Petition for Writ of Certiorari — Motley v. New Jersey State Police

‘Supreme Court, u.g.

— FILED

991395 JAN 31 2009

No. 99-

seeiunenneniadeimiemaaamaan

IN THE

Supreme Court of the United States

DANIEL C. MOTLEY,

Petitioner,

v.

NEW JERSEY STATE POLICE; THE STATE TROOPERS

FRATERNAL ASSOCIATION OF NEW JERSEY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WILLIAM STRAZZA

Counsel of Record

Law OFFICE OF WILLIAM STRAZZA

Attorney for Petitioner

Union Professional Building

971 Stuyvesant Avenue, Suite 9

P.O. Box 3806

Union, New Jersey 07083-1891

(908) 688-8005

157097 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

Paar

QUESTION PRESENTED

Whether or not the Court of Appeals for the Third Circuit

decided the present case in a manner that conflicts with this

Court's decision in Cleveland v. Policy Management Sys.

Corp, 526 U.S. 795, 119 S. Ct. 1597 (1999) by failing to

remand plaintiffs American Disabilities Act claim so that

he would have the opportunity to sufficiently explain

perceived inconsistencies between his claim and prior sworn

statements ina disability application.

ul

TABLE OF CONTENTS

Page

CJucntooss FUOGRUNOE <inc ve ka eke bli coun a

Tepe of Comps: noo te ae eee ee i

Tabdie of Cited Authorities .............ccce0c, i

Labie of ADRORINCOS fo csi sc cet oso eee VI

Cpunens DOW oe aco ie ae ee ae |

Statement of Jurisdiction ..................... |

Statutes WNIVONWOE cio es cdceveswss deve tee |

statement of the COS ... 6. .4< de ius ueoe ues. 2

Reasons tor Granting the Writ)... .... Via a 9

A. The Directives of Cleveland ........... 10

B. The Third Circuit’s Misinterpretation of

ClevGlGR oo 668 kk oe knee 13

CoOnmCHIOIOR .......6cads 8s 0k ee 20

TT

TABLE OF CITED AUTHORITIES

Pave

Cases:

American Automobile Ass'n vy. United States, 367

er Lee Se euehs 10

Army & Air Force Exchange v. Sheehan, 456 U.S.

I a ss hy din'g a 4k 6a e'e v Kos a 9

Braen v. Pfeifer Transportation Co., 361 U.S. 129,

NN Ed are big a v's oe ite way 0 bees 8 10

Cleveland v. Policy Management Systems Corp., 526

ers passim

Dush v. Appleton Elec. Co., 124 F.3d 957 (8" Cir.

Ee ete ae db A Gas 6c k eae ase ks 13, 16

Feldman v. American Memorial Life Ins., 196 F.3d

TT oc a web nev eb bccn caus ces 17

Klein v. Stahl GMBH & Co. Machinefabrik, 185

a | 13,14

McCandles v. Furland, 296 U.S. 140 (1935) ..... 10

pecneoe ¥. U.S., 318 U.S. 332 (1943) ........... 10

McNemar v. Disney Store, 91 F.3d 610 (3d Cir. 1996)

iv

Cited Authorities

Page

Moore v. Payless Shoe Source, Inc., 139 F.3d 1210

er Soe Pe ws hoo boa ee ees 13,16

Old Dominion Copper Co. v. Lewishon, 210 U.S.

PO EEE PEG oe ee eae ce 10

Pyrcz v. Branford College, (1999 WL 706882) ... 15

Schlaude v. Commissioner, 372 U.S. 128 (1968) .. 9)

United States v. Rands, 389 U.S. 121 (1967) ..... 10

Upshaw v. United States, 335 U.S. 410 (1948) .... 10

Wilkinson v. United States, 365 U.S. 399 (1961) .. 10

Wilson v. Schnettler, 365 U.S. 381 (1961) ....... 10

Statutes:

SEUSS § SIG, Ce. kee ese. 1,2

Se ial, B SRRTREEE: So ne see katie ae tee l

Ce tes S RETR hci ona a eS l

Be Nias SEO: 5G. ae a oe eae |

MISA: S5A4ES Lo ous ee 6

Cited Authorities

Page

Other Authorities:

DAE OPED ini ctedeckan cess bb0¥ es eee

SN Oey) rare rene errr rer ae 3

DAES NSE os hicks SORA ee eee 3,6

Stern & Gressman, Supreme Court Practice,

Fr Rs Re ee oe es en 10

TABLE OF APPENDICES

Appendix A Opinion And Judgment Of The

United States Court Of Appeals For The Third

Circuit Dated And Filed November 1, 1999 | | |.

