United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
In December 2012, Maria Jones filed suit against her employer, Safeway, Inc. ("Safeway"), alleging discrimination in employment. ECF 1. Plaintiff alleged, inter alia, that she had received a right to sue letter from the Equal Employment Opportunity Commission ("EEOC") with respect to a charge of discrimination that she filed in February 2012. Plaintiff subsequently amended her suit on several occasions. The Second Amended Complaint, filed in May 2014 (ECF 42), pursuant to a Consent Motion (ECF 40), and with leave of court (ECF 41), is the operative Complaint. The Second Amended Complaint, predicated on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and Maryland law, added allegations pertaining to a second charge of discrimination filed by Ms. Jones with the EEOC in October 2014. Jones claimed she received a demotion that was "causally linked to [her] protected activity of filing her discrimination lawsuit in December 2012...." ECF 42 ¶ 17.
As amended, the suit contains three remaining claims. In particular, Count One alleges retaliation, in violation of Title VII; Count Two alleges retaliation under Maryland statutory law; and Count Three alleges race discrimination/disparate treatment, in violation of Title VII.
On October 1, 2014, Safeway filed a "Motion To Dismiss And For Protective Order To Stay Proceedings" (the "Motion"), pursuant to Rules 12(b)(1), 12(b)(6), and 26(c) of the Federal Rules of Civil Procedure (ECF 56). The Motion is supported by a memorandum (ECF 56-1) and several exhibits.
In the Motion, Safeway complains that on September 30, 2014, during plaintiff's deposition, it learned for the first time that in June 2014 plaintiff filed a Voluntary Petition for Bankruptcy ("Voluntary Petition") in the District of Maryland under Chapter 7, captioned In re Maria Faye Jones, Case 14-20116. See ECF 56-3, Safeway Ex. 2 at 1-7 (Voluntary Petition). By the time of plaintiff's deposition on September 30, 2014, plaintiff's bankruptcy case had already been closed. Although the Voluntary Petition was filed through counsel and under penalty of perjury, id. at 5, 32, plaintiff failed to disclose her Title VII lawsuit in her Voluntary Petition, as required. Safeway Exh. 2 at 9-11 (Schedule B). Nor did plaintiff list the pending lawsuit in her Statement Of Financial Affairs. Safeway Exh. 2 at 25-26. Therefore, Safeway maintains that plaintiff lacks standing to pursue her discrimination claim.
Plaintiff opposes the Motion ("Opposition, " ECF 58) and has filed a memorandum in support of her position, ECF 58-1, along with an Affidavit, ECF 58-2. Safeway has replied ("Reply, " ECF 59).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons stated below, I will deny the Motion, without prejudice to Safeway's right to renew its Motion, as set forth herein.
Factual and Procedural Background
As noted, plaintiff filed a Chapter 7 Voluntary Petition during the pendency of her Title VII case against Safeway. The Voluntary Petition was filed through counsel and under penalty of perjury. ECF 56-3 at 5, 32. The attorney for the bankruptcy filing is not the attorney representing plaintiff in the Title VII case.
In connection with the filing of the Voluntary Petition, plaintiff was required to disclose "contingent and unliquidated claims of every nature...." ECF 56-3, Ex. 2 at 10. Although plaintiff listed a "pending Worker's Compensation Settlement, " id., she did not disclose her discrimination lawsuit against Safeway. Similarly, in the Statement of Financial Affairs, plaintiff was required to "[l]ist all suits or administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy petition." Id. at 26. Plaintiff checked the box indicating "None." Id. Jones reported liabilities of over $153, 000. Id. at 7. The Bankruptcy Court granted plaintiff a discharge and closed her bankruptcy case on September 23, 2014. See ECF 56-4, Safeway Exh. 3 (Order Granting Discharge Of Debtor).
In its Motion, Safeway claims that dismissal is warranted. According to Safeway, plaintiff lacks standing to pursue her claim of discrimination because she failed to disclose this pending lawsuit on her Voluntary Petition; her claims in the lawsuit became an asset of the bankruptcy estate; and only the bankruptcy trustee had authority to assert the claims. ECF 56 at 1. Alternatively, Safeway maintains that plaintiff is judicially estopped from proceeding with the discrimination claims against Safeway based on her failure to report her discrimination case in the Chapter 7 Voluntary Petition. Safeway asserts: "By seeking redress for those claims here, Plaintiff takes an inconsistent position than she did in her bankruptcy petition. As a result, Plaintiff should be judicially estopped from proceeding with this lawsuit." ECF 56 at 2.
Ms. Jones concedes that she omitted any reference to the pending discrimination lawsuit in her June 2014 Voluntary Petition. ECF 58-1 at 8. Moreover, she recognizes that the bankruptcy trustee is a real party in interest to pursue monetary relief, because the facts giving rise to her Title VII case occurred prior to the filing of her bankruptcy petition. See 11 U.S.C. § 541(a); ECF 58-1 at 8. However, she contends that her conduct does not warrant dismissal of the discrimination lawsuit.
In her Affidavit (ECF 58-2), plaintiff essentially argues that her conduct was inadvertent, not intentional, and attempts to explain her failure to include information in the Voluntary Petition about her discrimination case. Ms. Jones asserts that her bankruptcy lawyer asked her only to provide information with respect to any matters for which she expected to receive "a payout in the year 2014." ECF 58-2, ¶ 5. Ms. Jones avers: "I did not provide any information about my discrimination and retaliation lawsuit to [my attorney] because I did not believe that I would receive any money from the lawsuit in 2014...." Id. Further, she avers: "I was afraid of discussing the discrimination lawsuit with [my lawyer], because I perceived him to be a Safeway Attorney.' I later learned that [my lawyer] was indeed paid... by Safeway...." Id. Ms. Jones also observes that, at her deposition, she "testified truthfully about [the] June 2014 bankruptcy case." Id. ¶ 6.
Plaintiff vigorously disagrees with Safeway's contention that "this Court lacks subject matter jurisdiction over [plaintiff's] entire case" on the ground that Ms. Jones lacks "standing' to sue due to her omission of the instant case from the Debtor Schedule in her June 2014 bankruptcy filing." ECF 58-1 at 5. According to plaintiff, the issue is not one of standing, as Safeway would have the Court believe. Rather, it is about the real party in interest. Id. In the view of plaintiff, "the remedy is to cure the defect in the pleading through the vehicles made available ...