with his layoff on November 26, 1997. Detz usually was

employed as a millwright on Greiner’s road crew. In this

capacity, his duties included installing, servicing, and

repairing machinery; welding steel for duct work; installing

duct work and insulation; and setting up rigging to move

construction equipment. According to Detz, this position

involved the use of machines and tools, the application of

technical knowledge, significant amounts of walking, and

frequent lifting and carrying of objects weighing over fifty

pounds. In addition, he was often required to work

overtime.

On December 5, 1994, Detz injured his left hand and

arm. Despite several attempts to repair the damage through

surgery, he continues to suffer from permanent nerve

damage and weakness in his injured hand and arm. This

injury rendered Detz unable to perform his duties as a

millwright, as they involved heavy lifting and manipulating

equipment using both hands. According to Detz, his injury

is permanent, and it is neither improving nor worsening.

When employees are recovering from injuries, Greiner

typically assigns them to its Tool Room for “light duty

work,” which includes processing shipments and delivering

materials to other workers. Employees remain in the Tool

Room until they are able to return to their regular

positions. Pursuant to this practice, Detz was placed in the

Tool Room when he sought to return to work in April of

1995. He remained there, taking time off for surgeries on at

least two occasions, until October of 1997, when he began

to complain of harassment by the Tool Room supervisor.

Detz also asserted that Greiner was failing to follow the

medical restrictions placed on Detz in the wake of his

injury. Although an internal investigation found that the

4

claims were unsubstantiated, Detz was moved to work in a

temporary office trailer, where his duties involved copying

and making deliveries.

Greiner eliminated a total of sixty-one positions between

April and December of 1997 as a result of a downturn in

business, through layoffs, retirements, and terminations for

cause. Detz was laid off on November 26, 1997.

On April 25, 1998, Detz filed a Disability Report and an

Application for Disability Insurance Benefits (“Application”)

with the SSA. The Disability Report contained information

about his condition, his medical history, his usual

activities, and the work he had been doing. On this report,

Detz described his “disabling condition” as “loss of use of

left hand and arm; high blood pressure; lung problems,

depression.” He indicated that he stopped working due to

his condition on the date of his layoff. In response to a

question asking the applicant to “[e]xplain how [his]

condition now keeps [him] from working,” Detz stated the

following: “I can’t lift over 20 lbs. Can’t use left repetatively

[sic]. I drop things easily with left hand.”

Later in the Disability Report, in describing the work he

had previously done, he listed both his position as a

millwright and his job in the Tool Room. However, when

responding to subsequent questions asking the applicant to

further describe the duties of his previous work, Detz

referred exclusively to his position as a millwright. For

instance, he described his basic duties this way: “I welded

steel for duct work and building construction. I set up

rigging to move equipment.” He went on to indicate that he

spent eight hours a day walking, that he sometimes worked

between ten and fourteen hours a day, that he carried

rigging and duct work up to twenty-five feet, and that he

frequently lifted more than fifty pounds. He did not describe

his duties in the Tool Room or in the temporary office

trailer anywhere in the report.

His accompanying Application for SSDI indicated that he

“became unable to work because of [his] disabling

condition” on the date of his termination, and that he was

“still disabled” at the time of his Application. The

Application, signed by Detz, contains the following

acknowledgment:

5

I know that anyone who makes or causes to be made

a false statement or representation of material fact in

an application or for use in determining a right to

payment under the Social Security Act commits a

crime punishable under federal law by fine,

imprisonment or both. I affirm that all information I

have given in connection with this claim is true.

The SSA denied Detz’s initial claim, finding that his

disability did not keep him from working in the Tool Room.

The SSA also refused his subsequent Request for

Reconsideration, which again indicated that he was

“disabled and unable to work.”

On November 9, 1998, Detz requested a hearing before

an administrative law judge, where he might introduce

additional evidence in support of his Application for SSDI.

In requesting a hearing, Detz asserted for the third time

that he was “disabled and unable to work.” A Senior Staff

Attorney at the SSA reviewed Detz’s Application, as well as

medical reports from several doctors who had examined

Detz. In a December 2, 1998, decision, the SSA granted

Detz’s Application for SSDI, finding that Detz had been

disabled since the date of his layoff by Greiner. The SSA

arrived at its conclusion after applying the five-step

analysis used to determine SSDI eligibility.1 See Cleveland

v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999)

(discussing the questions asked at each of the five steps).

