Tokheim v. Georgia-Pacific Gypsum L.L.C.

• Decision Date: 31 March 2009
• Docket Number: No. C07-3057-MWB.,C07-3057-MWB.
• Citation: 606 F.Supp.2d 988
• Parties: Peggy TOKHEIM, Plaintiff, v. GEORGIA-PACIFIC GYPSUM L.L.C., Defendant.
• Court: U.S. District Court — Northern District of Iowa

606 F.Supp.2d 988

Peggy TOKHEIM, Plaintiff, v.GEORGIA-PACIFIC GYPSUM L.L.C., Defendant.

No. C07-3057-MWB.

United States District Court, N.D. Iowa, Central Division.

March 31, 2009.

Jill M. Zwagerman, Paige Ellen Fiedler, Fiedler & Newkirk, P.L.C., Urbandale, IA, for Plaintiff.

Hannesson Ignatius Murphy, Kenneth J. Yerkes, Peter A. Morse, Jr., Susan M. Zoeller, Barnes & Thornburg, LLP, Indianapolis, IN, Iris E. Muchmore, Simmons Perrine Albright Ellwood, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS
                I. INTRODUCTION AND BACKGROUND ..........................................  990
                     A. Procedural Background .............................................  990
                     B. Factual Background ................................................  990
                 II. LEGAL ANALYSIS .......................................................  991
                     A. Summary Judgment Standards ........................................  991
                     B. Analysis Of Issues ................................................  993
                        1. The doctrine of judicial estoppel ..............................  993
                        2. Application of the doctrine of judicial estoppel ...............  995
                           a. The first New Hampshire factor ..............................  995
                           b. The second New Hampshire factor .............................  997
                           c. The third New Hampshire factor ..............................  997
                           d. Inadvertence or good faith mistake exception ................  998
                

III. CONCLUSION ........................................................... 999
                

I.INTRODUCTION AND BACKGROUND

A.Procedural Background

On October 9, 2007, plaintiffPeggy Tokheim filed an amended complaint in this court against her former employer, defendantGeorgia-Pacific Gypsum, L.L.C.("Georgia-Pacific"), alleging the following causes of action: (1) claims of sexual harassment, sex discrimination and retaliation in violation of the Civil Rights Act of 1964("Title VII"), 42 U.S.C. § 2000e et seq.; and (2) a pendent state law claim under the Iowa Civil Rights Act("ICRA") for sexual harassment, sex discrimination and retaliation, IOWA CODE CH. 216.

Defendant Georgia-Pacific has filed a Motion for Summary Judgment.In its motion, defendant Georgia-Pacific asserts that it is entitled to summary judgment on the grounds that plaintiff Tokheim's claims are barred under the doctrine of judicial estoppel.Specifically, defendant Georgia-Pacific contends that plaintiff Tokheim failed to disclose her claims against it to the United States Bankruptcy Court for the Northern District of Iowa at any time during the pendency of her prior Chapter 13 bankruptcy proceeding in that court even though she was under an affirmative duty to do so.Plaintiff Tokheim has filed a timely resistance to defendant Georgia-Pacific's Motion for Summary Judgment, arguing that defendant Georgia-Pacific cannot establish the three requisite factors for application of judicial estoppel against her.Alternatively, plaintiff Tokheim contends that her failure to disclose her claims in bankruptcy were the result of a good faith mistake, and therefore, the doctrine of judicial estoppel is inapplicable.Defendant Georgia-Pacific has filed a timely reply brief.

B.Factual Background

The summary judgment record reveals that the following facts are undisputed.

On October 1, 2001, plaintiffPeggy Tokheim filed a voluntary petition for Chapter 13 bankruptcy with the United States Bankruptcy Court for the Northern District of Iowa.Plaintiff Tokheim filed her bankruptcy petition under "penalty of perjury."Plaintiff Tokheim was represented by counsel in her bankruptcy case.The attached schedules filed by plaintiff Tokheim required her to list "all contingent and unliquidated claims of every nature" and "all suits or administrative actions" to which plaintiff Tokheim is or was a party within one year of filing for bankruptcy.Plaintiff Tokheim did not disclose any contingent or undisputed claims, and, with respect to "suits or administrative actions," listed only a foreclosure action and a collection proceeding.

