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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

DONNA L. EARLY, ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CASE NO.: 2:06cv727 

 ) 

RHEEM MANUFACTURING ) JUDGE KEITH WATKINS 

COMPANY, a corporation and CAL ) 

MEARS, an individual, ) 

 ) 

 Defendants. ) 

DEFENDANTS’ MEMORANDUM OF LAW IN 

SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

 COME NOW Defendants Rheem Manufacturing Company and Cal Mears (hereinafter, 

collectively “Rheem” or Defendants) and respectfully submit the following Memorandum of 

Law in Support of Their Motion for Summary Judgment based on principles of judicial 

estoppel.1 Defendants filed their Motion for Summary Judgment on May 25, 2007 (Doc. no. 17). 

I. SUMMARY OF PERTINENT FACTS AND LAW 

 Donna Early (“Plaintiff” or “Early”) started to work at Rheem as an Assembler in 1993 

approximately a year after her discharge from active duty service in the U.S. Army. After 

commencing employment with Rheem, Early enlisted in the Alabama National Guard in 1993. 

In August 2000, Plaintiff sustained a slip and fall injury while attending routine weekend drill. 

 

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 If this motion is not dispositive, or is unresolved by the Court, Defendants plan to file a supplemental motion for 

summary judgment and accompanying memorandum of law based on the substantive grounds that Early has failed 

to show that there is a genuine issue as to any material fact and that Rheem is entitled to judgment as a matter of law 

on both of Early’s claims (USERRA and ERISA). Defendants will file such motion and brief before the dispositive 

motion deadline on July 31, 2007. Defendants propose to proceed in this fashion in anticipation that this motion will 

be dispositive and that the parties and the Court will not have to expend additional resources. 

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In July through August of 2004, Plaintiff presented Rheem with new confusing, 

inconsistent medical restrictions provided by her Veterans Administration (“V.A.”) approved 

physician. Plaintiff resisted Rheem’s repeated requests that she provide clarification from her 

physician of these confusing restrictions which lead to her ceasing to work actively at Rheem as 

of August, 2004. On September 3, 2004, Plaintiff filed Chapter 13 Bankruptcy. On December 

21, 2005, after Plaintiff had abandoned her job for over sixteen (16) months by neither working 

nor complying with Rheem’s request for clarification of her restrictions, Rheem terminated 

Plaintiff’s employment in accordance with Company policy under the belief that Plaintiff had 

abandoned her job with no intention of returning to work at Rheem. 

On February 23, 2006 plaintiff filed a disability discrimination charge with the EEOC 

relating to her 2000 injury and summer 2004 disputes with Rheem over her new medical 

restrictions and her 2005 termination which charge she has not pursued. On August 13, 2006 

Plaintiff filed this suit claiming that Rheem violated the Uniform Services Employment and Reemployment Rights Act (“USERRA”) in relation to her August 2000 slip and fall injury, and 

violated the Employee Retirement Income Security Act (“ERISA”) in relation to her retirement 

and disability benefits. 

 Even though her bankruptcy is still pending, and is scheduled to continue for 

approximately two (2) more years, Plaintiff has never disclosed to the Bankruptcy Court her 

EEOC, USERRA or ERISA claims against Rheem and Mr. Mears various of which relate back 

to actions and disputes from 2000, 2001, 2004, 2005 . At the time that Plaintiff filed for 

bankruptcy on September 3, 2004, she clearly was aware of disputes with her employer Rheem 

that could arise to claims against Rheem and/or Employee Relations manager Mr. Mears, but she 

never reported this to the bankruptcy court even after this suit was filed. Plaintiff had a 

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continuing duty to update her bankruptcy pleadings to list her EEOC charge and this lawsuit as 

potential assets. 

Rheem is entitled to summary judgment as a matter of law on any alleged discrimination, 

retaliation or statutory violation claims asserted by Early or other claims that have existed during 

the pendency of her bankruptcy case because Early is judicially estopped from asserting those 

claims. “Judicial estoppel is an equitable concept invoked at a court's discretion" and designed 

"to prevent the perversion of the judicial process." Burnes v. Pemco Aeroplex, Inc., 291 F.3d 

1282, 1286 (11th Cir. 2002)(citation omitted). A debtor seeking shelter under the bankruptcy 

laws must disclose all assets, or potential assets, to the bankruptcy court. 11 U.S.C. §§ 521(1), 

and 541(a)(7). The duty to disclose is a continuing one that does not end once the forms are 

submitted to the bankruptcy court; rather, a debtor must amend his financial statements if 

circumstances change. See Burnes, 291 F.3d at 286 (citing In re Coastal Plains, 179 F.3d 197, 

208 (5th Cir. 1999)); De Leon v. Comcar Indus., Inc., 321 F.3d 1289 (11th Cir. 2003). 