Specifically, the SSA found, under Steps Four and Five,

that Detz “either ha[d] no past relevant work or [was]

1. The five-step procedure consists of the following set of inquiries: (1) Is

the applicant presently working? If so, he is ineligible. (2) Does the

applicant have a “severe impairment” that “significantly limits” his ability

to perform basic work activities? If not, he is ineligible. (3) Does the

applicant’s impairment match one that is included on a list of specific

impairments compiled by the SSA? If so, he is eligible and the inquiry

ends here. (4) If the applicant’s impairment is not on the SSA list, can

he perform his “past relevant work?” If so, he is ineligible. (5) If the

applicant’s impairment is not on the list and he cannot perform his “past

relevant work,” can he perform other jobs that exist in significant

numbers in the national economy? If not, he is eligible. See 20 C.F.R.

§§ 404.1520(b)-(f), 404.1525, 404.1526, 404.1560(b)-(c) (2002);

Cleveland, 526 U.S. at 804.

6

unable to perform the past relevant work,” and that “no

occupations exist[ed] in significant numbers which [Detz

could] perform.” See 20 C.F.R. §§ 404.1520(e)-(f),

404.1560(b)-(c) (2002). Thus, Detz was awarded SSDI

benefits retroactively, beginning on November 26, 1997,

and he currently continues to receive those benefits. On

February 3, 1999, a final order confirming the SSA’s

decision was entered on the issue of Detz’s disability.

On January 28, 1998, Detz filed complaints with the

Pennsylvania Human Relations Commission (“PHRC”) and

the Equal Employment Opportunity Commission (“EEOC”)

alleging age discrimination by Greiner. In doing so, Detz

submitted a Non-Job Related Handicap/Disability

Questionnaire (“Questionnaire”) to the PHRC detailing the

basis for his complaint. He indicated that prior to his

termination he had been treated differently and harassed at

work due to his age and his disability, which he described

as “loss of use of [his] left hand, and arm.” He noted that

the disability was permanent, but was not worsening, and

that he received workers’ compensation after his injury.

In response to questions about his job, he described his

work in the Tool Room, never mentioning, as he had on the

SSDI Application, the duties that accompanied his prior

position as a millwright. He described “the job in question”

as follows: “A tool room helper receives packages [and]

shipments, unpacks materials [and] distributes them. Also,

a tool room helper may help get tools for other employees.

I can do most duties within restrictions.” The restrictions to

which he refers were set by various doctors who treated his

injury, and they include permanent limits on how much

Detz should lift. His complaint alleges that Greiner

“refuse[d] to follow the restrictions.” The following

acknowledgment appears above Detz’s signature on the

PHRC Questionnaire: “I hereby verify that the statements

contained in this complaint are true and correct to the best

of my knowledge, information, and belief. I understand that

false statements herein are made subject to the penalties

. . . relating to unsworn falsification to authorities.”

The EEOC eventually dismissed Detz’s charges, as did

the PHRC, and Detz was advised of his right to sue Greiner.

Detz initiated this action in the District Court for the

7

Eastern District of Pennsylvania with a complaint filed on

October 9, 2001, alleging violations of the ADEA, 29 U.S.C.

§§ 621-634, and the PHRA, 43 Pa. Cons. Stat. §§ 951-963.

In his First Amended Complaint, Detz asserted that he was

fifty-nine years old at the time of his discharge, and that he

was replaced by someone who was under forty years old.

He specifically alleged that he had “performed in his

position for over nine . . . years and was fully qualified for

the position.” Furthermore, he alleged that the

circumstances surrounding his discharge demonstrated

that the reason given by his employer for his termination —

lack of work — was pretextual. Detz sought various forms

of relief, including damages and reinstatement.

Greiner’s Answer listed a number of affirmative defenses,

one of which asserted that Detz’s “claims may be barred by

the Doctrine of Estoppel.” On July 15, 2002, Greiner filed

a Motion for Summary Judgment, arguing that Detz was

judicially estopped from establishing a prima facie case of

age discrimination. Specifically, according to Greiner, Detz

was precluded from showing that he was “qualified” for the

position from which he was discharged, because such an

assertion is irreconcilably inconsistent with his earlier

statements to the SSA that he was unable to work, offered

in support of his claim for SSDI benefits.

