____________________________________________ Appeal No. 11-1593 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GREATER BALTIMORE MEDICAL CENTER, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the District of Maryland The Honorable Richard D. Bennett, Presiding ____________________________________________ OPENING BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . 3 B. District Court's Summary Judgment Decision. . . . . . . . . . . . 15 C. Motion to Reconsider and District Court Decision. . . . . . . . . 17 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 THE DISTRICT COURT ERRED IN HOLDING THAT TURNER'S APPLICATION FOR AND RECEIPT OF SSDI BENEFITS BAR THE EEOC'S ADA ENFORCEMENT ACTION. . . . . . . . . . . . . . . . . . . . . 25 A. An EEOC enforcement action cannot be barred under Cleveland by a charging party's SSDI application or continued receipt of benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 B. Turner's SSDI application and receipt of benefits are reconcilable with the EEOC's assertion that he is a qualified individual under the ADA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1. Turner's condition improved over time. . . . . . . . . . . . . . . 40 2. Turner could have worked with reasonable accommodation. . . . . . 43 3. The SSA presumed Turner was disabled. . . . . . . . . . . . . . . 51 4. Turner could have reasonably believed he was still disabled under the SSA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 REQUEST FOR ORAL ARGUMENT CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Aka v. Washington Hospital Ctr., 156 F.3d 1284 (D.C. Cir. 1998). . . . . . . . . 45 Austin v. Winter, 286 Fed. Appx. 31 (4th Cir. July 11, 2008). . . . . . . . . 36 Cleveland v. Policy Management System Corp., 526 U.S. 795 (1999). . . 14 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995). . . . . . . . 45 DeRosa v. National Envelope Corp., 595 F.3d 99 (2d Cir. 2010). . . . . . 38 EEOC v. AIC Securities Investigation, 820 F. Supp. 1060 (N.D. Ill. 1993). . . 56 EEOC v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (E.D. Mo. 2004). . . . . . 35 EEOC v. Autozone, Inc., 2009 WL 464574 (C.D. Ill. Feb. 23, 2009). . . 15, 34, 37 EEOC v. Burlington North & Santa Fe Railway Co., 621 F. Supp. 2d 587 (W.D. Tenn. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009). . . . . . . . . 24 EEOC v. Continental Airlines, Inc., 2006 WL 3505485 (N.D. Ill. Dec. 4, 2006). . . . . . . . . . . . . . . . . . . . . . . . 35 EEOC v. Digital Connections, Inc., 2006 WL 2792219 (M.D. Tenn. Sept. 26, 2006). . . . . . . . . . . . . . . . . . . . . . . . 35 EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009). . . . . . . . . . . 35 EEOC v. LA Weight Loss, 509 F. Supp. 2d 527 (D. Md. 2007). . . . . . . . . . . . 34 EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000). . . . . . . . .passim EEOC v. Tobacco Superstores, Inc., 2008 WL 2328330 (E.D. Ark. June 4, 2008). . . . . . . . . . . . . . . . . . 35 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . passim Feldman v. America Memorial Life Insurance Co., 196 F.3d 783 (7th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 41 Ferguson v. Wal-Mart Stores, Inc., 114 F. Supp. 2d 1057 (E.D. Wash. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980). . . 24, 37, 39 Heckler v. Community Health Services, 467 U.S. 51 (1984). . . . . . . . . . . . 36 Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998). . . . . . . . . 51 Kiely v. Heartland Rehabilitation Services, Inc., 359 F.3d 386 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Matthews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . .25 Miller v. Illinois Department of Corrections, 107 F.3d 483 (7th Cir. 1997). . . . 51 New Hampshire v. Maine, 532 U.S. 742 (2001). . . . . . . . . . . . . . . . . .37, 39 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . 31 Office of Personsonnel Management v. Richmond, 496 U.S. 414 (1990). . . . . . 36 Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495 (7th Cir. 2000). . . . .48, 56 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). . . . . . . . . 24 Robinson v. Wix Filtration Corp., 599 F.3d 403 (4th Cir. 2010). . . . . . . . . 24 Schneider v. Giant of Maryland, LLC, 389 Fed. Appx. 263 (4th Cir. July 26, 2010). . . . . . . . . . . . . . . . . . . . . . . 45, 47 Senich v. American-Republican, Inc., 215 F.R.D. 40 (D. Conn. 2003). . . . . . . . 35 Sipp v. Astrue, 641 F.3d 975 (8th Cir. 2011). . . . . . . . . . . . . . . . . . 38 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . . . . 45, 47 Thompson v. Aluminum Co. of America, 276 F.3d 651 (4th Cir. 2002). . . . . . . . .24 Turner v. Hershey Chocolate USA, 440 F.3d 604 (3d Cir. 2006). . . . . . . . . . . 46 US Airways v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . 45 Voeltz v. Arctic Cat, Inc., 406 F.3d 1047 (8th Cir. 2005). . . . . . . . . . . . 46 Zinkand v. Brown, 478 F.3d 634 (4th Cir. 2007). . . . . . . . . . . . . . . 39, 54 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 422(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 42 U.S.C. § 423(a)(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . .26, 42 42 U.S.C. § 423(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 42 U.S.C. § 423(d)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. § 423(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 42 U.S.C. § 12111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 42 U.S.C. § 12119(B) . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 48, 50 Regulations 20 C.F.R. § 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54 20 C.F.R. § 404.1520(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 20 C.F.R. § 411.130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 29 C.F.R. § 1630.9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 29 C.F.R. § 1630.2(o)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 29 C.F.R. pt. 1630 app. § 1630.2(o) . . . . . . . . . . . . . . . . . . . . . 44, 50 Rules Fed. R. Civ. P. 8(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative History H.R. Rep. No. 101-485, pt. 2, at 32-34 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 314-15 . . . . . . . . . . . . . . . . 25 H.R. Rep. No. 84-1189, at 4-5 (1955) . . . . . . . . . . . . . . . . . . . . . 25 TABLE OF AUTHORITIES (con't) Miscellaneous EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (10/17/02), ("Guidance"), available at www.eeoc.gov/policy/docs/accommodation.html . . . . . . . . . . . . . . . . . . 44 Lowe, Lauren, What Employees Say, or What Employers Do: How Post- Cleveland Decisions Continue to Obscure Discrimination, 62 Vand. L. Rev. 1245, 1283 (May 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 STATEMENT OF JURISDICTION Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC" or "Commission") filed this enforcement action against Defendant-Appellee Greater Baltimore Medical Center, Inc. ("GBMC") under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. JA10-21.<1> The district court had jurisdiction over the EEOC's suit under 42 U.S.C. § 12117(a) (adopting the powers, remedies, and procedures of 42 U.S.C. § 2000e-5(f)(3)) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On January 21, 2011, the district court entered final judgment against the EEOC disposing of all claims. JA655-671. The EEOC filed a timely Rule 59(e) motion to reconsider. The district court denied that motion in an April 6, 2011, order. JA681-89. The EEOC timely filed a notice of appeal on June 3, 2011. JA691. See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in concluding that an EEOC enforcement action under the ADA can ever be barred by a charging party's context-related legal assertion of disability in an application for Social Security Disability Insurance (SSDI). 2. Assuming arguendo that an EEOC action can be barred in some circumstances, whether the court erred in holding as a matter of law that no reasonable jury could reconcile the charging party's assertion in his SSDI application that he was disabled and unable to work, and his continued receipt of benefits, with the EEOC's ADA lawsuit alleging that the charging party was a qualified individual, i.e., that he could perform the essential functions of his job with or without reasonable accommodation. STATEMENT OF THE CASE This is a disability discrimination lawsuit. The EEOC alleged that GBMC violated the ADA by failing to accommodate, discharging, and refusing to rehire the charging party, Michael Turner, because of his disability, record of disability, and because he was regarded as disabled. JA10. The EEOC requested injunctive relief, back pay, compensatory and punitive damages, and costs. JA15-16. The Commission also requested a jury trial. JA17. GBMC subsequently filed a motion for summary judgment arguing, inter alia, that the EEOC was judicially estopped from bringing its enforcement action by representations Turner made in his application for SSDI benefits and by his continued receipt of benefits. JA655. The district court agreed that the EEOC's action was barred and granted summary judgment. R.655-71. The EEOC filed a motion to reconsider, which the court denied. JA681-89. This appeal followed. STATEMENT OF FACTS A. Factual Background Michael Turner was born with neurofibromatosis, a genetic nervous system disorder that causes tumors to grow on nerves and produce other abnormalities such as skin changes and bone deformities. JA233. As a consequence of the disorder and an injury, Turner had several surgeries as a child that left his left leg shorter than his right. JA233-34. Consequently, he has always used a special shoe and a brace to walk, but he still walks with a limp. Id.; JA305-06. Turner begins working at GBMC In 1984, Turner went to work for GBMC as a part-time nursing "unit secretary." JA249. Turner continued working for GBMC for more than two decades. Id. His most recent position was as a full-time unit secretary in the Postpartum Unit making $13/hour. JA250; JA49. According to GBMC's description of the unit secretary position, the only physical job requirements are the "ability to sit for prolonged periods" with "occasional[]" walking and standing, and the "ability to concentrate and pay close attention to detail." JA313. Turner answered phones and patient call lights; helped staff and patients; updated the patient tracking board; scheduled tests; retrieved and sent faxes; and transcribed physician orders. JA313; JA250-58. Although by 1992 Turner had become morbidly obese, JA233, neither his weight, his limp, nor his neurofibromatosis ever interfered with his ability to perform his job. JA261; JA304-05. To the contrary, it is undisputed that he was an excellent and devoted employee. His supervisor, Etna Weinhold, called his work record, attendance, teamwork and loyalty "outstanding" and said Turner "is probably the 'Son of GBMC.'" JA311. Weinhold explained that by "son of GBMC" she meant that Turner "was a role model for a team player, for commitment to the organization, flexibility, [and] willingness to try" new things. JA311. When Turner was out on vacation, he would come in to cover for other employees who had called out. Id. GBMC awarded him the "perfect attendance award" many times. JA557. Turner goes out on medical leave In January 2005 Turner contracted necrotizing fasciitis, or flesh-eating disease, and was admitted to the hospital. JA262. He was released in July 2005 but remained, pursuant to