Debtor’s Age Discrimination Claim was Not Judicially Estopped by Failure to Disclose it in Bankruptcy Case

Debtor’s Age Discrimination Claim was Not Judicially Estopped by Failure to Disclose it in Bankruptcy Case

According to his complaint, Plaintiff began working for Hotel Equities at then Macon, Georgia Fairfield Inn & Suites on August 9, 2007. During that time, Plaintiff was promoted “from houseman to maintenance chief.”

On June 25, 2015, he was terminated, and that adverse employment action is the
source of his ADEA claim. On October 27, 2015, Plaintiff filed a Charge of Discrimination with the Georgia Equal Opportunity Commission and the EEOC, claiming Hotel Equities fired him in
retaliation for his complaints about discrimination against him on the basis of age.
On June 28, 2016 Plaintiff filed this claim alleging “Age-retaliation” related to his termination
of employment. The Court approved Plaintiff’s motion to proceed in forma pauperis, found that Plaintiff had sufficiently alleged a claim of retaliation under the Age Discrimination in Employment Act, and found that Plaintiff had not sufficiently alleged a hostile work environment claim but could recast his complaint to sufficiently allege such a claim.  Plaintiff supplemented his complaint. But the Court found that Plaintiff still failed to sufficiently allege a hostile work environment claim, and the Court dismissed that claim without prejudice.
Meanwhile, on July 11, 2013, Plaintiff filed for Chapter 13 bankruptcy, represented by
counsel. On October 29, 2015, two days after he filed his EEOC complaint, Plaintiff gave notice of the conversion of his Chapter 13 case to a Chapter 7 case, again represented by counsel. Plaintiff did not list his claim against Hotel Equities in his original Chapter 13 filing, amend his schedule when he filed his EEOC complaint, or amend his schedule to add the claim when he converted his bankruptcy to a Chapter 7 case.
On December 2, 2015, the trustee of Plaintiff’s estate, having not “received any property nor
paid any money on account of this estate,” found “that there is no property available for distribution from the estate over and above that exempted by law.” The Court granted the
Plaintiff a Discharge 2 months later.
On January 10, 2017, the day before the Court held a conference with the parties
to set the case’s discovery schedule, Hotel Equities moved for summary judgment,
arguing that because Plaintiff had not revealed his legal claims during his bankruptcy
proceedings he was judicially estopped from pursuing this action.

The Eleventh Circuit’s Reconsideration of Judicial Estoppel

On February 24, 2016, a three-judge Eleventh Circuit panel held that circuit precedent dictated that judicial estoppel barred a plaintiff’s claim when the plaintiff had failed to disclose the claim in his bankruptcy schedule, but Judge Tjoflat specially concurred in order to “call[] for en banc review to set straight the doctrine of judicial estoppel.” Slater v. U.S. Steel Corp., 820 F.3d 1193, 1212 (11th Cir.) (Tjoflat, J., concurring). Judge Tjoflat’s colleagues agreed, and the Eleventh Circuit granted en banc review “to reconsider this precedent.” 871 F.3d 1174, 1176 (11th Cir. 2017).

While that review was pending, the Court addressed a letter to the parties noting the unsettled law of the circuit, and the Court stayed this case without objection. The Eleventh Circuit decided Slater on September 18, 2017, and the Court addressed another letter to the parties, asking Hotel Equities if it “still maintain[ed] that summary judgment is appropriate on the facts in the record and the arguments in its briefs.” Doc. 22 at 1. Hotel Equities answered that it “is still entitled to summary judgment under the Eleventh Circuit’s ruling in Slater.”  Accordingly, the issue is ripe for consideration.

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