In opposing the Motion for Summary Judgment, Detz

attempted to reconcile the two positions. According to Detz,

he became “disabled,” for SSDI purposes, by virtue of his

discharge by Greiner. Before that, he was not “disabled,” as

he had a job in the Tool Room and could perform that job.

After that, he was “disabled,” because he was no longer

allowed to continue performing that job, and he would not

be able to find another job similarly tailored to his physical

limitations. In other words, there was only one job in the

economy that he was capable of performing — the job in

the Tool Room — and the loss of that job rendered him

“disabled” for SSDI purposes. He urged that he did,

however, remain qualified for that one job for the purposes

of the ADEA and the PHRA.

The District Court, in an Opinion and Order issued on

August 16, 2002, granted summary judgment in favor of

Greiner on both of Detz’s claims. Detz v. Greiner Indus.,

8

Inc., 224 F. Supp. 2d 905, 919 (E.D. Pa. 2002). Applying

the doctrine of judicial estoppel, as we structured it in

Montrose Medical Group Participating Savings Plan v.

Bulger, 243 F.3d 773, 777 (3d Cir. 2001), the District Court

found that all three prongs of the analysis were satisfied —

i.e., that the two positions were irreconcilably inconsistent,

that Detz had acted in bad faith, and that judicial estoppel

was an appropriate remedy. Detz, 224 F. Supp. 2d at 915,

918. In its discussion of the first prong, the Court applied

the rule from Cleveland v. Policy Management Systems

Corp., 526 U.S. 795 (1999), and found that while Detz

might have survived summary judgment if he had offered a

sufficient explanation of the apparent inconsistency

between his two positions, he failed to adequately reconcile

the positions. Detz, 224 F. Supp. 2d at 917. The Court also

found that Detz had taken the conflicting positions in bad

faith, and that judicial estoppel was an appropriate remedy

in this case. Id. at 918. Thus, the Court held that Detz was

judicially estopped from claiming that he remained qualified

for his previous work at Greiner, and, therefore, he failed to

establish a prima facie case of age discrimination. Id. at

919.

After the District Court entered summary judgment

against him, Detz filed this timely appeal.

II.

The District Court had federal question jurisdiction over

Detz’s claim under the ADEA, 29 U.S.C. §§ 621-634, and

supplemental jurisdiction over his claim under the PHRA,

43 Pa. Cons. Stat. §§ 951-963. See 28 U.S.C. §§ 1331,

1367(a). We have jurisdiction over the appeal pursuant to

28 U.S.C. § 1291.

We exercise plenary review over the District Court’s grant

of summary judgment. Klein v. Stahl GMBH & Co.

Maschinefabrik, 185 F.3d 98, 108 (3d Cir. 1999). Summary

judgment is proper where no genuine issue of material fact

exists, and where, viewing the facts in the light most

favorable to the party against whom summary judgment

was entered, the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

9

477 U.S. 317, 322-23 (1986). This is so where “the plaintiff

fails to make a showing sufficient to establish the existence

of an element essential to [her] case, and on which [she]

will bear the burden of proof at trial.” Cleveland, 526 U.S.

at 805-06 (quoting Celotex, 477 U.S. at 322).

III.

The case before us involves the application of judicial

estoppel in the context of a motion for summary judgment.

The District Court was correct to note that we have applied

a multi-factor analysis to determine whether a party is

judicially estopped from making certain assertions that are

contrary to assertions he has made in the past. See, e.g.,

Dam Things From Den. v. Russ Berrie & Co., 290 F.3d 548,

559 (3d Cir. 2002) (listing three considerations in a judicial

estoppel analysis); Montrose, 243 F.3d at 777 (same);

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir.

1997) (listing two main considerations in a judicial estoppel

analysis); Ryan Operations G.P. v. Santiam-Midwest Lumber

Co., 81 F.3d 355 (3d Cir. 1996) (same). That test is

concerned with whether the party’s positions are

inconsistent, whether he has acted in bad faith, and

whether judicial estoppel is an appropriate remedy that is

tailored to address the harm caused to the integrity of the

court. Detz, 224 F. Supp. 2d at 911. While this analysis is

still appropriate in many types of cases, the Supreme Court

has articulated the standard somewhat differently in

considering its application to a set of facts resembling the

ones we face here. See Cleveland, 526 U.S. at 807; see also

Motley v. N.J. State Police, 196 F.3d 160, 164-66 (3d Cir.

