Motley v. New Jersey State Police

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

11-1-1999

Motley v New Jersey State Police

Precedential or Non-Precedential:

Docket 97-5715

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Filed November 1, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5715

DANIEL C. MOTLEY,

Appellant

v.

NEW JERSEY STATE POLICE;

THE STATE TROOPERS FRATERNAL

ASSOCIATION OF NEW JERSEY

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 96-cv-00419)

District Judge: Dickinson R. Debevoise

ARGUED August 3, 1998

BEFORE: NYGAARD, ALITO, and RENDELL,

Circuit Judges.

(Filed November 1, 1999)

William Strazza, Esq. (Argued)

Union Professional Building, Suite 9

971 Stuyvesant Avenue

P.O. Box 3806

Union, NJ 07083

Attorney for Appellant

Joseph L. Yannotti, Esq. (Argued)

CN 112

Office of Attorney General

of New Jersey

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Leon B. Savetsky, Esq.

Loccke & Correia

24 Salem Street

Hackensack, NJ 07601

Attorneys for Appellee

Robert J. Gregory, Esq.

Room 7032

Equal Employment Opportunity

Commission

1801 L Street, N.W.

Washington, DC 20507

Attorney for Amicus-Appellant

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 enhanced

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, 42 U.S.C. S 12101 et seq.

("ADA"), and the New Jersey Law Against Discrimination,

N.J. Stat. Ann. S 10:5-1 et seq. ("NJLAD"). The District

Court granted summary judgment to the State Police,

ruling that Motley's prior admission of permanent and total

2

disability during the disability application process judicially

estopped him from asserting that he was qualified for the

job he sought. We will affirm, not because he was estopped,

but because Motley was simply not entitled to survive

summary judgment in light of his prior assertions of total

disability, and his failure to adequately reconcile his wholly

inconsistent positions.

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.

_________________________________________________________________

1. The State Police justified this exam by noting that officers could be

exposed to violent confrontations at any time, and that it was therefore

necessary that the officers be physically able to respond to these

situations to protect members of the public. This examination consisted

of various physical activities. In addition to flexibility and body

composition assessments, the officers were required to run 1.5 miles in

13 minutes, do 34 sit-ups in two minutes, and do 32 push-ups in two

minutes. If an employee was unable to run, swimming or biking tests

could be substituted.

2. The rules did not automatically exclude those officers who were

suffering from temporary medical or physiological problems from

consideration for promotion. Instead, the Police Superintendent

considered their eligibility for promotion on a case-by-case basis.

3

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 time. Motley received no answer to

his grievance, and he was subsequently not recommended

for promotion in 1992 and 1993.

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. N.J.

Stat. Ann. S 53:5A-10(a). In his application, Motley declared

that he was qualified for the enhanced disability pension

benefits because he was "permanently and totally

incapacitated" as a result of the January 1990 incident.

The medical board concurred and found that Motley was

permanently and totally incapacitated for "State Police

Officer duties." The State Police did not challenge this

determination. Thereafter, Motley's application for an

accidental disability retirement pension was granted by the

Division of Pensions, and Motley continues to receive

monthly disability payments.

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

could 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

4

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 application 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 applying

_________________________________________________________________

3. We previously noted this in dicta in Krouse. In Krouse, we stated that

the district courts in this circuit "should not assume that McNemar

always bars an individual's ADA claims merely because prior

representations or determinations of disability exist on the record."

Krouse, 126 F.3d at 503 n.5. The Eleventh Circuit Court of Appeals also

took notice of the explanatory effect of the Krouse opinion when it stated

that in light of Krouse's discussion of McNemar, "it appears that no court

of appeals has adopted the position that a plaintiff who has claimed total

disability on a benefits application is per se estopped from claiming he

could work with reasonable accommodations under the ADA." Talavera

v. School Bd. of Palm Beach County, 129 F.3d 1214, 1218 (11th Cir.

1997).

5

judicial estoppel. The questions are: (1) is the present

position inconsistent with a position formerly asserted; and

(2) if so, were either or both of the inconsistent positions

asserted in bad faith with the intent to play "fast and loose

with the court." Ryan Operations, 81 F.3d at 361; see also

McNemar, 91 F.3d at 618. The District Court adhered to

this framework when it analyzed the issues in this case.

Following Krouse, the Supreme Court in Cleveland v. Policy

Management Sys. Corp., 119 S. Ct. 1597 (1999), explained

how cases of this type should be handled, and it is that

framework that we apply here.

