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Talking out of both sides of one’s mouth has never been easily accomplished, and it’s even tougher for plaintiffs in the wake of the 3rd U.S. Circuit Court of Appeals’ recent decision in Detz v. Greiner Indus., Inc., 02-3752. Courts have most frequently used the “talking out of both sides” analogy when addressing a disability discrimination plaintiff who claim to be totally disabled for the purpose of receiving Social Security benefits — but at the same time argues in court that he or she was “otherwise qualified” for a position under the Americans with Disabilities Act. This type of duplicitous assertion has often been rejected by courts under the ADA. CLEVELAND STANDARD APPLIED In Cleveland v. Policy Mgmt. Sys. Corp., the Supreme Court eliminated the complete estoppel that most courts had applied to these types of inconsistent assertions, and held that cases involving claims for SSDI benefits and ADA discrimination would be subject to individualized inquiry which would allow the claimant/plaintiff to provide a “sufficient explanation” for seemingly inconsistent assertions. In Gretz, the 3rd Circuit extended the application of the Cleveland test to a claim for age discrimination brought under the ADEA. Ralph Detz began working for Greiner in 1979 on a construction road crew. Although he was laid off a number of times during his employment, he was continuously employed from 1989 to November 1997. In December 1994, Detz injured his left hand and arm and was no longer able to perform the heavy lifting required of his job. He returned to a light duty position in April 1995 and continued in that capacity until he was laid off as part of a large-scale job elimination program in late 1997. In April 1998, five months after his layoff, Detz applied for disability benefits with the Social Security Administration. He claimed to be disabled by his arm injury and said he stopped work on the date of this layoff due to his “condition.” When asked to list his jobs at Greiner, Detz referred to his work on the road crew, leaving out his post-injury light duty position. Detz was initially denied disability benefits, but he ultimately prevailed in his quest to be classified as “totally disabled” following a hearing in November of 1998. During this same time, Detz was pursuing a claim of age discrimination through the EEOC and Pennsylvania Human Relations Commission. In these administrative proceedings, he described his job as having worked in the “tool room,” his light duty position. When he brought his suit under the ADEA against Greiner, he asserted that he had “performed in his position for over nine � years and was fully qualified for his position.” This was, of course, diametrically opposed to the position that he had taken in order to secure SSDI benefits. The inconsistency between Detz’s assertions before the SSA and in court did not escape Greiner — or the district court, which found that Detz’s assertions were inconsistent and that he was unable to reconcile the inconsistency. The 3rd Circuit found Detz had tried to navigate the rocky landscape of the SSDI claim and his discrimination lawsuit by claiming that he was not disabled before his layoff because he could perform, essentially, the one and only job in the entire economy that suited his physical limitations. He claimed that he remained qualified for that one job for the purposes of the ADEA. Under Cleveland, a party must explain why assertions made in support of a claim of total disability under the SSA are consistent with contentions in support of an ADA claim. Detz was unable to meet this burden. Under the SSDI, in order to be “disabled,” a claimant must be incapable, not only of performing the most recent job, but also of performing “any other job existing in significant numbers in the nation’s economy.” Under the ADEA, Detz was required to prove that he was “qualified” for the position from which he was terminated. The fact that Detz had represented to the SSA on three occasions that his disability prevented him from working at all, now made it impossible for him to credibly claim that he was qualified to continue with Greiner. These were “patently inconsistent” positions. Detz is the first appellate court decision to apply Cleveland to a claim other than one under the ADA. In that respect, it is important in emphasizing the care that must be taken when making assertions to the SSA when other litigation may be contemplated. It also provides another avenue for defense counsel to challenge any claim of discrimination when disability benefits are involved. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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