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Brown v. Winn-Dixie Stores, Inc.

United States District Court, S.D. Georgia, Brunswick Division

May 20, 2015

ISAIAH BROWN, Plaintiff,


J. RANDAL HALL, District Judge.

In this action, Plaintiff Isaiah Brown alleges that during his employment with Defendant Winn-Dixie Stores, Inc. ("Winn-Dixie") and Bi-Lo Holdings, LLC ("Bi-Lo") (collectively, "Defendants"), Defendants interfered with his rights under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., when they refused to provide him time off to attend physical therapy appointments following a December 2012 car accident that occurred while he was on his way to pick up produce from another Winn-Dixie store. Mr. Brown further claims that Defendants failed to pay him for all hours worked and for overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Finally, Mr. Brown alleges Defendants retaliated against him for (1) taking leave to recuperate from his back injury in violation of the FMLA and (2) complaining about not being paid for his overtime hours in violation of the FLSA when they terminated his employment on December 4, 2013. Presently before the Court is Defendants' Motion for Summary Judgment based on the doctrine of judicial estoppel. (Doc. 27.) For the reasons that follow, the Court GRANTS the motion IN PART.


A. Mr. Brown's Employment History

Mr. Brown began working for Winn-Dixie in 1987 when he was sixteen-years-old and rose to the position of Produce and Floral Manager at Winn-Dixie Store 60 before his termination on December 4, 2013. (Pl.'s Dep., Doc. 29-1, at 54-55, 111, 206, 358.) According to Mr. Brown, when he worked at Winn-Dixie Store 159 between approximately late 2008 and late 2010, management regularly required him to "work off the clock in order to get [the] job done" and he was not paid for doing so. (Id. at 162-65.) "[S]ometime before late 2010, " Mr. Brown also performed "produce resets" at eighteen other Winn-Dixie stores, but Defendants never paid him for that work either. (Id. at 91-98.) For each reset, Mr. Brown would work between eight and fifteen hours, and such time amounted to "thousands of dollars" in unpaid wages. (Id. at 91, 94.) Beginning in late 2010 while working at Winn-Dixie Store 60, at least once a week management directed him to work off the clock "until the job was finished" and would threaten him with termination if he refused. (Id. at 236-37, 241.) Managers, in fact, would alter Mr. Brown's time records if he stayed clocked in longer than permitted. (Id. at 241-44.) Mr. Brown testified that he knew his rights were violated at the time Defendants failed to pay him for the above-described activities and extended hours (id. at 245-46), and he finally called human resources in November 2013 to complain about his managers' alteration of his time records (id. at 243-45).

On December 7, 2012, Mr. Brown was hit from behind when stopped at a red light while on his way to pick up produce from Winn-Dixie Store 159 to supplement certain stock at Store 60. (Id. at 157; Pl.'s Aff., Doc. 37, Ex. A. ¶¶ 4-6.) The force of the accident broke the seat occupied by Mr. Brown, and he suffered injuries to his neck and back. (Pl.'s Dep. at 31, 157-58; Pl.'s Aff. ¶ 7; Adams Aff., Doc. 37, Ex. C, ¶ 10.) Mr. Brown testified that "the night [he] got in the car accident [he] had to go straight back to work. [He] couldn't go to the hospital because [he] had to work... [a] nd [he] was told by [the] store manager that if [he] sees any doctors' excuses or anything that [Mr. Brown] probably wasn't going to have a position." (Pl.'s Dep. at 32-35.) The manager "said, as of right now, there's nobody to replace [you]." (Id. at 35.) "So if [you] take leave, " you are "not going to have a position when [you] get back." (Id.; see also Pl.'s Aff. ¶ 10.) Mr. Brown believed at the time of this interaction that his rights had been violated. (Pl.'s Dep. at 35.) Instead of calling human resources, however, Mr. Brown reached out to other produce managers to see if they had anyone under their supervision who could fill in so that he could take medical leave. (Id. at 36; Doc. 37, Ex. B.)

Mr. Brown did not obtain leave until late August 2013 (Pl.'s Dep. at 67, 283), at which point Defendants cleared him to be out until October 28, 2013 (id. at 67; see also id., Ex. 13 at 3). Between the accident and that time, Mr. Brown had to reschedule numerous medical appointments - for which his insurance was charged a fee - because Defendants would not allow him to take time off. (Pl.'s Dep. at 196-98.) While on leave, Mr. Brown's manager told him that if he came back early, he could keep all of his doctor's appointments. (Id. at 193-94, 283.) Mr. Brown agreed and returned to work on October 23, 2013, five days ahead of schedule. (Id. at 281, 283.) Subsequent to Mr. Brown's return, however, he missed four scheduled appointments for physical therapy because his manager did not allow him to take time off despite his earlier promise. (Id. at 321-22.)

Immediately before and after Mr. Brown's FMLA leave, he received a series of performance counselings and warnings for violations of Winn-Dixie policies. (Id. at 263-69; id. Ex. 7 (including incidents on August 1, 9, and 13; November 14, 18, and 24; and December 1, 2013).) Defendants formally terminated Mr. Brown on December 4, 2013. (Id. at 109-112, 303-05.) Mr. Brown repeatedly testified that the manager said he was fired on November 18, 2013, "but they didn't have time to actually tell me I was fired" until over two weeks later. (Id.) Indeed, he claims the dismissal sheet given to him was dated November 18, 2013. (Id.)