Appendix B — Opinion And Order Of The United

States District Court For The District Of New

Jersey Dated September 9, 1997 And Filed

OREN CO TRE bike oo cacy eee

Appendix C Physical Fitness Program Of The

New Jersey State Police Dated August 24, 1988

And Revised October 7 And 14, 1988 .........

Appendix D Application For Accidental

Disability Retirement Dated April 7, 1993 .....

Appendix E -— Application For Accidental Disability

Retirement Dated March 15, 1994 ............

Page

424

Soa

OPINIONS BELOW

The decision of the Court of Appeals affirming the

District Court's grant of summary judgment for defendant/

respondents is reported at 196 F.3d 160 (3d Cir. 1999)

(App. la-25a). The decision of the District Court for the

District of New Jersey is unreported. (App. 28a-39a).

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals (App. 26a-27a)

was entered on November 1, 1999. This Court’s jurisdiction

is predicated upon 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The pertinent statute involved in this case is the

Americans with Disabilities Act (ADA). 42 U.S.C. § 12101

et seq. The specific sections at issue are:

42 U.S.C. § 12111(8) Definitions: Qualified

individual with a disability

The term “qualified individual with a disability”

means an individual with a disability who, with

Or without reasonable accommodation, can

perform the essential functions of the employment

position such individual holds or desires.

42 U.S.C. § 12112(a) Discrimination: General rule

No covered entity shall discriminate against a

qualified individual with a disability because of

the disability of such individual in regard to job

>

application procedures, the hiring, advancement.

or discharge of employees, employee

compensation, job training, and other terms.

conditions, and privileges of employment.

STATEMENT OF THE CASE

This case presents the story of a man who became

physically disabled in a work related accident and was then

horribly mistreated by his employer. The man is Petitioner,

Daniel C. Motley. The employer is Respondent, the New

Jersey State Police (NJSP). Following his accident,

Mr. Motley was denied promotion for three consecutive years

even though he performed all the tasks of a full duty narcotics

detective. The only reason Dan was denied promotion is that

the NJSP considered him disabled. He was also denied any

reasonable accommodation. Both denials are clear violations

of the Americans with Disabilities Act (“ADA”). 42 U.S.C.

§ 12101, et seq.

A critical aspect to this case is the internal policy and

procedure of the NJSP regarding promotion. ( App. 42a). The

NJSP has codified Standard Operating Procedures (S.O.P.’s).

S.O.P. C-20 addresses the relationship between promotion

and physical fitness. /d. In order to even be considered for

any promotion, all members of the NJSP must first be cleared

by the NJSP physician to take the required fitness exam.

The member must also pass the exam. /d.

There are three official duty statuses with the NJSP —

full duty, limited or “light” duty, and off duty. Only members

listed by the NJSP physician on full duty status are permitted

to participate in the fitness exam. Members not cleared to

participate have one of two fates awaiting them under S.O.P.

3

C-20. One possibility is that their continued fitness for

employment is reviewed by the Chairman of the Duty Status

Review Board. Specifically, S.O.P. C-20(G)(4)(b) requires:

If the Division physician and the Administration

Section supervisor determine that the member is

unable to participate in the physical fitness test,

the administration shali forward all

documentation to the Chairman (Deputy

Superintendent) of the Duty Status Review Board.

(1) The board, after determining the facts shall

evaluate the member’s fitness for continued

employment in the Division of State Police and

submit appropriate recommendations to the

Superintendent (emphasis supplied).

The second possibility is that the Superintendent, following

a special request from the member, waives the fitness

exam requirement, and the member is considered for

promotion notwithstanding his or her non-participation.

Here, S.O.P. C-20(H)(2)(a) is controlling:

A sworn member who does not satisfactorily

complete any portion of the physical fitness test

due to a temporary medical or physiological

problem will not be automatically excluded from

the promotional process. Promotional eligibility

for such members will be determined by the

Superintendent on a case-by-case basis.

