Disability Discrimination Cases

<bold>1. Appeal and Error — appealability —</bold> <bold>interlocutory order — substantial right</bold> <block_quote> Although plaintiff's appeal from the trial court's order dismissing his claim under the North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order<page_number>Page 816</page_number> based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal based on a substantial right, because: (1) plaintiff's North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two trials and possibly inconsistent verdicts could result.</block_quote> <bold>2. Disabilities — North Carolina Persons with</bold> <bold>Disabilities Protection Act — Americans with Disabilities</bold> <bold>Act — Equal Employment Opportunity Commission claim</bold> <bold>commenced — concurrent jurisdiction not allowed</bold> <block_quote> The trial court did not err by dismissing plaintiff's claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § <cross_reference>168A-11</cross_reference>(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim, because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same facts and circumstances; (2) plaintiff's claim was still being investigated at the EEOC at the time of his state court filing thus making it fall within the NC Disabilities Act's language of "commenced federal administrative proceedings" and thereby removing it from the subject matter jurisdiction of the state court; and (3) the fact that defendant's motion to dismiss was not heard until after the EEOC had issued plaintiff's righ

<bold>1. Workers' Compensation — compensable injury — professional</bold> <bold>football player</bold> <block_quote> The Industrial Commission did not err by finding that a professional football player sustained a compensable injury by accident arising out of and in the course of his employment where his leg was broken and ankle tendons torn when other players fell on the back of his leg during a game. There was evidence to support the Commission's findings that the injury was unusual.</block_quote> <bold>2. Workers' Compensation — disability — professional football</bold> <bold>player — reason for being released from team — personal</bold> <bold>knowledge</bold> <block_quote> The trial court did not err by allowing plaintiff, a football player, to testify about the reason for his termination from a team. Plaintiff offered personal knowledge about why he was released and his testimony was not hearsay.</block_quote> <bold>3. Workers' Compensation — disability — injured professional</bold> <bold>football player — return with another team — eventual</bold> <bold>release</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by awarding compensation to a professional football player who was injured while playing with defendant, then returned to play with another team. While plaintiff did try out for and make the other team, he was released from that team because of injuries suffered with defendant.</block_quote> <bold>4. Workers' Compensation — disability — professional football</bold> <bold>player — dollar-for-dollar credits</bold> <block_quote> The Industrial Commission did not abuse its discretion in a workers' compensation disability case by awarding a time credit rather than a dollar-for-dollar credit for payments made by defendants to plaintiff, a professional football player, after he was injured. Dollar-for-dollar credits are precluded by North Carolina law.</block_quote><page_number>Page 530</page_numb

KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent No. COA02-40 (Filed 19 November 2002) 1. Public Officers and Employees— dismissal — findings Certain of the trial court’s findings had a rational basis in the evidence in an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered. 2. Public Officers and Employees— dismissal — falsification of medical records — unacceptable personal conduct In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by concluding that pre-writing notes describing medications not administered constituted unacceptable personal conduct. The North Carolina Administrative Code includes job-related conduct which violates state or federal law as improper personal conduct; falsification of medical records is a violation of state law. 3. Public Officers and Employees— dismissal — findings—not supported by evidence — no reversible error In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, some of the trial court’s findings concerning petitioner’s sleep disorder were contrary to evidence in the whole record, but there was no reversible error because petitioner failed to prove a claim of disability discrimination. 4. Public Officers and Employees— dismissal — disability discrimination — not proven In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by con-eluding that petitioner failed to prove that his termination resulted from disability discrimination where petitioner failed to fully inform respondent of his condition, failed to prove that the depression and sleep disorder qualified as physical or mental impairment, and did not show that either condition is permanent or long-term. Appeal by petitioner from order entered 6 June 2001 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 28 October 2002. Browne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for petitioner-appellant. Douglas E. Canders for respondent-appellee. TYSON, Judge Kelvin J. Leeks, (“petitioner”), appeals from an order which affirmed the final agency decision of the Cumberland County Mental Health Development Disabilities and Substance