                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-1593


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                Plaintiff - Appellant,

           v.

GREATER BALTIMORE MEDICAL CENTER, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:09-cv-02418-RDB)


Argued:   January 24, 2012                 Decided:   April 17, 2012


Before GREGORY and KEENAN, Circuit Judges, and Liam O'GRADY,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished opinion.     Judge O’Grady wrote the
majority opinion, in which Judge Keenan joined.  Judge Gregory
wrote a dissenting opinion.


ARGUED: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.    Lawrence Joseph
Quinn, TYDINGS & ROSENBERG, LLP, Baltimore, Maryland, for
Appellee.   ON BRIEF: P. David Lopez, General Counsel, Lorraine
C. Davis, Acting Associate General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY   COMMISSION,  Washington,  D.C.,   for   Appellant.
Kristin P. Herber, TYDINGS & ROSENBERG, LLP, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
O'GRADY, District Judge:

      The    Equal        Employment    Opportunity         Commission      (EEOC)       sued

Greater      Baltimore        Medical    Center,          Inc.    (GBMC)      under       the

Americans with Disabilities Act (ADA), alleging that GBMC had

discriminated against Michael Turner (Mr. Turner), a former GBMC

employee.       After discovery, the district court granted GBMC’s

motion for summary judgment, holding that under Cleveland v.

Policy    Mgmt.      Sys.    Corp.,    526    U.S.    795     (1999),    EEOC      had    not

offered     a   satisfactory         explanation      for     the    conflict      between

EEOC’s      claim     that    Mr.    Turner       could    work     “with     or   without

reasonable accommodation” under the ADA and Mr. Turner’s prior

application         for    and   receipt      of     Social      Security      Disability

Insurance (SSDI) benefits.              For the following reasons, we affirm

the judgment of the district court.



                                             I.

      In reviewing a grant of summary judgment, we view the facts

and draw all inferences in favor of the non-moving party, EEOC.

See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986);

Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).

      Mr. Turner began working for GBMC as a unit secretary in

1984.     He worked part-time until 1990, when he became a full-

time unit secretary.                His responsibilities involved answering

the   phone,        assisting    with    security         badge     access,     answering

                                              3
patient call lights, and using the fax machine.                                        In 2005, Mr.

Turner    was     working     as       a       full-time         unit    secretary         for     GBMC’s

postpartum       unit   when       he      experienced             multiple         serious        medical

conditions.

     In     January         2005,              Mr.     Turner          was     hospitalized            for

necrotizing        fasciitis,              a     life-threatening                  condition.          He

remained     hospitalized              for       the       next        five    months,        underwent

intensive       treatment      and             rehabilitation,               and    was      ultimately

released     from       the    hospital              in         July    2005.          Mr.    Turner’s

physician, Dr. Nathan Rosenblum, released him to work effective

November 2005.            That same month, Mr. Turner was hospitalized

again, this time for a stroke.                         He left the hospital on December

27, 2005.

     Two days later, on December 29, 2005, Mr. Turner applied

for SSDI benefits with the help of his mother, Margaret Turner

(Mrs. Turner).            His application stated, in relevant part, “I

became    unable     to     work       because             of    my    disabling       condition       on

January     15,    2005.           I       am    still          disabled.”            JA     32.      The

application indicated that Mr. Turner would notify the Social

Security Administration (SSA) “if my medical condition improves

so that I would be able to work, even though I have not yet

returned    to     work.”       JA         33.         A    few       days    later,       Mrs.    Turner

submitted a function and disability report to SSA stating that

Mr. Turner’s multiple conditions--necrotizing fasciitis, stroke,

                                                     4
and diabetes--rendered him unable to work.                The SSA approved Mr.

Turner’s application on January 22, 2006 and awarded benefits

retroactive to January 15, 2005, the date at which he was first

hospitalized for necrotizing fasciitis.                 To date, Mr. Turner

continues to receive monthly SSDI payments.