On January 15, 2002, the bankruptcy court entered an order confirming plaintiff Tokheim's Chapter 13 bankruptcy plan, which provided for repayment to creditors over a period of sixty months.Based on plaintiff Tokheim's representation of her financial affairs, the confirmed plan provided for an estimated payment of at least $5733.82 to her unsecured creditors, which represented 5.45 percent of the amount, $105,115.59, owed to them.

On July 25, 2002, plaintiff Tokheim started working for defendant Georgia-Pacific.This was almost ten months after she filed for bankruptcy.The bankruptcy court entered its order confirming plaintiff Tokheim's Chapter 13 bankruptcy plan seven months prior to her being employed by Georgia-Pacific.

Plaintiff Tokheim alleges that she was subjected to sexual harassment and discrimination throughout her period of employment with Georgia-Pacific.She also alleges that she was afraid to report the sexual harassment and discrimination for fear of losing her job.However, on August 4, 2006, plaintiff Tokheim filed a complaint of sexual discrimination, sexual harassment and retaliation with the Equal Employment Opportunity Commission("EEOC") and the Iowa Civil Rights Commission("ICRC").Plaintiff Tokheim alleges that her employment with Georgia-Pacific was wrongfully terminated on August 9, 2006.On August 30, 2006, plaintiff Tokheim filed an amended complaint to reflect her termination.Plaintiff Tokheim was represented by counsel at the time she filed her civil rights complaint and amended complaint.

On at least two occasions, plaintiff Tokheim discussed with her bankruptcy attorney the fact that she had filed civil rights complaints.Her attorney did not advise her to amend her bankruptcy schedules to include the civil rights complaints against Georgia-Pacific.Plaintiff Tokheim did not understand that filing a civil rights complaint may be considered an asset under bankruptcy law.She relied on the advice of her bankruptcy counsel regarding issues of her bankruptcy.

Plaintiff Tokheim never amended her bankruptcy schedules to disclose either her potential claims against Georgia-Pacific or her actual participation in the administrative actions she filed against Georgia-Pacific with the EEOC and ICRC.On December 1, 2006, approximately four months after plaintiff Tokheim filed her complaints with the EEOC and ICRC, the bankruptcy court entered an order discharging plaintiff Tokheim's debts and closing her bankruptcy proceeding.Plaintiff Tokheim's unsecured creditors received $4,675.65.She was represented by counsel at all times during her bankruptcy.On August 15, 2007, plaintiff Tokheim commenced this lawsuit.Plaintiff Tokheim is currently looking for another attorney to reopen her bankruptcy because her bankruptcy counsel failed to file documents which would dispose of liens on her house.

II.LEGAL ANALYSIS

A.Summary Judgment Standards

Motions for summary judgment essentially "define disputed facts and issues and . . . dispose of unmeritorious claims [or defenses]."Bell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S.Ct. 1955, 1982, 167 L.Ed.2d 929(2007);seeCelotex Corp. v. Catrett,477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . .").Any party may move for summary judgment regarding "all or any part" of the claims asserted in a case.FED. R. CIV. P. 56(a), (b)(allowing a claimant to move for summary judgment "at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party," and allowing a defending party to move for summary judgment "at any time").Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law."Id.56(c)(emphasis added);seeWoods v. DaimlerChrysler Corp.,409 F.3d 984, 990(8th Cir.2005)("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.").

A fact is material when it "`might affect the outcome of the suit under the governing law.'"Johnson v. Crooks,326 F.3d 995, 1005(8th Cir.2003)(quotingAnderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986)).Thus, "the substantive law will identify which facts are material."Anderson,477 U.S. at 248, 106 S.Ct. 2505.Facts that are "critical" under the substantive law are material, while facts that are "irrelevant or unnecessary" are not.Id.An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman,953 F.2d 394, 395(8th Cir.1992)(citingMatsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986)), or when "`a reasonable jury could return a verdict for the nonmoving party' on the question,"Woods,409 F.3d at 990(quotingAnderson,477 U.S. at 248, 106 S.Ct. 2505);seeDiesel Machinery, Inc. v. B.R. Lee Indus., Inc.,418 F.3d 820, 832(8th Cir.2005)(stating genuineness depends on "whether a reasonable jury could return a verdict for the non-moving party based on the evidence").Evidence presented by the nonmoving party that only provides "some metaphysical doubt as to the material facts,"Matsushita,475 U.S. at 586, 106 S.Ct. 1348, such as a "scintilla of evidence,"Anderson,477 U.S. at 252, 106 S.Ct. 2505;In re Temporomandibular...