Daniel P. Kiely v. Heartland Rehabilitation Services, Inc.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0060P (6th Cir.)
File Name: 04a0060p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DANIEL P. KIELY,
Plaintiff-Appellant,
v.
HEARTLAND REHABILITATION
SERVICES, INC., and HEALTH
CARE AND RETIREMENT
CORPORATION, d/b/a
GEORGIAN BLOOMFIELD,
Defendants-Appellees.
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No. 02-2054
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 01-40149—Paul V. Gadola, District Judge.
Argued: February 5, 2004
Decided and Filed: February 26, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
2 Kiely v. Heartland
Rehabilitation Servs., et al.
No. 02-2054
_________________
COUNSEL
ARGUED: Charles M. Sirhal, Bloomfield Hills, Michigan,
for Appellant. Susan Healy Zitterman, KITCH,
DRUTCHAS, WAGNER, DeNARDIS & VALITUTTI,
Detroit, Michigan, for Appellee. ON BRIEF: Charles M.
Sirhal, Bloomfield Hills, Michigan, for Appellant. Susan
Healy Zitterman, Karen B. Berkery, KITCH, DRUTCHAS,
WAGNER, DeNARDIS & VALITUTTI, Detroit, Michigan,
for Appellee.
NELSON, J., delivered the opinion of the court, in which
ROGERS, J., joined. GILMAN, J. (pp. 10-11), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. This is a disability
discrimination case brought under Michigan law. The
question we are asked to decide is whether, notwithstanding
the plaintiff’s attempt to reconcile what looked like
inconsistent positions, the fact that the plaintiff had signed a
social security disability application in which he swore that he
was “disabled” and “unable to work” precluded him as a
matter of law from showing that he was capable of
performing the essential functions of his job.
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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No. 02-2054 Kiely v. Heartland
Rehabilitation Servs., et al.
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defendant on an estoppel theory with which we find ourselves
unable to agree, under the circumstances presented here, we
shall vacate the judgment and remand the case for further
proceedings.
I
The plaintiff, Daniel Kiely, suffers from severely impaired
vision caused by a degenerative eye disease. The Social
Security Administration determined in the late 1970s that Mr.
Kiely was legally blind, and he was awarded social security
disability insurance (“SSDI”) benefits on the strength of that
determination. Mr. Kiely received SSDI benefits while
attending college and, to the extent permitted by law, while
working thereafter.
In April of 1995 Mr. Kiely was hired by defendant
Heartland Rehabilitation Services, Inc., as a physical therapy
assistant. In that capacity he worked with patients in a
gymnasium and in the patients’ rooms, helped patients to
perambulate with walkers and other assistive devices, and
transported patients in wheelchairs.
Mr. Kiely’s performance was evaluated in July of 1995 and
in April of 1996, 1997, and 1998. He received overall ratings
ranging from “average” (1995 and 1998) to “definitely above
average” (1997). None of his evaluations suggested that Mr.
Kiely’s visual impairment prevented him from performing his
duties safely and effectively.
In July of 1998 a co-worker expressed concern that Mr.
Kiely’s poor vision created a “potentially hazardous
situation.” In a memorandum to Kiely’s superiors, the co-
worker said that Kiely had bumped into people and inanimate
objects, had failed to notice that beds were occupied, had not
seen that a patient was wearing a gait belt, and had been
oblivious to individuals handing him papers.
4 Kiely v. Heartland
Rehabilitation Servs., et al.
No. 02-2054
On July 10, 1998, Heartland terminated Mr. Kiely’s
employment. Heartland’s human resources manager
explained in a letter dated July 29, 1998, that the termination
was prompted by “increasing concerns” about the safety of
Kiely and his patients. In addition to mentioning the
incidents described in the co-worker’s memorandum, the
letter alluded to an episode in which a wheelchair that Mr.
Kiely was pushing became stuck at an elevator door. The
letter also recounted efforts Heartland had made to
accommodate Kiely’s impairment, including a rearrangement
of gym equipment and a reduction in Kiely’s bedside
assignments. (The latter accommodation had been made at
Mr. Kiely’s request.)
After receiving unemployment compensation for about a
year, Mr. Kiely applied for SSDI benefits. His application
stated that he “became unable to work because of [his]
disabling condition on July 7, 1998,” and said that he was
“still disabled.” Mr. Kiely began to receive SSDI benefits
(some of which were for the latter part of 1998) in 1999.
With the filing of a complaint in a Michigan state court on
May 17, 2001, Mr. Kiely commenced an action against
Heartland for disability discrimination under both the
Michigan Persons with Disabilities Civil Rights Act and Title
VII of the U.S. Civil Rights Act of 1964. Heartland removed
the case to federal district court.
Following discovery, Heartland moved for summary
judgment. The company maintained that Mr. Kiely could not
establish a prima facie case of discrimination under either
Michigan law or Title VII. In the portion of its argument that
is relevant here, Heartland submitted that by stating in his
SSDI application that he was “disabled,” Mr. Kiely had
estopped himself from contending that he was capable of
performing the essential functions of his job. In response to
this argument, Mr. Kiely pointed out that because his
blindness was a “listed” condition under the Social Security