       In January 2006, Mr. Turner notified GBMC that he intended

to    return   to    work.       He   submitted   a   form   completed   by   Dr.

Rosenblum indicating that he could return to work as a part-time

unit secretary as early as March 6, 2006, subject to certain

walking, bending, and lifting restrictions. 1                 Mr. Turner also

underwent a physical examination by Dr. Paul Valle, of GBMC’s

Employee Health Department.            Dr. Valle reported that Mr. Turner

could return to work on a limited part-time basis in a low-

volume area that did not require multitasking, thus ruling out

Mr.   Turner’s      old   unit   secretary    position.      According   to   Dr.

Valle, Mr. Turner could work safely as a file clerk.

       In April 2006, GBMC told Mr. Turner that because he could

not return to work with the same job classification and hours he

had worked before, GBMC was not obligated to provide him with a

position.      GBMC leave policy does not guarantee that an employee

on leave may return to his position, although an employee will

       1
       It is unclear when Dr. Rosenblum’s work releases were
submitted to GBMC, but the parties do not dispute that they were
submitted.



                                          5
be considered for vacancies for which he is qualified.                                GBMC

also told Mr. Turner that he would be terminated unless he found

a suitable position before his leave expired on June 30, 2006.

       Mr. Turner subsequently declined to apply for a file clerk

position because it required mostly standing and walking and, in

his view, was not challenging enough.                        JA 279-80, 384.            He

applied      for   a   part-time      unit    secretary      position,   but    on     Dr.

Valle’s recommendation, was not considered.                    JA 389.

       On May 15, Dr. Rosenblum again examined Mr. Turner and saw

“no reason . . . that would prevent [Mr. Turner] from working a

full    40    hour     week    (5-8     hour       shifts    per   week),      with    no

restrictions.”          JA 391.       He also observed that Mr. Turner was

“in much better physical condition than any time since 1992[.]”

JA 391.       On June 1, Dr. Valle cleared Mr. Turner to return to

work full-time, though not to the unit secretary position.                              On

June 9, Mr. Turner declined to apply for a float pool file clerk

position because it was located far from his home and required

too much driving.

       As    foretold,    GBMC     terminated       Mr.     Turner’s   employment       on

June    30,     2006.         Since     his       termination,     Mr.   Turner        has

volunteered over 1,100 hours of his time to GBMC and has applied

to approximately twenty-eight positions at GBMC, ten of which he

was qualified for.            GBMC has never rehired Mr. Turner.                  At no



                                              6
time did Mr. Turner inform the SSA about his improved medical

condition.

      In January 2007, in an intake questionnaire submitted to

EEOC, Mr. Turner indicated that his disability would not affect

his   ability   to   work   as   a   unit   secretary   and   that    he   never

requested a reasonable accommodation from GBMC because he did

not need one.        He filed a charge against GBMC with EEOC in

February 2007, and after some years of inactivity, EEOC found

reasonable cause to believe that GBMC had violated the ADA.                   On

September 14, 2009, EEOC filed this enforcement action.



                                      II.

                                       A.

      The ADA prohibits a covered employer from discriminating

“against a qualified individual with a disability because of the

disability of such individual.”             42 U.S.C. § 12112(a).          Among

other things, EEOC must show that Mr. Turner is a “qualified

individual with a disability,” that is, “an individual with a

disability who, with or without reasonable accommodation, can

perform      the     essential       functions     of     the        employment

position . . . .”      Boitnott v. Corning Inc., No. 10–1769, ---

F.3d ---, 2012 WL 414662, at *2 (4th Cir. Feb. 10, 2012); 42

U.S.C. § 12111(8); see also Martinson v. Kinney Shoe Corp., 104

F.3d 683, 686 (4th Cir. 1997); Doe v. University of Md. Med.

                                       7
Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).                              “The term

‘reasonable accommodation’ may include . . . reassignment to a

vacant position.”          42 U.S.C. § 12111(9)(B).