Against this backdrop, we can now present the details of

Dan Motley’s experience with his former employer.

Dan Motley joined the NJSP in February 1982. Like all

rookie members, Mr. Motley began his career at the rank of

4

Detective. Lying ahead were tenure based promotions to

Detective Il and Detective I at seven and nine years

respectively. Beyond that were “rated” or “merit based”

promotions to Sergeant, Sergeant First Class, and so on.

After seven vears, Detective Motley received his first

tenure based promotion. However, S.O.P. C-20 was passed

before Detective Motley’s ninth year. Therefore, promotion

to Detective I became subject to $.O.P. C-20. Although he

did not know it at the ttme, Dan Motley would retire before

ever achieving the rank of Detective I.

On January 24, 1990, the course of Detective Motley’s

career was forever altered. During an undercover buy-bust

operation, Dan was pulled into the driver’s side window of

a fleeing vehicle. Half his body was hanging out the window

and he was dragged approximately 150 feet.

Detective Motley was seriously injured as a result of

this incident. Between January 24, 1990 and February 8,

1990, he was listed as “off duty.” On February 9, 1990 Dan

was re-assigned to “Temporary Limited On Duty” status by

the NJSP physician. However, due to his “limited duty” or

“light duty” status, Detective Motley was not permitted to

participate in the State Police Fitness exam in 1990.

Therefore, he could not be considered for promotion. In fact,

Detective Motley was not cleared to participate in the fitness

exam in 1991, 1992, 1993 or 1994 — the year he ultimately

retired. In other words, after his accident, he was never again _

permitted to participate in the fitness exam, and therefore

was never again considered for promotion.

Despite persistently preventing Motley from

participating in the fitness exam, the NJSP failed to refer his

5

case to the Chairman of the Duty Status Review Board, an

action mandated by S.O.P. C-20. The NJSP admitted this

fact in answers to interrogatories. Instead, Motley was

continually listed for limited duty, thereby eliminating any

possibility of promotion and corresponding raises in pay.

However, despite his recorded duty status, Motley continued

to receive and perform full duty status assignments. For

almost four years after his accident, but before his retirement,

Detective Motley continued to break down doors, execute

search and arrest warrants, sit on wire-taps, develop

confidential informants and do anything and everything else

required of a full duty status narcotics Detective. Moreover,

he received several commendations for his work during this

time period. In her dissent, Circuit Judge Rendell provides

an excellent summary of Detective Motley’s performance

evaluations, all of which plainly demonstrate the full duty

nature of his work after the accident. Motley v. New Jersey

State Police, 196 F.3d 160, 170-71 and n.6.

The submission of each performance evaluation became

a source of ultimate frustration for Detective Motley. On

the one hand, he was receiving and performing full duty

assignments and his performance was stellar. On the other

hand, the Division Physician continued to categorize

Detective Motley as a “limited duty” member for purposes

of the fitness exam. Therefore, at the section designated for

promotional potential, each performance evaluation states

“no recommendation at this time due to non-participation in

the physical fitness test.”

In response to being painted into a corner of “promotion

purgatory”, Detective Motley did not sit on his hands. In

fact, after being denied his promotion to Detective I in August

1991, Detective Motley immediately filed a grievance

6

through the State Troopers Fraternal Association (“STFA”).

Then, Detective Motley waited. For months he waited

patiently, but there was never any answer from the NJSP or

the STFA regarding the grievance.

A full year after the grievance was filed, no action had

been taken.' During this period of inexplicable delay,

Detective Motley took additional action to protect his

interests. In essence, he forced the NJSP to pick between

retiring him or promoting him — the two choices mandated

by S.O.P. C-20.

On April 7, 1993 he filed an application for accidental

disability retirement pursuant to N.J.S.A. 53:5A-10(a). Less

than one month later, on May 4, 1993 he filed a second

grievance through the STFA which formally complained of

the non-progression of the first grievance. The second

grievance was flatly denied on July 11, 1993. Then, in

November 1993 Detective Motley submitted a written

Request for Determination to Superintendent Dintino

pursuant to S.O.P. C-20(H)(2)(a). In other words, Detective

Motley made a request for reasonable accommodation.