Abuse Facility, (“respondent”), terminating petitioner’s employment. We affirm. I. Facts Petitioner was rehired as a Youth Program Assistant III by respondent in December 1995 after having worked for respondent from 1981 to 1993. Petitioner worked the night shift at Borden Heights Group Home, which housed emotionally disturbed and dangerous youths. Petitioner began suffering from depression, migraines, and a sleeping disorder. His doctor advised that he stop working the night shift. Petitioner requested a lateral transfer from the night shift to a day shift several times, beginning in May 1996. Those requests were denied. On 22 September 1997, petitioner received a written warning that he had engaged in unacceptable personal conduct, listing: (1) not conducting proper bed checks, (2) not monitoring clients, and (3) not performing duties assigned to the lead-staff worker on a shift. On 25 February 1998, petitioner prepared, but failed to timely administer, medications for seven of the youths. Petitioner recorded the medications by writing the date, name of medication, the number of pills administered to each client, and whether the medication was taken orally on the Medication Administration Record, (“MAR”). Petitioner did not record the time or initial the MAR. Around 9:10 a.m., Everett Mitchell, petitioner’s supervisor, sent petitioner home. Petitioner arrived home and fell asleep. He awoke in the afternoon and questioned whether he had administered the medications. He called the group home, and related that he had “dreamed” the medication had not been administered. Petitioner was assured by another worker, Christopher Corders, that the medications had been given. Corders relied upon petitioner’s partially completed MAR. Petitioner returned to the group home concerned that he had forgotten to administer the medication. Petitioner checked the medicine cabinet and discovered the medication that should have been distributed that morning. Petitioner contacted Supervisor Mitchell, and completed an incident report and significant event note for each client. Petitioner called the pharmacist for further instructions concerning the medication. The medication was administered according to the pharmacist’s instructions, and petitioner signed the records at the time of administration. A pre-dismissal conference was held on 23 April 1998, followed by a subsequent meeting on 27 April 1998. On 30 April 1998, petitioner was terminated from his employment. On 28 July 1998, petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings. Administrative Law Judge Morrison, (“AU”) held the hearing on 15 December 1998 and 17 December 1998. The ALT filed a recommended decision on 11 February 1999 which upheld the decision of the respondent’s director to terminate petitioner and found that respondent had just cause to terminate. The AU also recommended that petitioner’s allegations of disparate treatment and respondent’s failure to accommodate a handicapping condition be dismissed. The State Personnel Commission, (“Commission”) considered the AU’s recommended decision on 17 and 18 June 1999, and issued a recommendation to respondent to find and conclude that the AU’s decision be rejected and that petitioner met his burden of proving that respondent lacked just cause to dismiss plaintiff for personal misconduct. The Commission found that petitioner’s actions gave respondent just cause to take disciplinary action on the basis of inadequate job performance. The Commission recommended that (1) petitioner be reinstated to his former position, (2) petitioner receive back pay and all other benefits of employment during the period he was not working, (3) respondent take appropriate disciplinary action against petitioner, and (4) petitioner be allowed to request attorney’s fees. On 15 September 1999, respondent issued its final decision concluding that there was “just cause” for petitioner’s termination. Respondent dismissed petitioner’s claims of disparate treatment and failure to accommodate his handicapping condition. An amended final decision was issued on 5 November 1999. Petitioner petitioned for judicial review on 12 October 1999. Judge Cashwell heard arguments and affirmed the final decision of respondent. Petitioner appeals. II. Issues The issues are (1) whether substantial evidence in the record supports the trial court’s findings of fact that petitioner intentionally pre-wrote MARs and then called respondent after dreaming that he did not dispense the medicine, (2) whether petitioner’s pre-writing MARs constitutes a falsification of medical records, a violation of state law, and unacceptable personal conduct, (3) whether substantial evidence in the record supports the trial court’s findings of fact of petitioner’s disability, and (4) whether petitioner sufficiently alleged a claim for disability discrimination. III. Standard of Review Chapter 150B of the North Carolina General Statutes, the North Carolina Administrative Procedure Act, governs trial and appellate court review of administrative agency decisions .... Although G.S. § 150B-51(b) lists the grounds upon which a court may reverse or modify an administrative agency decision, the proper standard of review to be employed by the court depends upon the nature of the alleged error. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). If a petitioner asserts that the administrative agency decision was based on an error of law, then “de novo” review is required. Id... . On the other hand, if a petitioner asserts that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious, then the court employs the “whole record” test. Id. .. . The standard of review for an appellate court upon an appeal from an order of the superior court affirming or reversing an administrative agency decision is the same standard of review as that employed by the superior court. In re Appeal of Ramseur, 120 N.C. App. 521, 463 S.E.2d 254 (1995). Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 559-60 (1996). In ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997), our Supreme Court stated, “[t]he appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” 345 N.C. at 706, 483 S.E.2d at 392 (citations omitted.) The “whole record” test allows a reviewing court to determine whether an administrative decision has a rational basis in the evidence. Id. at 706-07, 483 S.E.2d at 392 (citations omitted). IV. Findings of Fact Seven and Eight Petitioner argues that the respondent’s findings of fact seven and eight, later adopted by the superior court, were not supported by substantial evidence. Finding seven states, “[p]etitioner called the group home on the afternoon of February 25, 1998 advising that he had had a ‘dream’ that he had not given the medications that morning.” Petitioner alleges that he did much more than inform respondent of a dream. Petitioner testified that he called the home, drove to the home, checked the medicine cabinet, discovered the truth of his mistake, reported the incident, and called and followed the instructions of the pharmacist. Petitioner’s testimony is corroborated by other witnesses, and clearly shows that petitioner did more than just “call[] the group home.” This evidence does not contradict, but supplements the finding that petitioner called the group home and told them about his dream. Testimony of other witnesses supports this statement. The trial court’s finding “has a rational basis in the evidence.” Id. Finding eight states that petitioner intentionally pre-wrote the client medication charts and failed to administer medications to seven youths who were to receive their medication before leaving for school that morning. Petitioner argues that the substantial evidence does not show that he pre-wrote all of the medication notes. Petitioner admitted partially pre-writing the medication notes. He did not record the time of administration nor initial the record. Petitioner contends that the MAR was not complete until the MAR was signed and medication administered with the time noted and that he did not violate respondent’s policy by partially pre-writing the notes. Petitioner asserts that he simply forgot to administer the medications, and this omission was not intentional. Petitioner’s testimony merely explains finding eight. This evidence does not refute the fact that petitioner intentionally partially pre-wrote false medication notes and failed to dispense the medications. There is substantial evidence in the record to support finding eight. V. Conclusions of Law Five and Six Petitioner contends that conclusions of law five and six are erroneous as a matter of law, because the actions alleged are not improper personal conduct and are not supported by substantial evidence. N.C.G.S. § 126-35 (2001) states “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reason, except for just cause.” “Just cause” can be established by unacceptable job performance or unacceptable personal conduct. 25 NCAC lJ.0604(c) (2002). Title 25 of the North Carolina Administrative Code defines unacceptable personal conduct as: (1) conduct for which no reasonable person should expect to receive prior warning; or (2) job-related conduct which constitutes a violation of state or federal law; ... (4) the willful violation of known or written work rules; ... or (6) the abuse of client(s) .... 25 NCAC U.0614(i) (2002). This Court delineated the difference between unacceptable job performance and unacceptable personal conduct and held that termination for engaging in the latter category is appropriate for “ ‘those actions for which no reasonable person could, or should, expect to receive prior warnings.’ ” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 679, 443 S.E.2d 114, 120-21 (1994) (quoting State Personnel Manual, Sec. 9 at 3; 25 NCAC lJ.0604(b) (1984) (amended March 1994)). The State Personnel Manual lists, “careless errors, poor quality work, untimeliness, failure to follow instructions or procedures, or a pattern of regular absences or tardiness[]” as examples of unsatisfactory job performance. Id. at 679, 443 S.E.2d at 121 (citing State Personnel Manual, Sec. 9, at 8.1-8.2). Unacceptable personal conduct includes “insubordination, reporting to work under the influence of drugs or alcohol, and stealing or misusing State property.” Id. Conclusions of law five and six hold that petitioner intentionally pre-wrote medication notes describing client responses to medications not administered. The court concluded this action was a falsification of medical records done willfully and intentionally, that jeopardized the care of the clients, and constituted unacceptable personal conduct. Petitioner contends that he did not willfully falsify medical records, but instead partially pre-wrote the medication notes and neglected to administer the medications. Petitioner argues that the notes were not false until he neglected to give the medications. Petitioner cites testimony of Emile Archambault, manager of another group home, who admitted pre-writing medication notes, to support his argument that such conduct was common and did not constitute “improper personal conduct.” Petitioner asserts that if his conduct was reprehensible, it only rose to the level of unsatisfactory job performance. Termination for “just cause” due to unsatisfactory job performance requires the employer to issue prior warnings before termination. Parks v. Dept. of Human Resources, 79 N.C. App. 125, 132, 338 S.E.2d 826, 829, disc. review denied, 316 N.C. 553, 344 S.E.2d 8 (1986). The agency must give the employee at least “one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.” 