United States District Court, D. Maryland
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Petitioner
PERFORMANCE FOOD GROUP COMPANY, LLC Respondent
MEMORANDUM AND ORDER RE: JUDICIAL ESTOPPEL
MARVIN J. GARBIS, District Judge.
The Court has before it Plaintiff EEOC'S Motion for Judicial Estoppel [Document 48] and the materials submitted relating thereto. The Court finds a hearing unnecessary.
At all times relevant hereto, Defendant Performance Food Group, Inc. (including related entities) ("PFG") has been engaged in the business of supplying food and other products to restaurants, hotels, and other food retailers. In this case, the EEOC contends that PFG - in its Broadline Division - maintained an ongoing pattern or practice of gender-based discrimination by failing to hire a class of female applicants for certain positions at PFG's warehouses. The EEOC will, at trial, offer evidence that certain sex-based discriminatory remarks were made by PFG's Vice President of Operations, Dan Peckskamp, and one of PFG's Regional Vice Presidents of Operations, Dave Russ.
In the course of administrative proceedings before the United States Equal Employment Opportunity Commission ("EEOC") and a summons enforcement action in this Court,  PFG took the position that Messrs. Peckskamp and Russ, members of the corporate management team for PFG's Broadline Division, had ultimate hiring oversight over the Broadline Division.
Moreover, in the Memorandum and Order Re: Subpoena Enforcement, [Document 29 in MJG-09-2200] at 19, the Court stated:
The Court finds that hiring data for all applicants and employees within the Broadline division over which Pekscamp [sic], the Vice President of Operations and/or Russ, a Regional Vice President of Operations, maintain ultimate hiring oversight is relevant to the underlying charges.
In the instant lawsuit, PFG has taken the position that Messrs. Peckskamp and Russ "lacked hiring oversight or control over any employees in PFG's Broadline facilities." [Document 53] at 2. PFG wishes to "clarify and explain certain facts which were inadvertently misrepresented during the course of the EEOC's investigation." Id . The representations made to the EEOC during the course of the investigation that precipitated the instant lawsuit were also made to this Court in the summons enforcement action.
The EEOC seeks to have PFG judicially estopped from varying in the instant case from (1) its representations in the related administrative and judicial proceedings, and (2) this Court's finding that Messrs. Peckskamp and Russ had ultimate hiring authority. Alternatively, the EEOC seeks to be permitted to engage in additional discovery regarding the matter.
As stated by the EEOC:
"As an equitable doctrine, judicial estoppel is invoked in the discretion of the district court and with the recognition that each application must be decided upon its own specific facts and circumstances." King, 159 F.3d at 196 (quoting McNemar v. Disney Store, Inc. , 91 F.3d 610, 617 (3d Cir. 1996)). In the Fourth Circuit, courts generally examine the following factors:
(1) [t]he party to be estopped must be asserting a position that is factually incompatible with a position taken in a prior judicial or administrative proceeding;
(2) the prior inconsistent position must have been accepted by the tribunal; and
(3) the party to be estopped must have taken inconsistent positions intentionally for the purpose of gaining unfair advantage.
Id. Judicial estoppel, however, will not be applied where the party's inconsistent position results from ...