United States District Court, D. Colorado
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's First Amended Complaint [#31] (the "Motion"). Plaintiff filed a Response [#37] to the Motion and Defendant filed a Reply [#39] in further support of the Motion. On March 18, 2014, the Court entered a Minute Order [#42] informing the parties that it was converting Defendant's Motion [#31] filed pursuant to Fed.R.Civ.P. 12(b)(6) to a motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Minute Order [#42] at 2. As a result of the conversion of the Motion, the Court allowed the parties the opportunity to file supplemental briefs. Id. In their Joint Motion to Vacate Supplemental Briefing Schedule and Stay Discovery [#43] (the "Motion to Stay"), the parties informed the Court that they "are satisfied that they have fully briefed their arguments, " asked the Court to vacate the schedule set for supplemental briefing, and requested a stay of all discovery pending a ruling on the Motion Motion to Stay [#43] at 1-2. On March 26, 2014, the Court granted the Motion to Stay. Order [#44] at 4. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#31] is DENIED.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a civil action arising under the laws of the United States.
II. Summary of the Case
Plaintiff initiated this lawsuit on June 25, 2013. See generally Complaint [#1]. On July 17, 2013, she filed her First Amended Complaint and Jury Demand [#13] (the "Amended Complaint"), the operative complaint in this action. In the Amended Complaint, Plaintiff asserts two causes of action. First, she brings a claim under Title VII, alleging that Defendant discriminated and retaliated against her because of her gender. Am. Compl. [#13] ¶¶ 38-40. Second, Plaintiff brings a retaliation claim pursuant to 42 U.S.C. § 1981, alleging that she "engaged in protected activity by opposing discrimination based upon race and national origin[ ]" and that Defendant "knowingly and willfully engaged in illegal employment practices and policies that have discriminated against Plaintiff based upon her protected conduct." Id. ¶¶ 42-43. Plaintiff seeks injunctive relief, declaratory relief, monetary damages, attorney fees, costs, and interest. Id. ¶ 46.
In response to the Amended Complaint, Defendant filed the instant Motion [#31]. In the Motion, Defendant argues that "Plaintiff is judicially estopped from bringing her claims against [Defendant] because she took a contrary position before the United States Bankruptcy Court for the District of Colorado in Case No. 10-37739-SBB when she asserted under oath and penalty of perjury that she had no such claims." Motion [#31] at 1. Defendant maintains that "[t]he Bankruptcy Court relied on [Plaintiff's] assertions and adopted her position when it entered an Order discharging Plaintiff's significant debts and closing the Chapter 7 case." Id. Defendant further argues that Plaintiff had knowledge of her potential claim against Defendant between May 21, 2010 and November 17, 2010 and that she filed for bankruptcy on October 31, 2010, "less than a month before [she] filed her Charge of Discrimination" against Defendant. Id. at 2. Defendant, therefore, argues that Plaintiff is judicially estopped from asserting the two claims she brings in the instant action. Id. at 6-11. Defendant further argues that any claim that Plaintiff's failure to disclose her potential claims against Defendant in her bankruptcy was inadvertent must be rejected. Id. at 11-12.
Defendant attaches the following documents in support of the Motion: (1) a Charge of Discrimination brought by Plaintiff against Defendant, dated November 17, 2010 [#31-1] (the "Charge of Discrimination"); (2) a Chapter 7 Bankruptcy Petition filed by Plaintiff on October 31, 2010 [#31-2] (the "Bankruptcy Petition"); (3) the Discharge of Debtor entered in Plaintiff's bankruptcy case [#31-3] (the "Discharge"); (4) the docket from Plaintiff's bankruptcy proceeding [#31-4] (the "Bankruptcy Docket"); (5) the Order Accepting Trustee's Report and Closing Case entered in Plaintiff's bankruptcy case [#31-5]; (6) the Motion to Reopen Case-Discharge Entered filed in Plaintiff's bankruptcy case [#31-6]; and (7) the Amended Motion to Reopen Case-Discharge Entered filed in Plaintiff's bankruptcy case [#31-7] (the "Amended Motion to Reopen").
In her Response, Plaintiff argues that summary judgment should not be granted because judicial estoppel should not be applied in this circumstance. Response [#37] at 8-10. Specifically, she maintains that she did not knowingly take inconsistent positions. Id. at 10. Instead, she argues that she "was misled by her first lawyer who advised her that a potential EEOC charge should not be disclosed as an asset in bankruptcy because it did not constitute a case or claim until the EEOC process was completed." Id. at 12. Plaintiff further argues that she "was not aware that a claim of employment discrimination constituted the sort of injury' claim that might need to be disclosed...." Id. (emphasis in original). In addition, she maintains that she received no unfair benefit. Id. at 12-13. Plaintiff argues that the Bankruptcy Court is no longer relying on her prior failure to list her potential claims against Defendant because she has reopened her bankruptcy case. Id. at 14. Finally, Plaintiff further argues that equitable considerations mitigate against estoppel. Id. at 14-15.
In support of her Response, Plaintiff submitted the Affidavit of Elizabeth Hanley, [#37-1] at 1-7, (the "Hanley Affidavit"), discussing the history of her bankruptcy case and the present action, the advice she received from various attorneys, and the status of her bankruptcy case. The Hanley Affidavit attaches the following documents: (1) a June 11, 2010 letter to Defendant's Chief Financial Officer from attorney Valerie Malara, sent on behalf of Plaintiff, [#37-1] at 8-9; (2) a June 28, 2011 letter to the EEOC from Plaintiff, [#37-1] at 10; (3) a "Bankruptcy questionaire" [sic] bearing attorney Richard Pierce's name and address at the top that is competed with Plaintiff's information, [#37-1] at 11-36; (4) an agreement entered into by Plaintiff and Glen R. Anstine, the Chapter 7 Trustee in her bankruptcy, dated December 19, 2013 [#37-1] at 37-38, (the "Agreement"). The Response also attached the Affidavit of Richard H. Pierce, [#37-1] at 40-41, (the "Pierce Affidavit").
In its Reply, Defendant offers two main arguments. First, the exception to judicial estoppel carved out in circumstances of inadvertence or mistake does not apply here. Reply [#39] at 2-7. Second, Plaintiff's argument regarding equitable considerations does not militate against the application of judicial estoppel. Id. at 7-8.
III. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the "movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than "mere reargument of [his] case or a denial of an opponent's allegation" or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).
IV. Findings of Fact
Based on the record, the Court makes the following ...