25 NCAC lJ.0605(b) (2002). Petitioner received prior warning on 22 September 1997 which cited petitioner for improper personal conduct in not performing his duties as required. This warning was insufficient to terminate petitioner’s employment for “just cause” on the grounds of job performance. If petitioner’s conduct rose to the level of improper personal conduct, his employment could be terminated without any warning. Petitioner cites Parks to support his contention that his actions did not rise to “improper personal conduct.” In Parks, a health care technician failed to report resident abuse. Id. at 127, 338 S.E.2d at 827. This Court held that the negligence was a basis for unsatisfactory job performance but not improper personal conduct. Id. at 134, 338 S.E.2d at 830. Similarly, this Court in Amanini found that a terminated employee’s actions, leaving his nurses’ station without notifying his supervisor and abandoning his patients, fell into the category of unsatisfactory job performance. Amanini, 114 N.C. App. at 680, 443 S.E.2d at 121. In both cases, this Court found the employees’ behavior insufficient to terminate on the grounds of improper personal conduct. The facts at bar are distinguishable and are sufficient to terminate plaintiff for improper personal conduct under the current statute. After Parks and Amanini were decided, the N.C. Administrative Code was amended to add “job-related conduct which constitutes a violation of state or federal law” as grounds for termination for improper personal conduct. 25 NCAC lJ.0614(i)(2) (2002). Respondent alleges that petitioner’s actions in pre-writing the medication notes violated 10 NCAC 14V.0209(c)(4) (2002), which requires that “[a] Medication Administration Record (MAR) of all drugs administered to each client must be kept current. Medications administered shall be recorded immediately after administration.” This administrative rule is authorized in Chapter 122C, under which the North Carolina Department of Health and Human Services regulates the licensing and operation of facilities including the group home where petitioner worked, and has the effect of law. Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259; 465 S.E.2d 36, 41 (1996) (citation omitted). Petitioner failed to administer the medications and falsely reported giving them to the clients. The actions of the employees in Parks and Amanini were omissions to act, not affirmative acts. Petitioner knowingly and falsely pre-wrote the medication records. While petitioner’s failure to administer the medications is negligence, his pre-writing the MARs is a “falsification of medical records,” a job-related violation of state law. In addition to intentionally filling out medication administration records without actually administering the medication, the respondent and superior court concluded that petitioner also “pre [wrote] high risk intervention[, (“HRI”),] notes describing the client’s responses to taking medications.” This conclusion is supported by substantial evidence. The record contains the HRI reports from 25 February 1998 regarding patients under petitioner’s care. Petitioner’s reports contain substantially the same note on every HRI. In the section titled “Narrative Summary of Activity and Client Progress,” petitioner wrote “[s]taff monitored and assisted client in taking his AM. medication. Staff prepared and instructed client in taking said medication. Client evidenced progress toward overall goal. Staff praised client after he took his medication.” (Emphasis added). With respect to one HRI report, the following dialogue occurred at the hearing: Q. If you’ll go about four pages in, [petitioner], where you have the HRI note. A. Yes, sir. Q. In the middle of the page it says, “Staff monitored and assisted client in taking his medication.” A. The same generic note, yes, sir. Q. “Staff prepared and instructed client in taking medication. Client evident [sic] progress towards overall goal. Staff praised client after he took his medication.” A. Uh-huh. Q. That’s a false statement, isn’t it? A. Yes, that’s— Q. The client had got no medication, isn’t that true? A. Yes, sir. Q. And you made that statement and signed it yourself, is that correct? A. That was a prewritten statement, yes, sir. Q. Okay. And it’s false. A. Yes, that one Is. Also, respondent asked petitioner if he “intentionally fill[ed] out these HRI notes prior to the time of the event?” Petitioner answered, “[y]es.” Respondent’s witness, Dr. Martin, elaborated on the possible dramatic consequences of falsely reporting drug administration. Finding this evidence credible, the trial court did not err in concluding that petitioner’s acts established unacceptable personal conduct. VI. Findings of Fact Seventeen through Twenty Petitioner argues that findings of fact seventeen through twenty are not supported by substantial evidence and that the trial court erred by concluding that petitioner failed to prove he was terminated for reasons associated with his handicapping condition. Findings of fact seventeen through twenty state: 17.

