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 ease.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, 526 U.S. 795, —, 119 S.Ct. 1597, 1604, 143 L.Ed.2d 966 (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.
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 plaintiffs brief on appeal consisted not only of statutory differences, but also included an allegation that plaintiffs 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. *169In 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 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 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 *170issues 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 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., 190 F.3d 1 (2d Cir.1999) (to 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, admittedly filed after his original application was approved,7 clearly states: “Since the event, I *171have 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
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.
. In Cleveland, the Supreme Court explained: When faced with a plaintiffs previous sworn statement asserting "total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good faith belief in, the earlier statement, the plaintiff could nonetheless "perform the essential functions” of her job, with or without "reasonable accommodations.”
Cleveland, 119 S.Ct. at 1604.
. 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.
. In the post-Cleveland decision of Mitchell v. Washingtonville Central School Dist., 190 F.3d 1 (2d Cir.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.
. I recognize that in Krouse v. American Sterilizer Co., 126 F.3d 494, 503 n. 5 (3d Cir.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, the first 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).
. 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.
. 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?A 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.
. 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 *171application was granted and six weeks before he first 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.
. 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 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. § 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. Dept. of the Treasury, 245 N.J.Super. 229, 584 A.2d 863, 868 (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 Firemen’s 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.