GBMC's policy, on a "General Leave of Absence." JA264-65; JA70-71. Turner's doctor released him to work as of November 15, 2006. JA245. In anticipation of returning to work, Turner completed training on November 8, 2005, on GBMC's new computer system. JA265. Before Turner could return to work, however, he suffered a stroke and was re-hospitalized until December 27, 2005. JA239-40; JA246. Turner applies for SSDI benefits On December 29, 2006, Turner's mother applied for SSDI benefits on Turner's behalf, evidently by calling the SSA, which then completed an electronic version of his application and sent it to Turner for his signature. JA32-34. The application states, "I became unable to work because of my disabling condition on January 15, 2005" and "I am still disabled." JA32. The form also states that Turner must notify the SSA if his medical condition improved such that he could work, even if he had yet to return to work. JA33. An undated "Disability Report" Form SSA-3368 states that "necrotizing fasciitis, diabetes, and stroke" limited Turner's ability to work and that the necrotizing fasciitis rendered him unable to work as of January 15, 2005. JA47-48. Turner's mother also filled out the SSA's "Function Report," dated January 9, 2006. JA38. She reported that Turner lacked full function of his left arm or hand, used a bedside commode with hand rails, needed help walking due to some left-sided weakness, wore a leg brace, did not drive, could lift only 2-3 pounds and stand only 10 minutes, could not get back up after bending down, could walk 100 feet (needing a rest after 50 feet), had used a leg brace since he was two and also used a walker, wheelchair, and cane. JA39-43. Turner's mother also reported on the Function Report that Turner had a job waiting for him as a unit secretary at GBMC and that Turner's long-term goal was to return to work. JA45. On January 22, 2006, the SSA awarded Turner benefits. JA59-62. The notification letter said the SSA found Turner disabled "under our rules" as of January 15, 2005. The letter also said that an employment or vocational rehabilitation services agency might contact him and that if he went to work, special rules allowed the SSA to continue his payments. Turner tries to return to work On January 23, 2006, Turner's personal physician, Dr. Rosenblum-who had previously worked for nearly a decade as GBMC's Employee Health Service Physician and had observed unit secretaries at work-released Turner to work four hours a day for three days a week through April 1, 2006. JA349; JA362; JA366. Turner sought to return to work, but GBMC requested that Dr. Rosenblum complete an Employee Health and Return to Duty/Medical Restriction Form for Turner. JA83. Dr. Rosenblum filled out the form on February 28, 2006, based on information Turner's mother, a nurse, provided him. JA371; JA91-92. The form released Turner to return to work part-time as of March 6, 2006, with some restrictions: standing no more than 10 minutes/hour, walking no more than 25% of the shift, lifting a maximum of 5 pounds, and no pushing/pulling. JA371<2>; JA321. These restrictions were fully compatible with the physical demands of the unit secretary position, which were almost entirely sedentary. JA313; JA331-33. Turner's speech pathologist and occupational therapists also faxed GBMC documents showing that he did not require speech therapy and that he had met all of his occupational therapy goals. JA373-76; JA379; JA381. GBMC nevertheless asked Turner to undergo a fitness-for-duty evaluation by its Employee Health Physician, Dr. Paul Valle. Dr. Valle performed Turner's evaluation on March 30, 2006. JA378. He noted that Turner had retained 80% of strength in his left leg and arm and retained full use of his right limbs. JA380. Dr. Valle also noted that Turner could ambulate "fairly well" with a cane and had good cognitive function (scoring 29 out of 30 on the "Mini-Mental State Examination"), "intelligible" speech, and demonstrable computer skills. JA380; JA382. Nevertheless, Dr. Valle released Turner to work only twelve hours a week in a "low volume" area with "little multi-tasking"; Dr. Valle later explained that his concern was with Turner's physical ability to multi-task rather than his cognitive abilities. JA378; JA214. Dr. Valle specifically recommended that Turner not return to his former unit secretary position. He later testified, however, that his "hunch in [his] gut" was that Turner "might be able" to work as a unit secretary in the General Surgery Unit, which he said had "less volume" than the Postpartum unit. JA227. He also speculated that Turner might have been able to work as a unit secretary in the Routine Medical/Surgical unit or Unit 58, which was the post- op unit for orthopedics and spine. JA231. Despite Dr. Rosenblum's clearance and Dr. Valle's limited clearance, GBMC refused to return Turner to work in any capacity. On April 24, 2006, Turner met with GBMC's Employee Relations Representative, Diane Owen, and the HR Director, Carolyn Roberts. JA368; JA135. Turner said he wanted to work part-time in a position similar to the one he had left. JA368. He specifically asked about returning to the Labor & Delivery department or the Postpartum department on an as-needed basis. JA389. Roberts said they would investigate those possibilities, id., and Owen informed Turner of openings for a part-time unit secretary position in the Surgical Care Unit and of a file clerk position in Dr. Hinton's office. JA368. Owen also told Turner, however, that because he could not return to the "same job classification and work the same number of hours as previously performed, GBMC was not required to provide a position for you . . . ." JA368."<3> Because GBMC requested additional medical review of Turner's return- to-work status, however, Owen extended Turner's leave through June 30, 2006. JA368. She warned that after June 30, 2006, however, Turner's "employment with GBMC would be separated, but with the ability to apply for open positions in the future." JA368. Turner applied for the part-time unit secretary position, stating in the cover letter he submitted with his resume that he "request[ed] to transfer from Unit 25/26 to Unit 47 [SICU]." JA384. He declined to apply for the file clerk position in Dr. Hinton's office, however, because it required using a ladder to access files and he feared falling, it required mostly standing and walking, and it did not utilize his skills. JA384; JA279-80. On May 4, 2006, Owen informed Turner that Dr. Valle said Turner's medical restrictions precluded him from working the part-time unit secretary position in the Surgical Unit. JA389. Owen explained that Dr. Valle also recommended against having Turner work on even a part-time or as-needed basis in the Labor & Delivery or Postpartum departments. Id. Owen then informed Turner that he had "exhaust[ed] [his] possibilities" and reminded him that "his employment would be separated" on June 30, 2006, if he had not taken another position. Id. On May 15, 2006, Dr. Rosenblum cleared Turner to return to work full-time without any restrictions, stating that Turner was in better physical condition than any time since he had become Dr. Rosenblum's patient in 1992. JA391. Dr. Rosenblum testified that he based his opinion on the time that had elapsed since Turner's stroke, Turner's physical therapy progress, and Dr. Rosenblum's observations of the unit secretary position while he worked at GBMC. JA652. Two weeks later, Dr. Valle again evaluated Turner. JA393. He concurred with Dr. Rosenblum's release to full-time work but approved Turner to work only in a "file clerk position at Owings Mills." Id. Dr. Valle subsequently testified that he never consulted any job consulting accommodation groups to see whether Turner could have been accommodated in the unit secretary position, or any other position, because he did not know of any such groups and would have thought accommodation was HR's responsibility, not his. JA229-30. In the next few weeks, Turner applied for four positions (pre-natal imaging clerk, part-time birth registration clerk, credit union teller, billing file clerk in Owings Mills). JA401-03. Although GBMC admits Turner met the minimum qualifications for at least two of the positions and could perform their essential functions either with or without reasonable accommodation, it failed to reassign him. JA443 (admitting Turner met the minimum qualifications for the birth registration clerk and credit union teller positions); JA437 (admitting Turner could perform the essential functions of these positions); see JA401 (stating Turner was not hired as pre-natal imaging clerk because others were more qualified). As to the billing file clerk position, the billing manager interviewed Turner but refused to hire him because of her concern with Turner "carrying the boxes and things around the office." JA430. Turner's termination Because Turner had no position as of June 30, 2006, GBMC fired him. JA448. In August 2006, Turner began volunteering for GBMC in a clerical capacity. JA450. On his October 2006 "Annual Volunteer Competency Assessment," GBMC rated Turner as meeting the requirements of all of his "duties" (including "knowledge of assigned duties," "accepts feedback positively," "performs majority of duties related to position description," "consistently reports to work on time and per schedule") and "service excellence" (including maintaining confidentiality and a positive attitude). JA461. During the next three and a half years, Turner volunteered more than 1,144 hours.<4> JA450-59. Turner simultaneously pursued his quest to obtain employment with GBMC by applying for at least twenty-eight positions after his termination. JA403-11 (listing twenty- seven positions Turner applied for, or expressed an interest in, after June 2006); JA463-71(listing twenty-eight jobs Turner applied for). Although Turner applied for seven unit secretary positions during 2007 and 2008-including one in "General surgery," which Dr. Valle had a "hunch" Turner could have successfully worked-GBMC refused to interview Turner for a single position. JA473; JA227. GBMC also conceded that Turner could perform the essential functions of many of the other positions for which he applied, but it refused to hire him. JA437-38 (admitting Turner could perform the essential functions of thirteen positions in addition to the birth registration clerk and credit union teller positions). Similarly, GBMC admitted that Turner met the minimum qualifications for nearly a dozen positions that he applied for after June 2006, but it did not hire him for a single one. JA443-45. On January 13, 2009, the SSA issued Turner a voluntary "Ticket to Work" to obtain services from a state vocational rehabilitation agency. JA531. Turner utilized the Ticket to obtain services from the Maryland State Department of Education Division of Rehabilitative Services. JA551. He told the rehabilitation technical specialist that he wanted to return to work at GBMC. JA529. Despite his earnest efforts to return to GBMC, and his efforts to obtain employment elsewhere, Turner remains unemployed. JA551,553 (detailing Turner's attempts to find work outside of GBMC, including by applying to St. Joseph's and looking at jobsbuilder.com). Turner files EEOC charges In November 2006, Turner wrote the EEOC asking for help in getting his job back. JA619-20. He explained that when he tried