       Many    persons         who    experience      disabling       medical       problems

become eligible for programs like SSDI, at least temporarily,

during medical leave.                If such a person seeks SSDI benefits and

attempts      to    bring       a    claim    under     the    ADA,     he    may     assert

disability         in     an        application    for        SSDI     benefits        while

simultaneously          asserting      that   he   is    a    “qualified      individual”

under the ADA, that is, he is able to work with or without

reasonable accommodation.               A conflict of this sort may appear to

bar the claimant from receiving both disability benefits and ADA

coverage.

       The    Supreme     Court       addressed    precisely         this    situation    in

Cleveland v. Policy Mgmt. Sys. Corp., in which the plaintiff,

Ms. Cleveland, suffered a stroke affecting her concentration,

memory, and language skills.                  Cleveland, 526 U.S. at 798.                She

improved quickly and returned to work two weeks later, but not

before filing an application for SSDI benefits stating that she

was “disabled” and “unable to work.”                    Id. at 798-99.          After the

SSA denied her application for benefits, she was fired.                              Id. at

798.    Ms. Cleveland then filed suit under the ADA.                             One week

later, the SSA reversed course and awarded benefits.                                 Id. at

799.

                                              8
       The   district       court    granted     summary       judgment            against      Ms.

Cleveland     and   the      Fifth    Circuit       affirmed,           holding         that   Ms.

Cleveland’s      SSDI        application         had        created       “a           rebuttable

presumption that the claimant or recipient of such benefits is

judicially     estopped       from    asserting        that        he    is    a       ‘qualified

individual     with     a    disability.’”             Id.     at       799-800          (quoting

Cleveland v. Policy Mgmt. Sys. Corp., 120 F.3d 513, 518 (5th

Cir. 1997)) (emphasis in original).

       The Supreme Court reversed, rejecting the proposition that

a claimant who asserts disability in an application for SSDI

benefits is presumptively ineligible for ADA relief:

       In our view, however, despite the appearance of
       conflict that arises from the language of the two
       statutes, the two claims do not inherently conflict to
       the point where courts should apply a special negative
       presumption like the one applied by the Court of
       Appeals here.    That is because there are too many
       situations in which an SSDI claim and an ADA claim can
       comfortably exist side by side.

Id. at 802-03.        To begin with, SSDI and the ADA have different

statutory purposes.          The SSDI program provides monetary benefits

for    individuals,       whereas     the     ADA      is    intended          to       eliminate

unwarranted discrimination and create equal opportunity.                                  Id. at

801.     Moreover,      the     legal    standard           used    to    determine            SSDI

eligibility is different from that used to determine status as a

“qualified    individual”       under    the      ADA.        SSA       uses       a   five-step

eligibility     determination         that       sometimes         grants       benefits         to


                                             9
individuals who “not only can work, but are working.”                     Id. at

804-05.     The conflict between a claimant’s ADA claim and his

SSDI benefits application is therefore not a “purely factual

matter,” but rather a conflict between a legal position on the

one hand, and on the other a “context-related legal conclusion”

roughly equivalent to “I am disabled for the purposes of the

Social Security Act.”         Id. at 802.      In many cases, therefore, it

is comparing apples and oranges to interpret a charging party’s

application      for   SSDI   benefits    as   presumptive   proof   of    total

disability under the ADA.

      Yet   in   other    cases,   a     claimant’s   application    for    SSDI

benefits may truly conflict with his claim under the ADA.                  Then,

the Supreme Court said, a court must determine whether the ADA

plaintiff has offered a “sufficient” explanation of the conflict

between the claim of disability and the ADA claim.               Id. at 805-

06.   The Court described its approach this way:

      When faced with a plaintiff’s previous sworn statement
      asserting “total disability” or the like, the court
      should   require  an   explanation  of  any   apparent
      inconsistency with the necessary elements of an ADA
      claim.   To defeat summary judgment, that explanation
      must be sufficient to warrant a reasonable juror's
      concluding that, assuming the truth of, or the
      plaintiff’s   good-faith    belief in,   the   earlier
      statement, the plaintiff could nonetheless “perform
      the essential functions” of her job, with or without
      “reasonable accommodation.”

