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Topple of Estoppel? Eleventh Circuit Deals Blow to Bankruptcy Disclosure Defense in Discrimination Suit

Employees who sue their employers must disclose that lawsuit if they file for bankruptcy—right? Maybe not. In Slater v. U.S. Steel Corp., the Eleventh Circuit overruled prior precedent and impaired a valuable defense for early dismissal or settlement with bankrupt plaintiffs. This decision will affect strategy for employers that face litigation from bankrupt plaintiffs.

Legal Background

Judicial estoppel is an equitable defense that bars a plaintiff’s claim when he or she takes differing positions in court cases with an intent to make a mockery of the judicial system. Until now, courts in the Eleventh Circuit (that is federal courts in Alabama, Georgia and Florida) have applied the defense when a plaintiff pursues a lawsuit in one court and then files for bankruptcy without disclosing the employment lawsuit as an asset in the bankruptcy case. Courts apply the judicial estoppel defense in these circumstances to prevent plaintiffs from obtaining a windfall by concealing an asset that could be used to pay creditors (i.e., the potential recovery in the employment lawsuit).

Companies defending claims filed by bankrupt plaintiffs have prevailed on the judicial estoppel defense by reviewing sworn bankruptcy filings to see if their plaintiff failed to disclose the employment claim. If the plaintiff failed to notify the bankruptcy court about the employment claim, the employer could win the case based entirely on that failure to disclose.

The Slater Case

Ms. Slater was pursuing gender discrimination and retaliation claims against her former employer, U.S. Steel. After the company learned that Ms. Slater had filed for bankruptcy but failed to list her employment claim as an asset, U.S. Steel moved for summary judgment based on judicial estoppel. Relying on prior Eleventh Circuit caselaw, the district court granted the motion. Unfortunately, in an en banc decision (which means the entire court participated), the Eleventh Circuit not only overturned the district court’s decision, it overruled prior precedent, changing the law in the circuit. As a result, defendants will be less likely to prevail on this defense at the early stages of litigation.

The Eleventh Circuit reaffirmed that courts may apply judicial estoppel only when the employer can establish two things:

  • First, the plaintiff took a position under oath in the bankruptcy proceeding that was inconsistent with the plaintiff’s pursuit of the lawsuit; and
  • Second, the plaintiff intended to make a mockery of the judicial system.

What evidence is necessary to find that a plaintiff intended to make a mockery of the judicial system? Prior Eleventh Circuit decisions (Barger v. City of Cartersville and Burnes v. Pemco Aeroplex) endorsed a rule that the mere fact of the plaintiff’s nondisclosure is sufficient to show such intent, even if the plaintiff later corrected her bankruptcy disclosures. In the Slater case, the court granted en banc review to reconsider this precedent and overruled the prior Barger and Burnes decisions. Accordingly, courts in the Eleventh Circuit may no longer infer a plaintiff’s intent to misuse the judicial system without considering the individual plaintiff and the circumstances surrounding the nondisclosure of a lawsuit in the bankruptcy schedules. Among other factors, courts may consider the plaintiff’s level of sophistication, her explanation for the omission, whether she subsequently corrected the disclosures, and any bankruptcy court motions or orders concerning the nondisclosure.

According to the en banc panel, overruling prior precedent on judicial estoppel brings the Eleventh Circuit in line with the law in the Sixth, Seventh, and Ninth Circuits. On the other hand, the Fifth and Tenth Circuits still recognize that knowingly omitting a cause of action from bankruptcy schedules is enough to support the “intent to make a mockery of the judicial system” prong of the judicial estoppel defense.

Now What?

In the Eleventh Circuit, winning a case based on judicial estoppel because a plaintiff did not disclose a claim on bankruptcy disclosures just got harder. Merely relying on plaintiffs’ sworn bankruptcy schedules is no longer sufficient to prove the intent element of the judicial estoppel defense. Courts must now undertake a more rigorous inquiry of the plaintiff’s intent. Plaintiffs will be able to present self-serving factual arguments regarding the circumstances surrounding nondisclosure of a cause of action in bankruptcy.

Fortunately for defendants, Chief Judge Carnes wrote a concurring opinion clarifying that the judicial estoppel defense is not eradicated. In spite of the Eleventh Circuit’s new requirement to consider the “surrounding circumstances,” courts are “not required to accept the testimony of the plaintiff that her misstatements . . . were not made with intent to mislead, even if that testimony is uncontradicted.” If a bankrupt plaintiff denies any intent to mislead the court or creditors by not disclosing a cause of action, the court has the “authority and responsibility to find the facts and not blindly accept [such] testimony.”

“I Got the Power!” – EEOC’s Investigatory Power Trumps Dismissal of Discrimination Claim in Federal CourtCan the EEOC keep investigating a claim after it has issued a right to sue letter? What about after the charging party has already filed a lawsuit and lost at the summary judgment stage? The U.S. Court of Appeals for the Seventh Circuit says it can. Adding to the circuit split already created by the Fifth and Ninth Circuits, the Seventh Circuit’s decision in EEOC v. Union Pacific Railroad Company focused on the broad authority that Title VII grants the EEOC.

The Facts

In October 2011, two former employees, Frank Burks and Cornelius Jones, Jr., filed discrimination charges against Union Pacific, asserting that they were denied the opportunity to take a test for a promotion because of their race. The EEOC requested a copy of the test and other company-wide information, but Union Pacific refused, at which point the EEOC issued a subpoena and ultimately filed its first enforcement action against Union Pacific.

Union Pacific and the EEOC reached a settlement in which the company agreed to provide some information. (The EEOC contends that the company never provided the promised information.) Nevertheless, the EEOC issued a right-to-sue letter to Burks and Jones, who then filed a joint complaint in the U.S. District Court for the Northern District of Illinois.