Despite the plain language of the S.O.P., (see text, supra.

at 3) the Superintendent's response amounted to no response

at all. Ina memo dated December 8, 1993 the Superintendent

stated in pertinent part, “[wJith reference to the attached

correspondence; advise Det. D.C. Motley #3655 that it has

been Division policy not to provide written data regarding

his inquiry.”

1. In fact, Detective Motley’s first grievance was not resolved

until more than a year after he retired. The determination was in

favor of the NJSP. Originally, Motley joined the STFA as defendants

in this action. The count against the STFA was dismissed, but that

aspect was never appealed.

in short, for almost four years, the NJSP used S.O.P.

C-20 to stop Motley from taking the fitness exam, thereby

blocking the possibility of promotion. However, the outfit

also refused to either waive the requirement or submit his

case to the duty status review board. Insicad, the NJSP was

more than happy to extract superior full Guty performance

while only having to pay Mr. Motley at the rank of Detective

'| for the rest of his life.

Fed up with this stonewalling, in January 1994 Detective

Motley filed complaints concurrently with the New Jersey

Division of Civil Rights (*NJDCR”) and with the Equal

Employment Opportunity Commission (“EEOC”). He also

allowed his application for disability benefits to go forward.

In February 1994, Motley’s application for disability was

vranted. However, there is an administrative waiting period

between the application being granted, actual retirement, and

receipt of first payment. During this period, Motley realized

his initial application was not entirely accurate. Therefore,

before he ever received a payment, Mr. Motley amended his

application, thus providing the board an opportunity to

reverse its initial decision. This aspect of the case warrants

detailed explanation.

As indicated, there are two disability applications

involved in this case. The first was signed by Mr. Motley on

April 7, 1993 and contains three critical portions, namely

items 19, 20 and 23. (App. 56a). A pre-printed item, number

19 compels the applicant to state, “I declare | am permanently

and totally disabled as a direct result of a traumatic event

occurring during and as a result of the performance of my

regular or assigned duties ...”” The applicant must simply

fill in the date, time and place of the incident. Item 20 asked

S

Mr. Motley to state his symptoms. On the April 7, 1993

application, Mr. Motley replied:

Since my accident | have had extremely painful

and recurring headaches. | also have intense back

pain whenever | sit for prolonged periods (1.e. 20

minutes or more). | have difficulty sleeping at

night and wake up almost every 2-3 hours because

of pain in my lower back. Before | start my day |

must take an extremely long and hot shower to

loosen the spasms in my back. Finally, | have

extreme pain in my left knee. | cannot stand on it

without pain and I have extreme difficulty with

running.

Finally, item 23 asked “Have you performed regular duty

since the traumatic event?” On April 7, 1993 Mr. Motley’s

answer was “No.”

On March 15, 1994 Mr. Motley filed his amended

application for disability. (App. 63a). The form was identical

to the one filed April 7, 1993 with two exceptions. First, at

item 20 regarding his sympioms, Mr. Motley, filling the

application out by hand and on his own, wrote “I have

received severe injuries to my knees, back and neck.” Second,

and most important, at item 23 regarding the performance

of regular duty, Mr. Motley changed his answer of “No” to

“Since the event | have been on light duty.”

Now retired, Dan anxiously waited to hear from the

EEOC regarding the complaint he filed in January 1994.

Eventually, he became frustrated with the snail’s pace of

that process, retained predecessor counsel and filed a

complaint in the United States District Court for the District

7]

of New Jersey. Pertinent to this case is the count alleging a

violation of the ADA.

Respondent NJSP moved for summary judgment and

argued Mr. Motley was judicially estopped from asserting

his ADA claim due to the representations made in his

disability application. The District Court granted defendant's

motion (App. 40a-41a) and Motley appealed.

In a two to one decision, The United States Court of

Appeals for the Third Circuit affirmed the decision of the

District Court. Motley, 196 F.3d atl60. Significantly, the

Circuit Court withheld its decision pending this Court's

decision in Cleveland vy. Policy Management Systems Corp.,

526 U.S. 795 (1999). In affirming the decision of the District

Court, the majority purports to follow this Court’s directives

in Cleveland. However, in her dissent, Circuit Judge Rendell

argues that the Circuit did not properly followed Cleveland

at all. Motley, 196 F.3d at 168-71. Accordingly, Mr. Motley

respectfully presents this Petition for Writ of Certiorart.

