United States District Court, D. South Carolina, Spartanburg Division
Timothy M. Cain United States District Judge
Jennifer Nightingale alleges a claim of sexual harassment
under Title VII of the Civil Rights Act of 1964, as amended
(“Title VII”), and a state law claim of
intentional infliction of emotional distress. (Am. Compl. at
3, ECF No. 33 at 3). Defendant Caliber Holdings Corporation,
d/b/a Caliber Collision, filed a motion for summary judgment.
(ECF No. 23). Plaintiff filed a response opposing the motion
(ECF No. 32), and Defendant filed a reply (ECF No. 35). This
matter is before the court on the Magistrate Judge's
Report and Recommendation (“Report”) recommending
that the court grant the Defendant's summary judgment
motion. (ECF No. 37). Plaintiff timely filed objections (ECF
No. 38), and Defendant filed a reply (ECF No. 41).
worked full-time for Defendant from October 2014 until May
2015. (Am. Compl. ¶ 4). During her employment, she began
an extra-marital affair with her supervisor, Cory Caldwell.
(Id. ¶ 6). Plaintiff alleges that when she
refused to continue the affair, she was terminated.
(Id. ¶ 7). On February 8, 2016, Plaintiff filed
a claim with the Equal Employment Opportunity Commission
(“EEOC”). On August 31, 2016, the EEOC issued
Plaintiff a Right to Sue Letter. Plaintiff then filed this
action in state court on November 29, 2016. (ECF No. 1-1).
August 30, 2016, Plaintiff's husband filed for a divorce
in the Family Court and, on that same date, Plaintiff and her
husband entered into a marital settlement agreement. (ECF No.
23-3 at 44-50; ECF No. 23-3 at 44-61). In the divorce action,
as part of the settlement agreement, Plaintiff filled in a
financial declaration disclosing her income, expenses,
assets, and liabilities. (ECF No. 23-3 at 22-27). Plaintiff
did not list as an asset her claims against Defendant. The
divorce became final on January 6, 2017. (ECF NO. 23-3 at
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of
material fact exists, the evidence of the non-moving party is
to be believed and all justifiable inferences must be drawn
in his favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id. at 248. A litigant
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is
appropriate.” Monahan v. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
motion for summary judgment, Defendant contends that because
Plaintiff failed to include the claims she alleges in this
action as assets in her financial declaration in family
court, she should be precluded through judicial estoppel from
pursuing her claims. Plaintiff argues that she did not make a
clearly inconsistent statement and there is no evidence that
she intentionally mislead the family court. She contends the
financial disclosure form used in South Carolina's family
courts does not expressly require the disclosure of potential
estoppel is an equitable doctrine invoked by a court at its
discretion.” New Hampshire v. Maine, 532 U.S.
742, 750 (2001). Judicial estoppel is “exists to
prevent litigants from playing ‘fast and loose'
with the courts - to deter improper manipulation of the
judiciary.” Folio v. City of Clarksburg,
W.Va., 134 F.3d 1211, 1217 (4th Cir. 1998) (quoting
John S. Clark Co. v. Faggert & Frieden, P.C., 65
F.3d 26, 28-29 (4th Cir. 1995)). “[W]here a party
assumes a certain position in a legal proceeding, and
succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary
position. . . .” New Hampshire, 532 U.S. at
Judicial estoppel is an “extraordinary remed[y] to be
invoked when a party's inconsistent behavior will
otherwise result in a miscarriage of justice.” . . . It
is not meant to be a technical defense for litigants seeking
to derail potentially meritorious claims, especially when the
alleged inconsistency is insignificant at best and there is
no evidence of intent to manipulate or mislead the courts.
Judicial estoppel is not a sword to be wielded by adversaries
unless such tactics are necessary to “secure
Ryan Operations G.P. v. Santiam-Midwest Lumber Co.,
81 F.3d 355, 365 (3d Cir.1996) (internal citation omitted).
Fourth Circuit Court of Appeals has identified four elements
that must be met before a court may apply judicial estoppel:
(1) “the party sought to be estopped must be seeking to
adopt a position that is inconsistent with a stance taken in
prior litigation;” (2) “the position sought to be
estopped must be one of fact rather than law or legal
theory;” (3) “the prior inconsistent position
must have been accepted by the court;” and (4)
“the party sought to be estopped must have
intentionally misled the court to gain unfair
advantage.” Lowery v. Stovall, 92 F.3d 219,
223-24 (4th Cir. 1996) (internal quotation marks omitted).
The court has characterized the final element as
determinative. Id. at 224 (internal quotation marks
omitted). Moreover, “[w]ithout bad faith, there can be
no judicial estoppel.” Zinkand v. Brown, 478
F.3d 634, 639 (4th Cir. 2000).
relies mostly on cases involving bankruptcy petitions. Along
with many other circuits, the Fourth Circuit Court of Appeals
has recognized judicial estoppel when a party has failed to
claim a pending lawsuit in a bankruptcy petition. See
Whitten v. Fred's, Inc., 601 F.3d 231, 241-42 (4th
Cir.2010), abrogated in part on other grounds by Vance v.
Ball State Univ., __U.S.__, 133 S.Ct. 2434, 2443 (2013).
However, in a bankruptcy petition, a debtor is required to
list a schedule of assets, including “all personal
property of the debtor of whatever kind, ” and property
of a bankruptcy estate is broadly defined to include
“all legal or equitable interests of the debtor in
property as of the commencement of the case.” 11 U.S.C.
§§ 521(1), 541(a)(1). This definition includes
“all causes of action that could be brought by a
debtor.” Ca ...