TRANKER v FIGGIE INTERNATIONAL, INC (ON REMAND) Docket No. 210656. Submitted April 3, 1998, at Lansing. Decided August 11, 1998, at 9:05 A.M. Leave to appeal sought. Paul and Denise Tranker brought an action in the Van Burén Circuit Court against Figgie International, Inc., alleging that the defendant violated the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and an employment contract with Paul Tranker when it terminated his employment. The court, William C. Buhl, J., granted summary disposition for the defendant, finding that the doctrine of judicial estoppel defeated the hcra claim and that the defendant did not violate the employment contract. The plaintiffs appealed. The Court of Appeals affirmed, finding the employment contract allowed termination at will and not for just cause only. The Court also agreed that the doctrine of judicial estoppel applied and that, because Paul Tranker had successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security benefits, he could not be considered handicapped for purposes of his subsequent hcra claim. 221 Mich App 7 (1997). The Supreme Court, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of several federal decisions that hold that the receipt of social security disability benefits does not bar a claim for discrimination under the Americans with Disabilities Act (ada), 42 USC 12101 et seq. 456 Mich 931 (1998). On remand, the Court of Appeals held: 1. The prior ruling in this matter that judicial estoppel bars a subsequent hcra claim must be vacated. The receipt of social security disability benefits does not bar a subsequent claim under the hcra because the two acts are designed for different purposes and utilize different standards. Because the focus of the two acts is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the hcra. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent. 2. Although judicial estoppel does not automatically bar a disability benefit recipient’s hcra claim, statements made by a person in applying for disability benefits may weigh against the person in a subsequent hcra claim. 3. The prior ruling in this matter that Paul Tranker was not handicapped within the meaning of the hcra because his disabilities were related to his ability to perform his job duties in the available maintenance position must be affirmed. Paul Tranker admitted he could not perform the acts required for the position and did not allege that he could perform them with reasonable accommodations. 4. The defendant had no duty to accommodate Paul Tranker by recreating for him his former position that had been eliminated or placing him in a job other than the available maintenance job. 5. The order granting summary disposition for the defendant with regard to the hcra and breach of contract claims must be affirmed. Affirmed. 1. Estoppel — Judicial Estoppel — Handicappers’ Civil Rights Act — Social Security. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent; it is not inconsistent that a person could be disabled under the Social Security Act and be receiving social security disability benefits and still be qualified to perform the duties of the job or a job the person is seeking with reasonable accommodations for purposes of a claim under the Michigan Handicappers’ Civil Rights Act; the receipt of social security disability benefits does not automatically preclude a subsequent handicap discrimination claim because the two acts are designed for different purposes and utilize different standards and definitions; because the focus of the two acts is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the HCRA (42 USC 301 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 2. Estoppel — Judicial Estoppel — Handicappers’ Civil Rights Act — Social Security. Statements made by a person in a prior application for social security disability benefits may weigh against the person in a subsequent claim under the Michigan Handicappers’ Civil Rights Act although judicial estoppel does not automatically bar a disability recipient’s handicap discrimination claim (42 USC 301 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 3. Civil Rights —• Handicappers’ Civil Rights Act — Duty of Accommodation. An employer’s duty under the Michigan Handicappers’ Civil Rights Act to accommodate a handicapped employee does not extend to placing the employee in a new job or transferring the employee to other positions (MCL 37.1101 et seq.; MSA 3.550[101] et seq.}. 4. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — Handicap. A condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the Michigan Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.}. Plaszcsak & Bauhof, P.C. (by James F. Bauhof), for the plaintiffs. Miller, Canfield, Paddock and Stone, P.L.C. (by Ronald E. Baylor and Scott R. Sikkenga), for the defendant. ON REMAND Before: Hood, P.J., and Neff and Gage, JJ. Per Curiam. This case is before us on remand from the Supreme Court, 456 Mich 931 (1998), for reconsideration in light of several federal decisions that hold that the receipt of social security disability benefits does not bar a claim for discrimination under the Americans with Disabilities Act (ada), 42 USC 12101 et seq. On remand, we agree that receipt of social security disability benefits does not automatically preclude a subsequent handicap discrimination claim. However, on the basis of the facts of this case, we nevertheless affirm the trial court’s order granting summary disposition for defendant with regard to plaintiff Paul Tranker’s handicap discrimination claim. The facts of this case were set forth in