Early possesses a financial motive to secret assets in her Chapter 13 bankruptcy case. To 

allow Early to pursue her discrimination, retaliation, statutory violation or other claims in this 

action would constitute a mockery of the judicial system. 

For the foregoing reasons, Rheem respectfully submits that this Court should enter 

summary judgment in favor of Rheem and Mears as to all counts contained in Early’s Complaint, 

dismiss the Complaint and all claims in this lawsuit against Rheem and Mears with prejudice, 

and tax costs against Plaintiff. 

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II. STATEMENT OF FACTS

A. RHEEM MANUFACTURING COMPANY. 

Plaintiff worked at Rheem’s manufacturing plant located in Montgomery, Alabama, at 

2600 Gunter Park Drive, East which is in the business of manufacturing various types of water 

heaters for residential and commercial applications. Defendant Cal Mears is Rheem’s 

Montgomery Plant Employee Relations Manager hired in 2004. 

B. PLAINTIFF WORKED AT RHEEM FROM 1993 UNTIL 2004. 

Rheem hired Plaintiff on April 2, 1993, as an Assembler. An Assembler performs the 

manual tasks incident to the process of manufacturing water heaters. Rheem water heaters are 

produced on a moving assembly line, so the specific task[s] performed by an Assembler varies 

according to the particular product being manufactured on the line and his/her location on the 

line. See Assembler Job Description, attached hereto as Ex. A 

Prior to applying for employment and being hired by Rheem in 1993, Plaintiff was in the 

active duty military from 1987 to 1992. Early Depo., attached hereto as Ex. B, p. 12, lns. 1-12; 

p. 16, l. 23 – p. 17, l. 3. During her employment with Rheem, Plaintiff enlisted in the Alabama 

National Guard. Id. at p. 20, l. 18 – p. 21, l. 5. Plaintiff testified that Rheem never interfered 

with her National Guard duties, whether 2 or 3-day weekends or 2 or 3-week summer exercises. 

See Early Depo., Ex. B, p. 34, lns. 20-24; p. 36, lns. 2-8. 

On August 27, 2000, Plaintiff sustained a slip and fall injury while attending regularly 

scheduled weekend drill with the Alabama National Guard. See Early Interrogatory Responses 

7-13, attached hereto as Ex. C; Early Depo., Ex. B, p. 36, l. 9 – p. 38, l. 20. A military physician 

diagnosed Plaintiff with degenerative disk disease following her injury, and plaintiff was on 

medical leave until June 22, 2001. Id. at p. 72, lns. 4-11. 

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When Plaintiff returned to work in 2001, Rheem assigned her duties on the assembly line 

consistent with the restrictions imposed by her physician. See June 8, 2001 Work Restrictions 

Form and Attachments (showing that Rheem’s video of proposed job was viewed and approved 

by Dr. Tarabein), attached hereto as Ex. D. Plaintiff’s primary treating physician for her back 

condition/injury was then and continued to be Dr. R.M. Tarabein, a neurologist with offices in 

Selma and Mobile approved by the National Guard. From June 2001 forward, Dr. Tarabein 

periodically confirmed work restrictions for Plaintiff similar to those in Exhibit “D”. See

Composite Exhibit Consisting of January 4, 2002 – June 3, 2004 Work Restriction Forms, 

attached hereto as Ex. E. Plaintiff acknowledges that Rheem always complied with Dr. 

Tarabein’s restrictions for the remainder of the time she worked at Rheem. Early Depo., Ex. B, 

p. 73, lns. 3-13. 2

 On or about July 7, 2004, Plaintiff presented a medical restrictions summary from Dr. 

Tarabein in which he imposed new, different and contradictory work restrictions relative to his 

long-standing diagnosis of “Lumbar Sacral Disease/Cervicalgia.” Specifically, the new, 

different and contradictory restrictions were, “total restriction of [right] arm (still may use 

[right] hand).” The specific “Physical Limitations” stated on Dr. Tarabein’s July 2004 report 

regarding lifting, standing, stooping, etc., remained the same as in previous reports from 2001. 

