                                                                                                                           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Precedential or Non-Precedential: Precedential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