detail in our prior opinion, Tranker v Figgie Int’l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), and will not be reiterated here. Since our previous ruling, several decisions clarifying the issue before this Court have been issued. Swanks v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 (1997), Whitbeck v Vital Signs, Inc, 325 US App DC 244; 116 F3d 588 (1997), Blanton v Inco Alloys Int’l, Inc, 123 F3d 916 (CA 6, 1977), and Griffith v Wal-Mart Stores, Inc, 135 F3d 376 (CA 6, 1998). Although set forth in the context of the ADA, these cases provide insight into the issue whether judicial estoppel should operate to bar a handicap discrimination claim where the plaintiff is currently receiving social security disability benefits. In Swanks, the court specifically addressed the issue of the effect of Social Security Administration disability determinations on ADA claims. It observed that the ADA was enacted to protect against discrimination in employment, including hiring, firing, and advancement. Swanks, supra at 240. The protection afforded by the ADA extends to disabled individuals who can perform the essential functions of the employment position that they hold or desire with or without reasonable accommodation. Id. The court then ruled that the receipt of social security disability benefits does not automatically bar an ADA claim because the standards utilized to determine disability under the Social Security Act (ssa), 42 USC 301 et seq., do not take into account whether the disabled individual could work with reasonable accommodations, the critical ADA issue. Id. at 242. In other words, the criteria for determining whether one is disabled under the ssa and under the ADA are different. See also Whitbeck, supra at 247, wherein the court followed Swanks and also indicated that the receipt of private disability benefits is similarly not an automatic bar to a subsequent handicapper claim. In Swanks, the Social Security Administration and the Equal Employment Opportunity Commission agreed that the receipt of social security benefits should not automatically bar ADA claims because the acts have different purposes and have no direct application to one another. The contrary view—that Social Security disability benefits preclude ada relief—would force disabled individuals into an “untenable” choice between receiving immediate subsistence benefits under the Social Security Act or pursuing discrimination remedies. Forcing such a choice would undermine the pro-employment and anti-discrimination purposes of the two statutes. . . . Claimants choosing benefits would sacrifice an opportunity for reinstatement while simultaneously shielding their employers from liability for allegedly unlawful discrimination. Individuals choosing instead to seek ada relief would, by doing so, forego their entitlement to Social Security disability benefits. Nothing in either statute requires disabled individuals to make this choice. [Swanks, supra at 242 (citations omitted).] The Swanks court pointed out that of the federal appellate circuits only the Third Circuit Court of Appeals has reached a contrary conclusion and held that the doctrine of judicial estoppel bars an ADA claim where an individual is receiving social security benefits after claiming to be disabled. Id. at 243, citing McNemar v Disney Store, Inc, 91 F3d 610 (CA 3, 1996). In Blanton, supra at 917, the Sixth Circuit Court of Appeals adopted the Swanks opinion and held that the receipt of disability benefits does not preclude a subsequent ADA action. It specifically rejected the theory that the doctrine of judicial estoppel would bar such a claim. Id. In Griffith, supra at 380-382, it more fully addressed why the doctrine of judicial estoppel should not bar a subsequent handicap claim: The doctrine of judicial estoppel “forbids a party ‘from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.’ ’’ Courts apply judicial estoppel in order to “preserve]] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment.” The doctrine applies only when a party shows that his opponent: (1) took a contrary position; (2) under oath in a prior proceeding; and (3) the prior position was accepted by the court. * * * [Statements made in an application for Social Security disability benefits, while relevant, do not result in judicial estoppel. First, judicial estoppel does not apply because the answers given in a Social Security disability benefit application are not necessarily inconsistent with a plaintiff’s claim that he could have worked at his job, during the relevant period, with a reasonable accommodation. The precise question of whether the applicant could have worked with a reasonable accommodation during the relevant period is not asked in a Social Security context because, as discussed above, it would not necessarily bar receipt of those benefits. Furthermore, the statements made in the ssa application and forms are open to interpretation. . . . Moreover, judicial estoppel is an equitable doctrine, and “is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.” Applying judicial estoppel under the circumstances presented here would be inappropriate given that the truth-seeking function of the court would be supplanted by an agency administrative decision rendered without an evidentiary hearing. For these reasons, the district court’s decision cannot be sustained based on the doctrine of judicial estoppel. [Citations omitted.] In our previous opinion we adopted what is obviously now the minority view found in McNemar, supra, and 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 Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 el seq.