KERNS v. DURA MECHANICAL COMPONENTS, INC (ON REMAND), 242 Mich. App. 1

Griffin, P.J. This case is on remand to us from the Michigan Supreme Court, 461 Mich 905 (1999), for reconsideration in light of Tranker v Figgie Int'l, Inc (On Remand), 231 Mich App 115; 585 NW2d 337 (1998) (Tranker II), and Cleveland v Policy Management Systems Corp, 526 US 795; 119 S Ct 1597; 143 L Ed 2d 966 (1999).

We affirm. i Plaintiff Robert Kerns brought an action in the Antrim Circuit Court against defendant Dura Mechanical Components, Inc., alleging defendant violated an employment contract, the Michigan Handicappers’ Civil Rights Act (HCRA) (now known as the Persons with Disabilities Civil Rights Act), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., when it terminated his employment.

In our previous opinion in this matter, Kerns v Dura Mechanical Compo nents, Inc, unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), we affirmed the trial court’s order granting defendant’s motion for

summary disposition with regard to plaintiff’s wrongful discharge, handicapper discrimination, and age discrimination claims. In affirming dismissal of the latter two claims, we relied on the doctrine of judicial estoppel espoused in Tranker v Figgie Int'l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), nullified 456 Mich 931 (1998) (Tranker I), holding plaintiff’s successful representations to the Social Security Administration that he was totally and permanently disabled precluded his claims in the present lawsuit under the HCRA and the Civil Rights Act.

After our previous decision, our Supreme Court remanded Tranker I to this Court for reconsideration in light of several federal circuit court decisions that allowed claims under the Americans with Disabilities Act (ADA) even though the plaintiffs therein had previously represented a total disability to the Social Security Administration. 456 Mich 934 (1998).

On remand, Tranker II, supra at 121-123, our Court vacated its prior ruling that judicial estoppel automatically bars a subsequent handicap discrimination claim, holding in pertinent part: In our previous opinion we . . . held that the doctrine of judicial estoppel barred plaintiff’s handicap discrimination claim. However, upon further review, we now disavow that position. Like the ADA, the . . . HCRA . . . prohibits discrimination, including in hiring, firing, and advancement. MCL 37.1202; MSA 3.550(202).

After its 1990 amendments, it also requires that reasonable accommodations be made to assist the handicapped in performing duties of their employment. . . . [T]he receipt of social security disability benefits should not bar a subsequent claim under the hcra for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical.

Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job under any circumstance. . . . The SSA does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the SSA and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the HCRA. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. . . .

We note that although we have determined that judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim. “The conclusion we reach today does not mean that claimants’ statements in support of disability claims are never relevant in ADA suits.

For example, ADA plaintiffs who in support of claims for disability benefits tell the Social Security Administration they cannot perform the essential functions of a job even with accommodation could well be barred from asserting, for ADA purposes, that accommodation would have allowed them to perform that same job.” [Swanks (v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 [1997]), supra at 243.] More recently, in Cleveland v Policy Management Systems Corp, supra, the United States Supreme Court held the pursuit and receipt of social security disability insurance benefits neither automatically estops the recipient from pursuing an ADA claim nor erects a strong presumption against the recipient’s success under the ADA.

However, the Cleveland Court, supra at 806-807, further held that to survive a defendant’s motion for

summary disposition, [a]n ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier ssdi total disability claim. Rather, she must proffer a sufficient explanation. . . . . . . When faced with a plaintiff’s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ada claim. To defeat

summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” The Cleveland Court, supra at 807, found that, under the particular circumstances of that case, the plaintiff had advanced a sufficient explanation for her contradictory representations to warrant remanding the case to the trial court for further proceedings on the issue: In her brief to this Court, Cleveland explains the discrepancy between her SSDI statements that she was “totally disabled” and her ADA claim that she could “perform the essential functions” of her job.

The first statements, she says, “were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Brief for Petitioner 43. Moreover, she claims the ssdi statements were “accurate statements” if examined “in the time period in which they were made.” Ibid. The parties should have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Thus, pursuant to Tranker II and Cleveland, judicial estoppel no longer automatically precludes plaintiffs discrimination claims asserted in this case.

Moreover, as this Court has already acknowledged in Hall v McRea Corp, 238 Mich App 361, 369; 605 NW2d 354 (1999), “[t]he Cleveland requirement of an explanation from the plaintiff is fully consistent with this Court’s holding in Tranker II.” In some cases, a remand to the trial court to afford plaintiff the opportunity to reconcile his representation of total disability (for social security purposes) with his hcra and Civil Rights Act discrimination claims would be the appropriate remedy.

