Jimmy Dale Lee v. City of Salem, Indiana

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1134
JIMMY DALE LEE,
Plaintiff-Appellee,
v.
CITY OF SALEM, INDIANA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. NA 97-117-C D/S--S. Hugh Dillin, Judge.
ARGUED JUNE 9, 2000--DECIDED August 1, 2001
Before BAUER, POSNER, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. After Jimmy Dale
Lee suffered a back injury that left him
unable to perform heavy physical labor,
the City of Salem, Indiana ("Salem" or
the "city") discharged him from his
position as sexton of the city’s
cemetery. Lee sued the city pursuant to
the Americans with Disabilities Act
("ADA"), 42 U.S.C. sec. 12101, contending
that he remained able to perform his work
with or without accommodation. A jury
found in his favor and awarded him
damages. In the interim between his
discharge and the trial, however, Lee had
sought and obtained disability benefits,
asserting in his application that he was
unable to perform his past work as a
sexton. When queried about the
discrepancy at trial, Lee explained that
although he was, in fact, able to perform
his work, he had applied for benefits and
claimed an inability to work because his
disability had been "hammered into [his]
head" and "[he] believed that was the
only thing to do, sign up for
disability." R. 126 at 64-65. As a matter
of law, we find that explanation insuffi
cient to satisfy the criteria established
by Cleveland v. Policy Mgmnt. Sys. Corp.,
526 U.S. 795, 119 S. Ct. 1597 (1999), and
Feldman v. American Mem. Life Ins. Co.,
196 F.3d 783 (7th Cir. 1999), and
therefore reverse the judgment entered in

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Lee’s favor.
I.
Lee prevailed below after a full trial.
We therefore recount the facts in the
light most helpful to him, resolving
testimonial conflicts in his favor and
granting him the benefit of any
inferences that the jury reasonably might
have drawn from the evidence. E.g.,
Jannotta v. Subway Sandwich Shops, Inc.,
125 F.3d 503, 505 (7th Cir. 1997).
Lee began work at Salem’s Crown Hill
Cemetery in 1978 and became sexton in
1992. He and the other cemetery workers
prepared grave sites, tended the lawn
with mowers and weed-eaters, and on
occasion moved headstones. As sexton, Lee
scheduled and supervised the labor of the
small cemetery workforce, which included
two full-time employees and himself, as
well as a number of extra workers (up to
four) who were hired during the summer
months. He also sold burial plots,
recorded the requisite information for
burial permits, and directed people to
grave sites.
In April 1994, Lee fell from a stand of
bleachers while attending a race at a
local speedway. He suffered several
herniated disks as a result and underwent
surgery to repair the damage. In March of
1995, Lee applied for Social Security
Disability Insurance ("SSDI") benefits,
indicating that he was unable to work. On
December 29, 1995, following an
evidentiary hearing, an administrative
law judge ("ALJ") retroactively awarded
Lee benefits for a closed period of
disability commencing on the date of his
injury and ending on August 13, 1994.
Def. Ex. E.
On August 14, 1995, Lee returned to his
job at the cemetery. His doctor had
restricted him to light duty pending what
was expected to be a complete recovery.
Lee was not to lift more than 10 pounds,
he was to avoid sitting for more than 30
minutes at a time, and he was not to
engage in any repetitive bending. Def.
Exs. H, I. According to Lee, even with
these limitations, he was able to perform
most, if not all, of the tasks associated
with his position as sexton, and of
course other employees were able to
handle the heavy lifting. In May 1996,

