                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 99-2094EM
                                  _____________

Michael Lane,                       *
                                    *
           Appellant,               *
                                    * On Appeal from the United
     v.                             * States District Court for
                                    * the Eastern District of
                                    * Missouri.
BFI Waste Systems of North America, *
                                    *
           Appellee.                *
                               ___________

                             Submitted: March 15, 2001
                                 Filed: July 16, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
      Circuit Judges.
                         ___________


RICHARD S. ARNOLD, Circuit Judge.

       Michael Lane appeals the District Court 's1 order granting summary judgment in
favor of the defendant, Browning-Ferris Industries Waste Systems of North America,
Inc. (BFI). Mr. Lane filed suit against BFI claiming disability discrimination in



      1
        The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern
District of Missouri.
violation of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12217.
We affirm.

                                             I.

       Mr. Lane was a front-end loader for BFI when he sustained a back injury. He
received medical treatment for the injury and continued to work. Approximately two
years later, Mr. Lane re-injured his back while on the job and took three months of
medical leave. Because of his injured back, Mr. Lane was no longer able to climb in
and out of large garbage trucks. Consequently, Mr. Lane returned to BFI as a
dispatcher. He was later diagnosed with a herniated and ruptured disc and underwent
back surgery. After a three-month medical leave, Mr. Lane returned to his dispatcher
position under various temporary restrictions limiting his ability to lift, bend, and stand.
These restrictions were later removed, but he was permanently restricted from lifting
more than 50 pounds. Mr. Lane also worked as a route auditor, for which BFI
provided him with a pick-up truck, and he worked on a computerized mapping and
routing system referred to as "MARS."

       In August of 1996, Mr. Lane was involved in an accident in his personal vehicle.
He broke his wrist and pelvis. In November of 1996, his doctor released him to return
to work. BFI informed Mr. Lane that MARS was no longer operational and
conditionally offered him a position as route auditor.2 The route auditor position had
changed in Mr. Lane's absence, and route auditors were now required to use the large
garbage trucks. BFI conditioned Mr. Lane's return to the route auditor position on his
ability to pass a return-to-work physical.

      In December of 1996, Mr. Lane saw Dr. Jamuna Arekapudi. After examining
Mr. Lane and reviewing the job description for route auditor, Dr. Arekapudi determined

       2
           Subsequently, BFI re-implemented a different mapping and routing system.

                                            -2-
that he was physically unable to perform the position's essential duties, such as frequent
"stooping, kneeling, crouching, crawling, and entering and exiting large refuse
vehicles." Joint Appendix (J.A.) 134. Dr. Arekapudi also determined that Mr. Lane
would have difficulty standing, walking, reaching with his hands, and climbing on an
occasional basis. Mr. Lane requested the use of the pick-up truck so he would not have
to climb in and out of the large garbage trucks, but BFI informed him that the pick-up
truck was no longer available.

       Subsequently, Mr. Lane requested that he be able to return to his position as a
dispatcher; however, BFI informed him that there were no dispatcher positions
available in his district. When Mr. Lane requested the position of a retiring dispatcher
in another district, the BFI-North facility, BFI claimed it could not place Mr. Lane in
that position because it had a long standing policy or preference to fill vacant positions
with employees from within the district before seeking employees from outside it. Mr.
Lane was placed on temporary unpaid leave. Subsequently, BFI filled the dispatcher
position with two part-time employees from within the district. In March of 1997, Mr.
Lane applied for, and eventually received, long term disability benefits from the Social
Security Administration (SSA). In his SSA application he stated, and the SSA found,
that he was unable to engage in any substantial work. BFI terminated Mr. Lane's
employment in December of 1997.

       Mr. Lane filed this suit against BFI claiming disability discrimination in violation
of the ADA. BFI filed a motion for summary judgment. The District Court granted
BFI's motion after holding that Mr. Lane failed to establish a prima facie case. The
Court held that there was no genuine issue of material fact as to whether Mr. Lane was
disabled under the Act because he failed to provide sufficient evidence that he was
substantially limited in any major life activity. Moreover, the Court held that Mr. Lane
had not provided sufficient evidence that he was a qualified individual under the ADA
for the following reasons: (1) he offered "no strong countervailing evidence" that he
was able to perform the essential functions of the route auditor position in light of his

                                           -3-
statements of disability to the SSA, (2) even with a reasonable accommodation he could
not perform the essential functions of the route auditor position, (3) reassignment to
another position was not a reasonable accommodation where such reassignment
directly conflicted with BFI's legitimate nondiscriminatory policy, and (4) Mr. Lane
failed to offer evidence that he possessed the skill, experience, education, and other
job-related requirements to work the new MARS system. This appeal followed.

                                            II.

       The ADA prohibits discrimination against a "qualified individual with a
disability." 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, a
plaintiff must show that: (1) he was disabled within the meaning of the ADA; (2) he
was qualified to perform the essential functions of his job, with or without reasonable
accommodation; and (3) he suffered an adverse employment action because of his
disability. Taylor v. Nimock's Oil Co., 214 F.3d 957, 959-60 (8th Cir. 2000); see
generally 42 U.S.C. § 12112. In order for a plaintiff to establish that he is disabled
under the ADA, he must show that he has "a physical or mental impairment that
substantially limits one or more of the major life activities . . .." 42 U.S.C. § 12102(2).
In order to establish that he is a "qualified individual" within the meaning of the ADA,
a plaintiff must show he is an "individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires." 42 U.S.C. § 12111(8).