to return from his medical leave, GBMC "would not let [him] return to [his] position." JA619. He also stated that after his termination he had applied for numerous jobs for which he was qualified but that "they just do not want me to return" and "feel I am a risk." JA620. He also wrote that GBMC's doctor refused to allow him to work on patient units. Id. On January 12, 2007, Turner filled out an EEOC intake questionnaire. JA102-07. He wrote that his disability did not affect his ability to work but that GBMC's doctor "feels 'in an emergency - I may have trouble to multitask [sic].'" JA104. Similarly, he wrote that although he had been cleared by his doctor to work, "I perceive the respondent to see me as disabled + did not know me," evidently referring to Dr. Valle's unfamiliarity with Turner's excellent work history. JA106. He also said he did not need or ask for a reasonable accommodation. JA105-06. On February 21, 2007, Turner filed a formal charge, which he amended a few weeks later. JA120, JA122. In his original charge, Turner wrote that GBMC's doctor had "not allowed [him] to return to work" and that he had been "told there was a concern about me not being able to 'multitask.'" JA120. Similarly, Turner's amended charge states that he tried to return to work but GBMC's doctor refused to allow him to return. JA122. The EEOC conducted an investigation and issued a Letter of Determination ("LOD") stating that Turner had alleged denial of reinstatement to unit secretary, denial of hire into another position, and discharge. JA539. The LOD concluded that there was reasonable cause to believe that GBMC violated the ADA by firing Turner and making it abundantly clear it would not employ him in any capacity. JA540. The EEOC's lawsuit and GBMC's motion for summary judgment The EEOC filed suit alleging that GBMC denied Turner a reasonable accommodation, unlawfully discharged him, and failed to rehire him because of his disability, record of disability, and because GBMC regarded Turner as disabled. GBMC admitted during discovery that Turner is disabled as defined by 42 U.S.C. § 12102(2). JA496. GBMC filed a motion for summary judgment arguing, inter alia, that the EEOC was judicially estopped from asserting that Turner was a qualified individual under the ADA because of Turner's application for and continued receipt of SSDI benefits. Relying on General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980), and EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the EEOC argued that a charging party's representations to the SSA could not judicially estop an EEOC suit. R.36, R.42.<5> The EEOC also argued that even if it could be judicially estopped by Turner's actions, the EEOC had reconciled any discrepancy between Turner's SSDI application for and receipt of benefits and the EEOC's claim that he could work, as required by Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). On January 10, 2011, the court held a hearing. The EEOC's trial attorney showed the judge the SSA's "Disability Determination" and asserted that it "indicates why he received the qualification [for benefits] and that's because of the necrotizing fasciitis. This little code down here, 8.04, if you go online and you look at what that means, it basically means that he had an infectious condition." JA675. Thus, the EEOC's attorney argued, "[t]hat's why he was qualified. It wasn't based on any statement of him saying I'm unable to work." Id. The EEOC's attorney offered to supplement the record with the Disability Determination, but the district court said. "You need not. That's fine." Id. B. District Court's Summary Judgment Decision The court granted GBMC's motion for summary judgment. The court first addressed the Supreme Court's ruling in Cleveland. In the court's view, the Supreme Court ruled in Cleveland that the traditional judicial estoppel analysis does not apply in SSA/ADA cases. JA663. Rather, the district court said, the analysis under Cleveland calls for a plaintiff to offer an explanation that would allow a jury to reconcile a plaintiff's good-faith belief in his assertion to the SSA of being disabled and unable to work with his ADA claim that he could nonetheless perform the essential functions of his job, with or without accommodation. JA664 (citing Cleveland, 526 U.S. at 807). The district court also said that Cleveland "sheds no light on whether the EEOC could be bound by prior inconsistent statements made by" a charging party in an SSDI application. JA665-66. The court acknowledged that the district court in EEOC v. Autozone, Inc., 2009 WL 464574 (C.D.Ill. Feb. 23, 2009), had concluded that the EEOC's suit could not be barred, but the court said it was bound by EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000), which it viewed as precluding the EEOC's argument. JA666. As the court explained, in that case this Court held that the EEOC was not estopped from pursing an ADA claim because a reasonable jury could reconcile the charging party's SSDI representation of being unable to work with the EEOC's claim that she could have performed the essential functions of her job with reasonable accommodation. JA667. The district court interpreted Stowe-Pharr Mills as "mean[ing] that granting summary judgment in favor of the defendant employer is appropriate where a claimant's SSDI application contradicts the EEOC's contention that the claimant can perform the essential functions of the job-unless the EEOC provides a sufficient explanation for the claimant's prior inconsistent statements as required under Cleveland." Id. Applying Cleveland, the court concluded that the EEOC had failed to sufficiently explain Turner's SSDI statements. The court first concluded that Turner's representation in his SSDI application of being disabled and unable to work conflicted with his subsequent statements-in his deposition and intake questionnaire-that he could have worked without accommodation and conflicted with the EEOC's lawsuit asserting the same. JA668. Next, the court concluded that the EEOC had not adequately reconciled the conflict. While the EEOC had argued that Turner's SSDI statements were true when made but that he subsequently recovered and became able to perform the essential functions of the unit secretary position, with or without accommodation, the court rejected this argument. It reasoned that Turner was required to tell the SSA if his medical condition improved such that he could work, which he failed to do. JA668-69. The court also rejected the Commission's argument that Turner had not deceived the SSA because he was actively participating in the SSA's "Ticket to Work Program"; the court said that Turner did not enroll in that program until January 13, 2009, well after he told GBMC he could work without restrictions. JA669. Finally, the court rejected the EEOC's contention that because Turner never represented that he was "totally disabled" to the SSA-as opposed to being able to work with accommodation-his statements could be reconciled; according to the court, even if Turner had told the SSA he could work with accommodation, that would have been inconsistent with "his numerous statements during and after his employment with GBMC that he never needed a reasonable accommodation to perform the unit secretary job." JA669-70. C. Motion to Reconsider and District Court Decision The EEOC filed a motion to reconsider arguing that the court erred in failing to address Waffle House and other cases the EEOC cited for the proposition that the EEOC cannot be estopped by a charging party's SSDI statements. Attaching the SSA's "Disability Determination," JA673, which the EEOC had offered at the motion for summary judgment hearing, and citing to Cleveland, the EEOC also contended that Turner's benefits were awarded based on a generalized presumption and therefore could not be construed as a judgment that Turner was unable to work. R.63. The EEOC also argued that pursuant to Cleveland, the jury could reconcile Turner's SSDI application with the EEOC's suit by finding that Turner could have worked with reasonable accommodation (part-time work, or a transfer). The EEOC further contended that a jury could reconcile Turner's statements under Cleveland by determining that Turner believed in good faith that he was still "disabled" under the SSA since he had unsuccessfully applied for 28 jobs with GBMC after his termination; if GBMC refused to rehire him-despite the fact it considered him the "Son of GBMC" and knew what an excellent employee he had been for twenty years-no other employer would hire him either. GBMC responded that the EEOC had never before raised the "generalized presumption" argument, but GBMC did not make any objection to the EEOC's submission of the SSA's "Disability Determination." R.65. GBMC itself submitted a document that had not previously been in the record: a January 12, 2006, "Case Analysis" completed by an SSA medical specialist, Dr. William Hakkarinen. JA677. Dr. Hakkarinen, who was consulted about Turner's application, advised that "it is clear from the evidence that [Turner] is not ready to resume even sedentary work now in 1/06"; he suggested that Turner "meets 8.04," which is the SSA code for infectious skin diseases on its list of presumed impairments. GBMC argued that this form showed that the SSA awarded Turner benefits based on a finding-not a presumption-of disability. GBMC also argued that the court had not erred by failing to address Waffle House and that the record lacked evidence that Turner had a good-faith belief he was still disabled under the SSA because employers perceived him as unable to work. To refute GBMC's assertion that the Disability Determination showed that the SSA had awarded benefits based upon a finding of disability, the EEOC filed a reply attaching the March 22, 2011, affidavit of Tamara Farmer, the Acting Division Director in the Office of Policy and Consultation, Office of Disability Programs, Social Security Administration. JA678-80. Farmer's affidavit states that the SSA awarded Turner benefits after the third step of the SSA's five-step process based upon a presumption that his primary medical diagnosis of necrotizing fasciitis rendered him unable to work. JA678, ¶ 2. The affidavit also states that Farmer reviewed the "Case Analysis" and that neither Hakkarinen nor anyone else conducted any analysis beyond the third step; rather, Hakkarinen merely recommended that Turner met the "8.04" listing based on his primary medical diagnosis of necrotizing fasciitis. JA679, ¶ 3. The court denied the motion to reconsider. It stated that it had not erred by overlooking Waffle House because it "did not decide this case on judicial estoppel principles." JA685. Rather, the court said, it had decided the case on the ground that the EEOC could not reconcile Turner's SSDI application and receipt of benefits with the assertion that Turner was qualified under the ADA. JA685. As for the EEOC's presumption argument, the court did not say anything about the "Disability Determination" and flatly refused to consider Farmer's affidavit on the ground that it did not constitute new evidence that was unavailable at trial, as required by Rule 59(e). JA686, n.1. The court did, however, rely on GBMC's "Case Analysis" to conclude that the SSA did make a determination that Turner could not work as of January 2006. JA686. The court again rejected the EEOC's argument that Turner's