1999) (recognizing that Cleveland provides the standard to

be used when applying judicial estoppel in the context of a

motion for summary judgment where the initial assertions

were accepted by a court or agency).

In Cleveland, the Supreme Court explained the method

that courts should use in deciding whether a party, in the

face of her own contrary assertions made in a prior

proceeding, can make a preliminary showing sufficient to

survive summary judgment in a subsequent case. There,

the Court was considering a case involving a plaintiff who

was suing her employer for wrongful termination under the

10

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12111-12117. Cleveland, 526 U.S. at 798. She had

previously obtained SSDI benefits, claiming that she was

“totally disabled” and unable to work. Id. at 799. In

pleading her prima facie case under the ADA, she asserted

that she was a “qualified individual” — in other words,

“that she could ‘perform the essential functions’ of her job,

at least with ‘reasonable accommodation.’ ” Id. (quoting the

ADA, 42 U.S.C. § 12111(8)).

In deciding whether the plaintiff ’s previous claim of total

disability precluded her from subsequently claiming to be a

“qualified individual” under the ADA, the Court applied

judicial estoppel principles in terms that are familiar at the

summary judgment stage. The Court was convinced that

“pursuit, and receipt, of SSDI benefits does not

automatically estop the recipient from pursuing an ADA

claim. Nor does the law erect a strong presumption against

the recipient’s success under the ADA.” Id. at 797-98

(emphasis added). The Court instructed, however, that

when a defendant claims a bar based on previous

inconsistent assertions, a plaintiff “cannot simply ignore”

her previous statements to the SSA. Instead, in order to

establish her prima facie case, “she must explain why that

SSDI contention is consistent with” her subsequent

assertion in connection with her ADA claim. Id. at 798.

Thus, the Court essentially told us how to approach a claim

of judicial estoppel in the summary judgment context.

Upon deciding that the SSDI and ADA claims did “not

inherently conflict to the point where courts should apply a

special negative presumption,” id. at 802, the Court went

on to explain how the facts of each particular case should

be examined in order to determine whether a genuine

conflict exists between the plaintiff ’s contrary positions. Id.

at 805. The Court first laid out the framework for basic

summary judgment analysis, and then articulated the

following standard:

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

11

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. In other words, a plaintiff “could not simply

ignore the apparent contradiction,” or “create a genuine

issue of material fact . . . simply by contradicting . . . her

own previous sworn statement.” Id. at 806. Instead, a

plaintiff in this position is required to offer “a sufficient

explanation,” as described above. Id.

The Court also drew a distinction between conflicting

legal positions and contradictory factual assertions. In

concluding that a claim under the ADA is not inherently

inconsistent with a claim of disability for SSDI purposes,

the Court noted that “[a]n SSA representation of total

disability differs from a purely factual statement in that it

often implies a context-related legal conclusion, namely, ‘I

am disabled for purposes of the Social Security Act.’ ” Id. at

802. The Court, therefore, limited the import of its decision

to cases involving such “context-related legal conclusions,”

and permitted courts to proceed with the usual judicial

estoppel analysis when evaluating conflicting statements

that are purely factual. Id.

After examining the explanation offered by the plaintiff in

Cleveland, the Court concluded that she had adequately

reconciled her two positions. Id. She had done so by first

pointing out the differences between the analyses

conducted under the SSA and the ADA — the ADA

considers whether a person might be able to perform her

job “with reasonable accommodation,” while that possibility

is ignored when determining disability for SSDI purposes.

Id. Additionally, she had indicated that her statements on

her SSDI application were true when she originally made

them. Id. Thus, the case was remanded so that she might

survive summary judgment and proceed to trial “to present

. . . [her] explanations, in sworn form where appropriate.”

Id.