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however, Lee’s physician determined that
he would never be able to again perform
heavy physical labor and prepared a
disability form making his light-duty
restrictions permanent. Def. Ex. J. Lee
believed he was fully capable of staying
on as sexton, and until this time, no one
at the city had questioned his ability to
do so.
Once Lee’s limitations were deemed
permanent, however, the city’s position
changed. Salem’s clerk-treasurer, Judy
Chastain, told Lee’s wife Pam that when
she delivered a copy of Lee’s disability
form to the city’s mayor, Douglas
Campbell, he remarked "Thank you very
much, this is exactly what I need." R.
126 at 88. Mrs. Lee understood this to
mean that Campbell viewed the letter as
ammunition against her husband. A city
councilman subsequently remarked to Lee’s
father-in-law that "they was going to
have a council meeting, that Jimmy Lee
was crippled, [and] they was going to
have to get shed of him." Id. at 156.
When the council subsequently met in
executive session on June 10, 1996, Mayor
Campbell informed council members of
Lee’s permanent restrictions. They, in
turn decided to discharge Lee and
instructed the mayor to explore the
possibility of offering Lee employment
elsewhere within the city’s workforce./1
At a subsequent, public meeting on June
25, the city’s attorney explained to the
council that the ADA required it to
identify the essential functions of Lee’s
position, to consider whether Lee was
able to perform those functions, and, if
not, to consider whether the city could
make any accommodations that would enable
Lee to continue working without posing an
undue burden upon the city. Heeding their
counsel’s advice, the council determined
first that the essential functions of the
sexton position included record
management, grave sales, mowing, backhoe
operation, general maintenance and labor,
and supervision of labor. The four
council members present (one did not
attend the meeting) then discussed
whether Lee could perform each of these
functions under the permanent
restrictions articulated by his physician
and concluded, unanimously, that he could
not. After concluding that no reasonable
accommodation was possible, the council
voted (again, unanimously) to relieve Lee

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of his position. Lee and his attorney
were present at this meeting. Lee told
the council that he was able to continue
on as sexton, and that the list of
functions that council members had deemed
essential to the position were not
consistent with the duties historically
associated with the position. Each of the
funeral directors who used the cemetery,
as well as a cemetery customer and a
number of Lee’s co-workers, also
indicated that the cemetery was
functioning satisfactorily with Lee in
charge. Nonetheless, the council removed
Lee from the post.
At its June 10th meeting, the council
had authorized Mayor Campbell to offer
Lee a job as a police dispatcher.
Campbell mentioned the job to Lee, but
the city council never went so far as to
offer him the position. After voting to
discharge Lee at the June 25th meeting,
the council did provide for the creation
of a part-time position for Lee at the
cemetery entailing the management of
cemetery records, lot sales, coordination
with funeral directors, and working with
the general public. Campbell was
instructed to work out the details with
Lee. Nothing came of this proposal
either. As of July 15, 1996, Lee was
discharged from the city’s employ.
After losing his job, Lee sought
disability benefits for the second time.
A disability report dated August 12, 1996
indicated that he had been disabled since
July 15, 1996, the final day of his
employment with Salem. The report
described the permanent restrictions that
his physician had imposed on him and
indicated that he was in "constant pain."
Pl.’s Ex. 8 at 1. The report also
indicated that Lee had attempted to
return to work, but that "they wouldn’t
let me operate the heavy equipment
anymore, i.e., backhoe, mowing tractor,
dump trucks." Id. The final section of
the report contained the following
remarks:
I was awarded a closed period of
disability in Jan. of 1996. I went back
to work to see if I couldn’t handle it
but I couldn’t do the work anymore. It
was too strenuous for me and my back pain
is just too great to keep agrivating
[sic] it every day. I gave it my best
try.