       On appeal, Mr. Lane argues that the District Court erred in granting summary
judgment because there were genuine issues of material fact as to whether he was a
qualified individual with a disability under the Act and whether BFI failed to make a
reasonable accommodation. Mr. Lane asserts he presented sufficient evidence that he
was a qualified individual for the position of dispatcher because he had previously
performed the job, and the only accommodation he needed to perform the essential
functions of the job was a comfortable chair. However, BFI asserts that Mr. Lane was

                                           -4-
not a qualified individual because he failed to address the discrepancy between his
assertion that he was able to perform the essential functions of the dispatcher position
and his claim of disability in his social-security application. We agree.

       Statements to the SSA to secure disability benefits do not automatically preclude
a successful suit under the ADA, nor is there "a special legal presumption" against such
a suit brought by a person who has successfully applied for social-security disability
benefits. Cleveland v. Policy Mgmt. Sys., 526 U.S. 795, 805 (1999). However, where
an employee has sworn in an application for disability benefits that he is unable to work
at any job, he must proffer a sufficient explanation "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 [his] job,
with or without 'reasonable accommodation.' " 526 U.S. at 807; see Lloyd v. Hardin
County, Iowa, 207 F.3d 1080, 1084 (8th Cir. 2000). Cleveland was decided after the
District Court entered judgment. Consequently, Mr. Lane requests we remand the case
to the District Court to allow him to make the sufficient showing under Cleveland. In
the alternative, Mr. Lane argues that the two contradictory statements can be easily
reconciled by looking at the record.

       We decline to remand the case to the District Court. Even though Mr. Lane did
not have the guidance of Cleveland below, he was required by then-existing case law
to provide evidence to reconcile his seemingly contradictory statements. Although not
controlling on appeal,3 at the time Mr. Lane's case was heard by the District Court, this
Court's cases held that where a plaintiff has made "representations of total disability

       3
        When the United States Supreme Court "applies a rule of federal law to the
parties before it, that rule is the controlling interpretation of federal law and must be
given full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate [the] announcement of the rule."
Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993).


                                            -5-
during the relevant period, a district court properly enters summary judgment against
him unless the plaintiff has presented 'strong countervailing evidence' " that he is in
fact qualified to perform the essential functions of the job. Downs v. Hawkeye Health
Serv., Inc., 148 F.3d 948, 951 (1998) (emphasis ours) (quoting Dush v. Appleton Elec.
Co., 124 F.3d 957, 963 (8th Cir. 1997)).

       After reviewing the record, we hold that Mr. Lane proffered no evidence below
to harmonize his inconsistent statements. The only explanation advanced by Mr. Lane
before the District Court was that he filed for SSA benefits because it was required by
his insurance company. J.A. 121. This statement explains only his motivation for
applying for SSA benefits. It does not explain or even address how, in light of his
assertions of disability, he was, in fact, qualified to perform the essential functions of
the dispatcher position.

       In his Reply Brief, Mr. Lane does offer this Court an explanation for the
contradictory statements. He asserts that when he filed his application for SSA benefits
he had been injured in a car accident, placed on temporary medical leave, restricted
from performing the route auditor position by Dr. Arekapudi, and then fired by BFI.
Reply Brief 13-14. Therefore, according to Mr. Lane, it should not be "surprising that
[he] concluded he was unable to work due to his restrictions." Id. Furthermore, asserts
Mr. Lane, the record is unclear as to whether he learned of the vacant dispatcher
position at the BFI-North facility before or after he applied to the SSA. Therefore, "[a]
reasonable inference can be drawn that [Mr. Lane] did not know about the availability
of a position that he could perform until after he applied for Social Security benefits."
Id.

       These explanations are not factually supported by the record. Plaintiff had not
been terminated by BFI at the time he applied for SSA benefits. He applied for SSA
benefits in March of 1997, but he was terminated in December of 1997. Likewise, in
his deposition, Mr. Lane testified that he made his first request for the vacant dispatcher

                                           -6-
position in the BFI-North facility in December of 1996. J.A. 107. Thus, when Mr.
Lane applied for SSA benefits and asserted his disability, he was aware of, and had
already requested, the dispatcher position at the BFI-North facility. Therefore, there
is no explanation in the record "to warrant a reasonable juror's concluding that,
assuming the truth of, or [Mr. Lane's] good faith belief in, the earlier statement, [he]
could nonetheless perform the essential functions of [his] job." Cleveland, 526 U.S.
at 807 (internal quotations omitted). Mr. Lane "cannot simply ignore the apparent
contradiction that arises out of the earlier SSDI total disability claim" and his assertions
in this suit. Id. at 806.

                                            III.

       Because this issue is decisive, we do not reach Mr. Lane's other assignments of
error on appeal. Accordingly, we hold that the District Court did not err in granting
summary judgment to BFI. We express our thanks to appellant's appointed counsel for
his excellent service to his client.

       The judgment is affirmed.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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