                                                                                                                           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Precedential or Non-Precedential: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.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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