       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2    Kiely v. Heartland                           No. 02-2054
   ELECTRONIC CITATION: 2004 FED App. 0060P (6th Cir.)        Rehabilitation Servs., et al.
               File Name: 04a0060p.06
                                                                             _________________
UNITED STATES COURT OF APPEALS                                                    COUNSEL
              FOR THE SIXTH CIRCUIT                      ARGUED: Charles M. Sirhal, Bloomfield Hills, Michigan,
                _________________                        for Appellant.       Susan Healy Zitterman, KITCH,
                                                         DRUTCHAS, WAGNER, DeNARDIS & VALITUTTI,
DANIEL P. KIELY,                 X                       Detroit, Michigan, for Appellee. ON BRIEF: Charles M.
          Plaintiff-Appellant,    -                      Sirhal, Bloomfield Hills, Michigan, for Appellant. Susan
                                  -                      Healy Zitterman, Karen B. Berkery, KITCH, DRUTCHAS,
                                  -  No. 02-2054         WAGNER, DeNARDIS & VALITUTTI, Detroit, Michigan,
           v.                     -                      for Appellee.
                                   >
                                  ,
HEARTLAND REHABILITATION -                                 NELSON, J., delivered the opinion of the court, in which
SERVICES, INC., and HEALTH                               ROGERS, J., joined. GILMAN, J. (pp. 10-11), delivered a
                                  -                      separate opinion concurring in part and dissenting in part.
CARE AND RETIREMENT               -
CORPORATION , d/b/a               -                                          _________________
GEORGIAN BLOOMFIELD,              -
      Defendants-Appellees. -                                                    OPINION
                                  -                                          _________________
                                 N
     Appeal from the United States District Court          DAVID A. NELSON, Circuit Judge. This is a disability
     for the Eastern District of Michigan at Flint.      discrimination case brought under Michigan law. The
    No. 01-40149—Paul V. Gadola, District Judge.         question we are asked to decide is whether, notwithstanding
                                                         the plaintiff’s attempt to reconcile what looked like
               Argued: February 5, 2004                  inconsistent positions, the fact that the plaintiff had signed a
                                                         social security disability application in which he swore that he
        Decided and Filed: February 26, 2004             was “disabled” and “unable to work” precluded him as a
                                                         matter of law from showing that he was capable of
  Before: NELSON, GILMAN, and ROGERS, Circuit            performing the essential functions of his job.
                    Judges.
                                                           We conclude that the statements made by the plaintiff in his
                                                         application for social security disability benefits were not
                                                         necessarily inconsistent with the claim that he could do his
                                                         job. We further conclude that the plaintiff proffered an
                                                         adequate explanation of the seeming inconsistency. The
                                                         district court having entered summary judgment for the

                           1
No. 02-2054                         Kiely v. Heartland      3    4    Kiely v. Heartland                          No. 02-2054
                            Rehabilitation Servs., et al.             Rehabilitation Servs., et al.

defendant on an estoppel theory with which we find ourselves        On July 10, 1998, Heartland terminated Mr. Kiely’s
unable to agree, under the circumstances presented here, we      employment.       Heartland’s human resources manager
shall vacate the judgment and remand the case for further        explained in a letter dated July 29, 1998, that the termination
proceedings.                                                     was prompted by “increasing concerns” about the safety of
                                                                 Kiely and his patients. In addition to mentioning the
                              I                                  incidents described in the co-worker’s memorandum, the
                                                                 letter alluded to an episode in which a wheelchair that Mr.
   The plaintiff, Daniel Kiely, suffers from severely impaired   Kiely was pushing became stuck at an elevator door. The
vision caused by a degenerative eye disease. The Social          letter also recounted efforts Heartland had made to
Security Administration determined in the late 1970s that Mr.    accommodate Kiely’s impairment, including a rearrangement
Kiely was legally blind, and he was awarded social security      of gym equipment and a reduction in Kiely’s bedside
disability insurance (“SSDI”) benefits on the strength of that   assignments. (The latter accommodation had been made at
determination. Mr. Kiely received SSDI benefits while            Mr. Kiely’s request.)