However, we conclude neither Tranker II nor Cleveland mandates a remand for further explanation in every instance in which inconsistent claims regarding disability have been alleged. As two post-Cleveland federal decisions have expressly recognized,

summary disposition based on estoppel, without the necessity for remand, is warranted under certain circumstances. As explained in Motley v New Jersey State Police, 196 F3d 160, 164, 167 (CA 3, 1999): The Supreme Court [in Cleveland] acknowledged, as do we, that a statement of total disability when applying for disability benefits may be a “context-related legal conclusion, namely, T am disabled for purposes of the [disability act].’ ” Id. [Cleveland] at [119 S Ct] 1601. . . . The Court also acknowledged that certain statements made during disability hearings may lead to generally applicable factual conclusions.

Where factual inconsistencies between claims exist, as opposed to context-specific legal conclusions, the Court held that the law remains “where [it] found it.” See Cleveland, 119 S Ct at 1601-02 .... * -i= * As the Supreme Court made clear in Cleveland, 119 S Ct at 1603-04, the mere fact that the statutory standards differ in some aspects does not mean that a prior assertion of permanent and total disability can never preclude a party from bringing a claim under the ADA.

Cleveland holds simply that where context-related legal conclusions are involved, courts must not apply presumptions automatically without first considering whether the ADA plaintiff can reconcile the two apparently inconsistent statutory claims.

There may be cases where, looking at the previous facts and statements by a party, the assertions are such that the party cannot prove that he was a qualified individual because his previous statements take the position that he could not perform the essential functions of the job, with or without accommodation. [Emphasis added.] On the basis of the existing record before it, the Motley Court, supra at 166-167, concluded that the plaintiff would not be able to satisfactorily reconcile the factual inconsistencies between his pension disability and ADA claims and, therefore, a remand was not required pursuant to Cleveland: [S]imply averring that the statutory schemes differ is not enough to survive

summary judgment in light of Cleveland. An ADA plaintiff must offer a more substantial explanation to explain the divergent positions taken, or else

summary judgment could never be granted. Motley has failed to bring additional reasons for his conflicting answers to our attention. If anything, looking to the different statutory schemes in this particular case convinces us that Motley’s claims are, in fact, unreconcilable. * * * Motley, relying on several specific and severe physical injuries, asserted that he was “permanently and totally disabled.” This was not a mere blanket statement of complete disability checked on a box in order to obtain pension benefits.

Rather, the assertion was supported by Motley’s additional statements concerning the type and extent of his injuries. Furthermore, the medical board diagnosis, uncontested by Motley, also concluded that Motley was permanently incapacitated for police officer duties. On their face, these assertions are patently inconsistent with his present claims that he was a “qualified individual” under the ADA. Motley asserted that he was totally disabled so that he could receive special retirement benefits. After his retirement, he brought this claim, which necessarily relies on the fact that he was not totally disabled.

Examining all the facts, we cannot say that the District Court erred when it concluded that the ada case brought by Motley was inconsistent with his earlier statements regarding his disability. Thus, under Cleveland, the entry of

summary judgment against Motley was proper. Likewise, in Mitchell v Washingtonville Central School Dist, 190 F3d 1 (CA 2, 1999), the United States Court of Appeals concluded that

summary judgment was appropriate, and a remand for further proceedings was not warranted.

The Mitchell Court held that the plaintiff custodian’s previous assertions that he could no longer walk or stand (made as part of his successful worker’s compensation and social security disability compensation claims) were purely factual conclusions (not “context-related legal conclusion[s],” Cleveland, supra at 802) that prevented the plaintiff from asserting a contrary factual position in his ADA claim: Mitchell [plaintiff] argues that ... in its application of judicial estoppel the district court effectively imposed a per se rule preventing an SSDI recipient who claims an inability to work from later asserting under the ada that he or she is able to work.

We disagree. The district court did not hold that Mitchell was estopped from arguing that he was able to work with a reasonable accommodation once he asserted, for purposes of obtaining workers’ compensation and social security benefits, that he was too disabled to work. On the contrary, the lower court specifically declined to apply any such categorical rule and held Mitchell was estopped from asserting, as a factual matter, that he was capable of performing work in other than a sedentary position. Such an application of judicial estoppel is consistent with Cleveland.

The Supreme Court emphasized that the case before it did not “involve directly conflicting statements about purely factual matters, such as ... T can/cannot raise my arm above my head[,]’ ” and indeed that the decision “leaves the law related to . . . purely factual. . conflict[s] where [the Court] found it.” Cleveland, [526] US at [802]; 119 S Ct at 1601-02. Therefore, if the requirements for judicial estoppel are otherwise met, Mitchell may be prevented from claiming, as a factual matter, that he could stand and walk at work on the basis of prior factual assertions to the contrary.

Turning to those requirements, we conclude that the district court correctly held that Mitchell was estopped from asserting in the present action that he was capable of performing work that required him to stand or walk. . . .