-, MSA 3.550(101) et seq., 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. MCL 37.1103(e) and (1); MSA 3.550(103)(e) and (1). See Hatfield v St Mary’s Medical Center, 211 Mich App 321, 326-327; 535 NW2d 272 (1995). We agree with the Swanks court that the 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. Griffith, supra at 382. 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. “[T]he Social Security Administration’s inquiry into an individual’s eligibility for disability benefits focuses on the individual’s ability to do work generally available in the national economy and does not address the possible effect of accommodation on ability to work.” Whitbeck, supra at 247. Because the focus is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the HCRA. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent. Paschke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). Our prior ruling that judicial estoppel bars a subsequent handicap discrimination claim is vacated. 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, supra at 243.] See also Griffith, supra at 383 (reasoning that an employer sued for handicap discrimination could rely on the claimant’s prior representations to attempt to prove that the claimant is not a qualified handicapped applicant); Blanton, supra (agreeing with Swanks that a party’s prior sworn statements would be relevant in a subsequent handicap discrimination claim). We also note that a disability recipient’s subsequent award of damages for a handicap discrimination claim may be reduced in order to prevent double recovery. See Blanton, supra; Swanks, supra. Our ruling regarding this issue, however, does not result in relief from summary disposition for this plaintiff. In our prior opinion, we indicated that plaintiff was not handicapped within the meaning of the hcra because his disabilities were related to his ability to perform his job duties in the maintenance position. Tranker, supra at 17, n 3. We affirm that position on remand. In his complaint, plaintiff alleged that defendant failed to accommodate him and that defendant placed him in a job position different than the one that he had before his lengthy leave of absence in 1991 and 1992. The evidence presented to the lower court indicated that during plaintiffs leave of absence, the duties of his former position as an engineering liaison/expediter were reassigned to other employees during a reduction in work force. Defendant closed one of its production facilities and reduced its work force by twenty percent. The engineering liaison position was eliminated. Defendant had no duty to accommodate plaintiff by recreating the position of engineering liaison/expediter for him or placing him in a job other than the available maintenance job. See Koester v Novi, 213 Mich App 653, 662-663; 540 NW2d 765 (1995), rev’d in part on other grounds 458 Mich 1; 580 NW2d 835 (1998), where this Court reiterated that the duty to accommodate does not extend to new job placement or transfers to other positions. Thus, plaintiffs argument that he should have been accommodated by being given the position of engineering liaison/expediter was not actionable. With regard to the maintenance position, which was plaintiffs position at the time of his termination, plaintiff specifically alleged that he could not perform the duties of the job. In his complaint at paragraph 9, he stated: That the Defendant ignored said medical advice and insisted on putting Plaintiff paúl tranker in a position that required physical acts he could not do and that was dangerous to his health and well-being and discriminatory against him in that the Defendant required the Plaintiff PAUL tranker, who is a handicapped person, to undertake an employment position that the Defendant knew that the Plaintiff paúl tranker would not be able to do because of his handicap and, in fact, put the Plaintiff PAUL TRANKER in a position of danger. “[A] condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the HCRA.” Id. at 661-662. Here, plaintiff admitted that he could not perform the acts required for the maintenance position. He also failed to allege that he could have performed them with reasonable accommodations. Because plaintiff’s handicap was directly related to his ability to perform the maintenance job, with or without accommodation, he is not handicapped under the act for that position and is not entitled to relief. In so holding, we note that in his complaint, plaintiff alleged only that his handicap was unrelated to his ability to perform the duties of the engineering liaison/expediter position, which was not the position at issue and which position did not exist. He never alleged that his physical handicaps were unrelated to his ability to do the available job. Affirmed. The term plaintiff in this opinion refers only to Paul Tranker. Our decision to affirm the trial court’s grant of summary disposition regarding plaintiffs breach of contract claim remains unchanged and is not the.subject of this review on remand. There was no evidence that plaintiff enjoyed a termination for just cause only employment relationship with defendant. The Eighth Circuit Court of Appeals specifically declined to decide this issue in Dush v Appleton Electric Co, 124 F3d 957 (CA 8, 1997). We also note that plaintiff did not attempt to base his hcra claim on defendant’s decision to eliminate the engineering liaison/expediter position. He did not allege that the position was eliminated in order to discriminate against him because of his handicaps.