Equal Employment Opportunity Commission v. Performance Food Group, Inc. et al
Filing
64
MEMORANDUM AND ORDER Re: Judicial Estoppel. Signed by Judge Marvin J. Garbis on 10/8/14. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
U.S. EQUAL EMPLOYMENT OPPORTUNITY *
COMMISSION
*
Petitioner
vs.
*
* CIVIL ACTION NO. MJG-13-1712
PERFORMANCE FOOD GROUP
COMPANY, LLC
*
*
Respondent
*
*
*
*
*
*
*
*
*
*
MEMORANDUM AND ORDER RE: JUDICIAL ESTOPPEL
The Court has before it Plaintiff EEOC'S Motion for
Judicial Estoppel [Document 48] and the materials submitted
relating thereto.
The Court finds a hearing unnecessary.
At all times relevant hereto, Defendant Performance Food
Group, Inc. (including related entities) ("PFG") has been
engaged in the business of supplying food and other products to
restaurants, hotels, and other food retailers.
In this case,
the EEOC contends that PFG – in its Broadline Division –
maintained an ongoing pattern or practice of gender-based
discrimination by failing to hire a class of female applicants
for certain positions at PFG's warehouses.
The EEOC will, at
trial, offer evidence that certain sex-based discriminatory
remarks were made by PFG's Vice President of Operations, Dan
Peckskamp, and one of PFG's Regional Vice Presidents of
Operations, Dave Russ.1
In the course of administrative proceedings before the
United States Equal Employment Opportunity Commission ("EEOC")
and a summons enforcement action in this Court,2 PFG took the
position that Messrs. Peckskamp and Russ, members of the
corporate management team for PFG's Broadline Division, had
ultimate hiring oversight over the Broadline Division.
Moreover, in the Memorandum and Order Re: Subpoena
Enforcement, [Document 29 in MJG-09-2200] at 19, the Court
stated:
The Court finds that hiring data for all
applicants
and
employees
within
the
Broadline
division
over
which
Pekscamp
[sic], the Vice President of Operations
and/or Russ, a Regional Vice President of
Operations,
maintain
ultimate
hiring
oversight is relevant to the underlying
charges.
In the instant lawsuit, PFG has taken the position that
Messrs. Peckskamp and Russ "lacked hiring oversight or control
over any employees in PFG's Broadline facilities."
53] at 2.
[Document
PFG wishes to "clarify[] and explain[] certain facts
1
At a hearing held on October 2, 2009 before this Court in a
related summons enforcement action, MJG-09-2200, "it was
determined that the Vice President of Operations, Dan Pekscamp
[sic], and the Regional Vice President of Operations, Dave Russ,
are members of the corporate management team for PFG's Broadline
division. (Hr'g Tr. at 9:13-10:9, 24:15-27:3." See [Document 22
in MJG-09-2200].
2
EEOC v. PFG, MJG-09-2200.
2
which were inadvertently misrepresented during the course of the
EEOC's investigation."
Id.
The representations made to the
EEOC during the course of the investigation that precipitated
the instant lawsuit were also made to this Court in the summons
enforcement action.
The EEOC seeks to have PFG judicially estopped from varying
in the instant case from (1) its representations in the related
administrative and judicial proceedings, and (2) this Court's
finding that Messrs. Peckskamp and Russ had ultimate hiring
authority.
Alternatively, the EEOC seeks to be permitted to
engage in additional discovery regarding the matter.
As stated by the EEOC:
"As an equitable doctrine, judicial estoppel
is invoked in the discretion of the district
court and with the recognition that each
application must be decided upon its own
specific facts and circumstances."
King,
159 F.3d at 196 (quoting McNemar v. Disney
Store, Inc., 91 F.3d 610, 617 (3d Cir.
1996)).
In
the
Fourth
Circuit,
courts
generally examine the following factors:
(1)
[t]he party to be estopped must be
asserting a position that is factually
incompatible with a position taken in a
prior
judicial
or
administrative
proceeding;
(2)
the prior inconsistent position must
have been accepted by the tribunal; and
(3)
the party to be estopped must have
taken
inconsistent
positions
intentionally
for
the
purpose
of
gaining unfair advantage.
3
Id. Judicial estoppel, however, will not be
applied
where
the
party's
inconsistent
position
results
from
inadvertence
or
mistake. Id. at 196-197.
[Document 48-1] at 12 (alteration in original).
It is true that PFG is now asserting a position that is
factually incompatible with the position that it took in the
related administrative and judicial proceedings.
It is also
true that this prior position was accepted by the EEOC and this
Court.
However, the Court does not find that PFG took the prior
position for the purpose of gaining an unfair advantage in the
administrative action or summons enforcement action.
The Court's decision to eschew judicial estoppel does not
indicate a lack of concern about PFG's change of position in the
instant lawsuit.
Certainly, the EEOC has proceeded in the instant case –
particularly in regard to discovery – with the justified belief
that PFG was not contesting the authority of Messrs. Peckskamp
and Russ.
It is now apparent that the EEOC must be given a full
opportunity for discovery regarding the matter.
Moreover, it
may be appropriate to provide other relief if the timing of the
disclosure of the changed position or other considerations
warrants doing so.
Moreover, while PFG is not estopped from changing its
position, it cannot erase the record.
4
Statements made by PFG in
the prior proceedings may be admitted in the instant case.
Of
course, PFG will have the opportunity to present evidence to the
fact finder clarifying and explaining those facts that it
contends were inadvertently misrepresented in the prior
proceedings.
Accordingly:
1.
Plaintiff EEOC'S Motion for Judicial Estoppel
[Document 48] is GRANTED IN PART.
2.
Defendant PFG is not estopped from varying from
the position that Messrs. Peckskamp and Russ had
ultimate hiring authority over the Broadline
Division.
3.
Plaintiff shall be granted additional discovery3
that may be necessary to enable it fully to seek
evidence relating to the authority of Messrs.
Peckskamp and Russ and the change of position of
PFG in regard to their authority.
SO ORDERED, on Wednesday, October 08, 2014.
/s/__________
Marvin J. Garbis
United States District Judge
3
The additional discovery permitted, and any other relief to
be granted, shall be determined by Magistrate Judge Gesner to
whom the Court has referred discovery matters in the instant
case. See [Document 57].
5
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