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Middleton-Thomas v. Piat, Inc.

United States District Court, D. Kansas

February 13, 2018

LaShone Middleton-Thomas and Guinans Carol Cleveland, Plaintiffs,
v.
Piat, Inc. f/k/a ServPro of Olathe/Lenexa, Inc., Defendant.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge

         Plaintiffs filed this lawsuit against defendant Piat, Inc. alleging race discrimination, racial harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiffs also assert claims of age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Plaintiff Cleveland asserts two additional claims-a claim for retaliation under the ADEA and a state law claim for retaliatory discharge. This matter is presently before the court on defendant's motion for summary judgment on the claims of plaintiff LaShone Middleton-Thomas (doc. 87). Specifically, defendant contends that plaintiff's claims are barred by the doctrine of judicial estoppel because plaintiff failed to disclose the claims asserted in this case as assets in the context of her Chapter 13 bankruptcy proceeding. As will be explained, the motion is denied.

         I. Facts

         The following facts are uncontroverted or related in the light most favorable to plaintiff as the nonmoving party. Plaintiff LaShone Middleton-Thomas began her employment with defendant in February 2015. She testified that she believed she experienced “discrimination” in her employment as early as September 2015 and, at that time, she began keeping a diary to maintain a “day to day” account of “things” she was experiencing in the workplace. She testified that she believed that the diary might assist her if she ever had to sue her employer in the future. Plaintiff further testified that she wanted to have a “record” if she experienced anything at work that she believed to be discriminatory.

         On January 27, 2016, plaintiff commenced a Chapter 13 bankruptcy case by filing a Voluntary Petition with the bankruptcy court. The petition contained various schedules, which are the only schedules filed in her bankruptcy case, wherein plaintiff under penalty of perjury disclosed her assets to the bankruptcy court and her creditors. In response to a question that asked whether plaintiff had any legal or equitable interest in any “claims against third parties, whether or not you have filed a lawsuit or made a demand for payment, ” plaintiff checked the box marked “No.” That question provided specific examples such as “accidents, employment disputes, insurance claims, or rights to sue.” Plaintiff did not disclose any claim against defendant to the bankruptcy court.

         On January 28, 2016, plaintiff filed an amended proposed Chapter 13 Plan providing the payments that would be made to the trustee (and, ultimately, her creditors) as part of her bankruptcy case. On April 28, 2016, the bankruptcy court entered an Order Confirming Plan. The confirmation plan cautioned plaintiff that she had a duty to report to the trustee any events affecting disposable income which were not projected in the schedules, including lawsuits that were “received or receivable” during the term of the plan, which would not exceed 5 years.

         In September 2016, plaintiff filed a charge of discrimination against defendant with the EEOC. She filed this lawsuit against defendant on January 14, 2017 in which she alleges that she experienced discrimination on the basis of race and age during her employment. Plaintiff did not amend her bankruptcy schedules to reflect her lawsuit and did not report to the trustee that she had filed the lawsuit. However, as soon as defendant's counsel, in November 2017, represented to plaintiff that she was required to report this lawsuit to the trustee in her bankruptcy case, plaintiff notified her counsel in her bankruptcy case about this lawsuit and requested that her counsel correct any deficiency promptly. Plaintiff avers that her bankruptcy counsel assured her that they would make the amendment but that she did not need to worry about nondisclosure because the bankruptcy case was not yet completed.[1] An amended schedule was filed on December 20, 2017.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Discussion

         In its motion for summary judgment, defendant asserts that plaintiff's claims are barred by the doctrine of judicial estoppel because plaintiff failed to disclose her claims in connection with her Chapter 13 bankruptcy proceedings. The doctrine of judicial estoppel is a discretionary remedy that is based upon protecting the integrity of the judicial system by “prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Vehicle Market Research, Inc. v. Mitchell Int'l, Inc., 767 F.3d 987, 992-93 (10th Cir. 2014) (citations and quotations omitted). Although “there is no precise formula for judicial estoppel, ” the doctrine generally applies “when (1) a party takes a position clearly inconsistent with an earlier-taken position; (2) adopting the later, inconsistent, position would create an impression that either the earlier or the later court was misled; and (3) allowing the party to change their position would give them an unfair advantage.” Id. at 993 (quoting Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1227 (10th Cir. 2011)). The Circuit applies the doctrine “both narrowly and cautiously.” Id. (quoting Hansen, 641 F.3d at 1227).

         On this record, defendant has not satisfied its burden of establishing that the doctrine applies. More specifically, defendant has not met its burden of showing any “clearly inconsistent” statements made by plaintiff sufficient to invoke the doctrine of judicial estoppel. According to defendant, plaintiff's January 27, 2016 statement in her bankruptcy petition that she had no claims against her employer is inconsistent with the allegations in plaintiff's complaint (filed nearly one year after her bankruptcy petition) in which she asserts that she experienced discrimination throughout her employment with defendant. Defendant also asserts that plaintiff's September 2015 diary proves that she had a potential claim back in September 2015 that she failed to disclose in January 2016. But there is no evidence in the record, no allegation in the complaint, and no entry in plaintiff's diary suggesting that plaintiff had experienced any discrete acts of discrimination prior to the time she filed her bankruptcy petition in January 2016. And plaintiff, in this lawsuit, does not assert any claims against defendant based on discrete acts that occurred prior to January 2016.

         To the extent that plaintiff alleges that she experienced discrimination throughout her employment, these allegations describe repeated conduct in support of plaintiff's racial harassment claim which, by its very nature, “cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Similarly, the fact that plaintiff may have started recording certain employment experiences in September 2015 does not, as a matter of law, indicate that she had a potential claim against defendant at that time. Bearing in mind that judicial estoppel is an affirmative defense that its proponent must prove, defendant has not demonstrated that plaintiff's January 2016 statement in her bankruptcy case was “clearly inconsistent” with any statement she has made in this case. See Vehicle Market Research, 767 F.3d at 993-94 (looking “with a strict eye” at whether judicial estoppel ...


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