See July 7, 2004 Work Restrictions Form, attached hereto as Ex. G; Lewis Aff., Ex. F at ¶ 5. 

 

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 On April 6, 2004, Plaintiff sustained a work-related injury to the fourth and fifth fingers on her left hand, but no 

bones were broken and no stitches were required. See Lewis Aff., attached hereto as Ex. F at ¶3. Because the hand 

injury was work related, Plaintiff received workers’ compensation medical benefits from Rheem. Early Depo., p. 

79, l. 11 – p. 80, l. 7; p. 81, l. 6 – p. 82, l. 5. Plaintiff’s primary treating physician for her hand injury was Dr. 

Edward Palmer, an orthopedic surgeon. Although Plaintiff’s work-related injury is largely irrelevant to this lawsuit, 

Plaintiff mentions it in her Complaint, and implies that she was forced to take medical leave, which was not the case. 

See Complaint at ¶¶ 23-25. Plaintiff’s treating physician determined when and under what restrictions Plaintiff was 

able to work. See Lewis Aff., Ex. F at ¶ 3; Early Depo., Ex. B, p. 81, l. 6 – p. 83, l. 6. 

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 Due to the confusing and inherently contradictory nature of the new restrictions, 

Plaintiff’s supervisor, Norm Lewis, requested assistance from Defendant Cal Mears, Rheem’s 

Employee Relations Manager. Lewis Aff., Ex. F at ¶¶ 6-7. 

C. PLAINTIFF ABANDONED HER JOB AFTER AUGUST 11, 2004. 

 On or about August 11, 2004, Cal Mears met with Plaintiff at the request of her 

supervisor Lewis. See Mears Aff., attached hereto as Ex. H at ¶ 5. Mears reviewed Dr. 

Tarabein’s new work restrictions with Plaintiff, and explained to Plaintiff that the new “total 

restriction” against use of the right arm was confusing to Rheem because it appeared to 

contradict the longstanding physical limitations previously stipulated by Dr. Tarabein in 

numerous medical notes and reports. Id. at ¶ 5; see also July 7, 2004 Work Restrictions Form, 

Ex. G; Composite Exhibit, Ex. E. The inherent contradiction of the new total restrictions against 

use of her right arm appeared to be inconsistent and inherently contradictory to the physical 

limitations also prescribed by Dr. Tarabein allowing use of the right hand to perform full duty 

sedentary tasks lifting 0-10 pounds, full duty light lifting tasks involving weights of 10-20 

pounds, and partial duty tasks lifting weights of 20-50 pounds. In Rheem’s view, these modified 

restrictions made no sense on their face. Mears Aff., Ex. H, at ¶ 4. 3

Mr. Mears asked Plaintiff to have Dr. Tarabein clarify the new restrictions. Id. at ¶ 6. 

Plaintiff refused and told Mears that Rheem had all the information it needed. Early Depo., Ex. 

B, p. 116, l. 20 – p. 117, l. 8; p. 135, l. 1 – p. 138, l. 16; p. 144, l. 19 – p. 145, l. 6. Mr. Mears 

handed Plaintiff a brochure about Rheem’s Short Term Disability insurance coverage (“STD”), 

 

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 In 2004, Dr. Tarabein was the subject of disciplinary proceedings before the Alabama Board of Medical 

Examiners for misconduct in his medical practice, including over-prescribing pain medications and administering 

unnecessary treatments to his patients. Dr. Tarabein paid a $40,000.00 fine, committed to take certain courses and 

had his license placed on probationary suspension for two (2) years. See Stipulation and Consent Order, attached 

hereto as Ex. I. 

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which she could use if she wished to apply. Mears Aff., Ex. H at ¶ 6; see also August 11, 2004 

Memorandum, attached hereto as Ex. J.4

After meeting with Mr. Mears, Plaintiff met briefly with Alfred Gardner, Rheem’s 

Human Resources Director. Plaintiff told Gardner that she intended to apply for V.A. disability 

benefits. Gardner knew that Early already had a V.A. disability rating, so he interpreted 

Plaintiff’s remark to mean that she was seeking benefits for total disability. Gardner also 

observed that Plaintiff did not appear upset following her meeting with Mr. Mears. Gardner 

Aff., attached hereto as Ex. L at ¶ 9. 