SSDI representations could be reconciled with the ADA claim because he could have worked with a reasonable accommodation. JA687- 88. Finally, the court rejected as "speculative" the EEOC's argument that a jury could reconcile Turner's SSDI representations and the EEOC's ADA claim if it found that Turner believed he was still unable to work because, despite his numerous applications, GBMC wouldn't hire him, so no other employer would either. JA688-89. SUMMARY OF ARGUMENT The court erred in holding that Michael Turner's SSDI application and continued receipt of benefits bars the EEOC's enforcement action under the ADA. Less than one-half of one percent of disabled individuals receiving SSDI and SSI benefits ever leaves the disability rolls to return to work. Turner repeatedly tried to join the ranks of that .5% of individuals who forego a government check in favor of a pay check. After combating illness and stroke, Turner attempted to return to work at GBMC, where he had been an outstanding 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 old job back or to give him a new one. Instead, it fired him. Although Turner has volunteered more than 1,100 hours at GBMC since his termination, GBMC has steadfastly refused to rehire Turner for the dozens of paying jobs he has sought. The EEOC alleged that GBMC's actions violated the ADA. Two weeks away from trial, however, the district court granted summary judgment against the EEOC on the ground that Turner's application for and receipt of SSDI benefits precluded the EEOC from establishing that Turner was a qualified individual under the ADA, i.e., that he could work with or without reasonable accommodation. That ruling-which means that GBMC will never have to answer the government's allegations of discrimination-was erroneous. The district court first erred by concluding that an EEOC action can be barred under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). In Cleveland, the Court held that a private plaintiff's context-related legal representation of disability and inability to work in an SSDI application does not necessarily conflict with the same plaintiff's subsequent assertion in the context of an ADA lawsuit that he was a qualified individual, i.e., one who can work with or without accommodation. Rather, the Court held, a plaintiff can defeat summary judgment with evidence from which a reasonable juror could find that the plaintiff had a good-faith belief in the SSDI representation of disability but could nonetheless perform the essential functions of the job, with or without reasonable accommodation. Contrary to the court's conclusion, an EEOC enforcement action cannot be barred under Cleveland. A long line of Supreme Court cases establishes that the EEOC is not a proxy for the individuals for whom it sues. Rather, the EEOC acts in the public interest when it brings an enforcement action. Therefore, the EEOC cannot be estopped by a legal assertion of disability made by a charging party in an SSA proceeding that the agency had nothing to do with. This Court's decision in EEOC v. Stowe-Pharr Mills does not suggest otherwise, as that decision simply did not address the EEOC's legal argument that its enforcement actions cannot be barred under Cleveland by a charging party's context-related legal representation of disability in an SSDI application, even if that assertion were found to conflict with the agency's lawsuit. 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. Applying Cleveland, there are a number of ways in which a jury could find that Turner had a good-faith belief in his SSDI assertion of disability and could reconcile that belief with the EEOC's subsequent assertion that Turner was qualified under the ADA. First, a jury could find that Turner's condition improved over time and that his continued receipt of benefits was consistent with the EEOC's lawsuit because the Social Security Act expressly provides that beneficiaries can keep their benefits while working in some circumstances- including through a trial-work period, a three-month grace period, and its "Ticket to Work" program, in which Turner voluntarily participated. Second, a jury could find that Turner could have worked with reasonable accommodation, which the SSA does not consider but the ADA requires employers to provide (absent undue hardship). Third, a jury could conclude that because the SSA awarded Turner benefits based on a presumption, Turner's continued receipt of benefits is reconcilable with the EEOC's lawsuit. Fourth, a jury could find that although Turner could have worked with or without reasonable accommodation, he had a good-faith belief that he was still disabled for the SSA's purposes and entitled to benefits because that is how GBMC treated him, as it refused to hire him despite his dozens of applications and superlative work history, and because no other employer would hire him either. Therefore, this Court should reverse the grant of summary judgment and remand this case for trial. STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo. EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 174 (4th Cir. 2009). "Summary judgment should only be rendered if 'the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(c)). "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002) ("We make no credibility determinations, and we do not weigh the evidence."). The reviewing court "must disregard all evidence favorable to the moving party that the jury is not required to believe" and must "give credence to the evidence favoring the nonmovant . . . ." Reeves, 530 U.S. at 151. "This court reviews the denial of a Rule 59(e) motion under the deferential abuse of discretion standard." Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010). The justifications for granting a Rule 59(e) motion are (1) an intervening change in controlling law; (2) new evidence unavailable at trial; or (3) to correct a clear error of law or to prevent manifest injustice. Id. ARGUMENT THE DISTRICT COURT ERRED IN HOLDING THAT TURNER'S APPLICATION FOR AND RECEIPT OF SSDI BENEFITS BAR THE EEOC'S ADA ENFORCEMENT ACTION. Congress enacted the ADA to eradicate widespread discrimination against individuals with disabilities and, among other things, to enable individuals with disabilities to move off government benefit rolls and to return to work. See 42 U.S.C. § 12101(a); H.R.Rep. No. 485, 101st Cong. 2d Sess. Pt.2, at 32-34 (1990) (1990 House Report), 1990 U.S.C.C.A.N. 303, 314-15. To that end, the ADA prohibits discrimination against "a qualified individual with a disability," i.e., someone one "who, with or without reasonable accommodation, can perform the essential functions" of the job. 42 U.S.C. §§ 12112(a), 12111(8). Reasonable accommodation may include part-time or modified work schedules, job restructuring, or reassignment to a vacant position. 42 U.S.C. § 12111(9)(B). Conversely, Congress enacted the Social Security Act, inter alia, to provide certain disabled individuals with benefits to compensate them for lost income or to protect them from indigence. See, e.g., H.R. Rep. No. 1189, 84th Cong., 1st Sess. 4-5 (1955) (1955 House Report); Matthews v. Eldridge, 424 U.S. 319, 340-41 & n.24 (1976). The Act accomplishes this by providing benefits to insured individuals with a "disability," which is defined as a "physical or mental impairment" expected to result in death or that can be expected to last for twelve or more months that renders the individual unable to engage in "substantial gainful activity." 42 U.S.C. §§ 423(a)(1)(E), (d)(1)(A). The impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Social Security Administration utilizes a five-step sequential process to determine whether an individual is disabled. At the first step, the SSA looks at whether the individual is engaged in "substantial gainful activity"; if so, the individual is not disabled. 20 C.F.R. § 404.1520(a)(4). At the second step, the SSA evaluates the medical severity of the impairment and whether it satisfies the duration requirement. Id. If it does, at the third step the SSA determines whether the impairment meets or equals one of the impairments listed by the Secretary at 20 C.F.R. Part 4, Subpart P, Appendix 1; if so, the SSA presumes the individual is disabled and the inquiry ends. Id. If not, the SSA proceeds to the fourth step to determine whether the individual can perform his or her "past relevant work." If the individual cannot, the SSA considers in the fifth and final step whether the individual's age, education, and work history would allow the individual to adjust to any other work. Id. If not, the individual is disabled. Thus, an ADA claim asserting, "I can work" might, on the surface, appear to conflict with a claim to the SSA of disability, which essentially asserts, "I am unable to work." The Supreme Court addressed that apparent conflict more than a decade ago in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). In Cleveland, the Court held that the Fifth Circuit erred in holding that "'the application for or the receipt of social security disability benefits creates 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 800 (quoting 120 F.3d 513, 518 (5th Cir. 1997)). The Court prefaced its opinion by stating that it was addressing "[a]n SSA representation of total disability," not "directly conflicting statements about purely factual matters" such as "I can/cannot raise my arm above my head." Id. at 802. As the Court explained, "[a]n SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, 'I am disabled for purposes of the Social Security Act.'" Id. Accordingly, the Court said "[W]e leave the law related to the former, purely factual, kind of conflict where we found it." Id. As for the context-related legal representation to the SSA of disability, the Court said, there were "too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side" to adopt a rebuttable presumption of estoppel. Id. at 802-03. But the Court also said that an ADA plaintiff could not ignore the apparent contradiction that arises from an earlier SSDI claim and an ADA lawsuit. Id. at 806. "Rather, she must proffer a sufficient explanation" for the inconsistency. Id. Specifically, the Court held, "[t]o 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 [of total disability], the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.'" Id. at 807. The Court then set out at least four circumstances in which a jury might reconcile an SSDI claim and an ADA claim: (1) where the plaintiff's condition improved over time such that the plaintiff could work but the plaintiff nevertheless still qualified for benefits, such as through the SSA's nine-month trial work period; (2) where a plaintiff alleged he could work with reasonable accommodation, which is required by the ADA but not considered by the SSA; (3) where the SSA awarded benefits based on a presumption about the plaintiff's impairment rather than a finding that the plaintiff could not work; and (4) where the plaintiff's SSDI application had been denied. Id. at 803-805. Here, the district court concluded that the EEOC had failed to sufficiently reconcile Turner's application for and receipt of SSDI benefits with the assertion that he was a qualified individual under the ADA, i.e., one who could perform the essential functions of his job with or without reasonable accommodation. That ruling was erroneous for two reasons. First, an EEOC enforcement action cannot be barred under Cleveland by a charging party's context-related legal assertion that he is disabled, i.e., unable to work, for purposes of the Social Security Act. Second, even if the EEOC's action can be barred under Cleveland, a reasonable jury could reconcile Turner's statements and continuing receipt of benefits with the EEOC's ADA lawsuit, as required by Cleveland. Accordingly, this case should be remanded for trial. A. An EEOC enforcement action cannot be barred under Cleveland by a charging party's SSDI application or continued receipt of benefits. The district court held that the EEOC's enforcement action was barred under Cleveland because the EEOC had failed to reconcile Turner's SSDI application with the agency's assertion that he was a qualified individual under the ADA. As discussed above, Cleveland addressed only the apparent inconsistency between an individual's "context-related legal conclusion, namely, 'I am disabled for purposes of the Social Security Act," and an ADA suit, not contradictions between purely factual statements. 