Kerns v. Dura Mechanical Components, Inc.

Smolenski, J.

(dissenting). I respectfully dissent. I disagree with the majority’s conclusion that plaintiff’s handicap and age discrimination claims are barred because of representations plaintiff made when apply *18 ing for social security disability insurance (ssdi) benefits. Rather, I believe that this Court should reverse the trial court’s decision granting defendant’s motion for summary disposition and remand for further proceedings, given the holdings of Cleveland v Policy Management Systems Corp, 526 US 795 ; 119 S Ct 1597 ; 143 L Ed 2d 966 (1999), and Tranker v Figgie Int'l, Inc (On Remand), 231 Mich App 115 ; 585 NW2d 337 (1998) (Tranker II).

It is clear that statements made in the context of an SSDI application may not be utilized to automatically bar a plaintiff’s handicap discrimination claim under either the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq., or the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Cleveland, supra at 797-798 ; Tranker II, supra at 121-122. Yet, the question remains whether courts will generally allow the jury to weigh the plaintiff’s inconsistent statements or will generally grant summary disposition to the defendant on the grounds that the plaintiff’s statements are too inconsistent for the plaintiff to prove a prima facie handicap discrimination claim. In Tranker II, this Court held that “statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim.” Id. at 122-123. The Cleveland Court required ADA plaintiffs to offer a “sufficient explanation” for statements made in an application for SSDI benefits that apparently contradict the essential elements of a handicap discrimination claim. 526 US 806 . This Court accepted the Cleveland requirement of a “sufficient explanation” in Hall v McRea Corp, 238 Mich App 361, 369 ; 605 NW2d 354 (1999), stating that a handi *19 cap discrimination plaintiff “should not be permitted to proceed without explaining how he could, in good faith, represent a total disability and be able to perform the job with reasonable accommodation.”

The majority recognizes the above precedent, but relies on two federal decisions, Motley v New Jersey State Police, 196 F3d 160 (CA 3, 1999), and Mitchell v Washingtonville Central School Dist, 190 F3d 1 (CA 2, 1999), which concluded that the plaintiffs were not entitled to remand to the trial court for an opportunity to reconcile their ssdi claims with their handicap discrimination claims. However, other federal decisions following Cleveland have concluded that facially inconsistent statements made by the plaintiff in the earlier proceeding did not merit summary disposition of the plaintiffs handicap discrimination claim. See Parker v Columbia Pictures Industries, 204 F3d 326, 334-335 (CA 2, 2000) (the plaintiffs argument that he was capable of returning to his job on a gradual or part-time basis or with other accommodations constituted sufficient explanation and warranted remand); Norris v Sysco Corp, 191 F3d 1043, 1049 (CA 9, 1999) (the plaintiffs inconsistent statements should be weighed by the jury); Nodelman v Gruner & Jahr USA Publishing, 2000 WL 502858 , * 8 (SD NY, 2000) (the plaintiffs argument that he could perform his job with reasonable accommodations constituted sufficient explanation to defeat summary judgment).

In this case, plaintiff argued in his brief on remand that defendant could have reasonably accommodated his inability to stand or walk for prolonged periods. Plaintiff explained the apparent inconsistency between his ssdi application and his pwdcra claim by *20 stating that “[t]here is no concept of accommodation in the fact-findings regarding” an SSDI claim. This is the very explanation envisioned in Cleveland , that the plaintiff’s ssdi statements were “ ‘made in a forum which does not consider the effect that reasonable workplace accommodations’ ” would have on the plaintiff’s ability to work. 526 US 807 . Because plaintiff provided a “sufficient explanation” in his brief on remand, I conclude that the “parties should have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate.” Id.

Reading plaintiff’s SSDI statements in context, I believe that a reasonable jury could find that plaintiff was capable of satisfying the prima facie elements of both his handicap and age discrimination claims. I would therefore reverse the trial court’s decision granting defendant’s motion for summary disposition with respect to those two claims and remand this case to the circuit court for further proceedings.