In an effort to get the needed clarification of the new confusing medical restrictions, 

Mears met again with Plaintiff on August 20, 2004, and renewed his request for clarification 

from Dr. Tarabein. Mears Aff., Ex. H at ¶ 7. Again, Plaintiff refused and stated that she 

believed her physician had provided all he was required to provide. Id. She again told Mears 

that Rheem already had all the information it needed. Early Depo., Ex. B, p. 116, l. 20 – p. 117, 

l. 8; p. 135, l. 1 – p. 138, l. 16; p. 144, l. 19 – p. 145, l. 6

 Following his August 20, 2004 meeting with Plaintiff, Mears wrote a letter to her 

confirming what had transpired in their meetings and reiterating, yet again, the request for 

 

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 STD is provided insurance coverage for a maximum period of six (6) months (26 weeks) to Rheem employees at 

various locations at no cost to them. Long Term Disability insurance coverage (“LTD”) (an optional coverage) is 

available to Rheem employees at various locations for a monthly premium payable by the employee. See Wright 

Aff., attached hereto as Ex. K, at ¶ 2 (exhibit to Wright affidavit not necessary to disposition of issue before the 

Court and intentionally omitted). In both cases, the benefits are provided through traditional group disability 

insurance policies arranged by Rheem as Plan Sponsor. The insurance company providing benefits changes from 

time to time based on periodic cost/benefit analyses conducted by Rheem as Plan Sponsor. At all times relevant to 

Plaintiff’s claims in this lawsuit, Prudential Insurance Company of America (“Prudential”) was the insurance 

company for both the group short term disability and long term disability policies covering Rheem employees such 

as Plaintiff. Id. The importance of this is that Rheem plays no role in eligibility determinations, a fact of which 

Plaintiff is aware as she admitted in her deposition. Id at ¶ 4; Early Depo, Ex. B, p. 148, l. 6 – p. 152, l. 9; p. 291, 

lns. 3-12. This means that Plaintiff has sued the wrong parties under ERISA, a point that will be addressed in 

Rheem’s supplemental motion for summary judgment, if necessary. 

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clarification of Dr. Tarabein’s confusing restrictions. Id. at ¶ 7; see also August 20, 2004 Letter, 

attached hereto as Ex. M. Plaintiff did not reply to Mear’s letter. 

 Plaintiff never provided any clarification of Dr. Tarabein’s restrictions, nor did she ever 

return to work at Rheem.5

 Mears Aff., Ex. H, at ¶ 8. Instead, Plaintiff enrolled at Capps College 

in its Medical Assistant program in November of 2004. Early Depo., Ex. B, p. 167, lns. 21-23. 

As part of her curriculum, Plaintiff participated in an externship during the Summer of 2005 at 

Cancer Care Center South (“Cancer Care”). On or about September 27, 2005, Plaintiff became a 

Certified Medical Assistant and applied for and obtained permanent employment at Cancer Care 

effective on or about October 3, 2005. Plaintiff has been continuously employed by Cancer Care 

and by various other medical providers as a medical assistant ever since. Id. at p. 190, lns. 3 – 

22. 

Plaintiff’s application to Capps College dated November 1, 2004, states that “My last job 

was not my best. Since I’ve been in the military I’ve enjoy [sic] work with the health and 

medical field. I’ve feel [sic] as I’ve begin [sic] a new start in life for me and children. I feel I 

can benefit some one [sic] life or help someone out. I pray and ask God for guidness [sic] throw 

[sic] this all. I need a new start.” See Capps College Application, attached hereto as Ex. P. As 

will be shown more fully below, Plaintiff has admitted that she routinely lied about her 

background on several subsequent employment applications, beginning with the one she 

 

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 Initially, Plaintiff applied for short-term disability benefits. Mears Aff., Ex. H at ¶ 8. Rheem’s records reflect 

that Plaintiff applied to Prudential for STD benefits in July or August 2004 and received those benefits for the period 

August 16th, 2004, through October 3, 2004, but Prudential discontinued benefits effective October 4, 2004, on the 

grounds that Plaintiff had not provided Prudential with sufficient medical documentation to establish a qualifying 

disability under the short term disability policy. Plaintiff appealed the denial of further STD benefits, but the 

decision was upheld by a Prudential appeals committee. See Wright Aff,, Ex. K at ¶ 3 (exhibit to Wright affidavit 

not necessary to disposition of issue before the Court and intentionally omitted). Rheem delegates all aspects of 

short term disability and long term disability benefits insurance eligibility determinations to the relevant insurance 

company and plays no role whatsoever in that process. Prudential was solely responsible for the decision to 

discontinue Plaintiff’s benefits. Id. at ¶ 4; see also Prudential Financial Short-Term Disability Coverage Booklet, 

attached hereto as Ex. N at 7, 22. See January 27, 2005 Letter, attached hereto as Ex. O. 