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No. 02-2054 Kiely v. Heartland
Rehabilitation Servs., et al.
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Act, it entitled him to SSDI benefits regardless of his actual
ability to do his job.
The district court, as we have seen, granted Heartland’s
motion for summary judgment. In so doing, the court held
first that Title VII does not prohibit discrimination on the
basis of disability. As to Mr. Kiely’s state-law claim, the
court held that Kiely had not adequately explained the
apparent conflict between the representations in his SSDI
application and his present claim. Mr. Kiely moved for
reconsideration and, when that motion was denied, filed this
timely appeal.
II
Mr. Kiely has not appealed the summary judgment on his
Title VII claim. The sole issue before us, therefore, is
whether the statements in Kiely’s SSDI application barred
recovery on his Michigan disability discrimination claim as
a matter of law. Our standard of review is de novo. See, e.g.,
Fox v. Van Oosterum, 176 F.3d 342, 347 (6th Cir. 1999).
To prevail on an employment discrimination claim under
the Michigan Persons with Disabilities Civil Rights Act,
Mich. Comp. Laws §§ 37.1101 et seq., a “plaintiff must show
(1) that he is [disabled] as defined in the act, (2) that the
[disability] is unrelated to his ability to perform his job duties,
and (3) that he has been discriminated against in one of the
ways delineated in the statute.” Chmielewski v. Xermac, Inc.,
580 N.W.2d 817, 821 (Mich. 1998). Mr. Kiely cannot prevail
on his state-law claim, accordingly, if his blindness rendered
him unable to perform the duties of a physical therapy
assistant.
Under Michigan law, declarations of disability in an SSDI
application do not necessarily bar a plaintiff from proving a
claim of disability discrimination. See, e.g., Tranker v.
Figgie International, Inc., 585 N.W.2d 337, 339-40 (Mich.
6 Kiely v. Heartland
Rehabilitation Servs., et al.
No. 02-2054
App. 1998), appeal denied, 603 N.W.2d 785 (Mich. 1999).
The Michigan courts recognize that the word “disabled,”
when used in the social security context, does not necessarily
connote a literal inability to work. For one thing, the Social
Security Act’s definition of “disability” does not take into
account the possibility of accommodation – thus, “a plaintiff
could be disabled under the SSA and still be qualified to
perform the duties of his job . . . with reasonable
accommodation.” Id. at 339-40. For another thing, the social
security regulations call for the awarding of SSDI benefits to
any applicant who is not working and who has a “listed”
impairment (see 20 C.F.R. pt. 404, subpt. P, app.1), regardless
of whether the applicant is actually able to work. See
Cleveland v. Policy Management Systems Corp., 526 U.S.
795, 804 (1999). A declaration of disability in an SSDI
benefits application is thus not always equivalent to a factual
statement that the applicant cannot perform the essential
functions of his job. See id. at 802. On the contrary, such a
declaration “often implies a context-related legal conclusion,
namely, ‘I am disabled for purposes of the Social Security
Act.’” Id.
At least as often, of course, the term “disabled” is used in
SSDI applications in a literal sense. Accordingly, a plaintiff
alleging disability discrimination “cannot simply ignore the
apparent contradiction that arises out of” an earlier claim that
he is disabled. Id. at 806. Applying Cleveland – an
Americans with Disabilities Act case – to cases brought under
Michigan law, the Michigan Court of Appeals has held that
the plaintiff must offer a plausible explanation of the seeming
contradiction. See, e.g., Kerns v. Dura Mechanical
Components, Inc., 618 N.W.2d 56, 59-60 (Mich. App. 2000),
appeal denied, 624 N.W.2d 187 (Mich. 2001). “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

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

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No. 02-2054 Kiely v. Heartland
Rehabilitation Servs., et al.
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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]”
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
holding to the contrary.
III
Heartland urges us to affirm the judgment on the alternative
ground that Mr. Kiely is, in point of fact, unable to perform
the essential functions of his job safely. This we decline to
do. The district court did not evaluate the record as a whole
to determine whether it presents genuine issues of material
fact with respect to the underlying merits of Mr. Kiely’s
claim. Although we could undertake such an evaluation
ourselves, it seems to us preferable to give the district court
an opportunity, if asked, to do so in the first instance.
The order granting Heartland’s motion for summary
judgment is VACATED, and the case is REMANDED for
further proceedings not inconsistent with this opinion.
10 Kiely v. Heartland
Rehabilitation Servs., et al.
No. 02-2054
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
RONALD LEE GILMAN, Circuit Judge, concurring in part
and dissenting in part. I fully concur in the majority’s
conclusion that Daniel P. Kiely is not estopped by his
allegedly inconsistent positions from pursuing his disability-
discrimination claim. But I disagree with the majority’s
decision not to undertake an evaluation of the record to
determine whether this case presents a genuine issue of
material fact regarding Kiely’s ability to safely perform the
essential functions of his job.
Based upon the record before us, I am convinced that we
would have vacated the grant of summary judgment even if
the district court had ruled against Kiely on the merits.
Heartland, after all, was aware of Kiely’s statutory blindness
at the time of his hire and considered him qualified.
Furthermore, the four formal evaluations of Kiely’s job
performance covering the duration of his employment at
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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No. 02-2054 Kiely v. Heartland
Rehabilitation Servs., et al.
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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.

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