526 U.S. at 802 (stating that it was leaving the law related to purely factual conflicts "where we found it"). Accordingly, the threshold question presented in this appeal is whether an individual's context-related legal representation in an SSDI application of being disabled and unable to work, and that individual's continued receipt of SSDI benefits, can ever bar an EEOC enforcement action. Contrary to the district court's conclusion, it cannot. Although the district court concluded that Cleveland "sheds no light" on this question, it ruled that Stowe-Pharr Mills "compels the conclusion that the EEOC can be barred from bringing an ADA suit under Cleveland if the EEOC does not provide a sufficient explanation for an apparent contradiction between a claimant's SSDI application and the claimant's later contentions that he is able to work." JA666. The district court erred in its reasoning, however, by reading too little into Cleveland and too much into Stowe-Pharr Mills. To be sure, Cleveland does not discuss whether an EEOC enforcement action can be barred by a charging party's context-related legal conclusion of disability in an SSDI application. But a central premise underlying the decision is that it was the same party who took the seemingly contrary legal positions in the SSDI application and the ADA lawsuit. This case, in contrast, involves analysis of two different parties' context-related legal representations. In the proceedings before the SSA, it was Turner who asserted that he was disabled under the Social Security Act. In contrast, in this action, the EEOC is the plaintiff, and it is the EEOC who has asserted that Turner could have worked, with or without reasonable accommodation. While it is true that the EEOC is seeking relief on Turner's behalf, the Supreme Court has repeatedly recognized that "the EEOC is not merely a proxy" for the individuals for whom it seeks relief. Gen. Tel. Co. of the NW v. EEOC, 446 U.S. 318, 326 (1970) (holding that the EEOC need not comply with the class certification requirements of Rule 23 of the Federal Rules of Procedure); see EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) ("We have recognized several situations in which the EEOC does not stand in the employee's shoes."); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977) ("[T]he EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties."). Rather, the Court has observed, "[w]hen the EEOC acts, albeit at 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. Because Cleveland applied where the same party took potentially conflicting legal positions, and because the EEOC is not a proxy for the individuals for whom it seeks relief, Cleveland suggests that the EEOC's lawsuit cannot be barred by a charging party's SSDI representation of disability. Nor does Stowe-Pharr Mills compel a contrary conclusion. In Stowe-Pharr Mills, this Court held that the EEOC had offered sufficient evidence to overcome summary judgment under Cleveland. This Court reasoned that a jury could reconcile the charging party's SSDI assertion of disability with the EEOC's assertion that she was a qualified individual with a disability based on evidence that she could have worked her factory job with the reasonable accommodation of a transfer to a plant with wood, instead of cement, floors. 216 F.3d at 379. Accordingly, this Court reversed summary judgment and remanded the case for trial. Nowhere in Stowe-Pharr Mills did this Court address the threshold question of whether an EEOC's enforcement action can be estopped under Cleveland by conflicts between a charging party's context-related legal conclusion of disability in an SSDI application and the EEOC's assertion that the charging party was a qualified individual under the ADA. While the district court interpreted Stowe- Pharr Mills' silence on this issue as an implicit holding that an EEOC suit can be barred under Cleveland, the district court read too much into the opinion. A holding is only implicit if it is necessary to the ruling; in Stowe-Pharr Mills, it was not necessary for this Court to conclude that an EEOC action can be barred under Cleveland since this Court ruled a jury could reconcile the charging party's SSDI statements and the EEOC's ADA action.<6> In any event, this Court decided Stowe-Pharr Mills before it had the benefit of the Supreme Court's ruling in EEOC v. Waffle House. In Waffle House, the Supreme Court held that the charging party's signing of a mandatory arbitration agreement did not prevent the EEOC from filing an enforcement action under the ADA or from seeking victim-specific relief. 534 U.S. 279. In reaching this conclusion, the Court cited its holdings in Occidental and General Telephone and emphasized "the difference between the EEOC's enforcement role and an individual employee's private cause of action." Id. at 287. The Court also stated that "[t]he statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake" when determining whether to pursue an action. Id. at 291. Recognizing that the EEOC was not a party to the charging party's arbitration agreement, and therefore had never agreed to arbitrate its claims, the Court held that the EEOC could proceed with its ADA action seeking victim-specific relief. Id. at 294. The Court also stated that it was leaving open the question of whether the charging party's conduct (i.e., settlement or arbitration) could affect the EEOC's recovery, but the Court emphasized that "it simply does not follow from the cases holding that the employee's conduct may affect the EEOC's recovery that the EEOC's claim is merely derivative" of the charging party's. Id. at 297. Thus, Waffle House again embraced the general principle espoused by the Supreme Court in Occidental and General Telephone-that the EEOC's enforcement authority is not derivative of the legal rights of the individuals for whom it seeks relief because the EEOC acts in the public interest rather than as a proxy for individuals. This trilogy of Supreme Court cases compels the conclusion that an EEOC enforcement action cannot be barred by a charging party's context- related legal representation to the SSA of disability because the EEOC is not a proxy for the individuals for whom it seeks relief and therefore cannot be bound by their legal assertions. See EEOC v. Autozone, Inc., No. 07-1154, 2009 WL 464574, at *5 (C.D. Ill. Feb. 23, 2009) (holding that the EEOC's ADA lawsuit could not be judicially estopped by the charging party's SSA statements because the EEOC is not a proxy for the charging party but acts in the public interest in eliminating employment discrimination). This conclusion also is consistent with decisions from a host of courts concluding that a charging party's actions cannot estop an EEOC enforcement action. Courts have relied on Waffle House to conclude that a charging party's private settlement agreement with an employer does not bar an EEOC enforcement action seeking monetary relief because the EEOC is not a proxy for charging parties. See, e.g., EEOC v. LA Weight Loss, 509 F. Supp. 2d 527, 536 (D. Md. 2007) (charging party's settlement agreement did not moot EEOC's retaliation claim); EEOC v. Continental Airlines, Inc., No. 04-3055, 2006 WL 3505485, at *2 (N.D. Ill. Dec. 4, 2006) (charging party's settlement did not preclude the EEOC from seeking monetary relief in discrimination case); see also Senich v. American- Republican, Inc., 215 F.R.D. 40, 45 (D. Conn. 2003) (applying Waffle House to find charging parties' waivers and release did not estop EEOC action seeking victim-specific relief). Similarly, courts have relied on Waffle House, or its reasoning, to hold that a charging party or class member's failure to disclose an EEOC claim or lawsuit in a pending bankruptcy petition does not preclude the EEOC from bringing suit on his or her behalf. See, e.g., EEOC v. Tobacco Superstores, Inc., 2008 WL 2328330, at *8 (E.D. Ark. June 4, 2008) (failure of some class members to list pending EEOC action on their bankruptcy petitions did not judicially estop the EEOC's discrimination action); EEOC v. Digital Connections, Inc., 2006 WL 2792219, at *3 (M.D. Tenn. Sept. 26, 2006) (same). EEOC v. Apria Healthcare Group, Inc., 222 F.R.D. 608, 613 (E.D. Mo. 2004) (same); see also EEOC v. Federal Express Corp., 558 F.3d 842, 854 (9th Cir. 2009) (relying on Waffle House to hold that the EEOC retains the authority to issue a subpoena against a defendant even after the charging party has requested and received a right-to-sue notice and joined a class action lawsuit based on the claims raised in the charge). Barring EEOC enforcement actions based on a charging party's legal assertions of disability in SSA proceedings is also contrary to public policy. The Supreme Court and this Court have repeatedly recognized that applying estoppel against the federal government, which is essentially what the district court did here, undermines the public interest and is very rarely-if ever-warranted.