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submitted to her first employer after Capps College in 2005. Plaintiff failed to disclose that she 

had ever worked for Rheem and misrepresented that she had been on active military duty for 

most or all of the time that she had, in fact, worked at Rheem. Early Depo., Ex. B, p. 220, l. – p. 

223, l. 10; p. 237, l. 20 – p. 239, l. 2; p. 241, lns. 14-19; p. 242, lns. 3-13. 

 Plaintiff remained a Rheem employee on indefinite medical leave from August 11, 2004 

forward, all the while pursuing her education and new career. Rheem’s Human Resources 

Department notified Plaintiff in writing on July 13, 2005, that her certification for intermittent 

FMLA leave had expired on June 28, 2005 and that no renewal FMLA certification had been 

submitted, and Rheem offered to assist Plaintiff in this regard. Mears Aff., Ex. H at ¶ 9; see also

July 13, 2005 Letter, attached hereto as Ex. Q. Plaintiff failed to respond to this July 13, 2005 

letter, as she had failed to respond to Mr. Mears’ August, 2004 verbal and written requests that 

she provide clarification of Dr. Tarabein’s inconsistent restrictions to enable her to return to 

work. Mears Aff., Ex. H at ¶ 9. 

 Finally, on or about December 21, 2005, Rheem terminated Plaintiff’s employment under 

the belief that Plaintiff had abandoned her job with Rheem and had no intention of returning to 

work. As an administrative practice, Rheem routinely terminates employees who have been on 

leave for twelve consecutive months or more. See Rheem Hourly Employee Handbook section 

on medical leaves of absence attached hereto as Ex. R; Gardner Aff., Ex. L at ¶¶ 12-13 ; January 

3, 2006 Letter, attached hereto as Ex. S. 

 In sum, Plaintiff refused to comply with Rheem’s requests for clarification of Dr. 

Tarabein’s inconsistent restrictions and did not cooperate with Rheem’s efforts to ensure that she 

was assigned to a job that conformed to those restrictions. As a result, Plaintiff was placed on 

medical leave whereupon she embarked on a new career. After over sixteen (16) months passed, 

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Rheem gave notice to Plaintiff that her employment was terminated. Plaintiff then filed an 

EEOC charge and subsequently sued Rheem. 

 Plaintiff filed an EEOC charge against Rheem fifteen (15) months ago and this suit nine 

and a half (9 1/2) months ago, but never disclosed her claims against Rheem to the Bankruptcy 

Court although her bankruptcy is still pending. 

III. SUMMARY JUDGMENT STANDARD 

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper 

“if the pleadings, depositions, answers to interrogatories and admissions on file, together with 

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986); see also Jameson v. Arrow Co., 75 F.3d 1528 (11th Cir. 1996). The party asking for 

summary judgment bears the initial burden of informing the district court of the basis for its 

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with affidavits, if any, which it believes demonstrate the absence 

of a genuine issue of material fact. Celotex, 477 U.S. at 323. The movant can meet this burden 

by presenting evidence showing there is no dispute of material fact, or by showing, or by 

pointing out to, the district court that the nonmoving party has failed to present evidence in 

support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24. 

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to 

go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to 

interrogatories, and admissions on file,’ designate ‘specific facts showing there is a genuine issue 

for trial.’ ” Id. at 324. Thus, in response to Rheem’s submissions, Early must by her own 

affidavits, deposition excerpts, answers to interrogatories or other proper evidence, designate the 

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specific material facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. A 

dispute about a material fact is genuine if the evidence is such that a reasonable jury could return 

a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Early must meet her burden by doing more than “simply show[ing] that there is some 

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986). Furthermore, “[i]n an employment discrimination case, the plaintiff 

must produce sufficient evidence to support an inference that the defendant employer based its 

employment decision on an illegal criterion.” Jameson, 75 F.3d at 1531; see also Alphin v. Sears 

Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir. 1991). 