While Cleveland only specifically addressed a conflict

between SSDI and ADA claims, the analysis is not limited

12

in its application to cases involving those particular

statutory and administrative schemes. Like an assertion

that one is a “qualified individual” for ADA purposes, a

declaration that one is a “qualified individual” under the

ADEA is a “context-related legal conclusion.” Therefore, a

prima facie showing under the ADEA that conflicts with

earlier statements made to the SSA is subject to the same

analysis, as the reasoning of the Court in Cleveland also

applies in the context of the ADEA. In fact, the District

Court here properly observed that “scenarios may exist in

which it is possible for a plaintiff ’s ADEA claim to be

consistent with his or her earlier application for Social

Security benefits.” Detz, 224 F. Supp. 2d at 916. For

example, a person who files for and is granted SSDI

benefits several months after his discharge would not be

precluded from advancing a successful ADEA claim against

his employer where his disability did not prevent him from

working at the time of his discharge, but where it

subsequently worsened to a point where he is no longer

able to perform that work. It is true that these scenarios

might be less common with ADEA claims than they would

be with claims under the ADA, because the ADEA does not

include any additional considerations for identifying

“qualified individuals” that might be analogized to the

“reasonable accommodation” language of the ADA. Id. at

915. This does not, however, render Cleveland any less

applicable to cases involving SSDI claims followed by

attempts to establish the elements of a prima facie showing

under the ADEA.

Our sister courts of appeals that have addressed this

issue in the wake of Cleveland have uniformly recognized

that their prior judicial estoppel analyses are to be replaced

with the methodology articulated by the Supreme Court.

See Holtzclaw v. DSC Communications Corp., 255 F.3d 254,

257-59 (5th Cir. 2001) (applying Cleveland rather than

typical judicial estoppel analysis in reviewing a ruling on a

motion for summary judgment where the plaintiff ’s original

position was accepted by a court or agency); EEOC v.

Stowe-Pharr Mills, Inc., 216 F.3d 373, 375 (4th Cir. 2000)

(same); Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1083

& n.3 (8th Cir. 2000) (same); Parker v. Columbia Pictures

Indus., 204 F.3d 326, 333-34 (2d Cir. 2000) (same);

13

Feldman v. Am. Mem’l Life Ins. Co., 196 F.3d 783, 789-90

(7th Cir. 1999) (same); cf. Lee v. City of Salem, Ind., 259

F.3d 667, 672-75 (7th Cir. 2001) (applying the Cleveland

analysis in the context of a motion for judgment as a

matter of law). We have similarly applied Cleveland —

rather than our traditional three-step “judicial estoppel”

approach — as the guiding force in the context of a

summary judgment motion where, as here, the claimant

clearly made a contradictory assertion after benefitting from

a previous sworn assertion, the court or agency thus having

accepted the previous assertion.2 See Motley, 196 F.3d at

164-66.

So, we must determine whether a plaintiff ’s assertions

are genuinely in conflict, and then evaluate that plaintiff ’s

attempt to explain away the inconsistency. The Court of

Appeals for the Seventh Circuit has aptly explained what is

required of a plaintiff under the Cleveland analysis this

way:

Cleveland’s analysis suggests that an ADA plaintiff

may not, simply by disavowing a prior claim of total

disability, perform an about-face and assert that he is

a “qualified individual” who is capable of working.

Rather, . . . the plaintiff must proceed from the premise

that his previous assertion of an inability to work was

true, or that he in good faith believed it to be true, and

he must demonstrate that the assertion was

nonetheless consistent with his ability to perform the

essential functions of his job.

2. We note that in Montrose we drew a distinction and refused to

foreclose the plaintiffs from proceeding based solely upon their later

taking an inconsistent position when their previous position had not

been accepted by the court. The plaintiffs in Montrose, a hospital and its

retirement plan, advanced certain claims that were contrary to positions

they had taken as defendants in a previous suit. 243 F.3d at 778-79.

Those initial assertions, however, were never adopted by the court, as

the case settled before the court took any action. Id. at 778. There, we

concluded that in such a case something more than clear inconsistency,

as per Cleveland, should be examined, and we proceeded to address

whether there was bad faith such that there was an assault on the

dignity of the court. Id. at 781-82. As we note, here the situation

resembles Cleveland and Motley, rather than Montrose, so inquiry into

bad faith is not necessary.

14

. . . .

. . . Explanations of the sort Cleveland requires are,

in short, contextual — they resolve the seeming

discrepancy between a claim of disability and a later

claim of entitlement to work not by contradicting what

the plaintiff told the Social Security Administration,

but by demonstrating that those representations,

understood in light of the unique focus and

requirements of the SSA, leave room for the possibility

that the plaintiff is able to meet the essential demands

of the job to which he claims a right under the ADA.