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Id. at 6. Just below these remarks, Lee
signed the report. A heading adjacent to
the signature line stated: "Knowing that
anyone making a false statement or
representation of material fact for use
in determining a right to payment under
the Social Security Act commits a crime
punishable under Federal law, I certify
that the above statements are true." Id.;
see 18 U.S.C. sec. 1001; 42 U.S.C. sec.
408.
Following the initial denial of his
claim, Lee requested a hearing before an
ALJ, stating in part that "I feel I am
disabled and unable to work due to the
severity of my back problem." Def. Ex. D.
The ALJ held in Lee’s favor and awarded
him benefits commencing as of July 15,
1996. Def. Ex. G. Among other things, the
ALJ found that (1) Lee suffered from
degenerative disc disease that "prevents
the claimant from performing anything but
a drastically restricted range of
sedentary work"; (2) he "cannot perform
his past relevant work and does not have
transferable skills to perform other work
within his residual functional capacity";
and (3) "there are no jobs existing in
significant numbers that the claimant is
capable of performing." Id., Decision at
2.
In June 1997, while his application for
disability benefits was pending, Lee
filed suit contending that the
city’shandling of his disability violated
the ADA. He sued Campbell as well as the
city, alleging that the mayor had
tortiously interfered with his employment
contract.
At trial, Lee was asked about the
assertions in his signed disability
report that he "couldn’t do the work
anymore," that his job as sexton was "too
strenuous for [him]" and that his "back
pain was just too great to keep
[aggravating it] every day." "Was that
true when you signed that form?" Lee’s
attorney asked him.
A. I believe[d] it to be true, yes.
Q. Is it true today?
A. I don’t agree with it, no.
Q. Why don’t you agree?

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A. Well, again, all the pressure was on
and I believe I could do the job.
Q. Do you believe you could do the job
today?
A. Yes, yeah.
Q. Do you believe you could do the job
with your restrictions today?
A. Yes.
Q. Do you believe that you could do the
job back in June of 1996?
A. Yes.
Q. Do you believe you were doing the job?
A. Yes, I believe I was doing the job very
well.
Q. Were there any parts of your job that
because of your restrictions you totally
couldn’t do?
A. No.
Q. What made you able to do that job with
your restrictions?
A. Well, I mean, as far as, you know, I
know how to do the job. I had done it
long enough, the past experience and
everything, it was--I could figure out
how to do the job somehow or another.
Q. Did you get the job done?
A. Yeah, I done my job, yes.
R. 126 at 49-50. On cross-examination,
Lee indicated that he had not filled out
the disability report himself, but rather
that a Social Security representative had
done so on his behalf. He acknowledged
however, that he told the representative
that he "couldn’t do the work anymore."
Id. at 58. Defense counsel asked Lee
whether it was true in mid-1997, when he
asked for a hearing on his claim, that he
was unable to work.
A. I did my work. I felt the reason I made
those statements was that everybody kept
hammering me and saying you were
disabled, and whatever, and then these
people, that is what they do is write it

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up for--they write out the request for
you. And I feel like I had no other just
thing to do but just agree, you know,
file for disability. That is what was
hammered in my head.
Id. at 62-63. Lee sounded the same note
when he was asked about the ALJ’s
finding, in December of 1997, that he was
unable to perform his past work:
Q. And do you agree with that, that as of
December of 1997, you were unable to
perform, quote "[y]our past relevant
work"?
A. At the time I did that I believed that
because it was hammered into my head, but
now I’m not.
Q. I’m sorry, I didn’t hear that[.]
A. But no, now I don’t agree with it, no.
Q. You do now, but--you don’t now, but you
did then?
A. I was fired from my job because of that
reason and I believed that was the only
thing to do, sign up for disability.
Id. at 64-65.
At the close of Lee’s case, the city
asked the court to enter judgment as a
matter of law in its favor on the ADA
claim pursuant to Federal Rule of Civil
Procedure 50. Relying on the Supreme
Court’s decision in Cleveland v. Policy
Mgmnt. Sys. Corp., supra, decided just
three weeks earlier, the city contended
that Lee was obliged to explain the
apparent discrepancy between his
successful application for disability
benefits--which posited that he was
unable to perform his past work as a
sexton--and his ADA claim--which posited
that he was still able to perform the
essential functions of the job. R. 126 at
204-05. The court took the motion under
advisement. Id. at 211. The city renewed
its motion at the end of the case, but
the court denied the motion. R. 97. The
jury found in favor of Lee on the ADA
claim, in favor of Campbell on the
tortious interference claim, and awarded
Lee $112,000 in lost wages and benefits,
$50,000 for emotional distress, and
punitive damages of $50,000. R. 99. On
post-trial motions, the district court

