United States District Court, M.D. Georgia, Macon Division
MARCUS M. FREEMAN, Plaintiff,
HOTEL EQUITIES GROUP, LLC, Defendant.
T. TREADWELL, JUDGE.
Hotel Equities has moved for summary judgment. Doc. 15. Hotel
Equities contends that Plaintiffs claim is judicially
estopped because Plaintiff failed to disclose this claim in
his bankruptcy proceedings. Id. For the reasons
discussed below, the motion is DENIED.
to his complaint, Plaintiff began working for Hotel Equities
at the Macon, Georgia Fairfield Inn & Suites on August 9,
2007. Docs. 1 at 4; 1-1 at 1. During that time, Plaintiff was
promoted "from houseman to maintenance chief." Doc.
6 at 3. On June 25, 2015, he was terminated, and that adverse
employment action is the source of his ADEA claim.
Id. at 5; Doc. 1 -1.
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. Doc. 1-1 at 1. Specifically, Plaintiff claims that:
Hotel Equities subjected me to harassment and treated me in a
disparate and discriminatory manner due to my age.
Hotel Equities allowed my co-workers to harass me, including,
but not limited to, allowing employees to call me
"Grand-Daddy" and other names regarding my age. In
June of 2015, I made reports of the hostile environment,
including the threats of physical violence to HR
Representative, Amy. In retaliation for my complaints, false
accusations were levied against me and Hotel Equities
terminated me later that same month.
Id. The EEOC sent Plaintiff a Notice of Right to Sue
on May 26, 2016. Id. at 2. On June 28, 2016
Plaintiff filed this claim alleging
"Age-retaliation" related to his termination of
employment. Doc. 1 at 4. 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. Doc. 5. Plaintiff supplemented his complaint. Doc. 6.
But the Court found that Plaintiff still failed to
sufficiently allege a hostile work environment claim, and the
Court dismissed that claim without prejudice. Doc. 7.
Plaintiff's Bankruptcy and Hotel Equities's Motion
for Summary Judgment
on July 11, 2013, Plaintiff filed for Chapter 13 bankruptcy
in the United States Bankruptcy Court for the Middle District
of Georgia, represented by counsel. Doc. 15-3 at 2-3. 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. Doc.
15-4 at 2. 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. Doc. 15-1 at ¶¶ 4, 11;
see Doc. 20 at ¶¶ 4, 11 (Plaintiffs
response to Hotel Equities's statement of material facts,
not denying that he failed to amend but claiming that he was
not at fault for the failure because his attorney prepared
his bankruptcy documents). On December 2, 2015, the trustee
of Plaintiffs 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."
Chapter 7 Trustee's Report of No Distribution, In the
Matter of Marcus Freeman, No. 5:13-bk-51756 (M.D. Ga.
Bankr. Dec. 2, 2015), ECF No. 38. On February 1, 2016, United
States Bankruptcy Judge Austin E. Carter granted discharge of
many of Plaintiffs debts. Order Discharging Debtor,
Freeman, No. 5:13-bk-51756 (Feb. 1, 2016), ECF No.
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. Doc. 15.
The Eleventh Circuit's Reconsideration of Judicial
February 24, 2016, a three-judge Eleventh Circuit panel held
that circuit precedent dictated that judicial estoppel barred
a plaintiffs 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 ...