Dаniel C. MOTLEY, Appellant v. NEW JERSEY STATE POLICE; The State Troopers Fraternal Association of New Jersey
No. 97-5715.
United States Court of Appeals, Third Circuit.
Argued Aug. 3, 1998. Decided Nov. 1, 1999.
196 F.3d 160
Joseph L. Yannotti (Argued), Office of Attorney General of New Jersey, Trenton, NJ,
Robert J. Gregory, Equal Employment Opportunity Commission, Washington, DC, Attorney for Amicus-Appellant.
Before: NYGAARD, ALITO, and RENDELL, Circuit Judges.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Plaintiff Daniel C. Motley, a former New Jersey State Trooper, was seriously injured on the job. Although he continued working as a Detective for several years after the accident, Motley was denied promotions because he was unable to complete the required annual physical examination. Eventually, Motley voluntarily took an accidental disability retirement, which included enhanсed pension benefits. Thereafter, Motley sued the New Jersey State Police and others who are not parties to this appeal, alleging that by refusing to promote him for failing to pass the physical exam, the State Police discriminated against him on the basis of a physical handicap in violation of the Americans with Disabilities Act,
I.
The facts of this case are undisputed, unless otherwise noted. This case arises as a result of an incident in January 1990 in which Motley was seriously injured while on duty. In the course of a drug buy-bust operation, Motley sustained serious injuries to his knees, back, neck, shoulder, and left eye when the accused attempted to escape and dragged Motley approximately 150 feet with his car until crashing into a pole.
Motley had joined the police force in 1982, and was promoted to Detective II in 1989. Since 1988, the New Jersey State Police has required that its officers participate in an annual physical examination.1 The rules provided that any officer who did not satisfactorily complete the physical examination would not be eligible for promotion.2 As a result of the injuries sustained in the January 1990 incident, Motley was placed on temporary limited duty status.
Motley did not participate in the annual physical examination after he was injured in the 1990 incident. Between May 1990 and May 1991, Motley‘s performance was evaluated and he was not recommended for promotion to the rank of Detective I because he did not pass the fitness test. In August 1991, Motley filed a grievance claiming that he was entitled to the promotion because he had the requisite service timе. Motley received no answer to
On April 7, 1993, Motley applied for an accidental disability pension. New Jersey law allows this benefit to be granted to a State Police officer provided that a medical board determines that the officer is “permanently and totally disabled ... and physically incapacitated for the performance of his usual duties” as a consequence of an event that occurred as a result of the officer‘s duties.
Motley commenced this action under the ADA and NJLAD. The District Court granted summary judgment to the State Police, ruling that Motley‘s prior assertion that he was totally and permanently disabled judicially estopped him from suing under the ADA and NJLAD because he сould not demonstrate that he was otherwise qualified for the job.
II.
We have the opportunity in this case to address the effect of our prior holding in McNemar, 91 F.3d at 610. As we have previously noted, McNemar has generated a great deal of academic and judicial criticism. See Krouse v. American Sterilizer Co., 126 F.3d 494, 502 n. 3 (3d Cir.1997) (citing the criticism). Much of the criticism is based on the mistaken belief that McNemar announced a per se rule that a claim for disability, based on an assertion of a total disability or inability to work, necessarily bars an individual from pursuing an ADA discrimination claim. McNemar announced no such per se rule.3
McNemar correctly declared that application of judicial estoppel requires that “each case be decided upon its own particular facts and circumstances.” McNemar, 91 F.3d at 617 (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513 (3d Cir.1953)). We stated that the apрlication should not be formulaic, but should follow the framework set out in our decisions, most notably in Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir.1996). Looking at the framework developed by this court over time, we opined in McNemar that judicial estoppel may be invoked by a court at its discretion “to preserve the integrity of the judicial system by preventing parties from playing fast and loose with the courts in assuming inconsistent positions, and ... with a recognition that each case must be decided upon its own particular facts and circumstances.” McNemar, 91 F.3d at 617 (emphasis added).
We made clear in Krouse that “courts should carefully adhere to the two-part test of Ryan Operations” before applying judicial estoppel. Krouse, 126 F.3d at 503 n. 5. The Ryan Operations analysis requires a district court to make a determination on two threshold questions before
A.
The first question we must address is whether the two positions taken by Motley are inconsistent. As the Supreme Court‘s recent decision in Cleveland makes clear, each case should be decided on its own unique facts.
In Cleveland, the Supreme Court decided that the Fifth Circuit Court of Appeals erred when it held that receipt of Social Security Disability Insurance (“SSDI“) benefits automatically created a rebuttable presumption that the recipient was estopped from pursuing an ADA claim. See id. 119 S.Ct. at 1599-1600. The Court held that while no presumption should be applied, to survive summary judgment, an ADA plaintiff “cannot simply ignore her SSDI contention that she was too disabled to work.... [S]he must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.‘” Id. at 1600.