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struck the award of punitive damages,
denied Lee’s request for an order
reinstating him to his job, and granted
Lee $8,082.30 in front pay as well as
attorney’s fees and costs of $24,672.94,
bringing the total award to Lee to
$194,755.24. R. 115, 116, 127. Although
Salem again argued that it was entitled
to judgment as a matter of law based on
Lee’s prior claim of total disability (R.
104 at 9, 10-12), the district court
again rejected the argument:
The jury disagreed with the City’s
position, and found that Lee, with or
without reasonable accommodation, could
perform [the physical duties of sexton].
Viewing the evidence presented at trial
in Lee’s favor, as well as drawing all
reasonable inferences in his favor, the
Court finds that the jury’s conclusion
was reasonable.
R. 115 at 10.
II.
Salem attacks the judgment on a variety
of grounds, but we need only reach its
first and principal argument. When Lee
sought disability benefits following his
discharge, he represented to the Social
Security Administration that he was no
longer able to work as a sexton. There is
no dispute that this representation,
which the ALJ found to be true in
awarding Lee benefits, posed an apparent
conflict with an essential element of his
ADA claim--namely, that he could perform
the essential functions of his past work
with or without reasonable accommodation.
Cleveland v. Policy Mgmnt. Sys. Corp.,
526 U.S. 795, 119 S. Ct. 1597 (1999),
required Lee to explain the discrepancy.
The question posed to us is whether the
explanation that Lee offered was
sufficient to establish a fact question
as to his ability to continue working as
a sexton. If not, then Salem was (and is)
entitled to judgment as a matter of law.
A.
Whereas the Social Security Act provides
an income to disabled persons who cannot
work, the ADA protects the employment
rights of those who can. The separate
aims of the two statutes are reflected in
their criteria. In order to qualify for
disability benefits, an individual must

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show both that he is "unable to do his
previous work" and that he "cannot . . .
engage in any other kind of substantial
gainful work which exists in the national
economy[.]" 42 U.S.C. sec. 423(d)(2)(A).
But in order to establish a prima facie
case of discrimination under the ADA, one
must show that he is a "qualified
individual with a disability," that is,
one who can, notwithstanding his
disability, perform the essential
functions of his job with or without
reasonable accommodation. 42 U.S.C. sec.
12111(8) (emphasis supplied); see also,
e.g., Emerson v. Northern States Power
Co., No. 00-3746, 2001 WL 710296, at *5
(7th Cir. June 26); Webb v. Clyde L.
Choate Mental Health & Dev. Ctr., 230
F.3d 991, 999 (7th Cir. 2000). At first
blush, then, one might think that a
successful application for SSDI benefits
forecloses an ADA claim. How can one
claim the ability to do his job, as the
ADA requires, if he has convinced the
Social Security Administration that he is
unable to work?
The apparent conflict can be reconciled,
however, as the Supreme Court recognized
in Cleveland. The question posed in
Cleveland was whether one’s successful
pursuit of SSDI benefits either estops
him from pursuing an ADA claim or
triggers a presumption that he is unable
to perform the essential functions of his
job. The Court unanimously concluded that
it does neither of these things. As
Justice Breyer explained, the SSA and the
ADA do not employ the same criteria in
assessing the individual’s ability to
work. For example, the ADA envisions that
someone with a disability may be able to
work, but only with a reasonable accommo
dation (e.g., job restructuring,
reassignment to a different position,
part-time work, and so forth). The SSA,
on the other hand, does not take
potential accommodations into account in
assessing one’s ability to continue
working. 526 U.S. at 803, 119 S. Ct. at
1602. The ADA also calls for an
individualized inquiry into a person’s
ability to perform the essential
functions of her job, whereas the SSA
incorporates a number of presumptions
about the impact of various disabilities-
-certain listed impairments are deemed
disabling per se, for example, although a
given person with one of those
impairments might, in reality, retain the

