KERNS v. DURA MECHANICAL COMPONENTS, INC (ON REMAND)
Case Details
- Citation
- 242 Mich. App. 1
- Judge(s)
- Before: Griffin, P.J., and Gribbs and Smolensk, JJ.; Gribbs, J., concurred.
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court affirmed summary disposition in favor of the employer, finding that the plaintiff's prior representations of total disability to the Social Security Administration were irreconcilably inconsistent with his claims that he could perform the essential job functions with reasonable accommodation under Michigan's disability discrimination and age discrimination statutes.
Excerpt
KERNS v DURA MECHANICAL COMPONENTS, INC (ON REMAND) Docket No. 198393. Submitted December 10, 1999, at Grand Rapids. Decided July 21, 2000, at 9:00 A.M. Leave to appeal sought. Robert H. Kerns brought an action in the Antrim Circuit Court against Dura Mechanical Components, Inc., alleging that the defendant terminated his employment in violation of, among other things, the Michigan Handicappers’ Civil Rights Act (i-icra), now known as the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the age discrimination prohibition of the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Thomas G. Power, J., summarily dismissed the handicap discrimination claim, ruling that in light of the plaintiff’s representations of total and permanent disability in support of a successful claim for social security disability benefits, judicial estoppel precluded the handicap discrimination claim. The court also summarily dismissed the age discrimination claim, ruling that the plaintiff failed to establish that an issue of fact existed concerning whether the defendant’s proffered nondiscriminatoiy reasons for termination were mere pretext for discrimination. The Court of Appeals, Griffin, P.J., and Wahls and Gribbs, JJ., in an unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), affirmed, holding that judicial estoppel precluded both claims. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for reconsideration in light of Tranker v Figgie Int’l, Inc (On Remand), 231 Mich App 115 (1998), and Cleveland v Policy Management Systems Corp, 526 US 795 (1999). 461 Mich 905 (1999). On remand, the Court of Appeals held: 1. As decided in Tranker with respect to handicap discrimination claims under the hora and in Cleveland with respect to handicap discrimination claims under the Americans with Disabilities Act (ada), 42 USC 12101 et seq., the pursuit and receipt of social security disability benefits no longer automatically gives rise to judicial estoppel so as to bar claims under the hcra or the ada. Nevertheless, summary disposition based on judicial estoppel will be upheld on appeal, without need of a remand, where, as in this case, the inconsistency between statements of total disability in support of the claim for social security disability benefits and statements of ability to perform essential job functions in support of the claim of handicap discrimination cannot be reconciled in a way that would enable a reasonable juror to conclude that, notwithstanding the earlier statements of disability, the claimant could perform the essential functions of the job, with or without reasonable accommodation. An irreconcilable inconsistency exists between the plaintiff’s earlier statements that his job required standing and walking for long periods, but that his physical condition was such that he could not walk on a hard surface and had very limited ability to walk, and his later statements that he could perform the essential functions of his job. By the plaintiffs own admission the job could not be performed unless the person doing the work could stand and walk for long periods. None of the workplace accommodations suggested by the plaintiff were of the reasonable sort required by the hcra. 2. The plaintiff cannot establish a prima facie case of age-related employment discrimination under the cra in light of his inability to provide evidence that he was qualified for the job. Affirmed. Smolensk, X, dissenting, stated that an employment discrimination claim under the pwdcra should not be summarily dismissed on the basis of judicial estoppel relating to an earlier statement of total disability made in the course of seeking social security disability benefits where the claimant offers a sufficient explanation for the inconsistency between such statement and a statement of ability to perform the job made in pursuing the employment discrimination claim under the pwdcra. In this case, the plaintiff provided a sufficient explanation by arguing that reasonable workplace accommodation is not considered in determining eligibility for social security disability benefits, but is considered for purposes of the pwdcra. The grant of summary disposition should be reversed and the case should be remanded for further proceedings because the plaintiff established prima facie cases of handicap discrimination and age discrimination. Civil Rights — Persons with Disabilities — Employment Discrimination — Social Security Disability. The pursuit and receipt of social security disability benefits does not automatically give rise to judicial estoppel to preclude a later claim of employment discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act; judicial estoppel arises only where the inconsistency between the earlier statement of total disability and the later statement of ability to perform the job sought cannot be reconciled in a way that would enable a reasonable juror to conclude that the claimant could perform the essential functions of the job, with or without accomodation (MCL 37.1101 et seq:, MSA 3.550[101] et seq.). Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Timothy H. Howlett and David Deromidi), for the defendant. ON REMAND Before: Griffin, P.J., and Gribbs and Smolensk, JJ. On remand, Judge Smolensk has been substituted for Judge Wahls. Griffin, P.J. This case is on remand to us from the Michigan Supreme Court, 461 Mich 905 (1999), for reconsideration in light of Tranker v Figgie Int'l, Inc (On Remand), 231 Mich App 115; 585 NW2d 337 (1998) (Tranker II), and Cleveland v Policy Management Systems Corp, 526 US 795; 119 S Ct 1597; 143 L Ed 2d 966 (1999). We affirm. i Plaintiff Robert Kerns brought an action in the Antrim Circuit Court against defendant Dura Mechanical Components, Inc., alleging defendant violated an employment contract, the Michigan Handicappers’ Civil Rights Act (HCRA) (now known as the Persons with Disabilities Civil Rights Act), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., when it terminated his employment. In our previous opinion in this matter, Kerns v Dura Mechanical Compo nents, Inc, unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), we affirmed the trial court’s order granting defendant’s motion for summary disposition with regard to plaintiff’s wrongful discharge, handicapper discrimination, and age discrimination claims. In affirming dismissal of the latter two claims, we relied on the doctrine of judicial estoppel espoused in Tranker v Figgie Int'l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), nullified 456 Mich 931 (1998) (Tranker I), holding plaintiff’s successful representations to the Social Security Administration that he was totally and permanently disabled precluded his claims in the present lawsuit under the HCRA and the Civil Rights Act. After our previous decision, our Supreme Court remanded Tranker I to this Court for reconsideration in light of several federal circuit court decisions that allowed claims under the Americans with Disabilities Act (ADA) even though the plaintiffs therein had previously represented a total disability to the Social Security Administration. 456 Mich 934 (1998). On remand, Tranker II, supra at 121-123, our Court vacated its prior ruling that judicial estoppel automatically bars a subsequent handicap discrimination claim, holding in pertinent part: In our previous opinion we . . . held that the doctrine of judicial estoppel barred plaintiff’s handicap discrimination claim. However, upon further review, we now disavow that position. Like the ADA, the . . . HCRA . . . prohibits discrimination, including in hiring, firing, and advancement. MCL 37.1202; MSA 3.550(202). After its 1990 amendments, it also requires that reasonable accommodations be made to assist the handicapped in performing duties of their employment. . . . [T]he receipt of social security disability benefits should not bar a subsequent claim under the hcra for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job under any circumstance. . . . The SSA does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the SSA and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the HCRA. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. . . . We note that although we have determined that judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim. “The conclusion we reach today does not mean that claimants’ statements in support of disability claims are never relevant in ADA suits. For example, ADA plaintiffs who in support of claims for disability benefits tell the Social Security Administration they cannot perform the essential functions of a job even with accommodation could well be barred from asserting, for ADA purposes, that accommodation would have allowed them to perform that same job.” [Swanks (v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 [1997]), supra at 243.] More recently, in Cleveland v Policy Management Systems Corp, supra, the United States Supreme Court held the pursuit and receipt of social security disability insurance benefits neither automatically estops the recipient from pursuing an ADA claim nor erects a strong presumption against the recipient’s success under the ADA. However, the Cleveland Court, supra at 806-807, further held that to survive a defendant’s motion for summary disposition, [a]n ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier ssdi total disability claim. Rather, she must proffer a sufficient explanation. . . . . . . When faced with a plaintiff’s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ada claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” The Cleveland Court, supra at 807, found that, under the particular circumstances of that case, the plaintiff had advanced a sufficient explanation for her contradictory representations to warrant remanding the case to the trial court for further proceedings on the issue: In her brief to this Court, Cleveland explains the discrepancy between her SSDI statements that she was “totally disabled” and her ADA claim that she could “perform the essential functions” of her job. The first statements, she says, “were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Brief for Petitioner 43. Moreover, she claims the ssdi statements were “accurate