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 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.

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, namely

`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.4 In large part, this is because, when

_________________________________________________________________

4. To the extent that McNemar is unclear on this issue, we clarify today

that, consistent with Cleveland and the rule that every case should be

decided on its individual facts, there may be circumstances in which a

party may pursue a successful ADA claim even after he has applied for

disability benefits.

6

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." 42 U.S.C.

S 12111(8).

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, No. 98-7185, 1999 WL 627019, at *5-6 (2d Cir.

Aug. 18, 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 an 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

"must proffer a sufficient explanation" to resolve the

contradiction. Id.

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

who had previously applied for SSDI-type benefits to

survive summary judgment, summary judgment could

never be granted. Because the Supreme Court indicated

7

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 or 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 fact-

based 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

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." Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure S 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 establish 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

_________________________________________________________________

5. Although an ADA suit revolves around whether the plaintiff has a

"disability," 42 U.S.C. S 12102(2)(A), the NJLAD refers to "handicapped"

8

could perform the "essential functions" of a state trooper

with or without reasonable accommodation. See 42 U.S.C.

S 12111(8); Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579

(3d Cir. 1998). Therefore, it was the District Court's duty to

decide whether Motley's earlier assertions when applying

for disability benefits were inconsistent with this burden.

After examining the specific facts of the case, the District

Court found that Motley's present claim that he was able to

perform the essential functions of his position with or

without accommodation was "fundamentally inconsistent"

with his earlier declaration that he was permanently and

totally disabled and unable to work as a state police officer.

Although courts should not assume that an individual's

ADA claim is barred "merely because prior representations

or disability exist on 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

_________________________________________________________________

individuals. N.J.S.A. S 10:5-5(q). We have noted that the definitions of

the two terms are different, most notably because the NJLAD definition

of handicapped does not include the ADA's requirement that the

condition substantially limit a major life activity. See Failla v. City of

Passaic, 146 F.3d 149, 153-54 (3d Cir. 1998). We will concentrate on the

ADA standard in our analysis because it is clear that if Motley's

statements estopped him from claiming that he had a"disability"under

the more stringent ADA standard, the statements would also estop him

from claiming he was "handicapped" under the NJLAD.

9

duties in the Division of State Police." N.J. Stat. Ann.

S 53:5A-10(a). Nowhere in his application for the disability

pension is there any indication that Motley could perform

the essential functions of a state trooper, with or without

accommodation. "Employers . . . are not required to find

another job for an employee who is not qualified for the job

he or she was doing." School Bd. of Nassau County v.

Arline, 480 U.S. 273, 289 n.19, 107 S. Ct. 1123 (1987).

However, Motley did receive full pension benefits.

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 difficultly 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

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

any additional reasons for his conflicting answers to our

attention. If anything, looking to the different statutory

10

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 was

discriminated against when the New Jersey State Police

failed to promote him. If Motley could not continue to serve

because of his medical condition, it follows that he should

not have been promoted for the same reason. Nonetheless,

under Cleveland, we have given Motley an opportunity to

explain how he can reconcile his two assertions. We do not

believe the District Court erred by finding there is not

sufficient evidence to allow a reasonable juror to do so.

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 ___,

1999 WL 627019, at *5-6.

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

11

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. 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 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. 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.

12

RENDELL, Circuit Judge, dissenting:

I agree with the majority's view that Cleveland v. Policy

Management Sys. Corp., 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. 1597, 1604 (1999).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

position 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.

_________________________________________________________________

1. In Cleveland, the Supreme Court explained:

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 plaintiff's good faith belief in, the earlier

statement, the plaintiff could nonetheless "perform the essential

functions" of her job, with or without "reasonable accommodations."

Cleveland, 119 S. Ct. at 1604.

2. Contrary to the majority's statement regarding the holding of

Cleveland, the Supreme Court did not find her explanation "sufficient" to

defeat a motion for summary judgment; rather, it remanded to test the

sufficiency of the statement. See Cleveland , 119 S. Ct. at 1604.

3. In the post-Cleveland decision of Mitchell v. Washingtonville Central

School Dist., ___ F.3d ___, No. 98-7185, 1999 WL 627019 (2d Cir. Aug.

13

Once the plaintiff has made an apparently inconsistent

statement, the 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. In doing so,

it did no more than permit the normal procedure to unfold,

that is, as it outlined in explaining the way these situations

should be handled, plaintiff must be given the opportunity

to explain away.