Id. at 807.        Although the Supreme Court determined that Ms.

Cleveland had offered a sufficient explanation on the record

                                         10
before it, the Supreme Court nevertheless remanded for further

development    of    the    factual    record       supporting      Ms.   Cleveland’s

explanation.       Id.

                                            B.

       This Circuit has applied Cleveland in two reported cases,

both of which illustrate the fact-intensive nature of our task.

In EEOC v. Stowe Pharr-Mills, Inc., 216 F.3d 373, 377, 379-80

(4th Cir. 2000), for example, summary judgment was inappropriate

where the claimant, Ms. Treece, initiated an ADA charge that

facially contradicted her SSDI application, which included the

statement     “I   became    unable    to        work   because   of   my    disabling

condition on March 24, 1994.”               Ms. Treece’s continued receipt of

SSDI benefits did not require summary judgment because an SSDI

benefits intake officer had told her that she did not need to

mention that she was limited only in her ability to work on

wooden floors, and because her medical condition had degraded to

total disability only after she was terminated.                   Id. at 379-80.

       Likewise, in Fox v. General Motors Corp., 247 F.3d 169, 177

(4th   Cir.   2001),     summary   judgment          against   the     plaintiff   was

improper where his ADA hostile work environment claim did not

overlap     temporally      with      his        separate   claim      for    workers’

compensation based on temporary total disability.                      The plaintiff

had applied for workers’ compensation after leaving the plant



                                            11
where he suffered mistreatment and had shown that his disability

was caused by the hostile work environment.                    Id. at 178.

      In     both   of    these    cases,       the   analysis        under      Cleveland

involved careful examination of the factual record to determine

whether the plaintiff had offered a satisfactory explanation for

the   apparent        contradiction       between       the    disability        benefits

application and the ADA claim.



                                          III.

      EEOC raises two issues on appeal.                  First, EEOC argues that

the Supreme Court’s decision in Cleveland does not and cannot

apply to an enforcement action by EEOC.                       Second, if Cleveland

applies here, EEOC argues that it has sufficiently explained the

contradiction between Mr. Turner’s eligibility for SSDI benefits

and   its     claim      that    Mr.    Turner    can     work    with      or     without

reasonable accommodation.              We address each in turn.

                                           A.

      EEOC    argues      that    Cleveland      cannot       apply    to   enforcement

actions like this one.            EEOC distinguishes this Court’s decision

in EEOC v. Stowe Pharr-Mills, Inc. because it had no occasion to

determine whether Cleveland could ever permit summary judgment

against EEOC in an enforcement action on behalf of an individual

claimant.



                                           12
       As Stowe Pharr-Mills, Inc. demonstrates, however, the same

analysis properly applies to ADA enforcement actions brought by

EEOC.      216       F.3d   at    377-79.           It   is       true   that    EEOC     has    a

governmental         interest     in     an    enforcement          action      that     is    not

merely derivative of the individual claimant’s interest.                                      This

does not mean, however, that a claimant’s statements to other

government agencies are somehow less relevant to an enforcement

action on behalf of the claimant than they are for an action

pursued by the claimant himself.                     After all, Cleveland did not

consider       the    nature     of    the     claimant’s         interest,     but      applied

summary judgment principles.                    See Cleveland, 526 U.S. at 806

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

The     proper       question     is     whether         the      conflict      between        the

claimant’s         disability         application        and       his   claim      to    be     a

qualified individual under the ADA presents a genuine issue of

material fact.         Id. at 805-06; Stowe Pharr-Mills, Inc., 216 F.3d

at 378; see also Giles v. General Elec. Co., 245 F.3d 474, 484

n.13 (5th Cir. 2001).

       To avoid summary judgment in an enforcement action like

this    one,     therefore,      EEOC     must      make      a    showing    sufficient        to

establish      a     genuine     issue    of    material          fact   on   the   essential

elements of its case, and on which it will bear the burden of

proof at trial.          Stowe Pharr-Mills, Inc., 216 F.3d at 378.                            This



                                               13
merely means that EEOC has the same factual burden as would Mr.

