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Washington v. Shanahan

United States District Court, S.D. Alabama, Southern Division

January 24, 2019

PATRICK M. SHANAHAN, et al., [1] Defendants.



         Now pending before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 19, filed August 6, 2018). Following Plaintiff's response to the motion to dismiss (Doc. 27, filed September 14, 2018), Defendants filed a reply and, with it, a request to convert their motion to dismiss to a motion for summary judgment (“motion to convert”) (Doc. 30, filed September 28, 2018). No. response was filed to the motion to convert. Thus, both motions are ripe for review.

         After a careful review of the pleadings, motions, responses, and replies, the Court DENIES Defendants' motion to dismiss and DENIES Defendants' motion to convert for the reasons articulated below.

         I. Parties and Jurisdiction

         Plaintiff Tiffany M. Washington (“Plaintiff” or “Washington”) brought suit in this Court pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and section 501 of the Rehabilitation Act, 29 U.S.C. § 791 et seq., against the Defense Contract Management Agency (“DCMA”), Washington's former employer, and the Secretary of Defense, as the named representative for the DCMA (collectively, “Defendants”).

         II. Factual and Procedural Background

         In her Amended Complaint (Doc. 12), Washington, an African American female, alleges that her former employer, the DCMA, discriminated against her on the basis of race and sex; that the DCMA retaliated against her for filing an Equal Employment Opportunity (“EEO”) discrimination complaint; and that the DCMA refused her request for accommodation for a disability. A former procurement analyst for the DCMA, Washington alleges that she worked for the DCMA from sometime in June 2008 until May 18, 2015, when her employment was terminated. Washington alleges that she filed an informal EEO complaint of discrimination in September 2014 after she was demoted for poor performance despite receiving high ratings on her performance evaluations up to and including 2014. She also alleges that her former teleworking privileges were revoked at this time.

         Washington asserts that she was targeted for harassment and retaliation by a second-level supervisor after filing her EEO complaint. Specifically, she asserts that the supervisor, a white female, denied Washington's request for a “maxi-flex” work schedule while approving its use among white male employees; required Washington to use personal time or available leave to meet with union representatives when working on her EEO complaint, contrary to agency rules; required Washington to seek permission for any activity requiring oversight from her instead of Washington's direct supervisor; required Washington to seek approval from management before speaking to union or EEO representatives and to retain responsibility for work assignments while on approved leave to meet with EEO personnel; and initiated an investigation into Washington's claim for relocation expenses after she was involuntarily transferred from Mobile, Alabama, to Atlanta, Georgia. Washington alleges that Defendants terminated her on the basis that she submitted inaccurate reimbursement documents in relation to her transfer, but she was not reimbursed for any expenses or provided an opportunity to correct any errors. Washington also alleges that, during the timeframe outlined, she was diagnosed with a severe depressive disorder that adversely affected her ability to perform her work duties, and that she informed her supervisor of her diagnosis, but Defendants offered no work accommodation. Washington filed a formal EEO complaint in December 2014, which she amended in May 2015. She received a final decision on March 20, 2018.

         From the instant suit Washington seeks declaratory judgment; reinstatement to her former position or an equivalent position; $300, 000 in compensatory damages; back pay, with interest; reimbursement of her prior relocation expenses; and reimbursement of various costs and expenses.

         III. Current Motion

         Defendants have moved to dismiss the Amended Complaint on the basis of judicial estoppel, arguing that Washington filed successive bankruptcy petitions-on February 20, 2015; June 12, 2015; and July 26, 2017-in which she failed to disclose pending employment actions related to the claims at issue in this case, and that her failure to disclose them was a deliberate attempt to abuse the judicial system.[2] (Doc. 19).

         Specifically, Defendants allege that Washington's initial, informal EEO complaint was pending at the time she filed her February 2015 bankruptcy petition, but the employment action was not disclosed in the bankruptcy petition. They additionally allege that at the time of Washington's June 2015 bankruptcy filing: (1) her informal EEO complaint remained pending; (2) Washington also had initiated an appeal of her termination to the Merit Systems Protection Board (“MSPB”); and (3) she had begun an appeal of the denial of her claim for moving reimbursement expenses to the Civilian Board of Contract Appeals (“CBCA”). Defendants assert that none of those actions were disclosed on Washington's bankruptcy petition.

         They further contend that, at the time of Washington's July 2017 bankruptcy filing, her CBCA appeal and EEO complaint remained pending, and neither was disclosed. Specifically, as to the EEO claim, Defendants indicate that Washington's informal complaint had resulted in a formal complaint in December 2015, which was denied by the DCMA's EEO Board in March 2016, and an appeal of that decision to the EEO Commission's Office of Federal Operations remained pending at the time of Washington's final bankruptcy petition. Defendants also assert that Washington had filed a federal lawsuit in the Northern District of Georgia in September 2016 challenging the result of her appeal to the MSPB and failed to disclose the lawsuit in her 2017 bankruptcy petition.[3]

         Defendants argue that Washington's nondisclosure of these pending proceedings makes a mockery of the judicial system, and thus, warrants dismissal of her instant complaint on the ground of judicial estoppel. Defendants assert that Washington is a sophisticated litigant, and that her nondisclosure was a deliberate effort to hide potential assets from her creditors. As evidence of Washington's sophistication, Defendants offer that: (1) Washington has filed at least three employment-related administrative claims and two related federal lawsuits and was represented by counsel and/or union representatives at various stages of those proceedings; (2) she has filed six separate bankruptcy proceedings and was represented by counsel in all of them; and (3) Washington formerly owned and operated a downtown Mobile event space, a business for which she obtained a Small Business Administration (“SBA”) loan and filed a British Petroleum (“BP”) claim after the Deepwater Horizon oil spill. They aver that her employment history as a procurement specialist for DCMA ...

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