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ability to work at some jobs. 526 U.S. at
804, 119 S. Ct. at 1602-03. Thus, a claim
for disability benefits asserting that
the applicant is no longer capable of
gainful employment "often implies a
context-related legal conclusion, namely
’I am disabled for purposes of the Social
Security Act.’" Id. at 802, 119 S. Ct.
1601. So understood, a quasi-legal
assertion of this kind does not foreclose
the possibility that the individual is
nonetheless "qualified" to work for
purposes of the ADA. Moreover,
disabilities can change over time. Thus,
a person might be unable to work at the
time he applies for, and receives, SSDI
benefits, and yet later regain the
ability to work. 526 U.S. at 805, 119 S.
Ct. at 1603. In sum, one might be deemed
unable to work for purposes of SSDI
benefits and yet still be able to show
that she could perform the essential
functions of her job for purposes of the
ADA. So the application for and award of
benefits is not dispositive of an ADA
claim.
Yet, as the Court went on to recognize,
there are situations in which a
successful claim for SSDI benefits will
appear to pose a genuine conflict with an
ADA claim; and in such cases, the ADA
plaintiff may not ignore the seeming
conflict. 526 U.S. at 805-06, 119 S. Ct.
at 1603./2 "[A] plaintiff’s sworn
assertion in an application for
disability benefits that she is, for
example, ’unable to work’ will appear to
negate an essential element of her ADA
case--at least if she does not offer a
sufficient explanation." Id. at 806, 119
S. Ct. at 1603. As in any case in which
a party attempts to create a genuine
issue of fact by contradicting his own
prior statement under oath, see, e.g.,
Russell v. Acme-Evans Co., 51 F.3d 64,
67-68 (7th Cir. 1995), an ADA plaintiff
who has obtained SSDI benefits by making
a sworn statement to the effect that he
is completely disabled and thus unable to
work must confront and reconcile the
apparent inconsistency between that
assertion and his ADA claim, the premise
of which is that he can work. 526 U.S. at
806-07, 119 S. Ct. at 1603-04.
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

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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, 119 S. Ct. at 1604./3
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, as the language we have just
quoted indicates, 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. Ibid. The key to meeting that burden
lies in the very differences between the
two statutory schemes that led the
Supreme Court to reject a rule
foreclosing a cause of action under the
ADA to anyone who had previously obtained
SSDI benefits. In other words, as we
stated in Feldman v. American Mem. Life
Ins. Co.:
A plaintiff may declare that she was
totally disabled in her SSDI application,
then declare that she was a qualified
individual under the ADA, but she must
show that this apparent inconsistency can
be resolved with reference to variance
between the definitions of ’disability’
contemplated by the ADA and SSDI.
196 F.3d 783, 791 (7th Cir. 1999)
(emphasis supplied); see also Jessica
Barth, Note, Disability Benefits and the
ADA after Cleveland v. Policy Management
Systems, 75 Indiana L. J. 1317, 1343, 1345-
46 (2000). The plaintiff might point out,
for example, that because the Social
Security Administration does not consider
whether a claimant could perform his past
work if his employer made reasonable
efforts to accommodate his disability,
his claim that he was unable to do the
job leaves open the possibility that he
might be able to meet the essential
criteria of the position if he were
accommodated. See Cleveland, 526 U.S. at
807, 119 S. Ct. at 1604. Or he might
offer evidence that although he was

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unable to work at the time he applied for
disability benefits, the severity of his
disability had lessened since that time
and so enabled him to return to work,
with or without accommodation. See ibid.
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. See id. at 802, 119 S. Ct. at 1601-
02.
B.
The unmistakable import of Lee’s post-
termination application for disability
benefits is that he was unable to
continue working as a cemetery sexton. "I
went back to work to see if I couldn’t
handle it but I couldn’t do the work
anymore," he told the Social Security
Administration. Pl. Ex. 8 at 6. The ALJ’s
findings in Lee’s favor likewise reflect
this fundamental assertion: the ALJ found
that Lee’s injury left him able to
perform only a "a drastically restricted
range of sedentary work," that
consequently Lee could not perform his
past relevant work as a sexton, and that
there were no other jobs in significant
numbers that Lee was capable of
performing. Def. Ex. G, Decision at 2.
Lee’s asserted inability to meet the
demands of his job thus calls into
question whether or not he is a
"qualified individual" for purposes of
the ADA. Cleveland, 526 U.S. at 805-06,
119 S. Ct. a 1603. In order to establish
a question of fact as to his ability to
perform the essential functions of his
job, Lee was required to explain the
apparent discrepancy with reference to
the divergent definitions of disability
set forth in the SSA and the ADA.
Feldman, 196 F.3d at 791.
Lee’s explanation, however, does not
turn on the distinctions between the two
statutory schemes. Rather than
reconciling his claim for disability
benefits with the criteria of the ADA,