Turner pursuing his own ADA claim in federal court.

                                           B.

       When    presented   with       an    apparent   conflict       between        the

charging      party’s   claim    of    disability      and    his    status     as    a

“qualified individual” under the ADA, the central question is

whether the offered explanation for the conflict would warrant a

reasonable juror's conclusion that, assuming the truth of, or

the claimant’s good faith belief in, the earlier statement, the

claimant could nonetheless perform the essential functions of

his job during the relevant time period.               Cleveland, 526 U.S. at

807.    Here, the relevant time period runs from the date of Dr.

Rosenblum’s first work release, dated January 23, 2006, to his

termination on June 30, 2006.

       EEOC   can   satisfy     the   Cleveland   test       by   showing   that     an

apparent or facial conflict is not a genuine conflict.                             See

Cleveland, 526 U.S. at 807; Stowe Pharr-Mills, Inc., 216 F.3d at

378; Feldman v. Amer. Mem. Ins. Co., 196 F.3d 783, 790 (7th Cir.

1999) (“The ADA only protects the disabled who can work with or

without reasonable accommodation while SSDI does not consider

reasonable accommodation at all in defining disability.”).                           If

the conflict is real, EEOC can still avoid summary judgment by

showing that returning to work during the relevant time period

would not have constituted a material change in Mr. Turner’s

                                           14
condition that would trigger his obligation to notify the SSA.

See   Cleveland,     526    U.S.   at     807;     20      C.F.R.     §§ 404.316(b)(3),

404.1594(b)(1) (2012).

                                          C.

      There can be little doubt that the conflict between Mr.

Turner’s    SSDI    application         and    his    ability         to   work     with    or

without reasonable accommodation is genuine.                          Mr. Turner’s SSDI

application, submitted on December 29, 2005, states, “I became

unable to work because of my disabling condition on January 15,

2005,” and, “I am still disabled.”                    JA 32.          Moreover, “I [Mr.

Turner] agree to notify the Social Security Administration . . .

[i]f my medical condition improves so that I would be able to

work, even though I have not yet returned to work.”                              JA 33.    The

record   indicates       without    contradiction              that    Mr.       Turner    was

unable to work after he left the hospital on December 27, 2005.

Mrs. Turner later submitted a form called a “Function Report”

(dated   January    9,     2006)   in    which       she    described        Mr.    Turner’s

symptoms and impairment.           JA 38-45.         She noted severe disability

in his left arm or hand, use of a bedside commode with hand

rails,   left-sided      weakness       requiring       assistance,          leg    bracing,

inability   to     drive,    inability        to   lift     more      than    2-3    pounds,

severely    limited      ability    to    stand,        bend    over       and    back,    and

walking.    JA 39-43.       Mr. Turner’s reported disabilities included

not only those caused by his stroke, but also by his medical

                                          15
problems from early 2005.            Taken together, the SSDI application

and documentation reasonably communicated that Mr. Turner was

and would continue to be totally or almost-totally disabled.

      Consistent with the application, the SSA awarded benefits

to Mr. Turner on January 22, 2006.              JA 673, 677-79.         Mr. Turner

continued to receive SSDI benefits at the time of the district

court’s    decision.     JA    30.      Mr.    Turner     did    not   revise   his

statements to SSDI, and apparently never notified the SSA about

a change in his condition.           JA 14, 66, 130.

