                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3364
                                       ___________

                                   HANS C. EHNERT,
                                                Appellant

                                             v.

                     WASHINGTON PENN PLASTIC CO., INC.;
                                 STAFFMARK
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2-16-cv-01139)
                      District Judge: Honorable David S. Cercone
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 May 9, 2019
       Before: GREENAWAY, Jr., RESTREPO, and FUENTES, Circuit Judges

                              (Opinion filed: July 29, 2019)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Hans C. Ehnert appeals the District Court’s order granting summary judgment in

favor of his former employer on Ehnert’s claims of disability discrimination under the


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act

(PHRA). For the following reasons, we will affirm.1

       Ehnert was given a work placement at Washington Penn Plastic Co., Inc. (WPP)

by Staffmark, a staffing company, on April 23, 2012. Ehnert’s assignment as a general

laborer with WPP was temporary; however, it was understood that Ehnert would be

considered for hire as a WPP employee. While Ehnert worked at WPP, he suffered from

a variety of medical conditions, but never requested any accommodations of WPP. On

May 23, 2012—the last day of his work placement—Ehnert was informed by Staffmark

that he would not be hired by WPP.

       On July 3, 2012, Ehnert contacted the Social Security Administration (SSA), and

completed an application for social security disability insurance (SSDI) benefits. In the

application, Ehnert represented that he had been unable to work due to a “disabling

condition” since May 21, 2012—two days before his temporary assignment with WPP

ended. Dkt. #49-4. After an initial denial, an Administrative Law Judge (ALJ) for the

SSA ultimately granted Ehnert’s request for benefits. Based on representations made by

Ehnert during the process involved in trying to receive SSDI benefits, the ALJ found




1
  Also pending before us are several motions, two of which seek to seal Appellee’s
unredacted brief and volume III of its supplemental appendix out of concern for the
discussion of Ehnert’s health and medical information. We agree that Ehnert’s health and
medical information should remain private and is a sufficient basis for sealing; thus, we
grant both motions to seal Appellee’s unredacted brief and volume III of its supplemental
appendix. See 3d Cir. L.A.R. 106.1; United States v. Kravetz, 706 F.3d 47, 63 (1st Cir.
2013) (noting litigants generally have an interest in the privacy of their medical
information).
                                             2
Ehnert to be disabled beginning May 21, 2012.2 The ALJ found that Ehnert was “unable

to perform any past relevant work” and concluded that “there are no jobs that exist in

significant numbers in the national economy that [Ehnert] can perform.” Dkt. #49-7 at 11.

       Subsequently, Ehnert filed a complaint in the District Court against WPP and

Staffmark, alleging discrimination on the basis of disability and age, in violation of the

ADA, PHRA, and the Age Discrimination in Employment Act (ADEA).3 WPP moved

for summary judgment and the matter was referred to a Magistrate Judge who issued a

Report and Recommendation (R&R). The Magistrate Judge determined that Ehnert was

unable to establish a prima facie case of discrimination because a necessary element was

lacking for his ADA and PHRA claims; namely, that he was otherwise qualified to

perform the essential functions of the job as of the date WPP informed him that he would

not be hired (May 23, 2012).4 Since Ehnert had previously represented to the SSA that—

beginning on May 21, 2012—he was unable to perform his past relevant work in order to


2
  The SSA established a five-step procedure in order to evaluate whether an individual is
disabled for purposes of receiving SSDI. See 20 C.F.R. § 404.1520; see also Cleveland
v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999) (outlining the questions asked in
the five-step procedure). Relevant here, Ehnert represented to the ALJ that he was
“unable to perform his past relevant work or any other type of work” and “[e]ven
sedentary work would be impossible for [him] due to [his disabilities].” Dkt. #49-9 at 7.
3
 The ADEA claim was dismissed via stipulation in the District Court. Staffmark was
also dismissed as a party via the same stipulation, and is not a party to this appeal.
4
  “A plaintiff presents a prima facie case of discrimination under the ADA by
demonstrating: (1) he is a disabled person within the meaning of the ADA; (2) he is
otherwise qualified to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) he has suffered an otherwise
adverse employment decision as a result of discrimination.” Gaul v. Lucent Techs. Inc.,
134 F.3d 576, 580 (3d Cir. 1998).
                                              3
obtain SSDI benefits, the Magistrate Judge concluded that Ehnert could not ignore that

previous representation and now claim that he had been able to work at that time for

purposes of his ADA claim. In reaching that conclusion, the Magistrate Judge applied

the framework set forth in Cleveland—which addressed the estoppel effect of SSDI

benefits on a claim under the ADA—and on our decisions applying the Cleveland

framework to analogous claims. See Cleveland, 526 U.S. at 806 (holding an ADA

plaintiff cannot simply ignore the apparent contradiction that arises out of earlier

representations made for a SSDI total disability claim, but must proffer a sufficient

explanation that reconciles the inconsistent statements); Detz v. Greiner Indus., Inc., 346

F.3d 109, 118–21 (3d Cir. 2003) (applying the Cleveland framework). The District Court

adopted the R&R and granted WPP’s motion for summary judgment. Ehnert timely

appealed.