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

_________________________________________________________________

18, 1999) (to be reported at 190 F.3d 1), the Second Circuit came to its

own conclusion regarding plaintiff 's ability to perform the essential

functions of a position with or without a reasonable accommodation. The

plaintiff had previously stated that he could not engage in any gainful

employment and, specifically, could not stand or ambulate for any

prolonged period. The court, finding that standing and walking were

essential functions of the position in question, and holding that the

principles of judicial estoppel applied to those factual assertions,

affirmed the district court's conclusion that the plaintiff could not

establish a prima facie case. Our case is clearly distinguishable from

Mitchell's. Here, the District Court's determination that Motley was

judicially estopped rested solely upon Motley's legal conclusions rather

than his factual assertions. Furthermore, courts should not use the

disability description normally set forth in an application for benefits,

without more, as a bar unless the result is clear. To do similarly

deprives

litigants any opportunity to explain.

14

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., this Court wrote:

901<!>"McNemar's statements on his disability benefits

application are unconditional assertions as to his disability;

he should not now be permitted to qualify those statements

where the application itself is unequivocal." McNemar v.

Disney Store, Inc., 91 F.3d 610, 618 (3d Cir. 1996) (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

_________________________________________________________________

4. I recognize that in Krouse v. American Sterilizer Co., 726 F.3d 494,

503

n.5 (3d 1997) we subsequently explained that McNemar ought not be

read as a per se bar of ADA claims. However, McNemar's skepticism

remained the law of this circuit until Cleveland and the District Court

relied upon McNemar in its description of the law and its analysis of this

case. The District Court wrote:

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 disabled 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, thefirst 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).

15

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 issues as to how his

statements should be interpreted. The majority notes some

of the record regarding Mr. Motley's situation, but there is

much more. I believe the majority places too much weight

on the findings of the medical board, ignores the questions

raised by Motley's second benefits application, and, most

importantly, fails to consider the factual record regarding

the extent of his service and duties, after his injury, for

which he received commendations.

It is clear from his work reviews, as it is from his

amended application for benefits, that Motley had indeed

been working consistently as a detective ever since his

injury. In fact, Motley did so in superior fashion. He

remained on full-duty for the purposes of his reviews, see

_________________________________________________________________

5. I note in passing that the majority opinion seems to equivocate

somewhat with respect to the type of explanation that will suffice --

whether statutory differences can be, in and of themselves, enough.

While we do not clearly state that they can be, I think that Cleveland

does so state, and I will construe the majority opinion to so provide. See

Cleveland, 119 S. Ct. at 1604 (stating that the plaintiff raised the

difference between the statutes and the accuracy of her statements at

the times they were made as explanations and remanding for

consideration of "these explanations"). Obviously, however, a statutory

difference does not exist in the abstract. Rather, reliance on different

standards as an explanation must be supported with relevant facts -- for

instance, if someone is disabled for purposes of a retirement disability

pension because he cannot perform the "usual duties" that a superior

would assign, he must explain how he could perform the "essential

functions with accommodation," relating these differences to specific

facts as to what he can and cannot do in connection with his

employment, and how accommodation would make a difference in his

job performance. As noted above, Cleveland states: "To 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, the plaintiff could nonetheless

`perform the essential functions' of her job, with or without `reasonable

accommodations.' " Cleveland, 119 S. Ct. at 1604.