      These reported disabilities conflict with the multiple work

releases provided by Dr. Rosenblum to GBMC on January 23, 2006,

February 28, 2006, March 6, 2006, and May 15, 2006.                     Except for

the May 15 release, each imposed some work restrictions.                        They

all   indicated   that   Mr.    Turner       could   have   returned     to   work,

directly   contradicting       the    assertion      in   his   SSDI   application

that he was and continued to be unable to work.                        There is no

indication that the conflict could be resolved “with reference

to variance between the definitions of ‘disability’ contemplated

by the ADA and SSDI.”      Feldman, 196 F.3d at 791.              At the time of

his SSDI application, Mr. Turner represented that he was unable

to work and would continue to be unable to work.                   If Mr. Turner

told GBMC in good faith that he could return to work, then he

had no reason to believe that his earlier representations of

disability were still accurate.              See Lee v. City of Salem, 259

                                        16
F.3d 667, 676 (7th Cir. 2001) (assuming for the purposes of

Cleveland analysis that claimant was not deliberately distorting

the truth in SSDI application).

       EEOC argues that Mr. Turner’s eventual participation in the

Ticket      to    Work      program   resolves    any   conflict   with    his   prior

statements about his disability.                  It does not.          In any event,

Mr. Turner began participating in the “Ticket to Work” program

in 2009, almost two years after filing his ADA charge and well

beyond the relevant time period.                 JA 530.

                                           D.

       We next turn to whether Mr. Turner’s good-faith belief in

the accuracy of his SSDI application is reconcilable with his

ADA claim.         Assuming that Mr. Turner believed in good faith that

his SSDI application was accurate, this belief must be somehow

have been consistent with his subsequent failure to notify SSA

that       he    was   no    longer   disabled.         The   central    question   is

therefore whether Mr. Turner could have reasonably believed that

his improved physical condition would not trigger his obligation

to notify SSA about the change in his condition. 2


       2
       SSA regulations state, in relevant part: “If you are
entitled to cash benefits or to a period of disability because
you are disabled, you should promptly tell us if—
     (1) Your condition improves;
     (2) You return to work;
     (3) You increase the amount of your work; or
     (4) Your earnings increase.”
(Continued)
                                           17
       The     answer    is     clearly       “no.”        Mr.     Turner,    with      the

assistance       of     his    mother,       submitted       documentation          showing

without qualification that he was unable to work.                       JA 45.       There

is no evidence that Mr. Turner told the SSDI intake officer that

he    could    have     continued      working      with     or    without    reasonable

accommodation at that time.                  See Stowe Pharr-Mills, Inc., 216

F.3d at 379.          The record supports the contrary conclusion: after

Mr.    Turner’s        significant          medical      problems     in     2005,     his

unqualified       representations             of      disability      in      his      SSDI

application were clearly intended to be taken at face value.

SSA    would     have    been       justified       in   interpreting        such    stark

assertions of disability - supported by later filings and never

revised - as demonstrating Mr. Turner’s inability to work.                             The

mere possibility that Mr. Turner might have been able to work at

the time of his benefits application cannot adequately explain

the inconsistency; the record must contain evidence supporting

the explanation.           Measured from a baseline of total or near-

total disability, any change in Mr. Turner’s condition allowing

him to work with or without reasonable accommodation would have

been    material.             See    Lee,     259     F.3d    at     672;    20      C.F.R.

§ 404.1588(a) (2012).               And the record shows that Dr. Rosenblum




20 C.F.R. § 404.1588(a) (2012).                     See also 20 C.F.R. pt. 404,
subpts. D & P (2012).


                                             18
reported        consistent    improvement       in    Mr.      Turner’s      condition,

starting in January 2006, less than a month after Mr. Turner

left the hospital.           It is implausible that Mr. Turner could have

in good faith failed to notify SSA of such a change in his

condition.

       EEOC argues that because GBMC and other potential employers

refused to hire Mr. Turner, he could have inferred in good faith

that he was truly disabled and therefore was not obliged to tell

SSA about his changed condition.                This argument fails for three

reasons.        First, Mr. Turner asserted at deposition that he did

not believe he needed reasonable accommodation to perform his

job duties and that he never asked for one.                    JA 28-29.      He could

not have maintained a good faith belief in his ability to return

to     work   without      reasonable     accommodation           and   simultaneously

believed that he had no obligation to inform SSA of the change

in his condition.          Second, had Mr. Turner believed in good faith

that     he     was   completely     disabled,       as     his     SSDI    application

indicated, he would not have attempted to return to work, as the

record shows that he did.             Third, even if Mr. Turner had later

concluded that he was not disabled, this course correction would

have     been     irrelevant.        As   the    Seventh          Circuit   has   said,

Cleveland       “nowhere     spoke   of   a    change     of      heart . . .     as   an

acceptable way to reconcile the potential inconsistency between

SSDI and ADA claims.”          Lee, 259 F.3d at 677.