       We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. “We review

the District Court’s grant of summary judgment de novo.” Jutrowski v. Twp. of

Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). Summary judgment is proper when,

viewing the evidence in the light most favorable to the nonmoving party and drawing all

inferences in favor of that party, there is no genuine dispute as to any material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006). “Summary judgment

for a defendant is appropriate when the plaintiff ‘fails to make a showing sufficient to

establish the existence of an element essential to [his] case, and on which [he] will bear

the burden of proof at trial.’” Cleveland, 526 U.S. at 805–06 (quoting Celotex Corp. v.

                                              4
Catrett, 477 U.S. 317, 322 (1986)).

       The dispositive issue before us is whether Ehnert’s statements regarding his

disability for SSDI purposes should preclude his subsequent claim that, for the purposes

of the ADA and the PHRA, he was “qualified” for his position at WPP and can thus

pursue his discrimination action under the ADA and PHRA.5 The Magistrate Judge

reasoned, and the District Court agreed, that Ehnert’s case was analogous to the situation

presented to this Court in Detz, and concluded that Ehnert failed to advance a reasonable

explanation that reconciles his two positions. We agree.

       “An ADA plaintiff bears the burden of proving that [he] is a ‘qualified individual

with a disability’—that is, a person ‘who, with or without reasonable accommodation,

can perform the essential functions’ of [his] job.” Cleveland, 526 U.S. at 806 (quoting 42

U.S.C. § 12111(8)). However, a plaintiff’s prior sworn assertion in an application for

SSDI benefits that he is, for example, “‘unable to work’ will appear to negate an essential

element” of his ADA case. See id.; Gaul, 134 F.3d at 580. When presented with such a

situation, the first question we must ask is whether the representations advanced by that


5
  Ehnert suggests in his brief on appeal that the Magistrate Judge did not allow for
sufficient discovery in his case. Our review of the docket reveals the opposite, as
Ehnert’s motion to extend the time for discovery was granted, as was part of a motion to
compel discovery requests. To the extent the Magistrate Judge denied Ehnert’s motion to
allow for more interrogatories and partially denied his motion to compel discovery
requests, we find no abuse of discretion in those decisions. See Anjelino v. New York
Times Co., 200 F.3d 73, 88 (3d Cir. 1999) (noting we review a Magistrate Judge’s
decision denying discovery for abuse of discretion); Howze v. Jones & Laughlin Steel
Corp., 750 F.2d 1208, 1213 (3d Cir. 1984) (“[Q]uestions concerning the scope of
discovery are among those matters which should be almost exclusively committed to the
sound discretion of the district court.”).

                                             5
plaintiff in his SSDI application and his ADA claim genuinely conflict. See Detz, 346

F.3d at 118. If we find that the representations are “patently inconsistent,” we proceed to

the second question under Cleveland: whether the plaintiff has adequately reconciled the

two positions. Id. at 120.

       On appeal, Ehnert attempts to challenge the determination that his representations

conflict by arguing that, at least initially, he represented to the SSA that he could not

work because he was being discriminated against.6 Appellant’s Br. 5–6, 10–11. To the

extent that he argues that his representations do not genuinely conflict, we disagree. As

noted above, Ehnert represented to the SSA that he was incapable of performing any

work beginning May 21, 2012, which “crashes face first against” his current

representation that—in fact—he had been able to work at that time for purposes of his

current discrimination claims. See Detz, 346 F.3d at 120. Thus, we agree with the

determination that Ehnert’s representations are “patently inconsistent.” See id.

       With regard to reconciling his conflicting representations, Ehnert argues that

Cleveland supports his contention that his SSDI claim and ADA claim can both coexist.

See Appellant’s Br. 15; see also Cleveland, 562 U.S. at 803–06 (explaining situations

where a claim of SSDI disability may not preclude an ADA action). He notes that

“reasonable accommodations are not considered” by the SSA when making its


6
 He maintains that two exhibits he attached to his brief support this contention; however,
Ehnert concedes that these documents were not before the Magistrate Judge. See
Appellant’s Br. 9. Consequently, we cannot consider them now. See In re Capital
Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir.
1990) (noting we “cannot consider material on appeal that is outside of the district court
record”).
                                              6
decision—pointing to the difference in the two statutory schemes. Appellant’s Br. 6.

While true, this argument ignores the fact that he still must proffer a sufficient

explanation for the apparent contradiction between his two claims—“simply averring that

the statutory schemes differ is not enough to survive summary judgment in light of

Cleveland.” Motley v. N.J. State Police, 196 F.3d 160, 166 (3d Cir. 1999). Upon our

review of what was presented below, we are satisfied with the determination that Ehnert

failed to adequately reconcile his two apparently contradictory positions.

         Accordingly, we will affirm the District Court’s judgment. As noted in the margin

above, we grant WPP’s motions to seal its brief and volume III of its supplemental

appendix.7 We deny WPP’s motion to strike portions of Ehnert’s appendix and permit

the appeal to proceed on the original record, and we grant Ehnert’s motion to file his

Reply Brief out of time.




7
    WPP has filed a redacted brief which is, and should remain, available to the public.
                                               7
