Liddell v. Northrop Grumman Shipbuilding, Inc.

Filing 406

ORDER granting in part and denying in part Defendant's 388 Motion for Partial Summary Judgment. Signed by District Judge Halil S. Ozerden on 8/29/2011. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TAMMY LIDDELL
v.
NORTHROP GRUMMAN
SHIPBUILDING, INC.

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§
§
§
§

PLAINTIFF
Civil No. 1:06CV801-HSO-JMR
DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is the Motion for Partial Summary Judgment [388]
filed September 24, 2010, in the above-captioned cause by Defendant Northrop
Grumman Shipbuilding, Inc. [“Defendant”]. Plaintiff Tammy Liddell [“Plaintiff”]
has filed a Response [390] in opposition to Defendant’s Motion, and Defendant has
filed a Rebuttal [391]. After due consideration of the record, the submissions on file,
and the relevant legal authorities, the Court finds that, because some of Plaintiff’s
claims arising on or before January 21, 1997, are subject to the doctrine of judicial
estoppel, Defendant’s Motion for Partial Summary Judgment [388] should be
granted in part and denied in part.
I. FACTS AND PROCEDURAL HISTORY
An initial Complaint [1-1] was filed in this Court on March 21, 2001, and a
First Amended Complaint was filed on April 26, 2001, naming eleven (11)
individuals and the Ingalls Workers for Justice as Plaintiffs. Plaintiff Tammy
Liddell was not a named Plaintiff in the original suit. Named Defendants were
Ingalls Shipbuilding, Inc., Litton Industries, and Northrop Grumman. All three

Defendants filed a Motion to Dismiss [7-1] on June 20, 2001, pursuant to Federal
Rule of Civil Procedure 12. As detailed in its Memorandum Opinion [16-1] of
February 27, 2002, and pursuant to its Judgment of February 28, 2002 [17-1], the
Court dismissed Plaintiffs’ Thirteenth Amendment and Title VI claims, dismissed
Litton Industries and Northrop Grumman as Defendants, dismissed Ingalls
Workers for Justice as a Plaintiff, and dismissed Plaintiffs’ class action claims. In
their Motion to Alter or Amend Judgment filed on March 14, 2002 [18-1], the
remaining Plaintiffs moved the Court to reconsider its entry of judgment dismissing
their class action allegations. In a separate Motion for Entry of a Separate
Judgment filed April 22, 2002 [23-1], the remaining Plaintiffs sought to appeal the
Court’s prior order. The Court denied both of these Motions by Order entered on
July 10, 2002 [26-1].
On July 16, 2002, by way of a Motion for Leave to File a Complaint in
Intervention [27-1], putative class members requested leave to intervene as
Plaintiffs in this action, pursuant to Federal Rule of Civil Procedure 24. For the
first time, Plaintiff Tammy Liddell was identified as a putative class member and
as a Plaintiff-Intervenor in the proposed “Complaint in Intervention for Declaratory
Judgment and Injunctive Relief and Damages.” Ex. “A” [27-2], att. to Mot. for Leave
to File a Compl. in Intervention. The Court granted leave to amend on January 28,
2003 [40-1], and the Complaint in Intervention was filed on February 13, 2003 [421], naming an additional 171 Plaintiffs-Intervenors, including Plaintiff Tammy
Liddell. On April 7, 2003, with leave of Court, Plaintiffs collectively filed a Second
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Amended Complaint [48-1].
On May 8, 2003, Defendant filed a Motion to Sever [50-1], seeking to sever
each individual Plaintiff’s claims into a separate case, consolidated solely for the
purpose of discovery, which the Court denied, without prejudice, pursuant to an
Order signed March 31, 2004 [56-1]. On June 30, 2006, the Court issued an Order
to Show Cause [330-1] as to why Plaintiffs’ claims should not be severed into
separate causes of action. Plaintiffs filed a collective Response [342-1] to this
Order on July 20, 2006. Defendant subsequently filed a Motion to Sever on August
4, 2006 [349-1], which the Court granted on August 17, 2006 [360-1], and required
Plaintiffs to file separate complaints. On October 23, 2006, following severance of
her claims, Plaintiff filed an Individual Complaint for Injunctive and Declaratory
Relief and Damages [362-1]. Defendant filed its Answer on October 27, 2006 [3631].
In 2008, the Court entered an Order administratively closing all Northrop
Grumman cases while the claims of all but fourteen (14) Plaintiffs were heard and
resolved through arbitration. Plaintiff was one (1) of the fourteen (14) who opted
out of the arbitration proceedings. Upon conclusion of the various arbitrations, the
Court conducted a status conference on August 23, 2010, following which it
reopened the above captioned cause, determined that all discovery had been
completed, and set this case for trial to commence on the Court’s October 2011 trial
calendar. Defendant filed the instant Motion for Partial Summary Judgment [388]

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on September 24, 2010.1
After a hearing on May 12, 2011, Plaintiff’s counsel was allowed to withdraw
by Text Order dated May 25, 2011. In light of this withdrawal, the trial in this
matter was continued to the Court’s February 2012 trial calendar. Plaintiff is now
proceeding pro se.
In her Complaint, Plaintiff seeks injunctive and declaratory relief to prevent
alleged continuing, systemic, and unjustified race discrimination by Defendant,
with regard to the retention, terms and conditions of employment, treatment, and
promotion and transfer of Black employees. Pl.’s Compl., ¶1 [362-1]. Plaintiff, a
Black employee of Defendant for over 18 years, id., ¶ 3, alleges severe, pervasive,
and ongoing harassment through longstanding maintenance of a racially hostile
work environment, id., ¶¶ 1, 29–35. Plaintiff charges that she has been denied
promotions by Defendant because of her race. Id., ¶¶ 20–24. Plaintiff further
claims that she was subjected to racial job tracking. Id., ¶ 26. In addition to
injunctive and declaratory relief, Plaintiff requests both compensatory and punitive
damages. Id., ¶ 44(i).
In support of its present Motion for Partial Summary Judgment, Defendant
does not argue the merits of Plaintiff’s claims, but rather contends that all claims
arising on or before January 21, 1997, are barred by the doctrine of judicial estoppel
and, consequently, that it is entitled to partial summary judgment as to these

1

The instant Motion is timely reasserted pursuant to the Court’s Order
entered on May 27, 2008 [377-1].
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claims. Def.’s Mem. in Supp. of Mot. for Partial Summ. J., p. 10.
II. DISCUSSION
A.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 permits any party to a civil action to move

for summary judgment upon a claim, counterclaim, or cross-claim as to which there
is no genuine issue of material fact and upon which the moving party is entitled to
prevail as a matter of law. In applying this standard, the Court views evidence in
the light most favorable to the non-movant. Abarca v. Metro. Transit Auth., 404
F.3d 938, 940 (5th Cir. 2005) (citing Coleman v. Houston Indep. Sch. Dist., 113 F.3d
528, 533 (5th Cir. 1997)).
A party seeking summary judgment bears the initial burden of identifying
those portions of the pleadings and discovery on file, together with any affidavits,
which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant carries its
burden, the burden shifts to the non-movant to show that summary judgment
should not be granted. Id. at 324-25. The non-moving party may not rest upon
mere allegations or denials in its pleadings, but must set forth specific facts
showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256-57 (1986).
B.

Chapter 7 and Judicial Estoppel
The doctrine of judicial estoppel “‘prevents a party from asserting a position in

a legal proceeding that is contrary to a position previously taken in the same or some
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earlier proceeding.’” Hall v. GE Plastic Pacific PTE, Ltd., 327 F.3d 391, 396 (5th Cir.
2003) (quoting Ergo Science, Inc., v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). “The
purpose of the doctrine is to protect the integrity of the judicial process, by preventing
parties from playing fast and loose with the courts to suit the exigencies of self
interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999)(citing Brandon
v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir. 1988)(internal quotation marks,
parentheses, and citation omitted)).
Generally, judicial estoppel is “applied where ‘intentional self-contradiction is
being used as a means of obtaining unfair advantage in a forum provided for suitors
seeking justice.’” Id. at 206 (quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d
Cir. 1953)).

The Supreme Court has articulated three factors to evaluate in

determining whether the doctrine of judicial estoppel should apply:
(1) a party's later position must be clearly inconsistent with its earlier
position; (2) whether the party has succeeded in persuading a court to
accept that party’s earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create ‘the perception
that either the first or the second court was misled’; and (3) whether the
party seeking to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party if not
estopped.
New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (quoting Edwards v. Aetna Life
Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)).
The Fifth Circuit recognizes three factors which must be satisfied in order to
invoke judicial estoppel: “(1) the party’s position must be clearly inconsistent with its
previous one; (2) the court must have accepted the party's earlier position; and (3) the
non-disclosure must not have been inadvertent.” Kane v. National Union Fire Ins. Co.,
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535 F.3d 380, 386 (5th Cir. 2008)(quoting In re Coastal Plains, Inc., 179 F.3d 197, 205
(5th Cir. 1999)). Based on the record presented, and for the reasons discussed in more
detail below, the Court is persuaded that the foregoing principles of judicial estoppel
apply to the present case. See Reed v. City of Arlington, 2011 WL 3506100 *3 (5th Cir.
2011); In re Coastal Plains, Inc., 179 F.3d at 205; Cargo v. Kansas City Southern Ry.
Co., 408 B.R. 631, 639 (W.D. La. 2009).
Plaintiff filed for Chapter 7 bankruptcy protection on January 21, 1997. See
Voluntary Pet., attached as Ex. “G” to Def.’s Mot. for Partial Summ. J. All property,
including any accrued causes of action, belonging to a plaintiff as of the commencement
of a bankruptcy case, become property of the bankruptcy estate as of commencement
of the bankruptcy case. See 11 U.S.C. § 541(a); Matter of Swift, 129 F.3d 792, 795 (5th
Cir. 1997). Plaintiff did not list any potential claim arising out of the facts of this
lawsuit in her bankruptcy schedules. Plaintiff received a discharge on May 8, 1997.
See Discharge of Debtor, Ex. “H” to Def.’s Mot. for Partial Summ. J.
Plaintiff does not dispute these material facts cited in Defendant’s Motion for
Partial Summary Judgment. However, she argues that the application of judicial
estoppel is not appropriate in this case. Plaintiff points out that her bankruptcy was
discharged and closed around four years before the filing of the original class action
complaint in this matter, and that she could not have known in 1997 that she would
be attempting to participate in a class action lawsuit in 2001. Pl.’s Resp., p. 1.
Plaintiff maintains that “[i]t was not mandatory that plaintiff disclose every act of
discrimination, or ‘claim,’ in 1997 even if such claims might later form the basis of a
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class action, or part of a ‘pattern and practice’ suit.” Id. She argues that “[t]he 1997
bankruptcy does not cut off all antecedent ‘claims’ which may later be made the basis
of a suit,” and that “[t]here is no proof that plaintiff understood or appreciated, in 1997,
that she even had a ‘claim,’ or a contingent claim.” Id. at pp. 1–2. Alternatively,
Plaintiff requests additional time to attempt to re-open her 1997 bankruptcy, and/or
to allow the trustee to intervene on behalf of the creditors. Id. at p. 2.
Plaintiff signed her bankruptcy Petition, as well as her bankruptcy schedule,
under penalty of perjury. On May 8, 1997, the Bankruptcy Court granted Plaintiff a
discharge from her debts. See Discharge of Debtor, Ex. “H” to Def.’s Mot. for Partial
Summ. J. The record unequivocally demonstrates that Plaintiff has never filed or
sought to amend or correct her bankruptcy schedules to include her discrimination
claims against Defendant in this case. No genuine issues of material fact exist on this
point which would preclude a grant of summary judgment.2
In determining whether Plaintiff is judicially estopped from asserting certain
claims against Defendant, namely those that accrued on or before January 21, 1997,
the Court must consider: (1) whether Plaintiff’s position now is plainly inconsistent
with her prior legal position; (2) whether Plaintiff convinced a court to accept that prior
position; and (3) whether Plaintiff would gain an unfair advantage or impose a
detriment on others and whether her actions were inadvertent. See Kane v. Nat’l

2

As Reed v. City of Arlington, 2011 WL 3506100 (5th Cir. Aug. 11, 2011),
makes clear, the trustee’s duty to pursue a cause of action is distinct from the
debtor’s obligation to disclose an asset. Only the Plaintiff/Debtor’s claims are
currently before the Court.
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Union Fire Ins., 535 F.3d 380, 386 (5th Cir. 2008); Jethroe v. Omnova Solutions, Inc.,
412 F.3d 598, 600 (5th Cir. 2005)(citing In re Coastal Plains, 179 F.3d at 206-07)).
1.

Is Plaintiff’s Position Plainly Inconsistent with Her Prior Legal Position?

It is clear in the Fifth Circuit that if a plaintiff fails to disclose a cause of action
to a bankruptcy court, that plaintiff takes an inconsistent position by later pursuing
the undisclosed cause of action. In re Superior Crewboats, 374 F.3d 330, 335 (5th Cir.
2004); see also Jethroe, 412 F.3d at 600.
Plaintiff filed for Chapter 7 Bankruptcy protection on January 21, 1997, and did
not list her discrimination claim in either her Petition or her bankruptcy schedule. See
Pet. and Schedules, Ex. “G” to Def.’s Mot. for Partial Summ. J. At the time these
documents were filed, Plaintiff signed a declaration attesting to the truth and
correctness of the Debtor’s Schedules, under penalty of perjury. Id. at p. 17. In
Paragraph 20 of her Bankruptcy Schedule B, Personal Property, Plaintiff was required
to list “[o]ther contingent and unliquidated claims of every nature, including tax
refunds, counterclaims of the debtor, and rights to setoff claims.” Id. at p. 6. Plaintiff
marked an “X” in the column indicating “None.” Id. Pursuant to this representation
made to the Bankruptcy Court, Plaintiff received a discharge on May 8, 1997. See
Discharge of Debtor, Ex. “H” to Def.’s Mot. for Partial Summ. J.
After reviewing Plaintiff’s bankruptcy Petition and schedules, it is evident to
this Court that Plaintiff did not identify any potential claim arising out of the facts
surrounding this lawsuit in to the Bankruptcy Court. Therefore, the threshold inquiry
is whether Plaintiff was required to list these potential claims. This question turns on
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whether any of Plaintiff’s claims asserted in this case had accrued at the crucial time,
the time she filed the Chapter 7 bankruptcy Petition. “The accrual of a cause of action
means the right to institute and maintain a suit, and whenever one person may sue
another a cause of action has accrued.” Matter of Swift, 129 F.3d 792, 795 (5th Cir.
1997) (quoting Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191
S.W.2d 716, 721 (1946)).
Plaintiff alleges that, as of October 2006, she had been employed by Defendant
for over 18 years. Pl.’s Compl., at ¶3. During this time, Plaintiff claims that she
suffered race discrimination and was subjected to a hostile work environment. She
advances claims against Defendant pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e, et seq., and Section 1981 of the Civil Rights Act of 1991, 42
U.S.C. § 1981. Id., ¶¶ 1–2. Plaintiff’s racial discrimination claims fall into three
categories: (1) denial of promotions; (2) denial of participation in sea trials and ship
checks; (3) racial job tracking; (4) imposition of discipline; (5) failure to train; and (6)
hostile work environment. Id., ¶¶ 19–35.
a.

Hostile Work Environment Claim

In its Brief, Defendant maintains that claims arising on or before January 21,
1997, are barred by judicial estoppel and must be dismissed. If Plaintiff’s hostile work
environment allegations were viewed as discrete acts, then Defendant would be correct
in focusing its analysis on discrete events which occurred before that date. However,
this is not always the case. See National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115 (2002) (“Hostile environment claims are different in kind from discrete acts.
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Their nature involves repeated conduct. . . . The ‘unlawful employment practice’
therefore cannot be said to occur on any particular day. It occurs over a series of days
or perhaps years and, in direct contrast to discrete acts, a single act of harassment may
not be actionable on its own. . . . Such claims are based on the cumulative effect of
individual acts.”). Therefore, even though Plaintiff does list certain discrete incidents
which occurred prior to January 21, 1997, see id., ¶ 29, the Court must consider
whether Plaintiff’s hostile work environment claim had accrued on or before January
21, 1997.3
In order to succeed on a hostile work environment claim under Title VII,
Plaintiff must show that (1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment was based on a protected characteristic;
(4) the harassment affected a term, condition, or privilege of her employment; and (5)
her employer knew or should have known of the harassment and failed to take prompt

3

In its Rebuttal [391], Defendant cites the Court’s decision in Bridgewater v.
Northrop Grumman Ship Systems, Inc., No. 1:06CV769-HSO-JMR, 2007 WL
4224212 (S.D. Miss. November 29, 2007), wherein this Court held that Mr.
Bridgewater was judicially estopped from pursuing his monetary claims against
Defendant, even though he had filed a Chapter 7 petition several years before
moving to intervene in this same litigation. A key distinction between Mr.
Bridgewater’s claims and Ms. Liddell’s claims, however, is the date of accrual of
those claims. The Court explicitly held in Bridgewater that “[b]ecause all of
Plaintiff's claims are related to his employment with Defendant, all of his claims
against Defendant had accrued on or before his retirement date of October 30, 1997,
which was before he filed his Chapter 7 bankruptcy petition in 1998.” Bridgewater,
2007 WL 4224212, at *6. The Court therefore concluded that all of these claims
should have been listed on Mr. Bridgewater’s schedules of assets. Id. The Court
must likewise consider which, if any, of Ms. Liddell’s claims had accrued on the date
she filed her Chapter 7 petition, as she was still employed by Defendant at that
time.
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remedial action. E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 399 (5th Cir.
2007). An unlawful employment practice has occurred when “the employer has
engaged in enough activity to make out an actionable hostile work environment claim.”
Morgan, 536 U.S. at 117.
In support of its Motion for Partial Summary Judgment, Defendant has not
submitted any discovery responses or deposition transcripts which could provide
insight into when Plaintiff’s allegations supporting her hostile work environment claim
accrued. The Court is left only with Plaintiff’s Complaint for insight on this topic.
Plaintiff contends that she has been “exposed to offensive racially derogatory writings,
depictions, and/or graffiti on a constant basis in a number of places at NGSS,” of which
NGSS knew or should have known, but which it allegedly failed to prevent or promptly
correct. Pl.’s Compl., ¶ 29. Plaintiff asserts that she has
not complained about each and every instance of having been exposed to
the offensive racially derogatory writings, depictions, or graffiti because
plaintiff believed it would be useless so to do, given the historical lack of
sufficient response on the part of NGSS.
Id. Plaintiff lists the following instances of such exposure:
a) Plaintiff has seen offensive racially derogatory graffiti on the restroom
walls on both banks.
b) Plaintiff has seen the words “nigger” written on the restroom walls
through the late 1990s.
Id.
Based on the record submitted in support of this Motion for Partial Summary
Judgment, and viewing the evidence in the light most favorable to the non-movant, the
Court finds that Defendant has not met its initial summary judgment burden of
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demonstrating that Plaintiff’s alleged hostile work environment claim had accrued
before she filed her bankruptcy Petition on January 21,1997. Defendant’s Motion for
Partial Summary Judgment will therefore be denied as to Plaintiff’s hostile work
environment claim.
b.

Discrete Discriminatory Act Claims

Plaintiff’s remaining claims involve discrete discriminatory acts, specifically her
claims as to (1) denial of promotions; (2) exclusion from sea trials and ship checks; (3)
racial job tracking; (4) imposition of discipline; and (5) failure to train. Unlike hostile
work environment claims, discrete acts such as termination, failure to promote, denial
of transfer, or refusal to hire are easily identified. Each incident of discrimination and
each retaliatory adverse employment decision constitute a separate, actionable
unlawful employment practice. Morgan, 536 U.S. at 114.
Title VII prohibits an employer from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). Plaintiff is required to establish, by a preponderance of the evidence, a
prima facie case of racial discrimination in employment by showing that (1) she was
a member of a protected group; (2) she was qualified for the position he held; (3) she
suffered an adverse employment action, such as termination; and (4) she was replaced
by individuals outside the protected class. DeCorte v. Jordan, 497 F.3d 433, 437 (5th
Cir. 2007) (citing Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir.
2003)). Then, the burden-shifting analysis proceeds. Id. “Adverse employment action”
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in this context encompasses decisions such as hiring, granting leave, discharging,
promoting, and compensating. McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.
2007).
In this case, Plaintiff alleges that she applied on numerous occasions for
promotive positions for which she was fully qualified, but was not selected due to her
race. Pl.’s Compl., at ¶19. Plaintiff’s Complaint lists alleged failures to promote in or
about 1996, 1998, and 2000. Id. Plaintiff also maintains that she was subjected to
“racial job tracking” by being assigned jobs which were more difficult, dirtier, and/or
more dangerous than those of white employees, including in 1990 and 1998. Id., at ¶
25.
At least some of Plaintiff’s discrete claims, namely the alleged denial of
promotion in 1996 and the “racial job tracking” in 1990, accrued before January 21,
1997. Thus, these claims should have been revealed on Plaintiff’s schedules of assets.
To date, Plaintiff has never sought to amend or correct her schedules to disclose these
claims to the Bankruptcy Court.
Plaintiff’s non-disclosure of these claims amounts to an assertion to the
Bankruptcy Court that these assets did not exist, which is inconsistent with her
current position in this case. The first prong of the test for applicability of judicial
estoppel, namely whether the position of the party against whom estoppel is sought is
plainly inconsistent with its previous position, is clearly satisfied with respect to these
claims. Jethroe, 412 F.3d at 600 (holding, in case by former employee against employer
alleging discrimination in violation of Title VII, that plaintiff’s non-disclosure of
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existence of pending EEOC complaint when she filed her Chapter 13 petition and of
filing of lawsuit during pendency of her bankruptcy satisfied first element of judicial
estoppel); In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir. 2004) (holding
that omission of a personal injury claim from Chapter 7 debtors’ mandatory
bankruptcy filings is tantamount to representation that no such claim existed, and that
subsequent action in state court is blatant inconsistency that readily satisfies first
prong of judicial estoppel inquiry).
2.

Did the Previous Court Accept Plaintiff’s Earlier Position?

As for whether Plaintiff convinced a court to accept her prior position, it is
beyond dispute that the Bankruptcy Court granted her requested relief of a discharge
based upon her representations to that Court. This second element of judicial estoppel
only requires “that the first court has adopted the position urged by the party, either
as a preliminary matter or as part of a final disposition.” In re Coastal Plains, 179
F.3d at 206 (quoting Reynolds v. Comm'r of Internal Revenue, 861 F.2d 469, 473 (6th
Cir. 1988)).

This Court concludes that, by granting Plaintiff a discharge, the

Bankruptcy Court relied, at least in part, on Plaintiff’s bankruptcy schedules as
presented in January 1997. Therefore, the second prong is satisfied. In re Superior
Crewboats, Inc., 374 F.3d at 335; see also Mack v. Lester Coggins Trucking, Inc., No.
2:07cv36-KS-MTP, 2008 WL 190740, *2 (S.D. Miss. 2008).
3. Did Plaintiff Gain an Unfair Advantage, Impose an Unfair Detriment,
or Act Inadvertently?
Plaintiff would clearly gain an unfair advantage by receiving a discharge while

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retaining her pre-January 21, 1997, claims as assets. “Judicial estoppel must be
applied in such a way as to deter dishonest debtors, whose failure to fully and honestly
disclose all their assets undermines the integrity of the bankruptcy system, while
protecting the rights of creditors to an equitable distribution of the assets of the
debtor's estate.” Reed v. City of Arlington, 2011 WL 3506100 *2 (5th Cir. 2011). The
Fifth Circuit has stated that “[i]t goes without saying that the Bankruptcy Code and
Rules impose upon bankruptcy debtors an express, affirmative duty to disclose all
assets, including contingent and unliquidated claims.” In re Coastal Plains, 179 F.3d
at 207-08 (citing 11 U.S.C. § 521(1)). In fact, the Fifth Circuit has noted that “the
importance of this disclosure duty cannot be overemphasized.” Id. at 208 (citing
Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir. 1988)
(discussing importance of disclosure to creditors and to bankruptcy court)).

In

bankruptcy cases, “the 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 210 (emphasis in
original)(internal citations omitted).
While Plaintiff states in her Response [390] dated October 26, 2010, that she
would like additional time to re-open her 1997 bankruptcy, to date Plaintiff has not
moved for any relief, of any kind, in the Bankruptcy Court. While Plaintiff claims that
she could not have known in 1997 that she would be attempting to participate in a
class action lawsuit in 2001, “knowledge” in the judicial estoppel context simply means
knowledge of facts giving rise to Plaintiff’s claims, not of Plaintiff’s duty to report such
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claims to the Bankruptcy Court. In re Coastal Plains, 179 F.3d at 212.
“Judicial estoppel is particularly appropriate where . . . a party fails to disclose
an asset to a bankruptcy court, but then pursues a claim in a separate tribunal based
on that undisclosed asset.” Id. at 210. The law is clear that a lack of awareness of the
statutory disclosure duty is not sufficient to avoid the application of judicial estoppel
in this context. See id.; see also Kamont v. West, 83 F. App’x 1, *3 (5th Cir. October 31,
2003)(holding that debtor “must show that she was unaware of the facts giving rise to
her claim, not of her duty to report her claim”). Some of Plaintiff’s claims against
Defendant had clearly accrued as of the date she filed for Chapter 7 bankruptcy
protection; therefore, Plaintiff cannot argue that she did not have knowledge of the
facts giving rise to these particular claims as of the date of her bankruptcy filing.
With respect to the question of any “motive for concealment” of these claims,
Plaintiff was granted a discharge on May 8, 1997. See Discharge of Debtor, Ex. “H” to
Def.’s Mot. for Partial Summ. J. Plaintiff’s failure to disclose her alleged discrete Title
VII and section 1981 claims against Defendant in the course of filing her Chapter 7
bankruptcy constituted a representation to the Bankruptcy Court that she had no such
potential causes of action. See In re Costal Plains, 179 F.3d at 210. Within the
meaning of the case law cited above, Plaintiff had both an incentive not to disclose her
claims against Defendant, and knowledge of the facts of some of the present claims.
Thus, Plaintiff’s non-disclosure was not “inadvertent” as contemplated by the Fifth
Circuit in Coastal Plains. See also Young v. Town of Greenwood, 2009 WL 1924192
(W.D. La. 2009); Benton v. Ryan's Family Steakhouse, 222 F.R.D. 112, 114 (S.D. Miss.
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2004). She would also gain an unfair advantage by having failed to reveal these claims
on her bankruptcy schedules. Therefore, the elements necessary for application of
judicial estoppel are present here, and partial summary judgment should be granted
in favor of Defendant as to Plaintiff’s discrete monetary damage claims accruing on or
before January 21, 1997, namely the alleged denial of promotion in 1996 and the
“racial job tracking” in 1990.
4.

Is Defendant Entitled to Prevail as a Matter of Law on Plaintiff’s
Non-Monetary Claims?

In addition to her damages claims, Plaintiff’s Complaint advances the following
requests for following injunctive and declaratory relief:
(a)

Declare pursuant to 28 U.S.C. §§ 2201 & 2202 the employment
practices set forth in paragraphs 19 through 36 to be unlawful and
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §§ 2000e et seq. and the Civil Rights Acts of 1866, as
amended, 42 U.S.C. § 1981;

(b)

Adjudge, decree, and declare that the practices of NGSS
complained of herein are violative of the rights secured to plaintiff
by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. and the Civil Rights Act of 1866, as amended, 42
U.S.C. § 1981;

(c)

Issue a preliminary and permanent injunction enjoining NGSS .
. . from engaging in each of the unlawful practices set forth in
paragraphs 16 through 34 and from continuing other practices
found to be in violation of federal law;

(d)

Direct NGSS to take such affirmative steps as are necessary to
ensure that the effects of its unlawful employment practices are
eliminated;

(e)

Enter a permanent and mandatory injunction requiring that NGSS
adopt employment practices in conformity with the requirements
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
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§§ 2000e et seq. and the Civil Rights Acts of 1866, as amended, 42
U.S.C. § 1981;
(f)

Require that NGSS submit a comprehensive plan detailing how it
plans to ensure fair and equitable job advancement opportunities
for Black employees. . . .

(g)

Require that NGSS institute a policy that affords equal
opportunities for training and development. . . .

(h)

Grant equitable relief, including, but not limited to, back pay, sick
pay, vacation pay, disability benefits, and seniority rights to
plaintiff. . . .

Pl.’s Compl., at pp. 13–14.
Defendant contends that judicial estoppel bars all of Plaintiff’s claims which
accrued on or before the date of her bankruptcy filing, including those claims seeking
declaratory and injunctive relief. It does not seek to distinguish between claims for
damages and claims for declaratory and injunctive relief.
While the Fifth Circuit has not directly addressed this issue, other courts have
held that judicial estoppel does not preclude a debtor-plaintiff from seeking injunctive
relief under certain circumstances. See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282,
1289 & n.3 (11th Cir. 2002)(noting that “[t]he facts of a particular case will always
guide a court’s analysis of this issue,” and holding Chapter 13 debtor-plaintiff was
judicially estopped from pursuing monetary damages for his discrimination claim, but
holding that plaintiff was not judicially estopped from pursuing injunctive relief, and
also noting that “knowledge that the debtor was pursuing a discrimination claim
seeking injunctive relief that offered no monetary value to the estate, would not, in all
likelihood, have changed the bankruptcy court's determination about how to proceed
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with the debtor's bankruptcy.”). However,
. . . [t]he Supreme Court has refused to ‘establish inflexible prerequisites
or an exhaustive formula for determining the applicability of judicial
estoppel,’ stating instead that different considerations ‘may inform the
doctrine's application in specific factual contexts.’ Id. at 751; see also 18
Moore's § 134.31 at 73 (‘Because the doctrine is equitable in nature, it
should be applied flexibly, with an intent to achieve substantial justice....
Application of the doctrine of judicial estoppel should be guided by a
sense of fairness, with the facts of the particular dispute in mind.’).
Reed v. City of Arlington, 2011 WL 3506100 at *2 (quoting New Hampshire v. Maine,
532 U.S. 742, 751 (2001)).
In the context of this case, the Court is of the view that knowledge of Plaintiff’s
claims would have added monetary value to Plaintiff’s bankruptcy estate. In addition,
as this Court found when rendering its decision in Bridgewater v. Northrop Grumman
Shipbuilding Systems, 2007 WL 4221212 (S.D. Miss. November 29, 2007), the case of
Lett v. Reliable Ruskin, 2006 WL 2056582 (M.D. Ala. July 24, 2006), is instructive. In
Lett, the district court concluded that the “key is to examine the demands made by the
Plaintiff and then determine if success on the merits would result in any value being
added to the debtor Plaintiff's estate.” Id. at *7. Ultimately, that court concluded that
a Chapter 13 debtor-plaintiff is judicially estopped from seeking relief in the form of
a promotion because in a Chapter 13 bankruptcy, projected disposable income is
allotted to make payments under a bankruptcy plan, and because a promotion would
increase debtor-plaintiff’s income, this would have added value to the bankruptcy
estate. Lett, 2006 WL 2056582, at *7 (citing Barger v. City of Cartersville, Ga., 348
F.3d 1289, 1297 (11th Cir. 2003)).
The Court here is of the view that success on the merits of those of Plaintiff’s

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claims for declaratory judgment and injunctive relief could result in her receiving back
pay, salary adjustments, and adjustment of retirement benefits. These would have
added value to her bankruptcy estate. For this reason and in order to further achieve
substantial justice, Plaintiff should be judicially estopped from pursuing any of these
claims which accrued on or before January 21, 1997, namely the alleged denial of
promotion in 1996 and the “racial job tracking” in 1990.
III. CONCLUSION
As discussed in more detail above, the Court finds that Plaintiff is judicially
estopped from pursuing her discrete claims against Defendant for denial of promotions,
exclusion from sea trials and ship checks, racial job tracking, imposition of discipline,
and failure to train, which accrued on or before January 21, 1997, specifically the
alleged denial of promotion in 1996 and “racial job tracking” in 1990. She is not
judicially estopped from pursuing her hostile work environment claim and any other
discrete claims. Defendant’s Motion for Partial Summary Judgment will be granted
in part and denied in part.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that, for the reasons
stated herein, Defendant’s Motion for Partial Summary Judgment [388] filed
September 24, 2010, should be and hereby is GRANTED IN PART, to the extent it
seeks dismissal of Plaintiff’s discrete claims which accrued on or before January 21,
1997, specifically her claims for alleged denial of promotion in 1996 and “racial job
tracking” in 1990, and DENIED IN PART, to the extent it seeks dismissal of
Plaintiff’s hostile work environment claim and any other discrete act claims. Those of
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Plaintiff’s discrete claims identified above which accrued on or before January 21,
1997, are DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED, this the 29th day of August, 2011.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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