attending college and, to the extent permitted by law, while
working thereafter.                                                 After receiving unemployment compensation for about a
                                                                 year, Mr. Kiely applied for SSDI benefits. His application
   In April of 1995 Mr. Kiely was hired by defendant             stated that he “became unable to work because of [his]
Heartland Rehabilitation Services, Inc., as a physical therapy   disabling condition on July 7, 1998,” and said that he was
assistant. In that capacity he worked with patients in a         “still disabled.” Mr. Kiely began to receive SSDI benefits
gymnasium and in the patients’ rooms, helped patients to         (some of which were for the latter part of 1998) in 1999.
perambulate with walkers and other assistive devices, and
transported patients in wheelchairs.                               With the filing of a complaint in a Michigan state court on
                                                                 May 17, 2001, Mr. Kiely commenced an action against
   Mr. Kiely’s performance was evaluated in July of 1995 and     Heartland for disability discrimination under both the
in April of 1996, 1997, and 1998. He received overall ratings    Michigan Persons with Disabilities Civil Rights Act and Title
ranging from “average” (1995 and 1998) to “definitely above      VII of the U.S. Civil Rights Act of 1964. Heartland removed
average” (1997). None of his evaluations suggested that Mr.      the case to federal district court.
Kiely’s visual impairment prevented him from performing his
duties safely and effectively.                                      Following discovery, Heartland moved for summary
                                                                 judgment. The company maintained that Mr. Kiely could not
   In July of 1998 a co-worker expressed concern that Mr.        establish a prima facie case of discrimination under either
Kiely’s poor vision created a “potentially hazardous             Michigan law or Title VII. In the portion of its argument that
situation.” In a memorandum to Kiely’s superiors, the co-        is relevant here, Heartland submitted that by stating in his
worker said that Kiely had bumped into people and inanimate      SSDI application that he was “disabled,” Mr. Kiely had
objects, had failed to notice that beds were occupied, had not   estopped himself from contending that he was capable of
seen that a patient was wearing a gait belt, and had been        performing the essential functions of his job. In response to
oblivious to individuals handing him papers.                     this argument, Mr. Kiely pointed out that because his
                                                                 blindness was a “listed” condition under the Social Security
No. 02-2054                           Kiely v. Heartland         5    6    Kiely v. Heartland                           No. 02-2054
                              Rehabilitation Servs., et al.                Rehabilitation Servs., et al.

Act, it entitled him to SSDI benefits regardless of his actual        App. 1998), appeal denied, 603 N.W.2d 785 (Mich. 1999).
ability to do his job.                                                The Michigan courts recognize that the word “disabled,”
                                                                      when used in the social security context, does not necessarily
   The district court, as we have seen, granted Heartland’s           connote a literal inability to work. For one thing, the Social
motion for summary judgment. In so doing, the court held              Security Act’s definition of “disability” does not take into
first that Title VII does not prohibit discrimination on the          account the possibility of accommodation – thus, “a plaintiff
basis of disability. As to Mr. Kiely’s state-law claim, the           could be disabled under the SSA and still be qualified to
court held that Kiely had not adequately explained the                perform the duties of his job . . . with reasonable
apparent conflict between the representations in his SSDI             accommodation.” Id. at 339-40. For another thing, the social
application and his present claim. Mr. Kiely moved for                security regulations call for the awarding of SSDI benefits to
reconsideration and, when that motion was denied, filed this          any applicant who is not working and who has a “listed”
timely appeal.                                                        impairment (see 20 C.F.R. pt. 404, subpt. P, app.1), regardless
                                                                      of whether the applicant is actually able to work. See
                                II                                    Cleveland v. Policy Management Systems Corp., 526 U.S.
                                                                      795, 804 (1999). A declaration of disability in an SSDI
  Mr. Kiely has not appealed the summary judgment on his              benefits application is thus not always equivalent to a factual
Title VII claim. The sole issue before us, therefore, is              statement that the applicant cannot perform the essential
whether the statements in Kiely’s SSDI application barred             functions of his job. See id. at 802. On the contrary, such a
recovery on his Michigan disability discrimination claim as           declaration “often implies a context-related legal conclusion,
a matter of law. Our standard of review is de novo. See, e.g.,        namely, ‘I am disabled for purposes of the Social Security
Fox v. Van Oosterum, 176 F.3d 342, 347 (6th Cir. 1999).               Act.’” Id.
