Kiely v. Heartland Rehab

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

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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

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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

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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.

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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

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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.