statements” if examined “in the time period in which they were made.” Ibid. The parties should have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Thus, pursuant to Tranker II and Cleveland, judicial estoppel no longer automatically precludes plaintiffs discrimination claims asserted in this case. Moreover, as this Court has already acknowledged in Hall v McRea Corp, 238 Mich App 361, 369; 605 NW2d 354 (1999), “[t]he Cleveland requirement of an explanation from the plaintiff is fully consistent with this Court’s holding in Tranker II.” In some cases, a remand to the trial court to afford plaintiff the opportunity to reconcile his representation of total disability (for social security purposes) with his hcra and Civil Rights Act discrimination claims would be the appropriate remedy. However, we conclude neither Tranker II nor Cleveland mandates a remand for further explanation in every instance in which inconsistent claims regarding disability have been alleged. As two post-Cleveland federal decisions have expressly recognized, summary disposition based on estoppel, without the necessity for remand, is warranted under certain circumstances. As explained in Motley v New Jersey State Police, 196 F3d 160, 164, 167 (CA 3, 1999): The Supreme Court [in Cleveland] acknowledged, as do we, that a statement of total disability when applying for disability benefits may be a “context-related legal conclusion, namely, T am disabled for purposes of the [disability act].’ ” Id. [Cleveland] at [119 S Ct] 1601. . . . 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 .... * -i= * 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 statements take the position that he could not perform the essential functions of the job, with or without accommodation. [Emphasis added.] On the basis of the existing record before it, the Motley Court, supra at 166-167, concluded that the plaintiff would not be able to satisfactorily reconcile the factual inconsistencies between his pension disability and ADA claims and, therefore, a remand was not required pursuant to Cleveland: [S]imply averring 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 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. * * * 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 officer 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. Likewise, in Mitchell v Washingtonville Central School Dist, 190 F3d 1 (CA 2, 1999), the United States Court of Appeals concluded that summary judgment was appropriate, and a remand for further proceedings was not warranted. The Mitchell Court held that the plaintiff custodian’s previous assertions that he could no longer walk or stand (made as part of his successful worker’s compensation and social security disability compensation claims) were purely factual conclusions (not “context-related legal conclusion[s],” Cleveland, supra at 802) that prevented the plaintiff from asserting a contrary factual position in his ADA claim: Mitchell [plaintiff] argues that ... in its application of judicial estoppel the district court effectively imposed a per se rule preventing an SSDI recipient who claims an inability to work from later asserting under the ada that he or she is able to work. We disagree. The district court did not hold that Mitchell was estopped from arguing that he was able to work with a reasonable accommodation once he asserted, for purposes of obtaining workers’ compensation and social security benefits, that he was too disabled to work. On the contrary, the lower court specifically declined to apply any such categorical rule and held Mitchell was estopped from asserting, as a factual matter, that he was capable of performing work in other than a sedentary position. Such an application of judicial estoppel is consistent with Cleveland. The Supreme Court emphasized that the case before it did not “involve directly conflicting statements about purely factual matters, such as ... T can/cannot raise my arm above my head[,]’ ” and indeed that the decision “leaves the law related to . . . purely factual. . conflict[s] where [the Court] found it.” Cleveland, [526] US at [802]; 119 S Ct at 1601-02. Therefore, if the requirements for judicial estoppel are otherwise met, Mitchell may be prevented from claiming, as a factual matter, that he could stand and walk at work on the basis of prior factual assertions to the contrary. Turning to those requirements, we conclude that the district court correctly held that Mitchell was estopped from asserting in the present action that he was capable of performing work that required him to stand or walk. . . . Mitchell’s prior statements, made in 1994, 1995 and 1996 to the Workers’ Compensation Board and the Social Security Administration, that he was incapable of standing for any length of time or of walking and that he required work he could perform seated, clearly contradict Mitchell’s position in this litigation that as of late 1994 he was able to stand and walk for a substantial portion of the work day. . . . Since Mitchell’s earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position. * * :|: We also agree with the district court that, once estopped from arguing he could walk and stand and therefore bound to the assertion that he could only do sedentary work, Mitchell could not show that he could perform the essential functions of Head Custodian
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