16

PA 42, and received exemplary performance evaluations

and several commendations. See PA 85-100. 6 Motley

participated in complex investigations requiring undercover

work, expert surveillance, and execution of search warrants

in potentially dangerous situations. See id. Unlike in

Mitchell v. Washingtonville Central School Dist., ___ F.3d ___,

No. 98-7185, 1999 WL 627019 (2d Cir. Aug. 18, 1999) (to

_________________________________________________________________

6. For instance, from May 1, 1990 to October 31, 1990, Mr. Motley

"functioned in an undercover capacity, a surface investigation and as

part of a surveillance team operating in a primarily Hispanic

neighborhood," and was "injected into emergent investigations involving

lengthy and complicated affidavits for search warrants," which he

prepared and executed. See PA 87-88. From November 1, 1990 to April

30, 1991, Mr. Motley was assigned to the Narcotics North Unit and the

Patrol Response Unit, in both an undercover and surface investigative

capacity. He received a commendation for his work with the Patrol

Response Unit during this time period, for his participation in the

seizure of $4.5 million. See PA 89. From May 1, 1991 to April 30, 1994,

he was assigned to the newly created C.E.R.B. North Unit, Squad 2,

where he investigated "diverse criminal cases," such as narcotics,

loansharking, and racketeering, in both undercover and surface

investigative capacities. See PA 91. During this time period, he received

a Performance Notice commending him for his actions when he was

confronted while working undercover by five subjects, two of them

armed. See PA 94. He also received commendations for his participation

in the installation of an electronic surveillance device, the arrest of

members of a Jamaican Posse, and a joint investigation resulting in a

major cocaine seizure. See PA 94, 96-97, 99.

Further, Mr. Motley's performance evaluations during the time period

after he was injured were consistently positive. For instance, the

evaluation report covering the time period from November 1, 1989 to

April 1, 1990, concluded that Mr. Motley "perform[ed] his duties in an

excellent and professional manner." PA 85. It also noted that "[h]e

willingly accepts responsibilities and maintains a strong desire to

produce a quality work product," and "exceeds in enthusiasm, has good

initiative, is aggressive, professional and maintains an excellent spirit

of

cooperation with his peers and other law enforcement agencies

concerned with narcotic enforcement." Id. Mr. Motley was also described

in various evaluation reports spanning the time period from November 1,

1989 to April 30, 1994, as "very proficient," "very resourceful,"

"thoroughly knowledgeable," "a valuable asset," "a positive role model,"

"conscientious," "self-motivated," "perform[ing] well under stressful

situations," and "display[ing] a high degree of competence." PA 86-87,

90, 92, 94-95.

17

be reported at 190 F.3d 1), the record does not support the

conclusion that Motley's injuries necessarily prevented him

from fulfilling the essential functions of a police officer with

or without an accommodation. Reading the facts in the

record in the light most favorable to Motley, as we must,

the record suggests the opposite.

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

supported by a description of his injuries. This is

misleading. His amended application, admittedlyfiled 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

_________________________________________________________________

7. Motley first filed for benefits in April 1993. By letter dated February

3,

1994, he was informed that his application was approved. In his first

application, Motley answered "No" to the question: "Have you performed

regular duty since the traumatic event?" See SA 14. In his amended

application, filed on March 15, 1994, six weeks after his original

application was granted and six weeks before hefirst received benefits,

Motley answered the same question by writing that he had "been on light

duty" since the event. See SA 12. In his reply brief, the Appellant states

that the new application was filed because Motley realized the first

application was not completely accurate. Appellee's brief does not

discuss the amended application.

8. The majority asserts: "Neither Motley nor the State Police contested

[the medical board's] 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." This presumption is unfounded, and

the majority provides no authority for its conclusion. The conclusion is

tantamount to determining that no statutory explanation is possible in

this case.

Furthermore, comparison between N.J. Stat. Ann. 53:5A-10(a) --

applicable here -- and 53:5A-9(a) suggests that the majority's broad

reading of the medical board's findings is not supportable. Section

18

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

Detective 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

determination 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.

_________________________________________________________________

53:5A-9(a), which deals with general disabilities rather than those

arising from an event occurring during performance of police duties,

requires that the: "medical board ... certify that such member is mentally

or physically incapacitated for the performance of his usual duty and of

any other available duty in the Division of State Police which the

Superintendent of State Police is willing to assign him." N.J. Stat. Ann.

S 53:5A-9(a) (West 1999) (emphasis added). This additional phrase, "of

any other available duty", not contained in 53:5A-10(a), may be

important to our understanding of 53:5A-10)(a). The New Jersey Superior

Court has interpreted 53:5A-9(a) to require the determination of whether

there are assignments that the plaintiff could perform which "could

reasonably made available to him," Crain v. State of New Jersey, 584

A.2d 863, 868 (N.J. Super. Ct. 1991), before requiring benefits under

that section, and an Administrative Law Judge has suggested that the

reasonable accommodation standard of the ADA provided the best

analogy to the standard announced in Crain. See Ward v. Board of

Trustees of the Police and Fireman Retirement Sys., 1999 WL 160596

(N.J. Admin. Feb. 10, 1999) (publication page reference not available).

The section that applies here has no corresponding language, and

should not be read to support the presumption that accommodation

entered into the medical board's thinking, let alone its finding.

19

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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