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Freeman v. Hotel Equities Group LLC

United States District Court, M.D. Georgia, Macon Division

November 6, 2017

MARCUS M. FREEMAN, Plaintiff,
v.
HOTEL EQUITIES GROUP, LLC, Defendant.

          ORDER

          MARC T. TREADWELL, JUDGE.

         Defendant 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.

         I. BACKGROUND

         A. Plaintiff's Claim

         According 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.

         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. 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.

         B. Plaintiff's Bankruptcy and Hotel Equities's Motion for Summary Judgment

         Meanwhile, 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. 40.

         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. Doc. 15.[1]

         C. 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 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 ...


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