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Bejarano v. Bravo! Facility Services, Inc.

United States District Court, District of Columbia

April 24, 2017



          REGGIE B. WALTON United States District Judge.

         The 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, [1] the Court concludes that it must deny Bravo's motion.

         I. BACKGROUND

         Bravo 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. ¶ 9.

         On 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).

         On 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.

         “The 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.


         A 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).

         III. ANALYSIS

         A. Disclosure of the Plaintiff's FMLA Claim to the Bankruptcy Court

         Before 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.

         “Under 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)).

         “A 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)).

         As 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 ...

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