                                          19
       EEOC next argues that a reasonable juror could reconcile

the inconsistency with reference to SSA’s five-step process for

determining SSDI eligibility, which involves a presumption that

certain applicants are disabled. 3                    Although         a    presumption of

disability and a claim of ability to work may turn out to be

consistent,        it     does   not    follow       that     they         are    consistent.

Cleveland did not say that the mere existence of a presumption,

or even a showing that a particular claimant’s eligibility was

determined        using      a   presumption,         is     a     sufficient           factual

explanation.            Rather, the eligibility determination is merely

one factor in a claimant’s showing that his claim is consistent

with status as a “qualified individual.”                           See Cleveland, 526

U.S. at 804.           EEOC points to no evidence in the record (and we

have found none) that at the time of his SSDI application, Mr.

Turner was able to work.

       EEOC       next     argues      that    because       Mr.       Turner          did   not

affirmatively misrepresent his improved condition to SSA, his

mere “passive receipt” of disability benefits does not mandate

this       kind   of     scrutiny.      But    Cleveland         was       not    principally

concerned         with     distinguishing          between       active          and    passive

representations.             Rather,     its       focus     was     resolving          factual

       3
       EEOC indicates that Mr. Turner was considered eligible for
SSDI benefits because he was presumed disabled under this test.
Appellant’s Br. at 51-54.



                                              20
conflicts   generated    by     contradictory       representations.         As

already explained, the factual conflict here is unresolvable.



                                      IV.

     We   emphasize   that    our    holding   is   limited   to   the   issues

raised on appeal by EEOC.           We in no way condone GBMC’s refusal

to reinstate Mr. Turner.            Quite the contrary.       We are deeply

concerned about GBMC’s attempts to prevent a partially disabled

former employee from returning to work after he was cleared to

return without restriction.          Our result is nonetheless mandated

by the plain language of the ADA and the relevant case law.                 The

district court’s judgment is therefore affirmed.

                                                                     AFFIRMED




                                       21
GREGORY, Circuit Judge, dissenting:

       After    combating      illness     and     a    stroke,     Michael        Turner

attempted      to   return    to   work   at    GBMC,    where    he    had    been    an

outstanding and devoted employee for more than twenty years.

Although his doctor cleared him to return to work, and although

GBMC’s doctor cleared him to work with some limitations, GBMC

refused to give Turner his job back and repeatedly denied him a

new one.       Instead, it fired him.            Since his termination, Turner

has volunteered more than 1,100 hours at GBMC and sought dozens

of paying jobs there.              GBMC has steadfastly refused to rehire

him.         The EEOC alleged that GBMC’s actions violated the ADA.

The district court, however, granted summary judgment against

the EEOC on the ground that Turner’s application for and receipt

of     SSDI    benefits      precluded      the       EEOC   from      bringing       its

enforcement action under the ADA.                Because I believe that ruling

was erroneous and a jury should be able to weigh whether the

EEOC proved the elements of its case, I respectfully dissent.



                                          I.

       The     district      court    erred      in     holding     that      an    EEOC

enforcement action can be barred under Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795 (1999), by a charging party’s assertion

that he is disabled for the purposes of the Social Security Act.