REASONS FOR GRANTING THE WRIT

Dan Motley is requesting the extraordinary remedy of a

writ of certiorari for one reason. The Third Circuit decided

his case, one which presents an important question of federal

law, in a manner that conflicts with a relevant decision of

this Court. Rules of the Supreme Court of the United States,

Rule 10(c).? Specifically, and not withstanding its assertions

2. See also Army & Air Force Exchange v. Sheehan, 456 U.S.

728, 733 (1982) (certiorari granted because ruling below “appeared

to be in conflict with [Court's] precedents”); Schlaude v.

Commissioner, 372 U.S. 128, 130 (1968) (brought case back a

(Cont'd)

10

to the contrary, in deciding Mr. Motley’s case the Third

Circuit failed to follow this Court’s holding in Cleveland vy.

Policy Management, 526 U.S. at, 119 S. Ct. at 1604.

Accordingly, it is respectfully urged that Mr. Motley’s

petition for certiorari be granted.

A. The Directives of Cleveland

The question before this Court just last term in Cleveland

was “whether the law erects a special presumption that would

significantly inhibit [a Social Security Disability Insurance]

recipient from simultaneously pursuing an action for

disability discrimination under the [ADA], claiming that

‘with ... reasonable accommodation’ she could ‘perform

the essential functions of her job.’ ” Cleveland, 526 US.

(Cont'd)

second time on certiorari “to consider whether the lower court

misapplied the scope of American Automobile Ass'n v. United States,

367 U.S. 687 (1961)); United States v. Rands, 389 U.S. 121 (1967)

(granting certiorari because of seeming conflict between decision

below and existing precedent); Wilkinson v. United States, 365 U.S.

399 (1961) (granting certiorari because of petitioner's claim that

Court of Appeals misconceived meaning of controlling precedent);

Wilson v. Schnettler, 365 U.S. 381 (1961) (certiorari granted to

consider petitioner’s claim that “judgment was repugnant to

controlling” precedent); Braen v. Pfeifer Transportation Co., 361

U.S. 129, 130 (1959) (granting certiorari because Circuit Court's

decision reversing judgment for plaintiff “seemed to be out of line

with the authorities); Upshaw v. United States, 335 U.S. 410 (1948)

(reversing decision of D.C. Circuit due to majority's misapplication

of holding in McNabb v. United States, 318 U.S. 332 (1943)); and

McCandles v. Furland, 296 U.S. 140, 156 (1935) (before the Court

on a second writ of certiorari to consider Second Circuit’s application

of Old Dominion Copper Co. v. Lewishon, 210 U.S. 206 (1908)).

See generally, Stern & Gressman, Supreme Court Practice, 7"

Edition 1993 at § 4.5.

1 |

at =, 1119S. Ct. at 1599-1600 (citations omitted). In taking

on this question, the Court sought to resolve conflict among

the Circuits on the issue of judicial estoppel as applied in

ADA cases. Cleveland, 526 U.S. at, 119 S. Ct. at 160]

(citations omitted).

The simple answer to the question presented in Cleveland

was no — the law does not erect any special presumption.

Specifically, this Court held:

We believe that, in context, these two seemingly

divergent statutory contentions are often

consistent, each with the other. Thus pursuit, and

receipt, of SSDI benefits does not automatically

estop the recipient from pursuing an ADA claim.

Nor does the law erect a strong presumption

against the recipient’s success under the ADA.

Nonetheless, an ADA plaintiff cannot simply

ignore her SSDI contention that she was too

disabled to work. To survive a defendant’s motion

for summary judgment, she 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.”

Cleveland, 526 U.S. at, 119 S. Ct. at 1600.

In crafting its decision, this Court drew a critical

distinction between context related legal conclusions asserted -

in disability applications and “directly conflicting statements

about purely factual matters.” Cleveland, 526 U.S. at __

119S. Ct. at 1601. The former was the subject of this Court's

ruling whereas the law regarding the latter was left

12

undisturbed. Cleveland, 526 U.S. at , 119 S. Ct. at

1602-03. However, as it relates to the reason for granting

Mr. Motley’s petition, the most critical aspect of this Court's

decision in Cleveland is what I will call a “decision not to

decide.”