<7> See, e.g., Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422 (1990) (refusing to apply equitable estoppel against the government and stating, "we have reversed every finding of estoppel [against the federal government] that we have reviewed"); Heckler v. Cmty. Health Servs., 467 U.S. 51, 60 (1984) (stating that "[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interests of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant"); Austin v. Winter, 286 Fed. Appx. 31, 38 (4th Cir. July 11, 2008) (stating that estoppel against the government requires an affirmative misrepresentation and that this standard "is rigorous"). As discussed, an EEOC action not only benefits specific individuals but also "vindicate[s] the public interest in preventing employment discrimination." General Telephone, 446 U.S. at 326. Thus, barring EEOC actions based on charging parties' legal representations in SSA proceedings undermines the public's interest in the eradication of employment discrimination, which is the task Congress created the agency to accomplish. See Autozone, 2009 WL 464574, at *4 (stating that narrowing "the EEOC's interest in pursuing perpetrators of discrimination" by placing on the EEOC "the same boundaries that limit individual litigants would be ill advised" and refusing to judicially estop the agency's action). It also gives alleged discriminators a "get out of jail free" card through the happenstance of their unemployed victims having applied for and received SSDI benefits Allowing EEOC enforcement actions to proceed despite a charging party's representations of disability before the SSA also confers no "unfair advantage" on the EEOC, which is simply a law enforcement agency, and confers no "unfair detriment" on employers, 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"). The district court's decision seemed animated by the belief that Turner would derive an unfair advantage if the EEOC's lawsuit were allowed to proceed, as he has been collecting SSDI benefits for several years. But this reasoning again overlooks the fact that an EEOC enforcement action does not just benefit the individuals on whose behalf the agency sues, but also benefits the public, which has an interest in the eradication of employment discrimination. Additionally, to the extent Turner, or any charging party, misled the SSA and improperly received benefits, the remedy for that would be for the SSA to terminate the benefits and/or seek recoupment of those payments, as it is permitted by law to do. See, e.g., Sipp v. Astrue, 641 F.3d 975 (8th Cir. 2011) (affirming judgment for the SSA where it had terminated the plaintiff's SSDI benefits because her income exceeded SSA limits and where the SSA had sought $60,000 in overpaid benefits). But the EEOC's enforcement actions-which typically seek not only victim-specific monetary relief but also injunctive relief such as training, posting of notices, and reporting requirements-should not be barred. Finally, even if the district court's opinion could be read as resting on a finding that Turner made "conflicting statements about purely factual matters, such as . . . 'I can/cannot raise my arm above my head,'" Cleveland, 526 U.S. at 802- which GBMC seemed to assert in its response to the EEOC's motion for reconsideration-then the traditional judicial estoppel analysis would apply. See, e.g. DeRosa v. Nat'l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010) (stating that Cleveland did not displace traditional judicial estoppel analysis as to purely factual contradictions). This Court has stated that three elements must be satisfied before judicial estoppel will be applied: (1) the party sought to be estopped must be asserting a position that is inconsistent with a prior litigation position; (2) the position must have been accepted by the first court; and (3) the party seeking to be estopped must have engaged in bad faith by intentionally misleading the court to gain an unfair advantage. Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007); see also New Hampshire, 532 U.S. at 749-51 (factors to consider in applying judicial estoppel are whether a party took "clearly inconsistent" positions, the earlier position was accepted by a court, and the party would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped). Those elements cannot be satisfied here. As discussed, the EEOC is not a proxy for Turner, who was the only one who made representations to the SSA. Therefore, the EEOC cannot be said to have made a prior inconsistent statement in Turner's SSDI application. Nor can it be said that the EEOC, which "exists to advance the public interest in preventing and remedying employment discrimination," is intentionally misleading the court to gain an unfair advantage; the only advantage to be gained by permitting the EEOC's suit to go forward is to allow it pursue its goal of eradicating employment discrimination. General Telephone, 446 U.S. at 331. And, finally, GBMC will not experience any "unfair detriment" if the EEOC's suit is allowed to proceed, as it has not paid Turner's SSDI benefits. Instead, it has benefited for years from his free volunteer labor while denying him a paying job. Accordingly, judicial estoppel would not bar the EEOC's action, even if the district court's opinion were read as resting on conflicts between purely factual statements. Rather, the jury would be able to weigh any conflicting factual statements when determining whether the EEOC proved the elements of its case, including that Turner was a qualified individual with a disability. B. Turner's SSDI statements and receipt of benefits are reconcilable with the EEOC's assertion that he is a qualified individual under the ADA. Even if an EEOC enforcement can be barred under Cleveland by a charging party's context-related legal conclusion in an SSDI application of disability, the court erred in granting summary judgment. Contrary to the court's conclusion below, 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. 1. Turner's condition improved over time. A jury could first find that Turner's SSDI application itself does not conflict in any way with the EEOC's lawsuit. As the Supreme Court recognized in Cleveland, "the nature of an individual's disability may change over time, so that a statement about that disability at the time of an individual's application for SSDI benefits may not reflect an individual's capacities at the time of the relevant employment decision." 526 U.S. at 805. It is undisputed that at the time of Turner's application in December 2005 he was, as he claimed, totally disabled and had been since January 2005. The EEOC has never contended that Turner could have worked during 2005. Rather, the EEOC alleged that the earliest Turner could have returned to work was January 23, 2006, when his doctor released him for part-time work. A jury could therefore find-indeed, would be compelled to find-that Turner had a good-faith belief in his representation in his December 29, 2005 SSDI application that he was disabled for the SSA's purposes. See Feldman v. Am. Mem. Life Ins. Co., 196 F.3d 783, 790 (7th Cir. 1999) (recognizing that "the severity of a disability may change over time such that an individual was totally disabled when she applied for SSDI, then later was a qualified individual at the time of the employment decision disputed in an ADA suit" and stating that this "could explain an inconsistency between SSDI and ADA status"). Here, the SSA never conducted a Continuing Disability Medical Review for Turner. It is therefore undisputed that Turner never made any affirmative misrepresentations to the SSA. Accordingly, the issue in this case is whether Turner's continued passive receipt of SSDI benefits-at a time when GBMC refused to employ him in any capacity and his other efforts to obtain employment failed-is fatally inconsistent with the EEOC's assertion that Turner could have worked, with or without reasonable accommodation. The district court found, as a matter of law, that it was. But this finding overlooks the fact that "the SSA sometimes grants SSDI benefits to individuals who not only can work, but are working." Cleveland, 526 U.S. at 805. For instance, the Social Security Act expressly permits a nine-month trial work period. Id. (citing 42 U.S.C. §§ 422(c), 423(e)(1)). The Act also provides that when a recipient is deemed to have medically improved such that he can work, he is entitled to benefits for a three month "grace" period. See 42 U.S.C. § 423(a)(1)(E); www.ssa.gov/redbook/eng/returning-to-work.htm#3. Additionally, the SSA's "Ticket to Work" program, which suspends Continuing Disability Reviews, also allows individuals to continue to receive benefits until they begin earning wages or self-employment income above the applicable SSDI earnings limits.<8> See www.chooseworkttw.net/about-program/faq.html; JA534. Here, Turner voluntarily enrolled in the SSA's "Ticket to Work" program in January 2009. JA531. While the district court seemed to fault Turner for failing to enroll earlier, R.61,p.15, the SSA never issued Turner a "Ticket to Work" earlier.<9> Turner's participation in this voluntary program again evidences that Turner has consistently tried to return to work and has never tried to "hoodwink" the SSA.<10> Thus, given evidence that Turner's condition improved over time and that the SSA expressly permits individuals to receive benefits while working-most significantly, via its "Ticket to Work" program, which Turner voluntarily participated in-a reasonable jury could reconcile Turner's continued receipt of SSDI benefits with the EEOC's claim that Turner was a qualified individual under the ADA, i.e., one who could perform the essential functions of his job, with or without accommodation. 2. Turner could have worked with reasonable accommodation. A jury could also reconcile Turner's continued receipt of benefits with the EEOC's lawsuit on the grounds that Turner could have worked with reasonable accommodation, which the ADA mandates but the SSA does not consider. See Cleveland, 526 U.S. at 803 ("An ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job without it."). Under the ADA, employers must provide reasonable accommodation to the known physical limitations resulting from an employee's disability unless doing so would impose an undue hardship. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). Once an employer's responsibility to provide a reasonable accommodation is triggered, it may be necessary for the employer to engage in an "interactive process" to determine the appropriate accommodation under the circumstances. 29 C.F.R. § 1630.2(o)(3). Reasonable accommodations include job restructuring, part-time work, reassignment to a vacant position, and unpaid leave. 42 U.S.C. § 12111(9)(B); 29 C.F.R. pt. 1630 app. § 1630.2(o). Reassignment is the accommodation of last resort; it should be used only when an employee cannot be accommodated in his current position. See id.; EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (10/17/02), p.19 ("Guidance"), available at www.eeoc.gov/policy/docs/accommodation.html.<11> Absent undue hardship, an employee granted leave as a reasonable accommodation must be returned to the same position; if holding the position open imposes an undue hardship, the employer must consider whether it has a vacant, equivalent position to which the employee can be reassigned. See Guidance at p.14 (Q/A 18). An employer does not have to create a new position or bump employees from a position in order to reassign a disabled individual, but if a vacant position is available and the employee is qualified for it, the employer must place the employee in that position without requiring him to compete for it. See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164-70 (10th Cir. 1999) (en banc); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05 (D.C. Cir. 1998); Guidance at p. 21 (Q/A 29).