Keaton v. Big Lots, Inc.
MEMORANDUM OPINION and ORDER DISMISSING CASE that defendant's motion for summary judgment is GRANTED and plaintiff's claims are DISMISSED with prejudice, costs are taxed against plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/7/2015. (AHI)
2015 Jan-07 AM 10:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
BIG LOTS STORES, INC.,
Civil Action No. CV-13-S-1925-NE
MEMORANDUM OPINION AND ORDER
Plaintiff, Sandra Keeton, asserts claims against her employer, Big Lots Stores,
Inc. (“Big Lots”), for sexual harassment, hostile work environment, and retaliation,
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000
et seq.1 The case currently is before the court on Big Lots’ motion for summary
judgment.2 Upon consideration of the briefs and evidentiary submissions, the court
concludes that the motion is due to be granted.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that 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). In
See doc. no. 9 (Second Amended Complaint).
Doc. no. 16.
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive law
dictate the materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence favoring the
nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. SUMMARY OF FACTS3
Plaintiff was a part-time employee at the Big Lots store in Florence, Alabama,
from 2005 to 2013.4 The Big Lots Associate Handbook contains the company’s
Harassment-Free Environment Policy, which includes the following statements:
We intend to maintain an environment in which all associates can
perform their duties free of harassment and discrimination. If you
believe you have been the subject of harassment, you should report the
alleged act to your Manager or to your Regional Human Resources
manager (RHRM) immediately so the problem can be corrected. Some
The brief filed by plaintiff in opposition to Big Lots’ motion for summary judgment did not
respond, paragraph-by-paragraph, to any of the proposed findings of facts stated by Big Lots in its
brief. See doc. no. 22 (Response in Opposition to Summary Judgment). Accordingly, all of
defendant’s proposed facts are deemed admitted for summary judgment purposes. See doc. no. 8
(Uniform Initial Order), at 15-16. Additionally, many of the proposed undisputed facts in plaintiff’s
brief discuss behavior directed at another employee, Lisa Wilson, by an Assistant Manager named
W.C. Collinsworth, whose actions are discussed infra, in the text accompanying notes 7 et seq. See
doc. no. 22 (Response in Opposition to Summary Judgment), at 5-8 (Proposed Facts 10-20). Ms.
Wilson also filed a suit against Big Lots. See Lisa Wilson v. Big Lots Stores, Inc., Civil Action No.
5:13-cv-1008-CLS. The harassment allegedly suffered by Ms. Wilson is not relevant to the claims
asserted by plaintiff in this case.
See doc. no. 18-2 (Exhibits to Plaintiff’s Deposition), at ECF 14; doc. no. 18-3 (Saenz
Declaration), at 5, ¶ 12. Rick Saenz is a Big Lots Human Resources employee. Note: “ECF” is the
acronym for “Electronic Case Filing,” a system that allows parties to file and serve documents
electronically. See Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, at *6 n.6 (N.D. Cal.
Dec. 8, 2009). Bluebook Rule 7.1.4 permits citations to the “page numbers generated by the ECF
header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D. D.C. 2011) (citing The Bluebook:
A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th ed. 2010)).
Even so, The Bluebook recommends “against citation to ECF pagination in lieu of original
pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite
the original pagination in the parties’ pleadings. When the court cites to pagination generated by the
ECF header, however, it will, as here, precede the page number with the acronym “ECF.”
states have different requirements for anti-harassment policies. This
policy does not apply where state law requires otherwise.
The Big Lots Harassment-Free Environment Policy complies with
all local, state, and federal laws dealing with unlawful discrimination
Each manager is responsible for maintaining a work environment
that is free of harassment, both sexual and otherwise. This includes
communicating this Policy to all associates and making sure that no one
is subjected to insulting, degrading, or exploitative behavior.
Likewise, it’s the responsibility of every associate to comply with
this Policy and report any violations. Please be assured that you will not
be penalized in any way for reporting inappropriate behavior. As per
our Open Door Policy, honest two-way communication is essential to
the successful operation of our business.
All reports of inappropriate conduct or discrimination will be
promptly investigated under the direction of the Human Resources
Department. All investigations will be conducted with the utmost
concern for the confidential and personal nature of the allegation and
with a high degree of sensitivity to the individuals involved. If you are
found to have engaged in discriminatory or harassing behavior, you will
receive Disciplinary Counseling up to and including termination of
employment. Retaliation against anyone reporting acts of harassment
will not be tolerated.
Doc. no. 18-3 (Saenz Declaration), at ECF 30 (January 2008 Associate Handbook).
The Policy also states that Big Lots has “zero tolerance” for any type of
harassment, including sex-based harassment. The Policy defines harassment as
unwelcome verbal, visual, or physical conduct creating an intimidating,
offensive, or hostile work environment that interferes with work
performance. Harassment [also] can be verbal (including slurs, jokes,
insults, epithets, gestures, or teasing), graphic (including offensive
posters, symbols, cartoons, drawings, computer displays, or e-mails), or
physical conduct (including physically threatening another, blocking
someone’s way, etc.) that denigrates or shows hostility or aversion
toward an individual because of any protected characteristic. Such
conduct violates this policy, even if it is not unlawful. Because it is
difficult to define unlawful harassment, associates are expected to
behave at all times in a professional and respectful manner.
Id. at ECF 31 (alteration supplied).
An employee who believes she has either been subjected to or observed any
violation of the Harassment-Free Environment Policy is instructed to inform her
Manager or the Regional Human Resources Manager. If the employee is not satisfied
with the response at that level, she is directed to contact Big Lots’ “Vice President of
Associate Relations immediately or call the GET REAL HOTLINE at
1.866.834.REAL (7325).”5 Employees also are advised that they can make a report
to an appropriate government agency, including the United States Equal Employment
Opportunity Commission (“EEOC”).6
Plaintiff contends that W.C. Collinsworth, Assistant Manager of Operations at
the Florence store, made sexually inappropriate comments to her for a majority of the
Doc. no. 18-3 (Saenz Declaration), at ECF 31 (January 2008 Associate Handbook)
(emphasis in original).
time she worked there.7 Plaintiff never made any reports on the “Get Real Hotline,”
but she encouraged others to do so.8 Despite plaintiff’s advice to other employees to
lodge complaints on the “Get Real Hotline,” she complained to lower-level female
managers, such as Lisa Waters and Rhonda Simpson, and to the Store Manager, Gary
Pagan.9 Pagan always said that he would talk to Collinsworth, but “nothing ever got
In fact, plaintiff heard Pagan tell Wilson and Simpson, “Y’all are
management. We’re supposed to have each others back.”11 According to plaintiff,
after she complained to Pagan, Collinsworth sometimes would tell her she took things
the wrong way, and then he would be “mean” to her for a few days:
I mean, nothing I could do was right. And he would holler at me
in front of customers, me trying to run a register. And the customers
would stand there and say, “Why do you let him talk to you like that?”
And I couldn’t even say nothing. It would embarrass me so bad. . . .
But it wasn’t like the sexual part of it. It was where I felt like —
like being at the register and him making — being ugly toward me, just
hollering at me in front of the customers. Belittling me, I guess I can
say, in front of customers, just making me look stupid in front of
customers after things would be said to him. And that’s the way it
would go for a couple of days.
Doc. no. 18-1 (Plaintiff’s Deposition), at 65, 96. Collinsworth also would cut
See doc. no. 18-1 (Plaintiff’s Deposition), at 75-76.
Id. at 35, 68.
Id. at 49-50, 74-77.
Id. at 76.
Id. at 49-50.
plaintiff’s hours after she complained, but Pagan always restored some of the hours
during the week.12
In January 2012, plaintiff began performing inventory work in Big Lots stores
other than Florence, and had limited interaction with Collinsworth.13 The last
incident of sexually inappropriate conduct by Collinsworth that is asserted by plaintiff
occurred in April 2012, when he allegedly brushed up against a female employee with
his penis.14 Plaintiff was not a witness to that incident, but only heard about it later,
and she did not make a complaint and was not present when an investigation
Plaintiff suffered a neck injury while unloading trucks on August 10, 2012, and
went on medical leave.16 Big Lots sent plaintiff a notice on August 16, 2012,
advising her of the availability of FMLA leave, and informing her: “If you are unable
to return to work after twenty-six (26) weeks (consecutive or cumulative) of leave,
your employment will be terminated due to your inability to return to work.”17 Big
Id. at 83-84.
Id. at 47-48.
Id. at 69-71. See doc. no. 17 (Brief in Support of Summary Judgment), at 8, ¶¶ 29-30
Doc. no. 18-1 (Plaintiff’s Deposition), at 69-72.
Id. at 10-12.
Id. at 19-22; doc. no. 18-3 (Saenz Declaration), at 4-5, ¶ 11; doc. no. 18-5 (Exhibits to
Saenz Declaration), at ECF 14-15 (Exhibit 12).
Lots approved plaintiff’s FMLA leave, and she exhausted her 12 weeks of statutory
leave in November 2012.18
Plaintiff filed a Charge of Discrimination with the EEOC on November 5,
2012, asserting claims for sexual harassment, a hostile work environment, and
retaliation under Title VII.19 Plaintiff stated the following in her EEOC charge:
I was employed by Big Lots, Inc. in Florence, Alabama since
November 2005 until present. I am currently employed at the same store
location as an Associate Manager stocker, cashier, furniture. For
approximately six months, Anthony Thomas has been the District
Manager. Prior thereto, Bruno Lijoi was the District Manager for over
twenty years. Gary Pagan has been the Store Manager for approx. nine
years. Wansfel Collinsworth (W.C.) is the Assistant Manager and
During my employment with Big Lots, W.C. has made comments
about my breast and other inappropriate comments. Such as, [sic] W.C.
made the following comment to be [sic] regarding our required work
uniform, “Are you sure you don’t need a large for those big tits”. This
comment was made in front of customers, while standing in the middle
of the store. The comment was very embarrassing to me. The same kind
of comments were made when I would be in the office counting my til
or working in the warehouse. W.C. always talked about his sex life and
things he had done with women when he went on his trips to China and
other places. I cannot give specific dates or times that these were made
because it happened all the time, every [sic] since I first started working
At times, I felt like I was retaliated against by W.C. because when
I complained to Gary Pagan about W.C.’s behavior, W.C. would not talk
Doc. no. 18-3 (Saenz Declaration), at 5, ¶ 12.
Doc. no. 18-2 (Exhibits to Plaintiff’s Deposition), at ECF 14-15.
to me, was rude and loud to me in front of customers or other associates,
to the point that I would be in tears, which made my job difficult to
perform. Other Associates, Nikki, Heather, Gina, and the other
Assistant Manager, Lisa Wilson, have heard him make sexual comments
and talk in a sexually provocative manner.
On other occasions while working, I have had other Associates,
Victoria Kelley, Amanda ?, Audra ?, and others that I can’t remember
their names, come to me and tell me that he was making them very
uncomfortable by hugging on them and rubbing on them or making
sexual comments to them and asked me what they should do. I always
told them they needed to complain to Gary Pagan. Gary would call
W.C. in the office and talk to him and it would stop for a couple of days
and then it would go back to being the same as it was before, with the
comments and making you uncomfortable to work with W.C. I’ve seen
many associates quit or find another job because of W.C. We were
always told that W.C.’s actions would be taken care of, but nothing was
ever done to stop his behavior. I have made it clear to all the Managers
that I did not want to work with W.C.
During my tenure at Big Lots, I have been subjected to sexually
provocative stories, sexual jokes, lewd gestures and unwanted physical
contact from W.C. I am continuously sexually harassed and made to
work in a hostile work environment.
To my knowledge W.C. has not been disciplined. The harassment
by W.C. and management’s unwillingness to investigate my complaints
has forced me to endure harassment and retaliation. I feel that I have
been sexually harassed and retaliated against in violation of the Title VII
of the Civil Rights Act of 1964, as amended.
Doc. no. 18-2 (Exhibits to Plaintiff’s Deposition), at ECF 14-15 (Exhibit 9) (strikethrough in original, alterations supplied).
Plaintiff’s workers’ compensation physician released her to return to regular
work as of February 4, 2013.20 Plaintiff worked for a few hours on February 10,
2013, but left work before the end of her scheduled shift due to pain, and never
returned to work again.21 Her 26 weeks of available leave ended during the week of
February 12, 2013.22 Thereafter, she sent a note from her personal physician dated
February 13, 2013, advising that she would be out from work for an unspecified
reason until April 1, 2013.23 Big Lots terminated plaintiff’s employment effective
February 19, 2013.24 Pagan telephoned plaintiff to inform her of her termination, and
he advised her that she was welcome to re-apply for employment when her physician
released her to return to work.25 Plaintiff never sought re-employment and now
contends that she is totally disabled.26
Plaintiff and her husband filed a petition for Chapter 7 Bankruptcy in the
United States Bankruptcy Court for the Northern District of Alabama on March 27,
2013.27 Plaintiff did not disclose the existence of her EEOC charge in her petition or
Doc. no. 18-5 (Exhibits to Saenz Declaration), at ECF 16 (Exhibit 13).
Doc. no. 18-3 (Saenz Declaration), at 5, ¶ 12. Saenz asserted in his deposition that plaintiff
worked for a few hours on February 10, 2012. However, it is clear, given the context of the
statement, that he meant to state she worked for a few hours on February 10, 2013.
Doc. no. 18-5 (Exhibits to Saenz Declaration), at ECF 17 (Exhibit 14).
Doc. no. 18-3 (Saenz Declaration), at 5, ¶ 12.
Doc. no. 18-1 (Plaintiff’s Deposition), at 12-13, 86-88.
Id. at 10, 21.
See doc. no. 18-6 (Bankruptcy File Part 1), at ECF 3, 11.
its attached schedules.28 In response to the request for identification of “Other
contingent and unliquidated claims of every nature, including tax refunds,
counterclaims of the debtor, and rights to setoff claims,” plaintiff responded:
“Workmen’s Compensation case for Mrs. Keeton, Workman’s Comp only.”29 In
response to a request to list “all suits and administrative proceedings to which the
debtor is or was a party within one year immediately preceding the filing of this
bankruptcy case,” plaintiff marked the box labeled “None,” and declared this
statement true under penalty of perjury.30 Plaintiff also submitted a “Declaration
Concerning Debtor’s Schedules,” in which she also represented, under penalty of
perjury, that “I have read the foregoing summary and schedules, consisting of 17
sheets, and that they are true and correct to the best of my knowledge, information,
On April 30, 2013, the trustee of the bankruptcy estate reported that “there is
no property available for distribution from the estate over and above that exempted
Plaintiff, accompanied by three co-employees, filed a joint lawsuit against Big
See id. at ECF 11-38.
Id. at ECF 20.
Id. at ECF 35, 38 (italicized emphasis supplied, boldface emphasis in original).
Id. at ECF 33.
Id. at ECF 6.
Lots on May 28, 2013, asserting claims under Title VII. The claims of each plaintiff
were subsequently severed by this court.33
On June 26, 2013, the Bankruptcy Court entered an order discharging plaintiff,
resulting in $73,636.35 in debt relief.34 Plaintiff never amended her bankruptcy
filings to disclose her claims in this litigation.35
Sexual Harassment/Hostile Work Environment
Plaintiff’s second amended complaint asserted separate claims for “sexual
harassment” and “hostile work environment” under Title VII.36 Because plaintiff has
not alleged that she suffered a tangible adverse employment action as a result of
Collingsworth’s sexual harassment, there is no actual distinction between the two
claims. See Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1200 n.3 (11th
Cir. 2001) (“Generally, sexual harassment claims are argued as either hostile work
environment claims or quid pro quo claims. The difference between the two is that
the former do not result in tangible employment actions, while the latter do.”) (citing
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760-63 (1998)).
See doc. no. 1 (Order from Prior Action Severing Case).
See doc. no. 18-6 (Bankruptcy File Part 1), at ECF 6; doc. no. 18-8 (Bankruptcy File Part
3), at ECF 44.
See doc. no. 18-9 (Bankruptcy Docket Sheet as of August 27, 2014).
See doc. no. 9 (Second Amended Complaint), at Counts One and Two.
A plaintiff must satisfy a number of administrative prerequisites before filing
a suit based upon Title VII. Foremost among these is the requirement that a charge
of discrimination be submitted to the Equal Employment Opportunity Commission
within 180 days “after the alleged unlawful employment practice occurred.” 42
U.S.C. § 2000e-5(e)(1). In hostile work environment cases, however, the claim can
be timely even if the first instance of harassment “occurred” more than 180 days
before the charge was filed. The Supreme Court has recognized that a hostile work
environment claim based upon racial or sexual harassment “is composed of a series
of separate acts that collectively constitute one ‘unlawful employment practice.’”
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (quoting
42 U.S.C. § 2000e-5(e)(1)). For that reason, “[a] charge alleging a hostile work
environment claim . . . will not be time barred so long as all acts which constitute the
claim are part of the same unlawful employment practice and at least one act falls
within the [180 day] time period.” Id. at 122 (alterations and emphasis supplied).
Big Lots asserts that plaintiff was not subjected to harassing conduct within the
180-day period that preceded the date on which plaintiff filed her EEOC charge: i.e.,
on or after May 9, 2012.37 Plaintiff did not respond to that contention. Even so, this
court cannot enter summary judgment by default. The Eleventh Circuit has observed
Doc. no. 17 (Brief in Support of Summary Judgment), at 17.
“district court cannot base the entry of summary judgment on the mere
fact that the motion was unopposed but, rather, must consider the merits
of the motion.” [United States v. One Piece of Real Property Located at
5800 SW 74th Ave., 363 F.3d 1099,] 1101 [(11th Cir. 2004)]. . . . Fed.
R. Civ. P. 56(e) provides that where “‘the adverse party does not
respond, summary judgment, if appropriate, shall be entered against the
adverse party.’” Id. at 1101 (quoting Fed. R. Civ. P. 56(e)) (emphasis
in the original).
Trustees of the Central Pension Fund of the International Union of Operating
Engineers and Participating Employers v. Wolf Crane Service, Inc., 374 F.3d 1035,
1039 (11th Cir. 2004) (alterations supplied).
Upon consideration of the merits of the motion, this court agrees with Big Lots.
All of the allegedly harassing acts about which plaintiff complains occurred outside
the 180-day period before plaintiff filed her EEOC Charge. Indeed, it is undisputed
that the last incident of inappropriate behavior against plaintiff by Collinsworth
occurred, at the latest, during April of 2012.38 Accordingly, plaintiff’s hostile work
environment and sexual harassment claims are barred on timeliness grounds.
“Retaliation is a separate violation of Title VII.” Gupta v. Florida Board of
Regents, 212 F.3d 571, 586 (11th Cir. 2000). A plaintiff generally must prove three
See doc. no. 17 (Brief in Support of Summary Judgment), at 8, ¶¶ 22-23, 29-30 (undisputed
elements to establish a prima facie case of retaliation: (1) she engaged in statutorily
protected expression; (2) she suffered an adverse employment action; and (3) there
was a causal linkage between the protected conduct and the adverse employment
action. See, e.g., Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 715
(11th Cir. 2002).
Once plaintiff establishes a prima facie case [of retaliation] by proving
only that the protected activity and the negative employment action are
not completely unrelated, the burden shifts to the defendant to proffer
a legitimate reason for the adverse action . . . . The burden then shifts
back to the plaintiff to prove by a preponderance of the evidence that the
“legitimate” reason is merely pretext for prohibited, retaliatory conduct.
Sierminski v. Transouth Financial Corporation, 216 F.3d 945, 950 (11th Cir. 2000)
(citations omitted) (alteration supplied).
Plaintiff first asserts that Collinsworth retaliated against her by cutting her
hours, scrutinizing her work, shouting at her in the presence of customers, and
generally treating her “downright ugly.”39 Big Lots contends that there is no evidence
those acts occurred within the 180-day period before plaintiff filed her EEOC
Doc. no. 22 (Opposition to Summary Judgment), at 24. The court is skeptical that all of
Collinsworth’s acts actually constitute “adverse employment actions.” See Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) (to be an “adverse employment action,” an
employee “must show that a reasonable employee would have found the challenged action materially
adverse”). Many of Collinsworth’s acts appear to fall in the “trivial harm” category of conduct that
the Supreme Court cautioned lower courts to refrain from finding materially adverse. Id. (it is
“important to separate significant from trivial harms” in determining material adversity).
charge.40 Plaintiff neither responded to Big Lots’ contention, nor identified any
retaliatory acts occurring within the 180-day period. Indeed, plaintiff admits that she
had limited interaction with Collinsworth after January of 2012, and that the last
incident of inappropriate conduct by Collinsworth occurred in April of 2012.41
Further, Collinsworth’s retaliatory behavior lasted for, at most, a week after plaintiff
complained about his inappropriate conduct, and it is undisputed that plaintiff did not
witness the April 2012 incident, or complain about it.42 Thus, Collinsworth could not
have retaliated against plaintiff during the 180-day period (i.e., on or after May 9,
2012). Accordingly, plaintiff’s retaliation claims based upon Collinsworth’s actions
are also barred on timeliness grounds.43
Plaintiff next asserts that she was fired in retaliation for her EEOC charge.44
Even if plaintiff could establish a prima facie case,45 Big Lots has articulated a
Doc. no. 17 (Brief in Support of Summary Judgment), at 28.
Doc. no. 18-1 (Plaintiff’s Deposition), at 47-48, 69-72.
Id. at 65, 69-71.
Big Lots also contends that plaintiff’s retaliation claim exceeds the scope of her EEOC
charge based upon Collinsworth’s act of cutting her hours. See doc. no. 17 (Brief in Support of
Summary Judgment), at 28. Plaintiff again offers no response to that contention. Indeed, “a
plaintiff’s judicial complaint is limited by the scope of the EEOC investigation which can reasonably
be expected to grow out of the charge of discrimination.” Gregory v. Department of Human
Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotes omitted). The court hesitates to
entertain that argument, however, because it need not bar plaintiff’s claims as long as facts are
reasonably present in the charge for the EEOC to conduct an investigation. Id.
Doc. no. 22 (Opposition to Summary Judgment), at 24.
Although the court is skeptical that plaintiff could establish a causal connection between
her EEOC charge and her termination, see Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
legitimate, non-retaliatory reason for terminating her employment: i.e., that plaintiff
advised Big Lots she would be out from work for some unspecified reason for over
six weeks after exhausting all available leave.46 Thus, plaintiff can survive summary
judgment on her retaliation claim only if she comes “forward with evidence,
including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment decision.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Plaintiff’s burden at this
step of the analysis is that of “cast[ing] sufficient doubt on the defendants’ proffered
nondiscriminatory reasons to permit a reasonable factfinder to conclude that the
employer’s proffered ‘legitimate reasons were not what actually motivated its conduct
. . . .’” Combs, 106 F.3d at 1538 (quoting Cooper-Houston v. Southern Railway Co.,
37 F.3d 603, 605 (11th Cir. 1994)) (alteration supplied); see also Chapman, 229 F.3d
at 1024-25. Plaintiff shoulders that burden by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont
(11th Cir. 2007) (a three month disparity between protected activity and an adverse action is not
sufficient, by itself, to establish a causal connection), Big Lots does not contend that plaintiff failed
to establish her prima facie case of retaliation based upon her termination.
Doc. no. 18-3 (Saenz Declaration), at 5, ¶ 12.
de Nemours & Company, 100 F.3d 1061, 1072 (3d Cir. 1996)) (internal quotation
marks omitted). Additionally, a plaintiff must produce “sufficient evidence to
demonstrate the existence of a genuine issue of fact as to the truth of each of the
employer’s proffered reasons for its challenged action.” Combs, 106 F.3d at 1529
Plaintiff has offered no reason why Big Lots’ proffered legitimate reason
should be discredited. Instead, she states only that “Gary Pagan advised [her] in
February, 2013, after she had worked only a couple [of] hours[,] that she was being
fired and that the decision came from Human Resources.”47 The record, however,
does not support that assertion. In fact, the record establishes that plaintiff left the
Florence store early on February 10, 2013, because she was in pain, and that Pagan
called her several days later (after she informed Big Lots that she would be absent
for another month and a half) to inform her that she was terminated.48 It is undisputed
that plaintiff never re-applied for her position, and that she exhausted her
administrative leave.49 Accordingly, the court is not persuaded that Big Lots’ reason
for terminating plaintiff was pretextual.
Doc. no. 22 (Opposition to Summary Judgment), at 24 (alterations supplied).
Id. at 12-13.
Id. at 10, 21; doc. no. 18-3 (Saenz Declaration), at 5, ¶ 12.
Even if plaintiff could otherwise establish her claims, Big Lots contends that
they are barred by the doctrine of judicial estoppel because she failed to disclose them
in her bankruptcy proceeding.50 Plaintiff never responded to that contention.51
“Judicial estoppel is an equitable doctrine invoked at a court’s discretion.”
Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002). Under the
doctrine, a party is precluded from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a previous proceeding. Id. “The
purpose of the doctrine, ‘is to protect the integrity of the judicial process by
prohibiting parties from deliberately changing positions according to the exigencies
of the moment.’” Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 749-50
(2001)). The Eleventh Circuit has limited the application of judicial estoppel to
claims for monetary relief and allowed the debtor’s undisclosed claims for injunctive
relief to proceed because such a claim generally will not add value to the bankruptcy
estate even if properly disclosed. See id. at 1288-89.
In the Eleventh Circuit, courts consider two factors to determine whether
judicial estoppel applies to a particular case: “First, it must be shown that the
allegedly inconsistent positions were made under oath in a prior proceeding. Second,
Doc. no. 17 (Brief in Support of Summary Judgment), at 11.
See doc. no. 22 (Opposition to Summary Judgment).
such inconsistencies must be shown to have been calculated to make a mockery of the
judicial system.” Id. (quotations omitted).
The Eleventh Circuit has applied the doctrine of judicial estoppel on numerous
occasions to affirm grants of summary judgment against plaintiffs pursuing
employment discrimination claims that were not disclosed in bankruptcy. See, e.g.,
Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010); Barger v. City of
Cartersville, 348 F.3d 1289 (11th Cir. 2003); De Leon v. Comcar Indus., Inc., 321
F.3d 1289 (11th Cir. 2003); Burnes, 291 F.3d at 1285. See also, e.g., Casanova v.
PRE Solutions, Inc., 228 F. App’x 837 (11th Cir. 2007).
In this case, plaintiff was under a duty to disclose her EEOC charge to the
Bankruptcy Court. As one Eleventh Circuit panel has explained in an unreported
opinion that this court finds persuasive:
Even though Plaintiff did not file a lawsuit before or during the
pendency of his bankruptcy petition, the pending EEOC charges
constitute “administrative proceedings” and “[o]ther contingent and
unliquidated claims” that Plaintiff was required to disclose on his SFA.
The “property of bankruptcy estate includes all potential causes of
action existing at time petitioner files for bankruptcy.”
Casanova, 228 F. App’x at 841 (emphasis and alteration in original) (quoting Barger,
348 F.3d at 1292). Plaintiff’s “failure to timely amend [her bankruptcy petition] to
reflect [her] pending claim[s] while simultaneously pursuing th[ose] claim[s] in
another court of law constitutes inconsistent positions under oath.” Robinson, 595
F.3d at 1275 (alterations supplied) (citing Ajaka v. BrooksAmerica Mortg. Corp., 453
F.3d 1339, 1344 (11th Cir. 2006)). See also Burnes, 291 F.3d at 1286.
In light of the inconsistent positions taken by plaintiff, the court must
determine whether she intentionally misled the Bankruptcy Court. See Burnes, 291
F.3d at 1286 (“the doctrine of judical estoppel applies in situations involving
intentional contradictions, not simple error or inadvertence”). A “debtor’s failure to
satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor
either lacks knowledge of the undisclosed claims or has no motive for their
concealment.” Id. at 1287 (quoting In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th
In this case, plaintiff clearly had knowledge of her employment discrimination
claims because she filed her EEOC charge in November 2012, her petition for
bankruptcy in March 2013, and this lawsuit in May 2013. Further, plaintiff had
motives to conceal her EEOC claims from the bankruptcy court: to receive a “no
asset” discharge of her debts; and, to keep any proceeds from the discrimination
lawsuit for herself. Thus, the court infers that plaintiff intended to manipulate the
Accordingly, plaintiff’s employment discrimination claims against Big Lots for
monetary damages also are barred by the doctrine of judicial estoppel.
In accordance with the foregoing, it is ORDERED that defendant’s motion for
summary judgment is GRANTED. Plaintiff’s claims are DISMISSED with prejudice.
Costs are taxed against plaintiff. The Clerk is DIRECTED to close this file.
DONE and ORDERED this 7th day of January, 2015.
United States District Judge
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