The Supreme Court acknowledged, as do we, that a statement of total disability when applying for disability benefits may be a “context-related legal conclusion,4 namеly ‘I am disabled for purposes of the [disability act].‘” Id. at 1601. The Court noted that there are situations in which a person may be disabled enough to qualify for receipt of disability benefits under SSDI, yet still be able to bring a cognizable ADA claim. In large part, this is because, when determining whether to award SSDI benefits, the possibility of reasonable accommodation is not taken into account. Under the ADA, however, a “qualified individual” includes all people who “can perform the essential functions” of the job “with or without reasonable accommodation.”
The Court also acknowledged that certain statements made during disability hearings may lead to generally applicable factual conclusions. Where factual inconsistencies between claims exist, as opposed to context-specific legal conclusions, the Court held that the law remains “where [it] found it.” See Cleveland, 119 S.Ct. at 1601-02; Mitchell v. Washingtonville Central School Dist., 190 F.3d 1, 7 (2d Cir.1999) (publication page reference not available) (discussing Cleveland and holding that previous assertions made as part of disability claim that employee could not stand or walk were purely factual, so that “if the requirements for judicial estoppel are otherwise met, [the employee] may be prevented from claiming, as a factual matter, that he could [perform these physical activities] on the basis of prior factual assertions to the contrary.“).
The Supreme Court recognized that, although no presumption against recovery in аn ADA suit exists, “[n]onetheless, in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim.” Cleveland, 119 S.Ct. at 1603. Recognizing the apparent contradiction that arises from an earlier application for disability benefits, the Court noted that the ADA plaintiff
In Cleveland, the ADA plaintiff had proffered a sufficient explanation of the difference in her statements. First, Cleveland noted that her initial statements were “made in a forum that does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Id. at 1604. Obviously, this is true in all of these cases and, if this argument alone allowed ADA plaintiffs whо had previously applied for SSDI-type benefits to survive summary judgment, summary judgment could never be granted. Because the Supreme Court indicated that summary judgment would indeed be appropriate in some cases, an ADA plaintiff must, in certain circumstances, provide some additional rationale to explain the plaintiff‘s apparent about-face concerning the extent of the injuries. Considering the different contexts in which the two statutory regimes operate could, of course, be crucial to understanding how an ADA plaintiff‘s particular claims may be reconciled. The additional justification presented by the plaintiff could, in theory, go into detail regarding the facts of his оr her case, demonstrating how the differing statutory contexts makes their statements made under one scheme reconcilable with their claims under the other. As discussed below, however, such consideration does not help Motley.
In Cleveland, the ADA plaintiff claimed that her statements were accurate “in the time period in which they were made.” Id. So, in addition to noting that the statutory standards differed, Cleveland appears to have made a factbased argument that her condition changed to some degree during the applicable time periods. This amounted to a sufficient explanation under the facts of Cleveland‘s case but, as we have said, each case must be decided on its own unique facts. Although the presence of this additional justification distinguishes Cleveland‘s case from Motley‘s, this does not mean that Motley must demonstrate a change in his condition to avoid dismissal of his case. It does mean, however, that to avoid having his claim dismissed Motley‘s “explanation [of inconsistent positions] must be sufficient to warrant a reasonable juror‘s concluding that, assuming the truth of or [his] good faith belief in the earlier statement, [he] could nonetheless perform the essential functions of [his] job, with or without reasonable accommodation.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2732.3 (West Supp.1999) (discussing Cleveland). Motley has failed to provide such a sufficient explanation, even taking into account the different standards used in his disability hearing and under the ADA.
To еstablish that he was a “qualified individual with a disability” under the ADA and the comparable provisions of the NJLAD,5 Motley must be able to demonstrate that he could perform the “essential functions” of a state trooper with or without reasonable accommodation. See
Although courts should not assume that an individual‘s ADA claim is barred “merely because prior representations or determinations of disability exist in the record,” Krouse, 126 F.3d at 503 n. 5, the attainment of disability benefits is certainly some evidence of an assertion that would be inconsistent with the argument that the party is a qualified individual under the ADA. Recognizing that this was the logical conclusion in these types of cases, the Supreme Court in Cleveland acknowledged that the ADA plaintiff must somehow explain the apparent inconsistency. Motley has failed to meet this burden.
In his application for disability benefits, Motley averred that he was “permanently and totally disabled” as a result of the events of January 1990. (SA 11, SA 13) It is difficult to get around the conclusion that, in at least one of the fora, Motley was not completely honest. The statutes under which Motley pursued his disability benefits claim allow a disability pension to be awarded to an officer who is “physically incapacitated for the performance of his usual duties in the Division of State Police.”