Mitchell’s prior statements, made in 1994, 1995 and 1996 to the Workers’ Compensation Board and the Social Security Administration, that he was incapable of standing for any length of time or of walking and that he required work he could perform seated, clearly contradict Mitchell’s position in this litigation that as of late 1994 he was able to stand and walk for a substantial portion of the work day. . . .

Since Mitchell’s earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position. * * :|: We also agree with the district court that, once estopped from arguing he could walk and stand and therefore bound to the assertion that he could only do sedentary work, Mitchell could not show that he could perform the essential functions of Head Custodian with a reasonable accommodation.

He therefore failed to make out a [prima facie] claim [of discrimination] under the ada. [Mitchell, supra at 7-8.] n The instant case bears a close resemblance to the facts of both Motley and Mitchell. Indeed, we conclude the present matter is one of those 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.” Motley, supra at 167.

Thus, we reaffirm our prior conclusion that the trial court did not err in granting defendant’s motion for

summary disposition with respect to plaintiff’s handicapper and age discrimination claims. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The prima facie case elements and burden-shifting analyses applicable to hcra and Civil Rights Act claims are similar. Hall, supra at 371. To establish a prima facie case of discrimination under the hcra, a plaintiff must establish (1) he has a “handicap” as defined by the HCRA, (2) the handicap is unrelated to his ability to perform the duties of a particular job, and (3) he was discriminated against in one of the ways described in the statute.

Rollert v Dep’t of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998). In an employment discrimination case alleging discrimination based on older age, the plaintiff must present a prima facie case demonstrating (1) membership in a protected class, (2) discharge from employment, (3) that the plaintiff was qualified for the position, and (4) that he was replaced by a younger person. Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998); Hall, supra at 370-371; Featherly v Teledyne Industries, Inc, 194 Mich App 352, 358; 486 NW2d 361 (1992).

The plaintiff must prove the elements by a preponderance of the evidence; once that has been accomplished, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the discharge. Hall, supra at 370.

In the instant case, plaintiffs first application for social security disability benefits described his injuries as being to his “knees, shoulders, carpal tunnel, [and] back.” After his initial claim for benefits was denied, plaintiff submitted a signed request for reconsideration, asserting that as of the date of his termination, he became unable to work because of a disability.

In the request for reconsideration, plaintiff specifically and unequivocally represented his physical condition had changed and in effect deteriorated because medication is no longer effective due to my inability to use because of gastro-intestinal problems. Pain in knees and neck getting worse.

Unable to walk on hard surface at all. * * * Very limited ability to walk and sleep at night due to pain in neck and knees. [Emphasis added.] Significantly, these representations were made in the context of plaintiffs own description, set forth in the request for reconsideration, of his job at Dura: The job of industrial relations manager is not possible to perform unless the person doing the work can stand and walk for long periods of time, i.e. 5 to 9 horns each day. . . .

On the basis of these assertions by plaintiff, the hearing referee found plaintiff to be totally disabled and entitled to social security disability benefits: The claimant was 62 years old on the date on which disability has been alleged. He has a master’s degree in business administration. The claimant has not engaged in any substantial gainful activity since the alleged onset.

He has the following impairments which are considered to be “severe” under the Social Security Act and Regulations: degenerative arthritis of the left knee, cervical radiculopathy, bilateral ankylosis of the shoulders, and bilateral carpal tunnel syndrome. These impairments prevent the claimant from lifting more than ten pounds at a time, engaging in prolonged standing and walking, performing overhead work, and repetitively using the upper extremities. * * .1= The claimant’s descriptions of his symptoms and limitations are consistent with the record when the record is considered in its entirety.

Based upon the residual functional capacity findings of this decision, it is found the claimant cannot perform his past relevant light work as an industrial relations manager. The vocational expert at the hearing testified that although the claimant had acquired skills in his past relevant work, there would be significant vocational adjustment required in terms of work settings, people, and processes in transferring his skills to sedentary work. . . .

Pursuant to Tranker II and Cleveland, supra, plaintiff is certainly not automatically judicially estopped from asserting in the present case that he was able to work with or without reasonable accommodation once he represented, for social security purposes, that he was totally disabled.

Indeed, in conjunction with the present lawsuit, plaintiff has stated that at the hearing on his application for social security disability benefits he specifically testified he “could still perform the duties of his job at Dura Mechanical Components, Inc., had I not been involuntarily terminated” and he “was capable of performing the same work that he had performed at Dura before my involuntary termination of October 27, 1992.” Plaintiff has also submitted the affidavit of Roy Welton, a vocational rehabilitation specialist.

After reviewing the social security disability decision rendered in favor of plaintiff, Mr. Welton opined in pertinent part that although plaintiff was technically “disabled” for social security purposes, he could have continued working for defendant with his handicap because his receipt of benefits was premised in part on his advanced age rather than a total inability to work.