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Lee has attempted to abandon altogether
the assertions that he made to the Social
Security Administration. By Lee’s account
at trial, he was doing the job of a
sexton at the time Salem discharged him,
and was still able to do that work when
he re-applied for disability benefits two
months later. Even so, he pursued and
obtained disability benefits on the
premise that he could not return to his
past work, because he was convinced that
he could not do so: Salem had deemed him
unfit to continue on as the city’s
sexton, it had been "hammered into [his]
head" that he was disabled, and so he
simply did the logical thing and applied
for benefits. R. 126 at 62-63. "I was
fired from my job because of that reason
and I believed that was the only thing to
do, sign up for disability." Id. at 65.
We are obliged to review the record in
Lee’s favor, and so we accept his
testimony as true. We may safely assume,
in turn, that Lee was not deliberately
distorting the truth when he represented
that he was unable to return to his job
at the city cemetery. Still, the
unavoidable implication of his testimony
is that what he told the Social Security
Administration and the ALJ was untrue.
Yet, the notion that he was no longer
able to work as a sexton was obviously
crucial to the ALJ’s disability
determination. Having secured an award of
disability benefits on the strength of
that assertion, Lee has turned about and
asked a jury, and now this court, to
grant him relief based on a wholly
contrary view of his ability to work. We
reiterate that Lee does not account for
his previous statements by explaining,
for example, that the SSA does not
consider the possibility of reasonable
accommodations, so that when he claimed
he was unable to return to his job with
the city, he was simply saying that he
could no longer do that job unless the
city accommodated him, which it refused
to do. Lee has not attempted to qualify
his prior statements at all. Instead, he
accepts the natural import of those
statements (that he could no longer work
as a sexton, period), contends that he so
believed at the time he applied for
benefits, and indicates that he has since
had a change of heart. His brief makes
the point succinctly: "Lee was able to do
the job, did the job, knew he could do
the job, was told he couldn’t do the job,

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filed for social security, and at the
time of trial, told the jury he could do
the job." Lee Br. at 6.
Cleveland indicates that a sworn
statement declaring one’s "total
disability" (or the like) can comfortably
coexist with an ADA claim asserting the
ability to perform the essential
functions of the job when the plaintiff
proffers "a sufficient explanation" for
the seemingly contradictory positions.
526 U.S. at 806, 119 S. Ct. at 1603
(emphasis supplied). Our opinion in
Feldman reveals that a sufficient
explanation is one that "resolve[s] [the
inconsistency] with reference to variance
between the definitions of ’disability’
contemplated by the ADA and SSDI." 196
F.3d at 791. The explanation that Lee
proffered does not meet this criterion.
As a result, Lee failed to establish a
dispute of fact with respect to an
essential element of his prima facie case
under the ADA--his ability to perform the
essential functions of his former
position at the cemetery. Left
unexplained, the sworn assertions in his
SSDI application to the effect that he
was unable to return to that job negated
this element of his ADA claim. The jury,
in turn, did not have an adequate basis
on which to find that he was able to
continue working as a sexton, with or
without reasonable accommodation. The
city was entitled to judgment as a matter
of law.
We are not saying that under no
circumstances could the types of
representations Lee made to the Social
Security Administration have been
reconciled with an ADA claim. For
example, when Lee averred that his work
at the cemetery was "too strenuous" and
that his "back pain [was] just too great
to keep ag[gra]vating it every day," he
might have meant that he could no longer
work as a sexton unless he was relieved
of the aspects of the job involving
physical exertion. Qualified in this way,
such statements arguably left room for
the notion that Lee was capable of
performing the essential functions of the
job (provided, of course, that the
physically demanding activities
themselves were not essential to the
position). See, e.g., Fox v. General
Motors Corp., 247 F.3d 169, 178 (4th Cir.
2001); E.E.O.C. v. Stowe-Pharr Mills,