<12> Here, Turner represented in his SSDI application that he was disabled, and therefore unable to work, but he never represented that he was unable to work with reasonable accommodation or that he would never be able to do so. See, e.g., Stowe-Pharr Mills, 216 F.3d at 379-80 (charging party's SSDI statement of being unable to work due to disability was reconcilable with the EEOC's claim where she could have worked with the reasonable accommodation of transfer to a factory with wood instead of concrete floors); Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1050 (8th Cir. 2005) (affirming jury verdict where plaintiff stated in SSDI application he was unable to work and testified at trial that he could have worked with reasonable accommodation); Turner v. Hershey Chocolate USA, 440 F.3d 604, 610 (3d Cir. 2006) (pursuant to Cleveland, an individual's SSDI "statement of inability to work must be read as lacking the qualifier of reasonable accommodation"). The district court rejected this argument, evidently because the court found it inconsistent with Dr. Rosenblum's medical releases and with Turner's statements in his deposition and intake questionnaire that he did not need any accommodation. JA669; JA688. The court erred. The Commission and other courts have long recognized that "reasonable accommodation" is a term of art that lay persons are not required to utilize in order to request accommodation. See Guidance at p.5 (Q/A 1) ("To request an accommodation, an individual may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation.'"); Smith, 180 F.3d at 1172 (employee "need not use magic words" in requesting reassignment). It follows that a lay person's statements that he did not request or require a "reasonable accommodation" does not definitively establish, on summary judgment, that none was requested or required. And here the evidence would support a finding that Turner did request, and may have needed, a reasonable accommodation. First, it is undisputed that on January 23, 2006, Dr. Rosenblum released Turner for part-time work through April 1, 2006, and that Turner tried to return to work. JA366. A doctor's letter releasing an employee to return to work with certain restrictions constitutes a request for reasonable accommodation. See Guidance at p.5; Schneider v. Giant of Maryland, 389 Fed. Appx. 263, 271 (4th Cir. July 26, 2010) (plaintiff made request for reasonable accommodation where doctor sent note asking that he be transferred and the plaintiff also asked for a transfer); Ferguson v. Wal-Mart Stores, Inc., 114 F. Supp. 2d 1057, 1069 (E.D. Wash. 2000) (doctor's "return to work" slip with some restrictions constitutes request for reasonable accommodation). As discussed, part-time work constitutes a reasonable accommodation. 42 U.S.C. § 12111(9)(B); see Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 498 (7th Cir. 2000) ("[G]radual return to full- time work would have been a reasonable accommodation that the ADA required [defendant] to provide."). Thus, a jury could find that Turner requested a reasonable accommodation when he sought to return to work on a part-time basis in January 2006, which would reconcile his receipt of SSDI benefits in January 2006 with the EEOC's claim that he was qualified individual as of January 23, 2006. A jury could also find that Turner requested a reasonable accommodation in February 2006. It is undisputed that GBMC did not accept Dr. Rosenblum's January 23, 2006, release but instead asked that he complete GBMC's "Return to Duty" form. Dr. Rosenblum complete the form on February 28, 2006, and faxed it to GBMC. The form released Turner to work with some physical restrictions (walking no more than 25% of the time, standing no more than 10 min/hour, lifting no more than 5 lbs, no pushing/pulling). JA371. A jury could find that these restrictions were fully compatible with Turner's unit secretary position, which was primarily sedentary, JA313, and that GBMC had a vacant part-time unit secretary position, at least as of April 2006. JA386. A jury could therefore reconcile Turner's SSA assertion of disability with the EEOC's claim that as of February 28, 2006, Turner was a qualified individual because he could work as a unit secretary with the reasonable accommodation of a part-time schedule. Alternatively, if a jury concluded that the physical limitations noted on Dr. Rosenblum's evaluation did interfere with Turner's ability to perform his job, as GBMC contends, then a jury could determine that GBMC was obligated to engage in the interactive process to determine an appropriate reasonable accommodation. That might have included restructuring Turner's job by assigning away marginal tasks or, as a last resort, by reassigning Turner to a vacant position for which he was qualified. Similarly, if a jury credited Dr. Valle's March 30, 2006 evaluation-concluding that Turner could not physically multi-task and needed to work in a low-volume area-a jury could also find that Turner could have worked had GBMC provided the reasonable accommodation of reassignment to a vacant position compatible with these restrictions, such as the vacant pre-natal imaging clerk, part-time birth registration clerk, credit union teller, or in-house physician billing file clerk positions. See, supra at p.10. A jury could therefore reconcile Turner's receipt of SSDI benefits with the EEOC's assertion that Turner was qualified by finding that Turner could have worked with reasonable accommodation, at least through May 15, 2006, when Dr. Rosenblum released Turner to return to work without restriction. A reasonable jury could also reconcile Turner's receipt of SSDI benefits with the EEOC's claim that Turner was a qualified individual after May 15, 2006. The EEOC alleged and argued that Turner could perform the essential functions of his job with or without reasonable accommodation, which the Rules of Civil Procedure allow. See Fed. R. Civ. P. 8(d) (parties may state claims in the alternative and may state inconsistent claims). GBMC has strenuously argued, based on Dr. Valle's assessment, that Turner could no longer physically multi-task or work in a high-volume area and therefore could work only as a file clerk. Accordingly, a jury could potentially agree with GBMC that-notwithstanding Dr. Rosenblum's release or Turner's protestations that he could work without accommodation-Turner could have worked only with some kind of reasonable accommodation, such as reassignment to a file clerk (or comparable) position. See 42 U.S.C. § 12111(9)(B) (reasonable accommodation includes "reassignment to a vacant position"); 29 C.F.R. pt. 1630 app. § 1630.9 ("Employers are obligated to make reasonable accommodation [ ] to the physical or mental limitations resulting from the disability of a qualified individual that is known to the employer."). A jury could further find that Turner's repeated and continuous attempts to remain employed constituted a request for reasonable accommodation. See, e.g., Hendrick -Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998) ("A request as straightforward as asking for continued employment is a sufficient request for accommodation."); Miller v. Illinois Dep't of Corrs., 107 F.3d 483, 486-87 (7th Cir. 1997) ("Even if an employee who as here becomes disabled while employed just says to the employer, 'I want to keep working for you-do you have any suggestions?' the employer has a duty under the Act to ascertain whether he has some job that the employee might be able to fill."). The EEOC also presented evidence that GBMC had vacant filing clerk (or comparable) positions to which it could have reassigned, or rehired, Turner but did not. A jury could therefore reconcile Turner's receipt of SSDI benefits after May 15, 2006, with the EEOC's assertion that Turner was qualified if the jury were to find that, despite his protestations to the contrary, Turner's disabilities required reasonable accommodation to allow him to perform the essential functions of his job. 3. The SSA presumed Turner was disabled. The third way a jury could reconcile Turner's continued receipt of SSDI benefits with the EEOC's assertion that he was a qualified individual is by finding that the SSA based its award of benefits on a presumption, not a finding, that Turner was disabled.<13> See Cleveland, 526 U.S. at 804. As the Supreme Court recognized in Cleveland, and as discussed above, the SSA utilizes a five-step procedure to determine whether an individual is disabled under the SSA. Id. The Supreme Court also acknowledged in Cleveland that the majority of SSA awards are made at step three, i.e., they are made based on a presumption that a listed impairment renders an individual unable to work, rather than an actual finding that an individual is no longer able to work. Cleveland, 526 U.S. at 804. While presumptions enable the SSA to process the large number of applications it receives, "they inevitably simplify, eliminating consideration of many differences potentially relevant to an individual's ability to perform a particular job." Id. Therefore, an SSA award of benefits based on presumption does not preclude a jury from finding that an ADA claimant remained capable of performing the essential functions of his job, either with or without accommodation. Id.; see generally Kiely v. Heartland Rehab. Servs., Inc., 359 F.3d 386, 390 (6th Cir. 2004) (SSDI application and ADA claim were reconcilable under state law where the plaintiff applied for and received benefits based on his legal blindness, which is a listed impairment). Here, three pieces of record evidence create at least a question of fact as to whether Turner's award of benefits was based on a presumption. First, the SSA's "Disability Determination" would support this finding.<14> JA673. In box "16 A" for "primary diagnosis" the form lists "necrotizing fasciitis," and the onset of the disability is listed in "Box 15" as January 15, 2005, which is when Turner first took medical leave for the necrotizing fasciitis. Box "23" for "Med List No." lists the code "8.04," which is the code on the SSA's list of presumed impairments for chronic skin infections. See 20 C.F.R. § 404, Subpart P, Appx. 1. Thus, the Disability Determination strongly suggests that the SSA presumed Turner was disabled based on his necrotizing fasciitis. Second, the "Case Analysis"-which GBMC submitted with its response to the EEOC's motion for reconsideration, and which the court relied upon in its reconsideration order-suggests that Turner was presumed to be disabled, i.e., unable to work. JA677. While Dr. Hakkarinen wrote on the form that "it is clear from the evidence that this claimant is not ready to resume even sedentary work now in 1/06," he also "suggest[e]d claimant meets 8.04," which, again, is the SSA code for infectious skin conditions, a presumed impairment. See 20 C.F.R. § 404, Subpart P, Appx. 1. Finally, the third document that not only supports, but compels, a finding that the SSA awarded Turner benefits based on a presumption is the affidavit of Tamara Farmer, who is the Acting Division Director in the Office of Policy and Consultation, Office of Disability Programs, Social Security Administration. JA678. Farmer stated in the affidavit that she had reviewed the "Case Analysis" and that neither Dr. Hakkarinen nor anyone else had conducted any analysis beyond the third step of the SSA's five-step process; rather, Dr. Hakkarinen recommended that Turner met the "8.04" listing based on his primary diagnosis of necrotizing fasciitis. JA678-79. The district court, however, refused to consider Farmer's affidavit. This refusal constituted an abuse of discretion. This Court has recognized that district courts retain "some discretion" under a Rule 59(e) motion to reconsider "to determine whether additional evidence should be considered or further argument heard." Zinkand, 478 F.3d at 637. Generally, a court should consider newly- submitted evidence only after determining that it was previously unavailable. Id. It is true, as the district court said, that Farmer's affidavit does not constitute newly discovered evidence that was previously unavailable. However, the district court accepted GBMC's newly-submitted evidence-the "Case Analysis"-despite the fact this document was also not previously unavailable. Considerations of fairness require that if a district court exercises its discretion on a motion to reconsider to receive newly-submitted evidence, it cannot arbitrarily pick-and-choose whose evidence to accept. Because in this case the district court considered GBMC's newly-submitted "Case Analysis," the court abused its discretion in refusing to consider Farmer's affidavit, which refuted GBMC's interpretation of the Disability Determination. Alternatively, the district court should have refused to consider either document, in which case a jury could still find based on the Disability Determination that the SSA presumed Turner was disabled and unable to work. Accordingly, a jury could reconcile Turner's continued receipt of SSDI benefits, which were based on presumption about his disability, with the EEOC's assertions that Turner could have performed the essential functions of his job, with or without reasonable accommodation. 