  To prevail on an employment discrimination claim under                 At least as often, of course, the term “disabled” is used in
the Michigan Persons with Disabilities Civil Rights Act,              SSDI applications in a literal sense. Accordingly, a plaintiff
Mich. Comp. Laws §§ 37.1101 et seq., a “plaintiff must show           alleging disability discrimination “cannot simply ignore the
(1) that he is [disabled] as defined in the act, (2) that the         apparent contradiction that arises out of” an earlier claim that
[disability] is unrelated to his ability to perform his job duties,   he is disabled. Id. at 806. Applying Cleveland – an
and (3) that he has been discriminated against in one of the          Americans with Disabilities Act case – to cases brought under
ways delineated in the statute.” Chmielewski v. Xermac, Inc.,         Michigan law, the Michigan Court of Appeals has held that
580 N.W.2d 817, 821 (Mich. 1998). Mr. Kiely cannot prevail            the plaintiff must offer a plausible explanation of the seeming
on his state-law claim, accordingly, if his blindness rendered        contradiction. See, e.g., Kerns v. Dura Mechanical
him unable to perform the duties of a physical therapy                Components, Inc., 618 N.W.2d 56, 59-60 (Mich. App. 2000),
assistant.                                                            appeal denied, 624 N.W.2d 187 (Mich. 2001). “To defeat
                                                                      summary judgment, that explanation must be sufficient to
  Under Michigan law, declarations of disability in an SSDI           warrant a reasonable juror’s concluding that, assuming the
application do not necessarily bar a plaintiff from proving a         truth of, or the plaintiff’s good faith belief in, the earlier
claim of disability discrimination. See, e.g., Tranker v.             statement, the plaintiff could nonetheless ‘perform the
Figgie International, Inc., 585 N.W.2d 337, 339-40 (Mich.             essential functions’ of her job, with or without ‘reasonable
No. 02-2054                         Kiely v. Heartland           7   8      Kiely v. Heartland                          No. 02-2054
                            Rehabilitation Servs., et al.                   Rehabilitation Servs., et al.

accommodation.’” Cleveland, 526 U.S. at 807, as quoted in               It seems to us that a reasonable juror could accept Mr.
Kerns, 618 N.W.2d at 59.                                             Kiely’s explanation. That is, a reasonable juror could
                                                                     conclude that when Kiely stated in his application that he was
  In our judgment, the explanation offered by Mr. Kiely was          “disabled” and “unable to work,” he meant only “I am entitled
sufficient to get him past the estoppel hurdle. In his               to SSDI benefits.” As we have previously recognized, such
memorandum opposing Heartland’s motion for summary                   statements in an application for SSDI benefits are “open to
judgment, Kiely argued that                                          interpretation”:
  “[t]here is no conflict or misrepresentation on Plaintiff’s            “In determining precisely what the plaintiff ‘admitted’ in
  part for the purpose of reinstating his statutory                      the application, one must consider the context in which
  entitlement to Social Security benefits, based upon his                the statements were made. Portions of the [SSDI]
  prior determination as being statutorily blind by the SSA,             application and other forms require the applicant merely
  and, at the same time, being fully competent to return to              to check off boxes without comment, or require the
  the position of a PTA . . . .”                                         applicant to fill in blanks with little room given for
                                                                         elaboration. In short, the employee may not have a fair
He then cited a Seventh Circuit case, Overton v. Reilly, 977             opportunity to accurately explain the details of the
F.2d 1190, 1196 (7th Cir. 1992), where that court held that “a           employee’s medical condition and his ability or inability
finding of disability” under the Social Security Act “is                 to work for purposes of [disability discrimination laws].”
consistent with a claim that the disabled person is ‘qualified’          Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 382 (6th
to do his job.” Mr. Kiely emphasized the following language              Cir. 1998), cert. denied, 526 U.S. 1144 (1999).
from Overton:
                                                                       The record of the case at bar does not disclose whether the
  “First, the [Social Security Administration] may award             application forms completed by Mr. Kiely afforded him a
  disability benefits on a finding that the claimant meets           “fair opportunity” to specify that a listed impairment, rather
  the criteria for a listed disability, without inquiring into       than an actual inability to work, made him eligible for
  his ability to find work within the economy. . . . As it           benefits. A reasonable juror could easily find, however, that
  turns out, the [Social Security Administration] granted            his legal blindness was the basis on which Mr. Kiely expected
  benefits to the plaintiff on this basis.” 977 F.2d at 1196.        to receive benefits. He had received benefits because of
                                                                     blindness in the past, and, given the degenerative nature of his
  It is true that Overton deals with the effect of an                disease, he had every reason to believe he was eligible to
administrative determination of disability rather than the           receive benefits on that basis again. Mr. Kiely thus had no
effect of statements made by the applicant. But the thrust of        need to claim that he was actually unable to work. Indeed, he
Mr. Kiely’s explanation is reasonably clear: he applied for          testified under oath that he had not intended such a claim;
SSDI benefits on the basis of his legal blindness – a listed         when asked at his deposition whether he had applied for
impairment – and not on the basis of an inability to work. For       benefits “claiming to be totally disabled,” Kiely responded,
that reason, he suggested, the statements made in his SSDI           “No, blind.” We think that a reasonable juror could accept
application were not inconsistent with his claim that he could       this interpretation of the SSDI application.
perform the duties of his job.