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Inc., 216 F.3d 373, 379 (4th Cir. 2000).
But nowhere in Lee’s testimony (or, for
that matter, in his brief) do we detect
that kind of contextual explanation for
the evident discrepancy between his two
claims. As we have said, Lee’s testimony
does not purport to in any way qualify
his representations to the Social
Security Administration. Instead, the
thrust of his testimony is that he told
the Social Security Administration that
he was no longer capable of working as a
sexton because that notion had been
"hammered" into his head and he therefore
accepted it as true at that time when, in
reality, there was no aspect of his job
that he was incapable of doing. It was,
in short, his own change of heart that
Lee offered to explain the inconsistency
between his SSA and ADA claims rather
than any differences in the statutory
criteria that govern those two claims.
Perhaps what Lee wishes to argue is that
although his prior statements to the SSA
were inaccurate, he reasonably and in
good faith believed them to be true based
on the city’s own decision that he was no
longer able to meet the demands of his
job, and so we ought not bind him to a
position that, with the benefit of
hindsight, he now realizes was a mistake.
Cleveland, after all, requires the
plaintiff to demonstrate how he can
perform the essential functions of his
job if one "assum[es] the truth of, or
the plaintiff’s good faith belief in,"
the statements he made when seeking
disability benefits. 526 U.S. at 807, 119
S. Ct. at 1604 (emphasis supplied). Why,
then, can not Lee reconcile the apparent
inconsistency by explaining that he
genuinely assessed his own ability to
continue working at the cemetery
differently in the immediate wake of his
discharge than he does now? The answer is
implicit in Cleveland. It was the specter
of individuals hopping from forum to
forum, making contradictory assertions
under oath, that had convinced a number
of lower courts, prior to Cleveland, to
say that individuals who obtain SSDI
benefits on the theory that they are
unable to work ought to be estopped from
proving that they can, in fact, perform
the essential functions of their jobs for
purposes of the ADA, or at the very least
should be presumed unable to do so. See,
e.g., McNemar v. Disney Store, Inc., 91
F.3d 610, 617-20 (3d Cir. 1996), cert.

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denied, 519 U.S. 1115, 117 S. Ct. 958
(1997) (cited in Cleveland, 526 U.S. at
800, 119 S. Ct. at 1601); see also Wilson
v. Chrysler Corp., 172 F.3d 500, 504 (7th
Cir. 1999). In rejecting this approach,
the Supreme Court nowhere spoke of a
change of heart akin to Lee’s as an
acceptable way to reconcile the potential
inconsistency between SSDI and ADA
claims. The only legitimate explanations
that the Court recognized were those
turning on the distinct legal (and
sometimes temporal) contexts of these
claims. 526 U.S. at 802-05, 119 S. Ct. at
1602-03. The conclusion we reached in
Feldman was therefore obvious: a
plaintiff must explain the apparent
discrepancy with reference to the
divergent treatments of disability
reflected in the SSA and ADA. 196 F.3d at
791. It is possible that Cleveland’s use
of the term "good faith" leaves room for
a narrow category of alternative
explanations. A mistaken diagnosis,
belatedly discovered, for example, might
enable an ADA plaintiff to retract the
representation of total disability she
made to the Social Security
Administration in the same way that a
plaintiff whose condition has improved
since the time he applied for SSDI
benefits is not forever hamstrung by his
prior statement. See Cleveland, 526 U.S.
at 805, 119 S. Ct. at 1603. But that is
not Lee’s case. Lee, who by his own
account was doing the work of a sexton
and doing it well, made a knowing
decision upon his discharge to apply for
disability benefits on the theory that he
could not do the work. Now, he wishes to
take back the very representations that
convinced an ALJ to award him disability
benefits. Cleveland and Feldman do not
recognize Lee’s proffered explanation as
a sufficient one.
We wish to point out that our holding
does not force individuals in Lee’s
situation to confront "the Hobson’s
choice of disability or poverty." Wilson,
172 F.3d at 506, quoting DeGuiseppe v.
Village of Bellwood, 68 F.3d 187, 192
(7th Cir. 1995). Obviously, it was not
Lee’s decision to leave the city’s
employ, and it may well be, as the jury
determined, that he was perfectly capable
of doing his job. At the same time, if
that was the only work Lee was capable of
doing, then his discharge placed him in a
difficult situation. But he was not