4. Turner reasonably believed he was still disabled under the SSA. Finally, a jury could reconcile the EEOC's assertion that Turner was a qualified individual under the ADA with Turner's continued receipt of SSDI benefits by finding that Turner believed in good faith that he was still disabled for the SSA's purposes and entitled to benefits because that is how GBMC treated him. It is undisputed that Turner applied for dozens of positions but that GBMC refused to hire him for a single one-despite his outstanding work performance of twenty years, his continued volunteering, and GBMC's admission that he met the minimum qualifications for many of those positions. It is also undisputed that Turner applied for jobs with other employers but has never found work. Given these facts, a jury would be well within its bounds to find that Turner had a good- faith belief that he was still entitled to SSDI benefits because his past employer and potential employers viewed him as too disabled to work.<15> See Pals, 220 F.3d at 498 (stating that a possible explanation for the plaintiff's statement in his long- term disability application that he was unable to do all listed tasks "might have been that [plaintiff] completed his form two days after . . . learning that he would not be welcomed back" to work from his medical leave); EEOC v. AIC Sec. Investigation, 820 F. Supp. 1060, 1066-67 (N.D. Ill. 1993) (fact issue existed as to whether charging party could have performed his job despite doctor's statement to the SSDI because the doctor's statement "was premised on the fact that [the charging party] had been fired from his job and that he should be able to get some compensation because no one [wa]s going to hire him"). Although the district court called this argument "speculative," it is consistent with the EEOC's legal theory of the case and is supported by the record. The EEOC's complaint alleged that GBMC discriminated against Turner not only because of his disability but also because it regarded him as disabled. Turner's own statements also show that he perceived GBMC as regarding him as unemployable because of his impairments. Turner wrote in his November 2006 letter to the EEOC that he was qualified for numerous jobs and his doctor had released him to work but that "they [GBMC] just do not want me to return" and "feel I am a risk." In his intake questionnaire, Turner stated that his disability did not affect his ability to work but that GBMC's doctor "feels 'in an emergency - I may have trouble [] multitask[ing]'" and that GBMC "see[s] me as disabled." Similarly, Turner's charges states that GBMC would not rehire him because its doctor thought Turner could not multitask. It is also undisputed that Turner devoted his entire adult working life to GBMC and that he was recognized as an outstanding employee. It would therefore not be too much of a stretch, under these facts, for a jury to therefore conclude that Turner had a good-faith belief that he was still entitled to receive SSDI benefits because perceptions about his impairments rendered him unemployable. A jury could therefore reconcile the EEOC's assertion (and Turner's testimony) that Turner could have worked without accommodation with Turner's continued receipt of SSDI benefits. See generally EEOC v. Burlington N. & Santa Fe Railway Co., 621 F. Supp. 2d 587, 600 (W.D. Tenn. 2009) (factual representations in charging party's SSDI application about being a "liability to the company" and unable to work due to his disability were reconcilable with ADA's claim where the charging party testified that the statements referred to the employer's perception of his disability); Lowe, Lauren, What Employees Say, or What Employers Do: How Post-Cleveland Decisions Continue to Obscure Discrimination, 62 Vand. L. Rev. 1245, 1283 (May 2009) ("SSDI recipients may not view their benefits as reflecting a permanent and complete inability to work, but rather as the government's recognition that gainful employment depends on the willing attitude of employers.") CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's grant of summary judgment against the EEOC and remand this case for trial. REQUEST FOR ORAL ARGUMENT Given the importance of this appeal to the proper interpretation of the ADA and the EEOC's enforcement efforts, the Commission respectfully requests oral argument. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________________ s/ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,854 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ s/ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov Date: August 15, 2011 CERTIFICATE OF SERVICE I certify that on August 15, 2011, I electronically filed this brief via the CM/ECF system, which will send notice to the counsel listed below. I also sent by overnight mail to the Court eight paper copies of the brief and six paper copies of the Joint Appendix and served one copy of the Joint Appendix by mailing it via U.S. Mail to the counsel listed below. Counsel for GBMC Lawrence J. Quinn Kristin P. Herber Tydings & Rosenberg LLP 100 East Pratt St., 26th Fl. Baltimore, MD 21202 (p) (410) 752-9700 (f) (410) 727-5460 ______________________________ s/ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov ********************************************************************************** <> <1> All references to "JA" are to the corresponding page in the parties' Joint Appendix. <2> The copy of this form in the record is nearly illegible, but the expert report of Daniel Rapucci summarizes its contents. JA321. <3> According to GBMC, it reassigned "active" employees as a reasonable accommodation to vacant positions without requiring them to compete for the position. JA563-65. But employees who were coming back from a "General Leave of Absence," like Turner, had to compete for a job. JA565-66; JA76. <4> Turner still volunteers at GBMC. <5> R* refers to the docket number. <6> Although this Court's Stowe-Pharr Mills opinion does not mention it, the EEOC did argue on appeal that it could not be estopped under Cleveland by a charging party's SSDI representations. See Br. of the EEOC as Appellant, 216 F.3d. 373. <7> This Court stated in EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000) that "Cleveland does not mandate an analysis under the doctrine of judicial estoppel. The standard summary judgment framework is used instead." 216 F.3d at 378. In our view, however, the principles of judicial estoppel inform the analysis of whether an EEOC action can be barred under Cleveland by a context- related assertion of disability in an SSDI application. <8> Congress enacted the Ticket to Work and Work Incentives Improvement Act in 1999 after finding that less than .5% of SSDI beneficiaries ever returned to work. See Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, § 2, 113 Stat 1860, 1862 (Dec. 17, 1999) (codified as amended at 42 U.S.C. § 1320b-19 (2006)). <9> The SSA's regulations state that "if you are eligible to receive a ticket . . . we will send a ticket to you by mail." 20 C.F.R. § 411.130. Thus, the SSA's regulations suggest that beneficiaries must wait for a ticket. Additionally, the SSA's January 22, 2006, notification to Turner that he had been awarded benefits states that "a provider of employment or vocational rehabilitation services may contact you about getting help to go to work." JA60. This letter also suggests that Turner had to wait for a Ticket to Work. <10> The SSA obviously does not feel that Turner "hoodwinked" it, as it has continued to provide benefits although it is aware, through his enrollment in the "Ticket to Work" program, that Turner has sought to return to work. <11> Page references to the EEOC's guidance refer to the document available on the EEOC's web page as printed out. <12> In an unpublished opinion, this Court suggested that the ADA does not require that disabled employees be given priority in reassignment. See Schneider v. Giant of Maryland, LLC, 389 Fed. Appx. 263, 271 (4th Cir. July 26, 2010). In Schneider, this Court quoted Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), as stating that the ADA does not require "affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment"). Id. This Court also stated that the employer was not required to reasonably accommodate the plaintiff by reassigning him to his previous position of pharmacy supervisor, which, this Court also noted, had been filled with another employee anyway. Id. In our view, Schneider does not resolve the question in this circuit of whether a disabled employee must compete for a vacant position. In addition to the fact that Schneider is unpublished, this Court's statement that Giant was not required to reassign the plaintiff to his old position is arguably dicta since that position had already been filled, and it is undisputed that the ADA is not a bumping statute. Additionally, this Court's reliance on Daugherty is misplaced, as that case pre-dated the Supreme Court's decision in US Airways v. Barnett, 535 U.S. 391 (2002), which squarely rejected the notion that the ADA never requires employers to give preferences to disabled individuals. 535 U.S. at 397 (stating that the ADA "specifies . . . that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal"). While the Court held in Barnett that in the ordinary run of cases a requested reassignment that conflicts with a seniority system will not be reasonable, the Court also said that "[w]e assume that normally such a request would be reasonable within the meaning of the statute, were it not for one circumstance, namely, that the assignment would violate the rules of a seniority system." Id. at 403 (emphasis added). <13> Contrary to GBMC's assertion below in its response to the EEOC's motion to reconsider, the EEOC clearly raised the presumption argument at the summary judgment hearing. JA675 (asserting that the Disability Determination showed that Turner received benefits based on his necrotizing fasciitis, which was reflected in the "8.04" code; "That's why he was qualified. It wasn't based on any statement of him saying I'm unable to work."). <14> The EEOC showed this document to the court at the summary judgment hearing and also attached it to the motion for reconsideration. GBMC did not object to the EEOC's submission of the document on reconsideration. <15> While the EEOC did not make this specific argument in response to summary judgment, it was included in the motion for reconsideration, and the district court addressed it.