Thus, to the extent that Rheem shows that Early will be unable to offer evidence 

sufficient to establish an element essential to any of her claims on which she will bear the burden 

of proof at trial or to the extent that Rheem argues that such a deficiency exists and Early fails to 

offer the Court sufficient evidence in her responsive summary judgment submissions, Rheem is 

entitled to summary judgment. 

IV. ARGUMENT 

A. EARLY IS JUDICIALLY ESTOPPED FROM PURSUING PRE-PETITION CLAIMS OR CLAIMS 

THAT AROSE DURING THE PENDENCY OF HER BANKRUPTCY CASE. 

Rheem is entitled to summary judgment as a matter of law on any alleged discrimination 

claims asserted by Early that have existed during the pendency of her bankruptcy case because 

Early is judicially estopped from asserting said claims. “Judicial estoppel is an equitable concept 

invoked at a court's discretion" and designed "to prevent the perversion of the judicial process." 

Burnes, 291 F.3d at 1285 (citation omitted). The standard of review for a district court’s 

application of judicial estoppel is abuse of discretion. Id. at 1284. A debtor seeking shelter 

under the bankruptcy laws must disclose all assets, or potential assets, to the bankruptcy court. 

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11 U.S.C. §§ 521(1), and 541(a)(7). The duty to disclose is a continuing one that does not end 

once the forms are submitted to the bankruptcy court; rather, a debtor must amend his financial 

statements if circumstances change. See Burnes, 291 F.3d at 286 (citing In re Coastal Plains,

179 F.3d 197, 208 (5th Cir. 1999)). Full and honest disclosure in a bankruptcy case is "crucial to 

the effective functioning of the federal bankruptcy system." Id. For example, creditors rely on a 

debtor's disclosure statements in determining whether to contest or consent to a no asset 

discharge. Bankruptcy courts also rely on the accuracy of the disclosure statements when 

considering whether to approve a no asset discharge and what amount of repayment schedule to 

approve in a Chapter 13 case. Accordingly, "the importance of full and honest disclosure cannot 

be overstated." Id. In sum, Plaintiff had a continuing obligation and duty to disclose this 

litigation to the bankruptcy court, but she totally ignored this duty both misleading and 

disadvantaging the court and her creditors. 

Although the Supreme Court has noted that "the circumstances under which judicial 

estoppel may appropriately be invoked are probably not reducible to any general formulation of 

principle," New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (citations omitted), courts 

generally consider two factors. "First, it must be shown that the allegedly inconsistent positions 

were made under oath in a prior proceeding. Second, such inconsistencies must be shown to 

have been calculated to make a mockery of the judicial system." Burnes, 291 F.3d at 1285 

(citation omitted). See also De Leon v. Comcar Indus., Inc., 321 F.3d 1289 (11th Cir. 2003) 

(holding that the rule that the doctrine of judicial estoppel bars a plaintiff from asserting claims 

previously undisclosed to the bankruptcy court where the plaintiff both knew about the 

undisclosed claims and had a motive to conceal them from the bankruptcy court, applies equally 

in Chapter 7 and Chapter 13 bankruptcy cases). 

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In Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002), the Eleventh 

Circuit applied the doctrine of judicial estoppel to bar plaintiffs who fail to disclose causes of 

action in past or concurrent bankruptcies. Burnes was an employment discrimination class 

action lawsuit suit brought by 35 individuals against Pemco. Chapter 13 debtor Billups was one 

of the individually named plaintiffs and had worked for Pemco since 1992. Billups, who filed 

for Chapter 13 bankruptcy on July 3, 1997, filed charges with the EEOC on January 30, 1998 

(six months after his bankruptcy filing). On December 9, 1999, Billups, along with thirty-five 

other individuals, filed an employment discrimination suit against Pemco in the Northern District 

of Alabama seeking both monetary and injunctive relief. Billups never amended his Chapter 13 

schedule of assets or statement of financial affairs to include his lawsuit against Pemco, which he 

filed over two years after his bankruptcy. Burnes, 291 F.3d at 1284. While the class action was 

pending, Billups converted his bankruptcy case to a Chapter 7. Id. Again, he never disclosed the 

employment discrimination claim in his petition and schedules. Id. Shortly after Billups' 

Chapter 7 discharge, Pemco moved for summary judgment on Billups' class action claims on the 

basis of judicial estoppel. Id. In particular, Pemco asserted that Billups was judicially estopped 

from pursuing his discrimination claims in the class action because he failed to amend his 

bankruptcy filing to add his lawsuit as a potential asset. Id. The district court agreed, granting 

Pemco’s summary judgment motion with respect to Billups. Id.

