United States District Court, District of Columbia
B. WALTON United States District Judge.
plaintiff, Maria Bejarano, brings this civil action against
her former employer, Bravo! Facility Services, Inc.
(“Bravo”), asserting claims under the Americans
with Disabilities Act (“ADA”), the District of
Columbia Human Rights Act (“DCHRA”), and the
Family and Medical Leave Act (“FMLA”).
See Complaint (“Compl.”) at 1. Currently
before the Court is the Defendant's Motion to Dismiss
(“Def.'s Mot.”), which seeks dismissal of
Bejarano's Complaint pursuant to the doctrine of judicial
estoppel. Def.'s Mot. at 1. Upon careful consideration of
the parties' submissions,  the Court concludes that it must
deny Bravo's motion.
hired Bejarano as an Environmental Services Site Manager in
March 2012. See Compl. ¶ 26. “In August
2013, [ ] Bejarano was diagnosed with breast cancer.”
Id. ¶ 32. “On or around August 26, 2013,
[ ] Bejarano informed Bravo that she was diagnosed with
cancer and would need to take medical leave.”
Id. ¶ 33. Bejarano requested to be on leave for
eighteen days in October and November of 2013, to have a
mastectomy, id. ¶ 34, and additional
intermittent leave in the spring of 2014 “for follow-up
medical appointments and chemotherapy treatments, ”
see id. ¶¶ 38-39, 42-45, 49-53. Bravo
terminated Bejarano's employment on May 23, 2014,
id. ¶ 54, and she then filed a charge of
discrimination with the Virginia Human Rights Counsel on June
10, 2014, id. ¶ 5. Bejarano's charge was
subsequently transferred to the Equal Employment Opportunity
Commission (“EEOC”), at some time between June
10, 2014, and November 7, 2014. Id. ¶ 6.
“On November 24, 2014, [ ] Bejarano's charge of
discrimination was cross-filed with the [District of
Columbia] Office of Human Rights.” Id. ¶
September 2, 2014, Bejarano filed a voluntary bankruptcy
petition under Chapter 7 of the Bankruptcy Code in the United
States Bankruptcy Court for the Eastern District of Virginia
(the “Bankruptcy Court”). See Pl.'s
Opp'n, Exhibit (“Ex.”) A (Voluntary Petition)
at 2. She did not list her charge of discrimination or the
claims asserted against Bravo in this case on her bankruptcy
schedules. See id., Ex. A (Voluntary Petition) at 10
(Schedule B - Personal Property) (indicating
“none” for “[o]ther contingent and
unliquidated claims of every nature”); id.,
Ex. A (Voluntary Petition) at 27 (Statement of Financial
Affairs) (indicating “none” for “suits and
administrative proceedings to which the debtor is or was a
party within one year immediately preceding the filing of
this bankruptcy case”). “The Bankruptcy Court
discharged [ ] Bejarano['s] debt on December 10, 2014,
and closed her case on December 15, 2014.” Pl.'s
Opp'n at 4; see also id., Ex. B (Docket Sheet
for Bankruptcy Petition #: 14-13251-RGM (“Bankr.
Docket”)) at 2 (Docket Nos. 10, 12).
April 22, 2015, Bejarano filed a motion to re-open her
bankruptcy case in order to disclose her “employment
discrimination and wrongful discharge” claim as an
asset. See Pl.'s Opp'n, Ex. C (Notice of
Motion) at 6 (Motion to Reopen Case). Bejarano served her
Notice of Motion and Motion to Reopen Case on all of her
creditors. See id., Ex. C (Notice of Motion) at 1-9.
After the Bankruptcy Court granted her motion on May 29,
2015, see id., Ex. G (Order Granting Leave to Reopen
Case), Bejarano amended her bankruptcy schedules on June 2,
2015, see id., Ex. D (Amendment Cover Sheet) at 1,
by listing her “Pending Employment Discrimination
Claim” of “unknown” value on her list of
personal property, see id., Ex. D (Amendment Cover
Sheet) at 4 (Amended Schedule B-Personal Property). On August
4, 2015, the trustee of the bankruptcy estate filed a report
wherein he stated “that there is no property available
for distribution from the estate over and above that exempted
by law[, and . . . ] I hereby certify that [Bejarano's]
estate . . . has been fully administered.”
Id., Ex. B (Bankr. Docket) at 3 (Docket No. 22). On
October 29, 2015, the Bankruptcy Court granted Bejarano a
“standard discharge” and again closed her case.
Id., Ex. B (Bankr. Docket) at 1, 4.
EEOC issued a Notice of Right to Sue to [ ] Bejarano on March
30, 2016.” Compl. ¶ 10. Bejarano filed her
Complaint with this Court on May 20, 2016. See id.
at 1. On February 24, 2017, Bravo filed its motion to dismiss
Bejarano's claims on the grounds of judicial estoppel.
See Def.'s Mot. at 1.