Lee, 259 F.3d at 674-75. And we were guided by a similar

understanding of Cleveland when we recently scrutinized

an ADA plaintiff ’s attempt to reconcile two apparently

inconsistent positions:

[A]n ADA plaintiff must . . . provide some additional

rationale to explain [his] apparent about-face

concerning the extent of the injuries. . . . The

additional justification presented by the plaintiff could,

in theory, go into detail regarding the facts of his . . .

case, demonstrating how the differing statutory

contexts makes their statements made under one

scheme reconcilable with their claims under the other.

Motley, 196 F.3d at 165. Again, although the analysis only

directly refers to claims under the ADA, the reasoning and

conclusion apply with equal force to ADEA plaintiffs.

IV.

Guided by Cleveland and Motley, the first question we

must ask is whether the positions taken by Detz in his

SSDI Application and his ADEA claim genuinely conflict.

We answer this question on a case-by-case basis, by

examining the unique facts presented by Detz’s claim. See

Motley, 196 F.3d at 164. After considering the facts before

us in the instant case, we conclude that the two positions

taken by Detz are truly inconsistent with one another.

In order to be “disabled” for SSDI purposes, an applicant

must be incapable of performing his “past relevant work,”

and he must be found unable to perform any other job

15

existing in significant numbers in the nation’s economy.

See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520(e)-(f),

404.1560(b)-(c) (2002). On the other hand, in order to

establish a prima facie case under the ADEA, a plaintiff

must show, among other things, that he was “qualified” for

the position he held prior to his termination. See Keller v.

Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.

1997) (en banc). To be “qualified” a plaintiff must have been

“performing his job at a level that met his employer’s

legitimate expectations” at the time of his discharge. Eible

v. Houston, 1998 WL 303692, at *5 n.4 (E.D. Pa. Apr. 21,

1998) (citing Mitchell v. Data General Corp., 12 F.3d 1310,

1314-15 (4th Cir. 1993)). Considering these basic

requirements, it becomes clear that a person who makes

assertions in support of both claims would often appear to

be making facially incompatible assertions, as the second

seems to be an “about face” from, or “disavowal” of, the

first.

In the Application he presented to the SSA in 1998, Detz

indicated that it was his disability — the injury he had

sustained to his hand and arm — that prevented him from

working as of November 27, 1996. He made the blanket

statement that he was unable to work. Although he had

been performing his “light duty” job in the Tool Room since

his injury, nowhere on the SSDI paperwork did he note that

he remained physically able to continue doing that job, or

that it was his discharge that rendered him “disabled.”

Instead, he unambiguously indicated that his disability

prevented him from working at all. Even so, Detz’s

Application was initially denied by the SSA on a finding

that his “condition [did] not keep [him] from working.” The

SSA actually stated in a letter to Detz: “[I]t is concluded

that your restrictions do not prevent you from performing

[your past work as a tool room attendant].”

But Detz did not end his attempt to obtain SSDI benefits

there. He repeated his original statements regarding his

disability and his inability to work twice more, as he

appealed the initial denial of his benefits. Ultimately, the

SSA was persuaded by his claims, which he supported with

medical reports and his own sworn statements, and he was

successful in his pursuit of SSDI benefits. These benefits

16

were awarded retroactively, as the SSA found that he

became disabled on November 27, 1996, the date of his

termination by Greiner. The SSA’s final opinion on the

matter, after its reconsideration, makes clear the fact that

Detz subsequently convinced the agency, using statements

of doctors to fortify his initial assertions, that as of

November 27, 1996, his condition was severe enough to

prevent him from performing any work.

Now Detz asserts that it was not his physical limitations,

but rather the fact that Greiner laid him off, that rendered

him “unable to work” as of November 27, 1996. He

contends that he was, in fact, capable of continuing to

perform his light duties in the Tool Room and, therefore,

should be deemed “qualified” for that position for purposes

of his claim under the ADEA. Although he failed to

attribute his inability to work to his discharge on the SSDI

Application, Detz would have us believe that the position he

takes now is actually consistent with his prior assertions.

We cannot agree.

In short, Detz informed the SSA in a sworn statement

that his disability prevented him from working — in other

words, that he was physically incapable of performing his

job. Now he seeks to advance a position before this Court

that rests on the assertion that he was discharged from a

position that he was physically capable of performing. This

second position “crashes face first against” his prior claim.

Feldman, 196 F.3d at 791. Thus, we are compelled to find

that his two assertions are “patently inconsistent,” Motley,

196 F.3d at 167, and we will proceed to the second

question raised under the Cleveland analysis — whether

Detz has adequately reconciled the two positions.

