Gamble v. Sitel Operating Corp. et al

Filing 64

ORDER Denying 45 Motion to Dismiss; Rejecting as Moot 56 Report and Recommendations; Adopting in Part and Modifying in Part 61 Report and Recommendations and LIFTING Stay. Signed by Judge Sheryl H. Lipman on 5/17/17. (Lipman, Sheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
STEPHANIE GAMBLE,
Plaintiff,
v.
SITEL OPERATING CORPORATION,
Defendant.

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No. 15-cv-2789-SHL-dkv

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND
RECOMMENDATION ON RECONSIDERATION, DENYING DEFENDANT’S MOTION
FOR JUDGMENT ON THE PLEADINGS, REJECTING AS MOOT THE PREVIOUS
REPORT AND RECOMMENDATION AND LIFTING STAY
On December 8, 2015, Plaintiff Stephanie Gamble filed her pro se Complaint against
Defendants Sitel Operating Corporation (“Sitel”) and Meredith Ashley Farmer, alleging
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e et seq., and disability discrimination in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112. (Compl., ECF No. 1.) Plaintiff amended her Complaint on
May 19, 2016, adding claims for breach of contract and negligence. (Am. Compl., ECF No. 14.)
On August 22, 2016, the Court adopted the Chief Magistrate Judge’s Report and
Recommendation (ECF No. 17), and dismissed Plaintiff’s claims against Sitel for breach of
contract, negligence, Title VII gender discrimination and ADA disability discrimination, and
dismissed all claims against Ms. Farmer. (ECF No. 19.) Plaintiff’s ADA claims against Sitel for
failure to accommodate and for retaliation remain. (Id.)

On November 13, 2016, Sitel filed a Motion for Judgment on the Pleadings under Federal
Rule of Civil Procedure 12(c), 1 seeking to dismiss Plaintiff’s remaining claims for lack of
jurisdiction, failure to join an indispensable party and judicial estoppel. (ECF No. 45.) On
January 11, 2017, the Chief Magistrate Judge issued a Report and Recommendation (“R&R”),
recommending that the Court dismiss this matter for lack of jurisdiction because Plaintiff had no
standing to bring the case based on her Chapter 13 bankruptcy proceeding pending in the United
States Bankruptcy Court for the Western District of Tennessee. (ECF No. 56.) Then, on March
7, 2017, after Plaintiff presented evidence that the Bankruptcy Court had allowed the trustee to
abandon Plaintiff’s employment discrimination claim against Sitel, the Court referred the R&R
on the Motion for Judgment on the Pleadings back to the Chief Magistrate Judge for
reconsideration of that issue and the remaining issues. (See ECF No. 60.)
Subsequently, on March 16, 2017, the Chief Magistrate Judge issued a Report and
Recommendation on Reconsideration of the Defendant’s Motion for Judgment on the Pleadings
(“R&R on Reconsideration”), recommending that the Court deny Sitel’s Motion for Judgment on
the Pleadings based on its findings that the trustee was no longer a necessary party. In addition,
the R&R on Reconsideration concluded that Plaintiff has standing and that the circumstances do
not warrant judicial estoppel. (ECF No. 61.) On March 29, 2017, Sitel filed objections to the
R&R, contending that the recommendation of the denial of its Motion to Dismiss under the
theory of judicial estoppel should be without prejudice and seeking clarification from the Court
as to whether this Court is the proper forum for Plaintiff’s claims. (ECF No. 63.) Plaintiff did
not respond to Sitel’s objections.

1

While docketed and labeled as a Motion to Dismiss, Defendant’s Motion was actually made
under Rule 12(c), and, thus, the Court will interpret it as a Motion for Judgment on the
Pleadings.
2

For the reasons herein, the Court ADOPTS IN PART AND MODIFIES IN PART the
R&R on Reconsideration, and the previous R&R is REJECTED AS MOOT. Further, the Court
LIFTS the stay previously entered in this matter.
STANDARD OF REVIEW
A magistrate judge may submit to a judge of the court proposed findings of fact and
recommendations for the disposition of a motion to dismiss. 28 U.S.C. § 636(b)(1)(B). “A
judge of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. 262(b)(1)(C);
Thomas v. Arn, 474 U.S. 140, 149 (1985). After reviewing the evidence, the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge. 28 U.S.C. § 636(b)(1)(C). The district court need not review findings that are not
objected to under a de novo or any other standard. Thomas, 474 U.S. at 150.
When reviewing a motion for judgment on the pleadings, courts “must construe the
complaint in a light most favorable to the plaintiff, accept all factual allegations as true and
determine whether the complaint states a plausible claim for relief.” Albrecht v. Treon, 617 F.3d
890, 893 (6th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal citations and
quotations omitted)). A motion for judgment on the pleadings should be granted if, taking “all
well-pleaded material allegations of the pleadings of the opposing party . . . as true,” the “moving
party is nevertheless clearly entitled to judgment.” Warrior Sports, Inc. v. Nat’l Collegiate
Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010) (quoting JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007).

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ANALYSIS
On reconsideration of the R&R, the Chief Magistrate Judge found that, because the
Bankruptcy Court allowed the trustee to abandon Plaintiff’s employment discrimination claim
against Sitel, Plaintiff need not join the trustee as a party, and, additionally, Plaintiff has standing
to pursue her claims against Sitel here. (See ECF No. 61 at 3-4.) Further, the Chief Magistrate
Judge rejected Sitel’s judicial estoppel theory, concluding that, based on Plaintiff’s averments,
she was not aware that she needed to include her claims against Sitel in her bankruptcy estate.
(Id. at 4-7.) Sitel does not object to the Chief Magistrate Judge’s conclusion that the Court
should deny its Motion. However, Sitel argues that the Court’s denial of its motion under a
judicial estoppel theory should be without prejudice. 2
Because Sitel does not object to the findings by the Chief Magistrate Judge that Plaintiff
has standing and has not failed to join a necessary party, the Court need only review the issue of
whether Sitel’s arguments under the theory of judicial estoppel should be dismissed with or
without prejudice. There is no specific finding as to this issue in the R&R, and Plaintiff did not
respond to Sitel’s objections. Sitel contends that the Chief Magistrate Judge relied on unsworn
assertions by Plaintiff in finding that Plaintiff was not aware that this matter should have been
part of her bankruptcy case. (Def.’s Objections, ECF No. 63 at 1-2.) Consequently, Sitel argues
that it should be given “the opportunity to explore the veracity of these statements in discovery”

2

Sitel also seeks clarification from the Court that this Court is the proper forum for Plaintiff to
pursue her ADA claim against Sitel. The Court notes that, on its own search, it appears
Plaintiff’s Chapter 13 bankruptcy proceeding has been dismissed in its entirety. See In re:
Stephanie Latrice Gamble, No. 13-12212 (Bankr. W.D. Tenn. May 3, 2017). Therefore, the
issue of whether Plaintiff may simultaneously raise this matter as a core proceeding in her
bankruptcy case is presently moot. Should this issue arise again in the future, Sitel may then
address it with the Court.
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such that it may be permitted to raise the theory of judicial estoppel again in its dispositive
motion.
The Court agrees with Sitel. See In re Martin, 2011 WL 6032835 (N.D. Ohio Dec. 5,
2011) (denying motion to dismiss without prejudice to assert judicial estoppel defense again in a
different procedural context). In the course of discovery, should Sitel discover evidence
disputing Plaintiff’s claim that she was unaware that the claim should have been part of the
bankruptcy case, Sitel may re-raise the issue in a dispositive motion.
The Chief Magistrate Judge also recommended that the Court lift the stay that was issued
in this case. Sitel did not object to this recommendation. The stay was entered because of the
pending jurisdictional issue, which no longer exists. Therefore, the Court LIFTS the Stay.
CONCLUSION
For the foregoing reasons, the Court ADOPTS IN PART AND MODIFIES IN PART
the Chief Magistrate Judge’s Report and Recommendation on Reconsideration, DENIES WITH
PREJUDICE Sitel’s Motion for Judgment on the Pleadings as to the issues of failure to join a
necessary party and standing, DENIES WITHOUT PREJUDICE Sitel’s Motion for Judgment
on the Pleadings under the theory of judicial estoppel, REJECTS AS MOOT the Chief
Magistrate Judge’s Report initial Report and Recommendation and LIFTS the stay entered in
this matter.
IT IS SO ORDERED, this 17th day of May, 2017.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE

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