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a
motion to dismiss for “failure to state a claim upon
which relief can be granted, ” Fed.R.Civ.P. 12(b)(6),
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face, '” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). Although the Court “must treat the
complaint's factual allegations as true [and] must grant
[the] plaintiff the benefit of all reasonable inferences from
the facts alleged, ” Trudeau v. Fed. Trade
Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006)
(alteration in original) (quoting Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000)),
legal allegations devoid of factual support are not entitled
to this assumption, see Kowal, 16 F.3d at 1276.
Moreover, a plaintiff must provide more than “a
formulaic recitation of the elements of a cause of
action.” Hinson ex rel. N.H. v. Merritt Educ.
Ctr., 521 F.Supp.2d 22, 27 (D.D.C. 2007) (quoting
Twombly, 550 U.S. at 555). In assessing the merits
of a motion to dismiss under Rule 12(b)(6), public records
are subject to judicial notice. Kaempe v. Myers, 367
F.3d 958, 965 (D.C. Cir. 2004).
Disclosure of the Plaintiff's FMLA Claim to the
considering whether the doctrine of judicial estoppel bars
Bejarano's claims, the Court must first resolve a
threshold dispute-whether Bejarano disclosed her FMLA claims
against Bravo to the Bankruptcy Court in her amended list of
personal property-to ensure that Bejarano has standing to
bring her FMLA claim.
the bankruptcy rules, ‘a debtor is under a duty both to
disclose the existence of pending lawsuits when [s]he files a
petition in bankruptcy and to amend h[er] petition if
circumstances change during the course of the
bankruptcy.'” Marshall v. Honeywell Tech. Sys.
Inc., 828 F.3d 923, 926 (D.C. Cir. 2016) (quoting
Moses v. Howard Univ. Hosp., 606 F.3d 789, 793 (D.C.
Cir. 2010)), cert. denied, ___ U.S. ___, 137 S.Ct.
830 (2017); see also 11 U.S.C. § 521(a)(1)
(2012) (listing the information the debtor is required to
disclose). Pending lawsuits, like the debtor's other
assets, automatically become property of the bankruptcy
estate upon the filing of a bankruptcy petition. See
11 U.S.C. § 541(a)(7); see also Moses, 606 F.3d
at 795 (“The commencement of Chapter 7 bankruptcy
extinguishes a debtor's legal rights and interests in any
pending litigation, and transfers those rights to the
trustee, acting on behalf of the bankruptcy estate.”).
“[W]hen an estate is in bankruptcy under Chapter 7, . .
. the trustee is the representative of the estate and retains
the sole authority to sue and be sued on its behalf.”
Marshall, 828 F.3d at 926 (alteration in original)
(quoting Moses, 606 F.3d at 793). “Thus,
‘[g]enerally speaking, a pre-petition cause of action
is the property of the Chapter 7 bankruptcy estate, and only
the trustee in bankruptcy has standing to pursue
it.'” Moses, 606 F.3d at 795 (alteration
in original) (quoting Parker v. Wendy's Int'l,
Inc., 365 F.3d 1268, 1272 (11th Cir. 2004)).
debtor regains standing to bring claims that accrued
pre-petition if those claims are abandoned.”
Nicholas v. Green Tree Servicing, LLC, 173 F.Supp.3d
250, 255 (D. Md. 2016). The Bankruptcy Code outlines three
ways in which property of the bankruptcy estate may be
abandoned: “(1) by the trustee after notice and
hearing; (2) by court order after notice and hearing; or (3)
by operation of law if property listed on the debtor's
schedules of property has not been administered when the
bankruptcy case closes.” Id. (citing 11 U.S.C.
§ 554). “[W]hen property of the bankrupt is
abandoned, the title ‘reverts to the bankrupt, nunc
pro tunc, so that he is treated as having owned it
continuously.'” Moses, 606 F.3d at 791
(quoting Morlan v. Univ. Guar. Life Ins. Co., 298
F.3d 609, 617 (7th Cir. 2002)).
various courts have noted, the Bankruptcy Code does not
provide a standard for determining whether a debtor has
sufficiently disclosed pending legal claims. See Hermann
v. Hartford Cas. Ins. Co., ___ F. App'x ___,, 2017
WL 117118, at *4 (10th Cir. Jan. 12, 2017) (“Although
the duty of disclosure is clear, [11 U.S.C. § 521] does
not address the degree of detail required.”);
Furlong v. Furlong (In re Furlong), 660 F.3d 81, 87
(1st Cir. 2011) (same); Nicholas, 173 F.Supp.3d at
255 (same); Eun Joo Lee v. Forster & Garbus LLP,
926 F.Supp.2d 482, 489 (E.D.N.Y 2013) (same); see also
Tilley v. Anixter Inc., 332 B.R. 501, 509 (D. Conn.
2005) (“There are . . . no bright-line rules for how
much itemization and specificity is required.”
(alteration in original) (quoting In re Mohring, 142
B.R. 389, 395 (Bankr. E.D. Cal. 1992)). “However, a
review of authority . . . reveals that courts typically look
at whether the schedule gives the trustee enough information
about the claim so he or she can decide if the claim is worth
pursuing.” Eun Joo Lee, 926 F.Supp.2d at 489.
In other words, “debtors' schedules need not
identify every potential cause ...