No. 02-2054                         Kiely v. Heartland       9    10   Kiely v. Heartland                           No. 02-2054
                            Rehabilitation Servs., et al.              Rehabilitation Servs., et al.

  Because the declarations of disability in Mr. Kiely’s SSDI       _____________________________________________
application can be interpreted as “context-related legal
conclusion[s]” rather than “purely factual statement[s]”           CONCURRING IN PART, DISSENTING IN PART
regarding inability to work, Cleveland, 526 U.S. at 802, the       _____________________________________________
declarations do not preclude a finding that Kiely can perform
the essential functions of his job. The district court erred in      RONALD LEE GILMAN, Circuit Judge, concurring in part
holding to the contrary.                                          and dissenting in part. I fully concur in the majority’s
                                                                  conclusion that Daniel P. Kiely is not estopped by his
                              III                                 allegedly inconsistent positions from pursuing his disability-
                                                                  discrimination claim. But I disagree with the majority’s
  Heartland urges us to affirm the judgment on the alternative    decision not to undertake an evaluation of the record to
ground that Mr. Kiely is, in point of fact, unable to perform     determine whether this case presents a genuine issue of
the essential functions of his job safely. This we decline to     material fact regarding Kiely’s ability to safely perform the
do. The district court did not evaluate the record as a whole     essential functions of his job.
to determine whether it presents genuine issues of material
fact with respect to the underlying merits of Mr. Kiely’s            Based upon the record before us, I am convinced that we
claim. Although we could undertake such an evaluation             would have vacated the grant of summary judgment even if
ourselves, it seems to us preferable to give the district court   the district court had ruled against Kiely on the merits.
an opportunity, if asked, to do so in the first instance.         Heartland, after all, was aware of Kiely’s statutory blindness
                                                                  at the time of his hire and considered him qualified.
  The order granting Heartland’s motion for summary               Furthermore, the four formal evaluations of Kiely’s job
judgment is VACATED, and the case is REMANDED for                 performance covering the duration of his employment at
further proceedings not inconsistent with this opinion.           Heartland rated him as either “average” or “definitely above
                                                                  average.” Finally, Kiely testified in his deposition that he had
                                                                  no difficulty transporting patients within the facility, that he
                                                                  was able to treat patients in their rooms, that he had no
                                                                  trouble negotiating hallways, and that he would not need any
                                                                  additional accommodations if he were to be reinstated at
                                                                  Heartland. This evidence seems more than sufficient to create
                                                                  a genuine issue of material fact. See Griffith v. Wal-Mart
                                                                  Stores, Inc., 135 F.3d 376, 383-84 (6th Cir. 1998) (holding
                                                                  that a genuine issue of material fact was created by the
                                                                  plaintiff’s “proof that he had performed the sales associate job
                                                                  for approximately two years and had received favorable
                                                                  evaluations”).
                                                                    Permitting the district court to entertain a second motion for
                                                                  summary judgment under these circumstances will serve only
No. 02-2054                          Kiely v. Heartland       11
                             Rehabilitation Servs., et al.

to delay the trial that this case ultimately merits. See Salazar-
Paucar v. I.N.S., 281 F.3d 1069, 1076 (9th Cir. 2002) (“[W]e
generally do not remand when on the record before us, it is
clear that we would be compelled to reverse [the BIA’s]
decision if it had decided the matter against the applicant.”)
(quotation marks omitted). So although I would normally
agree with the majority’s proposition that we should give the
district court the first crack at evaluating the underlying
merits of a claim, I believe that to do so here would be
counterproductive in light of a record clearly showing that a
genuine issue of material fact exists regarding Kiely’s ability
to safely perform the essential functions of his job.
 I would therefore vacate the order granting Heatland’s
motion for summary judgment and remand for a trial on the
merits.