While the employees’ lawsuit progressed, the EEOC sent Union Pacific a second request for information, and after Union Pacific refused again, the EEOC served a second subpoena. Two months later, the district court granted Union Pacific’s motion for summary judgment and dismissed Burks’ and Jones’ lawsuit with prejudice. However, the EEOC still brought an enforcement action against Union Pacific to comply with the subpoena.

Union Pacific argued that the EEOC lost its investigatory authority either after it issued the right-to-sue letter or when the district court granted Union Pacific summary judgment. The district court disagreed and Union Pacific appealed.

The Seventh Circuit’s Opinion

The Seventh Circuit reviewed pertinent decisions of the Fifth, Seventh and Ninth Circuits, as well as the U.S. Supreme Court, regarding the EEOC’s enforcement authority. Focusing on the text of Title VII and the public interest at stake in EEOC investigations, the court ruled that neither the issuance of a right-to-sue letter nor the entry of judgment in a charging party’s civil action barred the EEOC from further investigating a discrimination charge.

The Seventh Circuit explained that a discrimination charge must meet the minimal requirements established by Title VII (which are not onerous): It must be in writing, under oath or affirmation, and contain the information and be in the form that the EEOC requires. Because Burks’ and Jones’ charges met these requirements, the EEOC was expressly authorized to investigate Union Pacific. Moreover, because Title VII did not expressly limit the EEOC’s investigatory authority to any particular time period, the EEOC had control over its own investigation and enforcement efforts regardless of the actions of the charging parties.

Citing the EEOC’s regulation and amendments to Title VII that broadened the EEOC’s investigative authority, the Seventh Circuit held that continuation of an investigation may occur after the issuance of a right-to-sue letter and in spite of the disposition of a civil action brought by the charging parties.

“To hold otherwise would not only undercut the EEOC’s role as the master of its case under Title VII, it would render the EEOC’s authority as ‘merely derivative’ of that of the charging [party].”

Lessons for Your Next EEOC Charge

With the EEOC’s investigatory power fortified by at least two circuit courts, what must employers know before confronting a charge of discrimination and subpoenaed information?

  • The EEOC’s broad investigatory authority extends beyond the specific complaints of a charging party. A victory in federal court may not free you from an EEOC investigation or subpoena.
  • The standard that the EEOC must meet to get a subpoena enforced is low. Federal courts are likely to enforce the subpoena if it is within the EEOC’s authority, not too indefinite, and seeking reasonably relevant information.
  • Finally, if you plan to contest an EEOC subpoena, focus on how the subpoena poses an unreasonable or undue burden. Make arguments emphasizing how long ago the charge was filed, the course of the EEOC’s investigation, the timing of the subpoena, the difficulty of obtaining the information sought, and/or the dismissal of a civil action brought by the charging party on the merits.

HR to the Rescue: Prompt Investigation Beats EEOC’s Sex Harassment ClaimDon’t listen to all the doubters – HR truly can save the day.

A recent federal court decision from the Western District of Tennessee illustrates the point again: prompt and appropriate investigation of a sexual harassment complaint can prevent employer liability.

In Equal Employment Opportunity Commission v. Autozone, Inc. and Autozoners, LLC (collectively, “Autozone”), the EEOC filed suit on behalf of three aggrieved female employees, alleging that Autozone was liable for sexual harassment in violation of Title VII because a male store manager engaged in “lewd and obscene” behavior toward them. Autozone argued that, even assuming the store manager’s conduct occurred, it was not liable because it took appropriate corrective action that was reasonably calculated to end the harassment.

The court agreed, finding that the undisputed facts showed that the day after Charging Party A complained in writing to HR (accusing the store manager directly of sexual harassment for the first time), the HR manager took immediate action. The HR manager met with Charging Party A and obtained a written statement. During that meeting, she identified another employee (who, by filing her own charge of discrimination, became Charging Party B) as a potential victim of harassment. The HR manager followed up by obtaining statements from both Charging Party B and another employee (soon to become Charging Party C) regarding the store manager’s alleged harassment.

About a week later, HR informed Charging Party A that the store manager would be transferred from the store and asked if she could work with him until then. Charging Party A said she could, and they worked in the same store for a few days until the store manager was transferred (during which time the alleged harasser stayed away her). About two weeks later, Autozone fired the store manager for acts and conduct detrimental to Autozone, inappropriate comments, and loss of confidence.

The court held that Autozone’s actions shielded it from liability:

“The undisputed facts and deposition testimony demonstrates that, as soon as Defendants knew or had reason to know that harassment was taking place, they began to take corrective action.”

As a result, the court granted Autozone’s Motion for Summary Judgment and dismissed the EEOC’s case.

A key precursor to the ultimate holding was the court’s determining that the store manager was not a supervisor because he did not have the ability to “fire, demote, promote, or transfer employees.” The court reasoned he only had the “ability to direct a co-worker’s labor,” and could not effect a significant change in a co-worker’s employment status. As a result, the court held that he was not a supervisor under the Supreme Court’s Vance v. Ball State standard. Consequently, the EEOC had to meet a higher standard or proof: that the Defendants “knew or should have known of the offensive conduct but failed to take appropriate corrective action.” The EEOC could not meet this burden. If the store manager had been a supervisor, then the Defendants may have been vicariously liable for his conduct.

This case highlights that an appropriate and prompt investigation of a harassment complaint can prevent employer liability for the harassing conduct, regardless of how bad the harassing conduct may be. Human resources should promptly and appropriately investigate all harassment complaints and take action reasonably calculated to stop the harassment. If HR does that, HR may just save the day.