We have examined the explanation offered by Detz as he

attempted to harmonize his ADEA claim with his contrary

statements to the SSA, and we are unable to find that it

can pass muster after Cleveland. We are convinced that the

District Court interpreted Detz’s explanation correctly when

it characterized that explanation as follows: “[Detz’s]

argument, wherein he claims that he became disabled on

the very day of his termination, appears to be that he

became disabled (for Social Security purposes) by virtue of

his termination — that is, because, given his physical

17

condition, he would be unable to find another job.” Detz,

224 F. Supp. 2d at 917.

The fatal flaw in this attempt by Detz to explain some

consistency in his positions is that it ignores the

statements he made repeatedly to the SSA regarding his

disability. In fact, his explanation is no more than a further

contradiction of his initial assertion, and it does nothing to

reconcile his previous two assertions — one that he was

unable to work, and the other that he could perform the job

from which he was terminated. Detz indicated repeatedly on

various forms submitted to the SSA that he was unable to

work — and specifically that he was unable to perform his

previous job — due to his disability. Indeed, in order to

obtain SSDI benefits he had to make this assertion;

otherwise, his claim would fail at Step Four of the SSA’s

analysis, as he would be capable of performing his “past

relevant work.” See 20 C.F.R. §§ 404.1520(e), 404.1560(b)

(2002). He did not inform the SSA that he would be

physically capable of continuing to perform his job in the

Tool Room but for his discharge by Greiner, as he asserts

now in the context of his ADEA claim. Thus, his

explanation would not allow a reasonable juror to find in

the first instance that Detz had a good faith belief in his

entitlement to SSDI benefits, and then still conclude that

he was qualified for his position at Greiner, as Cleveland

requires.

Furthermore, a careful reading of the SSA’s decision

granting Detz SSDI benefits reveals that Detz succeeded in

convincing the SSA that his physical limitations actually

prevented him from continuing in his previous job, not just

that he was impeded in his efforts to find work elsewhere.

The SSA explored at length Detz’s impairment and the

manner in which it limited his ability to function. Upon

considering Detz’s sworn statement and the opinions of

various doctors who had examined Detz, the SSA concluded

that Detz either had “no past relevant work” or was unable

to “perform any of the past relevant work given [his]

residual functional capacity.” The decision does not

mention Detz’s discharge as a factor considered by the SSA,

and instead rests explicitly on the medical reports and

Detz’s own accounts regarding his physical limitations.

18

Accordingly, Detz’s explanation does nothing to reconcile

his current position with the statements he made to the

SSA or the decision it rendered in his favor.

Had Detz’s SSA Application indicated that, while he could

still perform work in the Tool Room, his disability prevented

him from obtaining most other jobs, we might view his later

claim to be reconciled with his earlier assertions. But Detz

indicated nothing of the sort when he described how his

disability affected his work.3 Instead, Detz appears to have

manipulated the facts, and perhaps the system, to obtain

SSDI benefits. He succeeded in convincing the agency to

award benefits based on his first assertion, and his inability

to adequately reconcile the patently inconsistent positions

dooms his ability to pursue his ADEA claim. Like the

assertions he makes in support of his ADEA claim, Detz’s

explanation constitutes an attempt to “create a genuine

issue of fact sufficient to survive summary judgment simply

by contradicting his . . . own previous sworn statement” to

the SSA. Cleveland, 526 U.S. at 806. Thus, the District

Court properly rejected his explanation as inadequate and

granted summary judgment in favor of Greiner.

V.

In light of the foregoing discussion, we conclude that the

District Court was correct in determining that Detz’s

explanation for the contrary positions taken in his

applications for SSDI and ADEA relief was inadequate. The

positions Detz advanced in his ADEA claim are patently

inconsistent with the statements he made to the SSA, and

his explanation does not meet the standard articulated in

Cleveland. The District Court, therefore, did not err in

granting Greiner’s motion for summary judgment.

3. In fact, after reading his SSDI and ADEA applications carefully, we

notice that Detz appears to have characterized his “past relevant work”

rather differently in advancing the two claims. For SSDI purposes, he

emphasized his duties as a millwright — the tougher of the two to

perform — while he focused exclusively on his “light” responsibilities in

the Tool Room — for which it was easier to be “qualified” — in his ADEA

paperwork.

19

Accordingly, we will AFFIRM the Order of the District Court

with respect to both of Detz’s claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit