                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3824
                                    ___________

Robert K. Murphey, Jr.,               *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
City of Minneapolis,                  *
                                      *
            Defendant-Appellee.       *
                                 ___________

                              Submitted: November 17, 2003

                                   Filed: February 26, 2004
                                    ___________

Before MURPHY, LAY, and FAGG, Circuit Judges.
                           ___________

LAY, Circuit Judge.

       Robert K. Murphey, Jr. appeals the district court’s grant of summary judgment
in favor of his former employer, the City of Minneapolis (the “City”), in a suit
brought under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. On
appeal, Murphey argues the district court erred in holding that there is no genuine
issue of material fact as to whether he can perform the essential functions of his job,
with or without reasonable accommodation. The district court held, in that regard,
that Murphey failed to provide an explanation as to the alleged inconsistency between
his ADA claim and his application for permanent disability benefits from the Public
Employees Retirement Association (“PERA”). We reverse and remand.
                                   I. Background

       Murphey began working for the City in June of 1971 as a seasonal laborer. In
November of 1977, Murphey injured his lower back on the job and was off work for
a period of five years, during which time he attended the University of Minnesota.
Murphey returned to work in the summer of 1983.

       Murphey continued to work for the City between 1983 and 1997 as a laborer.
In 1987, 1995, and 1996, Murphey re-injured his lower back by lifting heavy objects.
Following each injury, Murphey could not return to work for three to four weeks. In
May of 1997, Murphey again re-injured his lower back while dragging a large water
hose up an incline and was absent from work for three or four weeks. Following this
injury, he was placed under certain medical restrictions, including a lifting restriction
of twenty pounds, bending restrictions, and a restriction prohibiting prolonged sitting
or standing. Murphey returned to work in approximately June of 1997 and worked
part time as a Painter’s Assistant until October of 1997.

       In October of 1997, Murphey was placed on workers’ compensation. He did
not return to work until the spring of 1998, when he worked in the Finance
Department for a few hours a day sorting water bills. In the late summer or early fall
of 1998, Murphey began working in the Lands and Buildings Department doing light
janitorial duties. He refused to perform these duties after six to eight weeks because
the work irritated his back injury.

      On October 13, 1998, Murphey met with Mary Page, a human resources
generalist for the City, about entering the City’s Return to Work Job Bank Program
(“Job Bank”).1 Because Murphey refused to continue performing the light-duty


      1
      The Job Bank is available to City employees who sustain work-related injuries
and are unable to return to their pre-injury job as a result of permanent work

                                          -2-
janitorial work, he did not enter the Job Bank in October of 1998. This led the City
to discontinue Murphey’s workers’ compensation benefits, a decision Murphey
appealed.

       In November of 1998, while he was not working for the City, Murphey applied
for disability benefits from PERA.2 As part of the application, Murphey’s physician
submitted a Medical Disability Report in which he expressed his opinion that
Murphey met the PERA statute’s standards for “total and permanent disability.”
Murphey’s application for PERA disability benefits was approved on May 19, 1999.
The effective date of Murphey’s PERA benefits was October 14, 1998, and he
received the benefits through August of 2001.3

      On January 7, 1999, Murphey and the City entered into a Stipulation of
Settlement related to his workers’ compensation claim. As part of the settlement,
Murphey agreed that he would enter the Job Bank after completion of a chronic pain
management program. Murphey completed a three-week chronic pain management
program in March of 1999, and was subsequently advised in a letter, dated July 6,
1999, that the City was offering him a temporary position as an Engineering Aide I.
The start of this job on July 12, 1999, marked Murphey’s entry into the Job Bank.



restrictions attributable to their work-related injury. The Job Bank is designed to help
injured employees locate and secure suitable City employment that can be performed
within their medical restrictions. Injured employees enter the Job Bank for a period
of 120 days. If the City is unable to find another position for an injured employee
within 120 days, the employee is terminated from City employment.
      2
      PERA members may obtain retirement, survivor, and disability benefits under
programs established by Minnesota law. See Minn. Stat. §§ 353.01-353.88.
      3
       Murphey also received total disability benefits through a mortgage insurance
policy with U.S. Life Credit Life Insurance Company in various months during 1999
and 2000.

                                          -3-
       Murphey was able to complete the Engineering Aide I duties within his
medical restrictions, but he worked only four hours per day.4 On October 15, 1999,
Murphey and his workers’ compensation attorney met with Mary Page, Nancy Ross,
Murphey’s workers’ compensation claims coordinator, and Assistant City Attorney
Ed Backstrom to discuss Murphey’s status as an Engineering Aide I. Murphey was
told that his supervisors were satisfied with his work and that he was doing an
excellent job. The parties also discussed classes Murphey could take to enhance his
skills. Murphey left the meeting believing he had secured a permanent job as an
Engineering Aide I, but he admitted that no one had guaranteed him a job with the
City. Murphey therefore presumed that because he had found a permanent job within
120 days of entering the Job Bank, he no longer faced termination under this rule.

        The City did not share Murphey’s belief that a permanent job had been found
for him. By letter dated November 3, 1999, the City informed Murphey that he had
been released from City service because his injury and resulting restrictions did not
allow him to return to his pre-injury position and no other appropriate position was
available.5 Murphey immediately called Mary Page to see why he had received the
letter. Ms. Page informed him that there had been a mistake. Nancy Ross and Frank
Samlaska, a qualified rehabilitation consultant for Murphey, also told Murphey that
his termination had been a mistake, but the City never took any action to reverse the


      4
       Murphey initially began working eight hours per day, but he had to reduce his
time to four hours per day because the long drive from his home to work irritated his
back and he was dealing with the death of his daughter who died on June 9, 1999,
following a car accident.
      5
        The letter incorrectly informed Murphey that his 120-day period in the Job
Bank ended on November 2, 1999. However, because Murphey entered the Job Bank
on July 12, 1999, when he began working as an Engineering Aide I, the 120-day
period did not end until November 8, 1999. The November 2, 1999 date appears to
have been calculated based on information that Murphey entered the Job Bank on
July 6, 1999.

                                         -4-
termination. Even though Murphey had been terminated from employment, he
continued to work for the City as an Engineering Aide I on a “permit” basis until
November 30, 1999.

      On March 15, 2000, Murphey filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging the City discriminated
against him on the basis of his disability. The EEOC issued a Notice of Right to Sue
on September 25, 2000. On December 14, 2000, Murphey brought an action under
the ADA in Minnesota state court. The City removed the action to federal court on
January 2, 2001. The district court subsequently granted the City’s motion for
summary judgment on Murphey’s ADA claim, and this appeal followed.

                                   II. Discussion

      We review a grant of summary judgment de novo, applying the same standards
as the district court and construing the record in the light most favorable to the
nonmoving party. See Cravens v. Blue Cross and Blue Shield of Kansas City, 214
F.3d 1011, 1016 (8th Cir. 2000).

       The ADA prohibits employers from discriminating “against a qualified
individual with a disability because of the disability of such individual.” 42 U.S.C.
§ 12112(a). The term “qualified individual with a disability” is defined as “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.” Id. § 12111(8). In order to establish a claim under the ADA, a plaintiff
must show (1) that he is disabled within the meaning of the ADA; (2) that he is
qualified to perform the essential functions of the job either with or without
reasonable accommodation; and (3) that he has suffered adverse employment action
because of his disability. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 948 (8th
Cir. 1999).

                                         -5-
       In granting summary judgment, the district court relied on Cleveland v. Policy
Management Systems Corp., 526 U.S. 795 (1999), in ruling that Murphey had not met
his burden of presenting a sufficient explanation of the apparent inconsistency
between his ADA claim and his successful application for PERA disability benefits.
In Cleveland, the plaintiff brought an ADA suit against her former employer after she
had sought Social Security Disability Insurance (“SSDI”) benefits and one week
before the SSDI benefits were awarded to her. Id. at 798-99. In her application for
SSDI benefits, her request for reconsideration, and her hearing with the Social
Security Administration, the plaintiff made sworn statements that she was “disabled”
and “unable to work” due to her disability. Id. The Supreme Court was faced with
the question of “whether the law erects a special presumption that would significantly
inhibit an SSDI recipient from simultaneously pursuing an action for disability
discrimination under the [ADA].” Id. at 797.

       The Court held that an application for SSDI benefits and a claim under the
ADA do not inherently contradict each other such that the pursuit and receipt of SSDI
benefits prevents a plaintiff from successfully asserting an ADA claim. Id. at 802-03.
Although the Supreme Court made it clear that a party may pursue an ADA claim
even after he has successfully applied for SSDI benefits, the Court held that an ADA
plaintiff cannot simply ignore the apparent contradiction that arises from the
plaintiff’s sworn assertion in an application for disability benefits that he or she is
unable to work. Id. at 806. To that end, the Court ruled that

      [w]hen 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 [his or] her job,
      with or without “reasonable accommodation.”

Id. at 807.

                                         -6-
       Although Murphey’s case did not involve SSDI benefits, the district court
concluded that Cleveland applied to Murphey’s successful application for PERA
disability benefits. The district court held that because Murphey failed to meet his
burden under Cleveland there was no genuine issue of fact about whether he could
perform the essential functions of his job, with or without reasonable accommodation.
We disagree with the district court’s conclusion that Cleveland applied in this case.

      The district court first reasoned that Cleveland applied because Murphey
represented in his application to PERA, although not in the form of a sworn
statement, that he was totally and permanently disabled and that his impairment
rendered him unable to engage in any substantial gainful activity. Murphey argues
on appeal that he made no such representations. We agree.

      Murphey’s application for PERA disability benefits included the following
information: (1) his demographic information; (2) his choice of a full survivor
benefit; (3) a description of his disability;6 (4) the names of the physicians he
consulted for his disability; (5) the medical treatment he received; (6) his employment
information; (7) his choices regarding state and federal tax income withholding; and
(8) his notarized signature. Nowhere in the application did Murphey make the
representations ascribed to him by the district court. In contrast, the plaintiff in
Cleveland specifically stated in her pursuit of SSDI benefits that she was disabled and
unable to work. Id. at 798.

       The only section of the application directly applicable to whether Murphey was
totally and permanently disabled was found in a separate form completed by
Murphey’s physician. This section asked whether, in the physician’s opinion,



      6
       Murphey described his disability as “Severe Spinal Stenosis. A deteri[or]ation
of lower spinal area caused by repeated injuries, i.e. 1977, 1987, 1995, 1996, 1997.”

                                         -7-
Murphey met the PERA statute’s standards for total and permanent disability.7
Murphey’s physician answered this section affirmatively. We hold, however, that the
physician’s opinion does not amount to a “sworn statement” or representation by
Murphey that he is totally and permanently disabled and unable to work. Compare
Cleveland, 526 U.S. at 807 (requiring a sufficient explanation of the apparent
inconsistency between a plaintiff’s previous sworn statement in an application for
disability benefits and the plaintiff’s ADA claim).8

       The district court also reasoned that Cleveland applied because the eligibility
requirements for SSDI benefits were virtually identical to the eligibility requirements
for total and permanent disability benefits through PERA. “Disability” for purposes


      7
        “Total and permanent disability” is defined as “the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to be of long-continued and indefinite
duration[, meaning] that the disability has been or is expected to be for a period of at
least one year.” Minn. Stat. § 353.01, subd. 19.
      8
        The district court also relied on Motley v. New Jersey State Police, 196 F.3d
160 (3d Cir. 1999), in concluding that it was appropriate to apply Cleveland. The
plaintiff in Motley applied for disability benefits through a program established by
state law. Id. at 163. In his application, the plaintiff averred that he was qualified for
disability benefits because he was permanently and totally disabled, and he made
additional statements to support his assertion. Id. at 166-67. The plaintiff’s
subsequent suit against his employer under the ADA was dismissed on summary
judgment. Id. at 162. The Third Circuit affirmed on the basis that the plaintiff had
not provided a sufficient explanation of the inconsistencies between his previous
statements of permanent and total disability and his ADA claim. Id. 166-67.

      We agree with the district court that Motley supports a conclusion that
Cleveland may apply to a plaintiff who has obtained disability benefits under a state
law by representing that he is totally disabled and unable to work. However, as we
have previously discussed, Murphey’s application for PERA disability benefits
includes no representations by Murphey akin to those in Cleveland or Motley.

                                           -8-
of SSDI benefits is defined as “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Although
this definition is quite similar to the PERA statute’s definition of “total and
permanent disability,” we hold there is a critical distinction between the eligibility
requirements for PERA disability benefits and SSDI benefits. The essential
difference between the two statutory schemes is that a person receiving PERA
disability benefits based on total and permanent disability is allowed to return to work
without losing his benefits. See Minn. Stat. § 353.33, subd. 7.

       Under the PERA statute, if a person receiving disability benefits “resumes a
gainful occupation from which earnings are less than the salary at the date of
disability or the salary currently paid for similar positions,” the disabled person will
continue to receive disability benefits in an amount that makes up the difference. Id.
In contrast, a person receiving SSDI benefits who resumes substantial gainful activity
generally is ineligible to continue receiving SSDI benefits. See 42 U.S.C.
§ 423(e)(1). While it is true that a person entitled to SSDI benefits is granted a nine-
month trial work period during which the person may test his or her ability to work
and still be considered disabled, see 42 U.S.C. § 422(c) and 20 C.F.R. § 404.1592(a),
if the person continues to work following the trial work period, his or her SSDI
benefits are suspended. 20 C.F.R. § 404.1596(b)(1)(ii). However, a person receiving
PERA disability benefits who returns to work may continue to work and receive
benefits as long as his earnings are less than his previous salary or the salary for
similar positions. Minn. Stat. § 353.33, subd. 7.

       In the present case, Murphey applied for PERA disability benefits in November
of 1998 during a time when he was not working. His doctor opined that Murphey’s
disability had continued or could be expected to continue for a period of at least one
year. Presumably, the person responsible for determining whether Murphey was

                                          -9-
eligible for PERA disability benefits followed the statutory requirements of reviewing
Murphey’s medical records and relevant information. See Minn. Stat. § 353.33, subd.
4. Murphey’s application for disability benefits was approved by PERA on May 19,
1999, before he returned to work for the City. Although Murphey returned to work
on July 12, 1999, this did not make him ineligible for disability benefits under the
terms of the PERA statute.9 Id. at subd. 7.

      Based on the foregoing analysis, we conclude that there is no inconsistency
between Murphey’s successful application for and receipt of PERA disability benefits
and his ADA claim that he could perform the essential functions of his job, with or
without reasonable accommodation.10 Thus, we hold the district court erred in
applying Cleveland to dispose of Murphey’s ADA claim.




      9
       The district court pointed out that the essence of the reasoning underlying
Cleveland was that

      in the absence of an explanation, an individual who has secured
      disability benefits under one federal law by representing that she is
      unable to work cannot turn around and seek damages under a second
      federal law by making the apparently inconsistent representation that she
      can perform the essential functions of her job, with or without
      reasonable accommodation.

The district court concluded that this reasoning applies with equal force to individuals
who seek and obtain disability benefits under state law by making similar
representations. We do not take issue with the district court’s analysis in this respect.
However, given the divergent requirements for SSDI and PERA disability benefits
and our conclusion that Murphey did not make representations akin to those in
Cleveland, our holding does not conflict with the reasoning underlying Cleveland.
      10
      Because we hold that Cleveland does not apply, we need not address whether
Murphey provided the explanation required by Cleveland.

                                          -10-
                                III. Conclusion

       The district court erred in granting summary judgment in favor of the City
based on its conclusion that Cleveland applied to Murphey’s application for PERA
disability benefits. Therefore, we reverse the judgment of the district court and
remand the case for further consideration.
                       ______________________________




                                      -11-