Rather than a general allegation of disability, Motley offered detailed descriptions of his injuries and their impact on his ability to work. He claimed that he had sustained several debilitating injuries to support his claim of physical incapacitation in his application for disability benefits. He stated that he had “extremely painful and recurring headaches” and “intense back pain” when he sat for more than 20 minutes. (SA 15) In addition, Motley claimed that he had difficulty sleeping more than two to three hours because of the back pain. Furthermore, he asserted that he had “extreme pain” in his left knee and could not stand on it without pain. He also claimed to have “extreme difficulty with running.” (SA 15) To receive the disability pension, Motley had to undergo an examination by a medical board. This board concurred with Motley‘s assertion that he was “totally and permanently incapacitated for state police officer duties.” (SA15) Neither Motley nor the State Police contested this finding, which presumably took the fundamental job requirements for state police officers, along with reasonable accommodations such as light duty, into consideration when it chose to grant Motley full pension benefits.
More important than the extent of Motley‘s injuries is his failure to proffer a reasonable explanation for his inconsistent statements. As we noted above, simply avеrring that the statutory schemes differ is not enough to survive summary judgment in light of Cleveland. An ADA plaintiff must offer a more substantial explanation to explain the divergent positions taken, or else summary judgment could never be granted. Motley has failed to bring any additional reasons for his conflicting answers to our attention. If anything, looking to the different statutory schemes in this particular case convinces us that Motley‘s claims are, in fact, unreconcilable. The purpose of Motley‘s disability hearing was to determine whether he could continue to function as a state police officer. The resulting conclusion that he should be granted full pension benefits because his medical condition did not allow him to continue to serve is not one taken from some foreign context; it is directly relevant to Motley‘s claim that he
As noted above, to the extent that Motley now wishes to contest the purely factual findings regarding his physical condition, as opposed to conclusions that he was completely disabled for purposes of working as a state police officer, Cleveland does not even apply and Motley may be precluded from asserting such a claim. See Cleveland, 119 S.Ct. at 1601-02; Mitchell, 190 F.3d at 6-8.
Motley‘s decision to rely solely on the differences in the statutory schemes is thus fatal to his ADA and NJLAD claims under the circumstances. There is undeniably a difference in the language of the various statutes; however, as McNemar indicated, focus on the differences in the statutory standards should not take precedence over a careful assessment of the nature of the prior assertions made by a party and their impact on the current claim.
As the Supreme Court made clear in Cleveland, 119 S.Ct. at 1603-04, the mere fact that the statutory standards differ in some aspects does not mean that a prior assertion of permanent and total disability can never preclude a party from bringing a claim under the ADA. Cleveland holds simply that where context-related legal conclusions are involved, courts must not apply presumptions automatically without first considering whether the ADA plaintiff can reconcile the two apparently inconsistent statutory claims. There may be cases where, looking at the previous facts and statements by a party, the assertions are such that the party cannot prove that he was a qualified individual because his previous stаtements take the position that he could not perform the essential functions of the job, with or without accommodation. That is the case here.
Motley, relying on several specific and severe physical injuries, asserted that he was “permanently and totally disabled.” This was not a mere blanket statement of complete disability checked on a box in order to obtain pension benefits. Rather, the assertion was supported by Motley‘s additional statements concerning the type and extent of his injuries. Furthermore, the medical board diagnosis, uncontested by Motley, also concluded that Motley was permanently incapacitated for police officеr duties. On their face, these assertions are patently inconsistent with his present claims that he was a “qualified individual” under the ADA.
Motley asserted that he was totally disabled so that he could receive special retirement benefits. After his retirement, he brought this claim, which necessarily relies on the fact that he was not totally disabled. Examining all the facts, we cannot say that the District Court erred when it concluded that the ADA case brought by Motley was inconsistent with his earlier statements regarding his disability. Thus, under Cleveland, the entry of summary judgment against Motley was proper. Our decision is based squarely on the standard set out by the Supreme Court in Cleveland. The difference between our position and that of the dissent is simply the fact-bound question of whether, under that standard, Motley was entitled to survive summary judgment. We hold that he was not.
III.
Because we find that the District Court did not err when it granted summary judgment against Motley in light of his prior assertions of complete disability, we affirm.
I agree with the majority‘s view that Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), undercuts our previous decisions and replaces concepts of judicial estoppel and special legal presumptions with a straightforward test that is, in essence, nothing more than an application of normal summary judgment procedures when conflicting affidavits are presented in a case.1 Now, a plaintiff must reconcile or explain away the apparent conflict.