As   discussed      at    length     in   the    majority    opinion,         Cleveland

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addressed       the      apparent         inconsistency      between      an   individual’s

“context-related legal conclusion, namely, ‘I am disabled for

the    purposes         of     the      Social    Security       Act,’”    and     that    same

individual’s ADA suit asserting an ability to work.                              526 U.S. at

802.         Recognizing that an “SSDI claim and an ADA claim can

comfortably exist side by side,” the Court rejected the adoption

of a rebuttable presumption of estoppel in such cases.                                   Id. at

802-03.        Instead,           the    Court    held    that    the     individual      “must

proffer a sufficient explanation” for the inconsistency.                                 Id. at

806.     A central premise underlying the Court’s decision is that

it     was    the       same      party     who    took    seemingly       contrary       legal

positions in the SSDI application and the ADA lawsuit.

       This     case,        in   contrast,       involves    two    different       parties’

context-related legal representations -- Turner’s assertion in

the proceedings before the SSA and the EEOC’s assertion in this

action.        While it is true that the EEOC is seeking relief on

Turner’s behalf, it cannot be said that the EEOC made a prior

inconsistent statement in Turner’s SSDI application.                               Its action

should not be barred through the happenstance of an unemployed

victim having applied for and received SSDI benefits.                               Moreover,

the Supreme Court has repeatedly recognized that “the EEOC is

not    merely       a    proxy”      for    the    individuals      for     whom    it    seeks

relief.       Gen. Tel. of the NW v. EEOC, 446 U.S. 318, 326 (1970).

Rather, the Court has observed, “[w]hen the EEOC acts, albeit at

                                                  23
the behest of and for the benefit of specific individuals, it

acts    also     to   vindicate    the     public    interest    in       preventing

employment discrimination.”            General Telephone, 446 U.S. at 326.

       Barring    EEOC     enforcement     actions    based     on    a     charging

party’s legal assertions of disability in SSA proceedings is not

only contrary to a long line of Supreme Court cases refusing to

apply estoppel against the government, it is also contrary to

public policy.         The EEOC’s enforcement actions typically seek

not only victim-specific relief but also injunctive relief such

as training, posting of notices, and reporting requirements.                      As

discussed above, these enforcement actions not only benefit the

individuals on whose behalf the agency sues, but also benefit

the    public,     which    has   an     interest    in   the   eradication       of

employment discrimination.

       Finally, it cannot be said that allowing EEOC enforcement

actions to proceed despite a charging party’s representations of

disability before the SSA confers an “unfair advantage” on the

EEOC or an “unfair detriment” on employers such as GBMC who have

not paid the disability benefits.              New Hampshire v. Maine, 532

U.S. 742, 751 (2001) (stating that a consideration in whether to

apply judicial estoppel is “whether the party seeking to assert

an inconsistent position would derive an unfair advantage or

impose an unfair detriment on the opposing party”).



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      In sum, because Cleveland applied where the same party took

potentially conflicting legal positions and because the EEOC is

not   a   proxy   for    Turner    but       instead    serves        to   benefit     the

public’s      interest       in        the        eradication         of      employment

discrimination, I would hold that an EEOC’s lawsuit under the

ADA cannot be barred by a charging party’s representations of

disability to the SSA.



                                         II.

      Even assuming arguendo that an EEOC action can be barred

under Cleveland on the same terms as that of a private party,

the court still erred in granting summary judgment.                          Contrary to

the district court’s conclusion, there are a number of ways a

reasonable    jury   could     reconcile          Turner’s    SSDI     statements      and

continued    receipt    of   benefits         with   the     EEOC’s    ADA    claim,    as

required     by   Cleveland,      to    overcome       summary       judgment.         For

example, a jury could find that Turner had a good-faith belief

in his SSDI assertion of disability because that is how GBMC

treated him when it refused to give him his job back or to hire

him for a new position despite his dozens of applications and

superb work history.           Turner’s good-faith belief that he was

still disabled for the SSA’s purposes can be reconciled with the

EEOC’s lawsuit asserting that Turner was qualified under the



                                             25
ADA.     Accordingly,   the   grant    of   summary   judgment   should   be

reversed, and the case should be remanded for trial.



                                  III.

       For the reasons set forth above I respectfully dissent.




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