Before this Court in Cleveland was a ruling from the

Fifth Circuit which upheld summary judgment for defendant

on the grounds that an “ADA plaintiff's representation to

the SSA that she was totally disabled created a rebuttable

presumption sufficient to estop her later representation that

. she could perform the essential functions of her job.”

Cleveland, 526 U.S. at __, 119 S. Ct. at 1602. This Court

left no question that such rebuttable presumptions have no

place in ADA judicial estoppel analysis. Instead, future ADA

plaintiffs must be able to provide a sufficient explanation

for any perceived inconsistency that can overcome well

settled summary judgment standards. But what does this

mean for ADA plaintiffs, such as Mr. Motley, whose cases

were pending in the Court of Appeals when Cleveland was

decided and were disposed of on defendant’s motion for

summary judgment under what Cleveland deemed improper

legal standards? In Cleveland this Court provided the answer

remand for further proceedings.

Despite having a record before it which included

explanations for Ms. Cleveland’s change in positions, this

Court did not make a determination regarding the sufficiency

of those explanations. Instead, this Court specifically

directed,

[t]he parties should have the opportunity in the

trial court to present, or to contest, these

explanations, in sworn form where appropriate.

‘i

13

Accordingly, we vacate the judgment of the Court

of Appeals and remand the case for further

proceedings consistent with this opinion.

Cleveland, 526 U.S. at _, 1198. Ct. at 1604.

The requirement to remand for further proceedings,

particularly when a pending pre-Cleveland case was decided

under improper judicial estoppel law, was underscored by

this Court’s treatment of the Eighth Circuit’s decision in

Moore v. Payless Shoe Source, Inc., 139 F.3d 1210 (8" Cir.

1998) (Moore 1). In Moore J, the Eighth Circuit affirmed the

dismissal of plaintiffs ADA claim on summary judgment

employing a standard set out in Dush v. Appleton Elec. Co..,

124 F.3d 957, 963 (8" Cir. 1997) (ADA plaintiff must present

“strong countervailing evidence” to defeat defendant’s

motion for summary judgment premised on judicial estoppel

theory). /d. The Dush standard was negated by Cleveland.

Therefore, in a memorandum opinion, this Court granted

plaintiffs petition for certiorari, vacated the decision of the

Court of Appeals and remanded for further proceedings

consistent with its holding in Cleveland. Moore v. Payless

Shoe Source, Inc., U.S. | , 119 S. Ct. 2017 (1999) (mem. ).

It is the directive to remand which was flatly ignored by

the majority in Motley.

B. The Third Circuit’s Misinterpretation of Cleveland

The first reported decision out of the Third Circuit citing

Cleveland was Klein v. Stahl GMBH & Co. Machinefabrik,

185 F.3d. 98 (3d Cir. 1999). Admittedly, K/ein is not directly

on point. For one thing, the underlying cause was a products

liability action, not an ADA claim. Klein, 185 F.3d at 100.

14

Therefore, the holding was not directly premised upon

Cleveland. In fact, the court specifically noted that its

decision rested upon the principles set forth in McNemar vy.

Disney Store, 91 F.3d 610, 617 (3d Cir. 1996). Nevertheless,

the case it noteworthy because it is the Third Circuit’s first

treatment of a judicial estoppel issue in the post-Cleveland

era. In that first treatment, the court vacated the Magistrate

Judge’s dismissal of plaintiff's claim and remanded for

further proceedings so that, among other things, the plaintiff

would have the opportunity to offer a sufficient explanation

for certain factual inconsistencies presented in varying

affidavits. Klein, 185 F.3d at 111. Despite this Cleveland-

like approach in anon-ADA case, in the Third Circuit’s first

treatment of an ADA case post-Cleveland, the majority of

the panel misinterpreted this Court’s holding. Motley, 196

F.3d at 162-67.

The Motley majority certainly did not misstate this

Court’s Cleveland holding. Motley, 196 F.3d at 164-65.