In Cleveland, the Supreme Court gave Ms. Cleveland an opportunity to do so, remanding so “[t]he parties [would] have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate.” Cleveland, 119 S.Ct. at 1604.2 However, we have denied Mr. Motley his day in court based on our view that he would not be able to satisfactorily explain away the inconsistency between his two statements.
I take issue with our ruling for two reasons:
First, I think that, after Cleveland, we should remand in cases such as this to provide all plaintiffs in Mr. Motley‘s po-sition with the opportunity to explain away the inconsistency, if they can do so, and to be subject to cross examination, rather than reaching our own conclusions from the record.3 The procedure set forth in Cleveland requires no less.
Once the plaintiff has made an apparently inconsistent statement, thе defendant challenges this contrary assertion as a defense, and in order to survive summary judgment, the plaintiff must come forward with an explanation. It is not for the court upon the defendant‘s raising of this inconsistency, to decide on its own whether the inconsistency can be reconciled. How can we, now, after Cleveland, deny this opportunity which is clearly mandated?
In Cleveland, the explanations offered in plaintiff‘s brief on appeal consisted not only of statutory differences, but also included an allegation that plaintiff‘s condition had improved over time so that the earlier statements were true when made. See id. Although this would seem to be a satisfactory explanation, the Supreme Court did not reverse outright, but, rather, remanded the case for determination as to the sufficiency of the explanation. See id.
Here, we err not only in deciding the issue, but, even more, we err by deciding it based upon the record made when the rules of the game were very different. The District Court decided this issue in the context of a body of law that did not permit any explanation of the inconsistency, and certainly did not require the proffer of an explanation. In McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d Cir.1996), this Court wrote: “McNemar‘s statements on his disability benefits application are unconditiоnal assertions as to his disability; he should not now be permitted to qualify those statements where the application itself is unequivocal.” (quoting Smith v. Midland Brake, Inc., 911 F.Supp. 1351, 1358 (D.Kan.1995)) (internal quotations omitted).4
The District Court never considered any explanation, and the parties’ discovery and arguments were clearly uninformed as to the need for an explanation. To now cull the existing record to make the argument, and resolve it in favor of the defendant under a new set of rules, is unfair. See Rothberg v. Rosenbloom, 771 F.2d 818, 824 (3d Cir.1985); see also U.S. v. Kikumura, 918 F.2d 1084, 1103 n. 23 (3d Cir.1990). I would therefore remand for plaintiff to proffer his explanation, with the opportunity for the parties to offer evidence and cross-examine on this issue, as the Supreme Court did in Cleveland.5
Second, I read the record here as not being nearly as one-sided as the majority views it, and I believe that there are, at least, genuine issues of fact regarding what Mr. Motley can and cannot do, and
The majority explains that his applications for benefits were bereft of any indication that he could perform the essential functions of his job, and were more than a blanket statement of “total disability” because they were suppоrted by a description of his injuries. This is misleading. His amended application, admittedly filed after his original application was approved,7 clearly states: “Since the event, I have been on light duty.” See SA 12. Furthermore, the majority does not consider that the benefit application asks for a description of his injuries, which he gave, noting that the experiences caused pain. Lastly, the majority misreads the findings of the medical board.8
It is worth remembering that Motley did not retire from the police department solely because his pain made working difficult. He retired after he became frustrated with the police force‘s refusal to consider him for promotion to Detectivе I. Due to the medical status he was assigned, Motley was not permitted to take the police force‘s physical exam. He therefore effectively became ineligible for promotion although he worked at such a high level and received glowing reviews, and even though police internal operating procedures held open the possibility that the eligibility of temporarily disabled individuals would be considered by the Superintendent on a case-by-case basis. See S.O.P. C-20(H)(2)(a). Motley did not suffer his frustration in silence. He filed a grievance in August 1991 complaining of his denial of promotion because of the physical exam, and submitted a request for a case-by-case detеrmination by the Superintendent in November 1993 before resigning effective May 1994.
Accordingly, I would remand to the District Court for reconsideration of the grant of summary judgment in light of Cleveland.
Notes
Mr. Motley‘s assertions of permanent and total disability and inability to work are fundamentally inconsistent with his current position that at all material times with or without accommodation he was able to perform the essential functions of his position. Counsel for Mr. Motley noted both in the papers submitted and at oral argument of September 8, 1997 that he never specifically claimed to be disabled in August 1991 when he was to be considered for a promotion. However, his declaration that he is totally and permanently disаbled include the August 1991 time period. In addition, he certified that he has not performed regular duty since the traumatic event. Accordingly, because Mr. Motley has asserted fundamentally inconsistent positions, the first part of the test for judicial estoppel is met. Motley v. New Jersey State Police, No. 96-419, slip op. at 9 (E.D.Pa. Sept. 9, 1997).
Furthermore, comparison between