Significantly, these averments are dependent on plaintiffs further contention that the “reasonable accommodation” afforded by the hcra, see, generally, Carr v General Motors Corp, 425 Mich 313; 389 NW2d 686 (1986), amended in part on rehearing 426 Mich 1231 (1986), was in fact necessary and required defendant to allow him a “short medical leave” for knee surgery, postoperative convalescence, and physical rehabilitation; alternatively, plaintiff argues that defendant could have accommodated plaintiffs handicap by allowing him to limit the required walking.

We conclude, however, that plaintiffs proffered evidence does not generate a factual dispute sufficient to warrant remand or withstand

summary disposition. This case, unlike Cleveland, does not merely involve divergent context-related legal conclusions, but rather sets forth irreconcilable factual inconsistencies analogous to those in Motley and Mitchell. Given plaintiffs earlier successful assertions at the social security disability hearing that, he was “unable to walk on a hard surface at all,” and he had a “very limited ability to walk,” plaintiff is estopped in the present litigation from asserting, as a purely factual matter, that he could stand and walk in a prolonged fashion at work. Mitchell, supra; Motley, supra.

See also Mitan v Neiman Marcus, 240 Mich App 679; 613 NW2d 415 (2000); Palazzola v Karmazin Products Corp, 223 Mich App 141, 155; 565 NW2d 868 (1997); Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256-257, 257; 503 NW2d 728 (1993) (“parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition”).

By plaintiffs own admission, the job of industrial relations manager “is not possible to perform unless the person doing the work can stand and walk for long periods of time.” Once estopped in the present action from representing that he could walk or stand for prolonged periods and thus conversely bound by the conclusion that he could only perform sedentary work, plaintiff remains unable to demonstrate (even drawing all factual inferences in his favor for purposes of

summary disposition, Quinto, supra) that he could perform the essential functions of his job with a reasonable accommodation. An employer’s duty to make “reasonable accommodation” under the hcra does not extend to granting the plaintiff a medical leave until such time as he would be able to perform the requirements of his job. Lamoria v Health Care & Retirement Corp, 233 Mich App 560, 562; 593 NW2d 699 (1999); Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 745; 440 NW2d 101 (1989); Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 643-644; 413 NW2d 79 (1987).

An employer likewise has no duty to accommodate the plaintiff by recreating the position, adjusting or modifying job duties otherwise required by the job description, or placing the plaintiff in another position. Carr, supra at 320-323; Tranker II, supra at 124; 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). Consequently, defendant was not required to accommodate plaintiff in the manner he has suggested.

In light of these circumstances, plaintiff cannot successfully advance an explanation that is “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 [his] job, with or without ‘reasonable accommodation.’ ” Cleveland, supra at 807.

Because a successful claim under the HCRA requires a finding that plaintiff is physically limited in a way unrelated to his ability to work, Tranker II, supra at 125, and the facts unequivocally demonstrate plaintiff could not perform the acts required for the industrial relations manager position, plaintiff has failed to make out a prima facie case under the HCRA.

Summary disposition in favor of defendant was therefore properly granted by the trial court. The rationale of Tranker II and Cleveland applies with equal force to plaintiff’s age discrimination claim. As previously noted, plaintiff must present evidence that he was “qualified” for the position sought. Lytle, supra; Featherly, supra. On the basis of our reasoning set forth above, plaintiff is unable to offer such proofs and therefore cannot make out a prima facie case of age discrimination under the Civil Rights Act.

Summary disposition in favor of defendant on this claim as well was therefore properly granted by the trial court. Affirmed. Gribbs, J., concurred. Plaintiff’s wrongful discharge claim is not the subject of review on remand and therefore our prior decision affirming

summary disposition stands unaltered in this regard. 42 USC 12101 et seq. As the Mitchell court explained, supra at 4: In April 1994, Mitchell . . . applied for Social Security disability benefits.

In July 1994, after his claim was initially denied, he filed a request for reconsideration, asserting: “I am totally disabled and unable to engage in any type of gainful employment due to being on my feet for long periods of time which resulted in a cyst.” Again, the claim was denied and Mitchell appealed once more, this time stating in his written request for a hearing: “I am totally disabled and unable to engage in gainful employment due to being an amputee, my right leg from the knee down.

This disability enables me [sic] from any type of prolonged standing or ambulation.” At a hearing on the matter in July 1995 ... in response to the question, “Why can’t you work now?”, Mitchell testified, “I’m not sure I can get anything where I could just sit for the entire time I’d be working.” Mitchell further testified that he could stand for only five minutes at a time and that he could not carry any weight.

Finally, Mitchell stated that he was in constant pain when he wore his prosthesis. “Disability” is defined under the Social Security Act as the “ ‘inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.’ ” See Tranker I, supra at 12, quoting 42 USC 423(d)(1)(A).