Moreover, the opinion does not try to distinguish Cleveland

as inapplicable. In fact, the majority goes out of its way three

times to insist or imply that its ruling is premised upon the

new rules set forth in Cleveland.’ However, a careful

3. For example, the court announced, “[wJe will affirm [the

decision of the District Court], 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.”

Motley, 196 F.3d at 162. Additionally, the majority wrote, “[t]he

Supreme Court in Cleveland v. Policy Management Sys. Corp

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

framework we apply here. Motley, 196 F.3d at 164. Finally, writing

for the majority, Circuit Judge Nygaard declared, “Our decision is

based squarely on the standard set out by the Supreme Court in

Cleveland.” Motley, 196 F.3d at 167.

sunt alia

15

examination of the majority opinion demonstrates the Third

Circuit’s misinterpretation of this Court’s ruling.

As previously stated, and as pointed out in Circuit Judge

Rendell's dissent, despite the explanations regarding

inconsistency in the record before it, this Court never decided

whether Ms. Cleveland’s explanations were sufficient to

overcome summary judgment. Supra at 12. Motley, 196 F.3d

at 168. Notwithstanding this fact, the Third Circuit reads

Cleveland as having made that critical decision. Specifically,

Judge Nygaard observed,

In Cleveland, the ADA plaintiff had proffered a

sufficient explanation of the difference in her

statements. * * * Cleveland appears to have made

a factbased argument that her condition changed

to some degree during the applicable time periods.

This amounted to a sufficient explanation under

the facts of Cleveland’s case .. .

Motley, 196 F.3d at 165. Unfortunately, the Third Circuit is

not alone in this misinterpretation of Cleveland. Recently, a

State Court made the same error.4

4. In Pyrez v. Branford College, (1999 WL 706882) a Superior

Court Judge in Massachusetts wrote

In a recent case considering whether an application for

Social Security disability benefits estops a plaintiff from

pursuing a federal claim ... under the [ADA] ... the

Court held that plaintiff's explanation of how the Social

Security disability benefits application could be

reconciled ... sufficed to defeat a summary judgment

motion. The specific explanation the Court found

sufficient was that the plaintiff had requested

accommodation ..., had been denied ..., and had

subsequently been terminated.

16 .

Nevertheless, the simple truth is that when the Third

Circuit decided Motley, no court had made any determination

concerning the sufficiency of Ms. Cleveland’s explanations.

Instead, her explanations were being considered on remand

in the trial court and “in sworn form” pursuant to the mandate

of this Court. As to the reasoning which supports the need

to remand in these cases, Circuit Judge Rendell hits the nail

squarely on the head in her dissent. Her Honor astutely

observes, “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.” Motley,

196 F.3d at 169.

No doubt, this Court’s decision to remand was premised

upon what Judge Rendell couches as a “change in rules”

argument. In other words, the record before this Court in

Cleveland was created under Fifth Circuit law which allowed

for a rebuttable presumption on the estoppel issue in

defendant’s favor if ADA plaintiff's had received or merely

applied for social security disability. Cleveland, 526 U.S. at

__. Similarly, the “change in rules” argument” 1s what

presumably caused this Court to grant certiorari, vacate the

judgment of the Eighth Circuit, and remand so that Ms.

Moore could have a new record made under the rule in

Cleveland as opposed to the now defunct rule in Dush. Supra.

at 8-9. See also Moore J, 139 F.3d at 1210 and Moore,

U.S. ,1198. Ct. 2017.

Dan Motley’s record was made under the much criticized

Third Circuit decision in McNemar. Motley, 196 F.3d at 169.

Additionally, the District Court granted summary judgment

relying exclusively on McNemar. See Motley, 196 F.3d at

169 n.4 (Rendell, Circuit Judge dissenting). Despite this fact,

and despite having the opportunity to review this Court’s

17

decision and directives in Cleveland, the Third Circuit did

not remand, but instead tackled the task of assessing

Mr. Motley’s explanations for the statements in his disability

applications and deemed those explanations insufficient to

survive summary judgment. This failure to remand robbed

Mr. Motley of his opportunity to offer a sufficient

explanation for any alleged inconsistencies under the new

rules of the game. Such a result creates a true miscarriage of

justice and is contrary to this Court’s decision in Cleveland.