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compelled to make an irrevocable choice
to pursue either SSDI benefits or an ADA
claim. A qualified individual with a
disability who is tossed out of work may
seek relief under both statutory schemes,
so long as the positions he takes in
pursuing these avenues of relief can be
reconciled in the ways that Cleveland and
Feldman recognize. He may not, however,
make contradictory representations
regarding his ability to work and
rationalize the conflict with no more of
an explanation than his own change of
mind.
III.
Because Lee failed to establish a
question of fact with respect to his
ability to perform the essential
functions of his past work as a sexton,
the district court should have entered
judgment as a matter of law in favor of
Salem. We REVERSE the judgment in favor of
Lee and against Salem and REMAND the case
with directions to enter judgment in the
city’s favor.
FOOTNOTES
/1 Although the city takes the position that the
council did not decide to discharge Lee until its
public meeting on June 25, Mayor Campbell’s
testimony indicates that the council resolved to
terminate him from the sexton position on June
10. R. 126 at 112-13.
/2 The Court limited the scope of its opinion to
successful benefit applications:
[I]f an individual has merely applied for, but
has not been awarded, SSDI benefits, any incon-
sistency in the theory of the claims is of the
sort normally tolerated by our legal system. Our
ordinary rules recognize that a person may not be
sure in advance upon which legal theory she will
succeed, and so permit parties to "set forth two
or more statements of a claim or defense alter-
nately or hypothetically," and to "state as many
separate claims or defenses as the party has
regardless of consistency." Fed. Rule Civ. Proc.
8(3)(2). We do not see why the law in respect to
the assertion of SSDI and ADA claims should
differ. . . .
526 U.S. at 805, 119 S. Ct. at 1603.
/3 Cleveland, like this case, involved prior state-
ments regarding the plaintiff’s ability to work--
statements which, as noted above, "often imply a

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context-related legal conclusion" regarding one’s
eligibility for SSDI benefits. 526 U.S. at 802,
119 S. Ct. at 1601-02. Cleveland did not address
purely factual statements that a plaintiff may
previously have made concerning the effects of
his disability--e.g., "I cannot lift more than 10
pounds," or "I cannot stand for more than 15
minutes at a time." See ibid. Conflicts involving
these types of straightforward, factual represen-
tations are governed by an established body of
precedent that Cleveland left undisturbed. See
generally McNamara v. City of Chicago, 138 F.3d
1219, 1225 (7th Cir.) (judicial estoppel), cert.
denied, 525 U.S. 981, 119 S. Ct. 444 (1998); see,
e.g., Mitchell v. Washingtonville Cent. School
Dist., 190 F.3d 1, 6-8 (2d Cir. 1999) (finding
that statements plaintiff made in seeking SSDI
benefits, which asserted that he could not stand
for prolonged periods, estopped him from assert-
ing otherwise in pursuit of ADA claim); see also
Wilson v. Chrysler Corp., 172 F.3d 500, 505-06
(7th Cir. 1999) (plaintiff’s concession, in
application for SSDI benefits, that she suffered
from paranoid schizophrenia, estopped her from
contending that her employer’s stated reason for
terminating her--her medicalcondition--was pre-
textual).

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