B. Bankruptcy Proceeding

On February 25, 2009, while employed by Defendants, Mr. Brown voluntarily filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Georgia through his counsel, Richard Taylor. (Bankr. Doc. 1.) Mr. Brown previously filed a Chapter 13 petition in approximately 1994. (Pl.'s Dep. at 331.) On his Schedule B of personal assets in the 2009 petition, Mr. Brown indicated that he had no "contingent or unliquidated claims." (Bankr. Doc. 1 at 10.) He further represented that he had no "interests in IRA, ERISA, Keogh, or other pension or profit sharing plans." (Id.) Lastly, Mr. Brown indicated that he had no "[o]ther personal property of any kind not already listed." (Id. at 11.) On his Statement of Financial Affairs, Mr. Brown listed only the wages earned from Winn-Dixie as gross income. (Id. at 25.) In response to the question about Mr. Brown's participation in lawsuits and administrative proceedings within the year immediately prior to filing his petition, Mr. Brown listed only a garnishment collection action. (Id. at 26.) Mr. Brown made these representations under penalty of perjury. (Id. at 24, 32.)

Under the proposed Chapter 13 plan, Mr. Brown paid $53.00 per month for a period of 60 months, to be distributed by the trustee to his attorney after payment of the expenses of administration. (Bankr. Doc. 2.) On May 5, 2009, the Bankruptcy Court confirmed the plan. (Bankr. Doc. 32; see also Bankr. Doc. 35.) On February 3, 2014, the trustee notified Mr. Brown that the final disbursements had been made according to the plan and his wages would no longer be withheld. (Bankr. Doc. 60.) On March 18, 2014, the Bankruptcy Court granted Mr. Brown a complete discharge under 11 U.S.C. § 1328(a). (Bankr. Doc. 63.) According to the Chapter 13 Trustee's Final Report and Account, nine unsecured creditors asserted $15, 932.72 in allowable claims, but only $176.83 - a mere 1.1 percent - was distributed to them.[1] (Bankr. Doc. 65 at 3.) On May 21, 2014, the Bankruptcy Court entered a final decree and closed the proceeding. (Bankr. Doc. 66.)

The bankruptcy docket reflects that Mr. Taylor represented Mr. Brown throughout the entirety of his bankruptcy proceeding. On December 17, 2013, Mr. Taylor contacted the Chapter 13 Trustee to request Mr. Brown's payoff amount, as Mr. Brown "lost his job and wishe[d] to pay the remaining payments with his 401K as soon as possible." (Doc. 31-5.) Immediately after his termination, Mr. Brown retained Rita Spalding to pursue the instant case. (Pl.'s Dep. at 328.) On December 19, 2013, Ms. Spalding sent a letter to Mr. Brown's manager at Winn-Dixie and to the General Counsel for Bi-Lo. (Doc. 29-5.) The letter stated that "[w]e contend that Mr. Brown was terminated in violation of the Family Medical Leave Act. Mr. Brown also has a claim for unpaid overtime compensation under the Fair Labor Standards Act, and possibly under the Georgia Whistleblower's Act.... The purpose of this letter is to notify you of Mr. Brown's claims." (Id.) It further warned that Ms. Spalding was "currently drafting a Complaint to file on Mr. Brown's claims." (Id.) When Mr. Brown ultimately filed this suit on April 14, 2014, he did not amend his bankruptcy schedules or otherwise inform the bankruptcy court of his FLSA and FMLA claims against Defendants. (Pl.'s Dep. at 347-48, 353.)

On January 23, 2015, Defendants sent Ms. Spalding a comprehensive memorandum (1) arguing that Mr. Brown's FLSA and FMLA claims are barred by judicial estoppel; (2) warning her that it would file a motion for summary judgment and explore sanctions; and (3) urging her to voluntarily dismiss the suit. (Doc. 26-1.) Ten days later, on February 2, 2015, Mr. Brown moved to reopen his Chapter 13 case. (Bankr. Doc. 67.) The Bankruptcy Court granted that motion on February 4, 2015. (Bankr. Doc. 68.) On February 5, 2015, Mr. Brown filed amended schedules to add the following:

1. the instant lawsuit against Defendants with an estimated value of $200, 000;
2. a personal injury lawsuit related to the car accident at an estimated value of $100, 000;
3. a 401(k) account with an estimated value of $43, 000;
4. a hardship withdrawal from that account in 2011 in the amount of $4, 900; and
5. income earned as a personal chef.

(Bankr. Doc. 69.) With the addition of these assets, all of which existed during the pendency of his bankruptcy, Mr. Brown now values his assets as worth over $349, 000 as compared to the $1, 450 initially identified in his 2009 petition. (See id. at 4; Bankr. Doc. 1 at 6.)


Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences in [its] favor." U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways - by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and Celotex, 477 U.S. 317). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.

If - and only if - the movant carries its initial burden, the non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment." Id. When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. The non-movant cannot carry its burden by relying on ...

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