Once again, Judge Rendell’s observations state the argument

succinctly:

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.

Id.

5. Itis worth noting that the Seventh Circuit has also deprived

an ADA plaintiff her opportunity to sufficiently explain any potential

inconsistencies between her disability application and ADA claim.

In Feldman v. American Memorial Life Ins., 196 F.3d 783 (7" Cir.

1999), the District Court granted summary judgment for defendant

because it felt plaintiff could not prove she was disabled. The Court

of Appeals affirmed, but on entirely different grounds namely

judicial estoppel grounds. Even though the issue was never raised

below, which explains why plaintiff never offered any explanation

for the apparent inconsistencies, the court held, “[w]e reserve opinion

on the district court determination that Feldman was not ‘disabled.’

Instead, we evaluate whether Feldman’s contention that she is a

‘qualified individual’ under the ADA is precluded by her earlier

declarations regarding her disability in her applications for SSDI

benefits. We find this question dispositive here.” Feldman, 196 F.3d

at 789.

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Presumably, the argument could be made that not every

ADA case pending when Cleveland was decided is entitled

to remand. Perhaps there is a case out there wherein the

record is completely devoid of both explanation or even the

possibility for explanation of inconsistency sufficient to

overcome summary judgment. Assuming that is true, this is

not that case.

As Judge Rendell observes, the majority in Motley

misconstrues the explanations offered by petitioner by

ignoring substantial portions of the record. Motley, 196 F.3d

at 169-71. In the first place, the majority places far too much

weight upon the declaration of disability in Mr. Motley’s

first application. The declaration is clearly a context based

legal conclusion, not a specific factual assertion. Second,

the majority also places too much weight on Mr. Motley’s

description of his injuries. Dan described his injuries with

specificity, but he never once stated that those injuries made

him unable to work, with or without accommodation. Surely,

the State Police cannot convincingly argue that they thought

his injuries made him unable to perform, as they continued

to assign regular duties and evaluate his performance

glowingly. Instead, the most respondent can say is that it

thought his injuries made him unfit for promotion.

The majority also completely ignores Mr. Motley’s

request for accommodation, which the State Police saw fit

never to answer, and his amended application. The amended

application is a key fact in this case, particularly because of

its timing. Dan filed the amended and accurate disability

application before receiving any payments under the first

application. His purpose in filing was to provide the NJSP

an opportunity to amend its determination with more accurate

information.

eins» WA

19

The majority also misconstrues the statute under which

State Troopers make disability applications. The majority

presumed that the board which approved Dan’s application

took reasonable accommodation into consideration. Motley,

196 F.3d at 170-71 n.8 (Rendell, Circuit Judge dissenting).

Nothing in the statutory scheme would reasonably lead

someone to this conclusion. /d. In fact, the opposite

conclusion is far more logical in light of other disability

statutes intended specifically for State Troopers which make

reference to reasonable accommodation. /d. The statute under

which Motley’s application had to be filed has no such

provision. /d.

Finally, the majority pays no attention whatsoever to

what Detective Motley was actually doing nor to the NJSP’s

disregard for its own internal policy and procedure in

Motley’s case. The majority never acknowledged that Motley

continued to perform his job as a narcotics detective for all

four years after his accident. The majority never

acknowledged the failure of the NJSP to refer Motley’s

matter to the duty status review board. The majority never

acknowledged Motley’s request for accommodation or the

NJSP’s feeble excuse for a response.

In other words, the majority ignored every fact of record

which makes it abundantly clear that Mr. Motley might very

well be able to provide an explanation in “sworn form”

sufficient to convince a District Court Judge that a jury

should hear this case. Misconstruing Cleveland, the Third

Circuit would deny Mr. Motley his day in court.

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CONCLUSION

Accordingly, and for the reasons stated above, it Is

respectfully requested that this Court grant Mr. Motley’s

petition for certiorari.

Respectfully submitted,

WILLIAM STRAZZA

Counsel of Record

Law OFFICE OF WILLIAM STRAZZA

Attorney for Petitioner

Union Professional Building

971 Stuyvesant Avenue, Suite 9

P.O. Box 3806

Union, New Jersey 07083-1891

(908) 688-8005