The Eleventh Circuit affirmed the district court’s judgment on appeal. The Court found 

that the evidence was sufficient to infer that Billups was aware of his discrimination lawsuit 

during the pendency of his bankruptcy proceedings and that he had financial motive and the 

requisite intent to conceal the claims from the bankruptcy court. Id. at 1288. The Court further 

explained that the underlying purpose of the doctrine of judicial estoppel was to insure the 

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protection of the integrity of the courts and to prevent parties from playing "fast and loose" with 

the court or otherwise making a mockery of the judicial system. Id. at 1285. See also Barger v. 

City of Cartersville, 348 F.3d 1289 (11th Cir. 2003) (following the analysis of De Leon and 

Burnes and concluding that the debtor was judicially estopped from proceeding in a state court 

action when the schedules did not include the asset of the state court action and that asset was not 

administered by the Chapter 7 trustee). Consequently, the Court affirmed the dismissal of 

Burnes’ monetary damage claims. 

The Eleventh Circuit addressed a similar factual circumstance in De Leon v. Comcar 

Indus., Inc., 321 F.3d 1289 (11th Cir. 2003). In De Leon, plaintiff De Leon filed a Charge of 

Discrimination with the EEOC on December 2, 1999. The EEOC sent De Leon correspondence 

on July 7, 2000, explaining that if the EEOC brought a civil action, he would have the right to 

intervene in the action, or if it decided not to bring suit, he would be issued a right-to-sue letter. 

On October 11, 2000, De Leon hired counsel to "gather information". Subsequently, on 

November 7, 2000, De Leon filed bankruptcy. On April 19, 2001, the EEOC issued a right-tosue letter, and on May 14, 2001, De Leon filed a discrimination suit. He never amended his 

bankruptcy filing to add his lawsuit as a potential asset. The defendant in the discrimination suit 

filed a motion to dismiss, asserting that De Leon was judicially estopped from pursuing his 

discrimination claims because he failed to disclose the lawsuit as an asset in his bankruptcy case. 

Only after the defendant filed its motion to dismiss did De Leon file an amended petition to 

reopen the bankruptcy estate in April 2002. The district court granted the defendant’s motion, 

finding that De Leon was judicially estopped from pursuing his claims. 

 On appeal, the Eleventh Circuit affirmed the district court’s judgment, finding that the 

district court had properly applied the doctrine of judicial estoppel to De Leon’s retaliation and 

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discrimination claims. Id. at 1292. The court reasoned that because De Leon certainly knew 

about his claim and possessed a motive to conceal it because his amount of repayment in the 

bankruptcy would be less, it could “infer from the record his intent ‘to make a mockery of the 

judicial system.’" Id. The Eleventh Circuit reasoned: 

In May of 2002, this court affirmed the application of judicial 

estoppel in a Chapter 7 bankruptcy case. Burnes v. Pemco 

Aeroplex, Inc., 291 F.3d 1282, 1283 (11th Cir. 2002). De Leon 

attempts to distinguish Burnes because that case involved a debtor 

who filed for bankruptcy under Chapter 7, which allows for the 

complete discharge of debts. De Leon filed for bankruptcy under 

Chapter 13 through which his debts would be discounted and 

repaid. However, a financial motive to secret assets exists under 

Chapter 13 as well as under Chapter 7 because the hiding of assets 

affects the amount to be discounted and repaid. Burnes made no 

distinction based on the type of bankruptcy at issue. We also 

conclude that any distinction between the types of bankruptcies 

available is not sufficient enough to affect the applicability of 

judicial estoppel because the need for complete and honest 

disclosure exists in all types of bankruptcies. Accordingly, we 

hold that the rule established in Burnes, that judicial estoppel bars 

a plaintiff from asserting claims previously undisclosed to the 

bankruptcy court where the plaintiff both knew about the 

undisclosed claims and had a motive to conceal them from the 

bankruptcy court, applies equally in Chapter 13 bankruptcy cases. 

In Snowden v. Fred’s Stores of Tennessee, Inc., 419 F. Supp. 2d 1367 (M.D. Ala. 2006), 

the Middle District of Alabama, distinguishing Burnes and De Leon, held that, under the 

particular facts, that employee was not be judicially estopped from filing an FLSA claim after 

filing for bankruptcy when there was no evidence of a motive to deceive. Under facts that are 

greatly distinguishable from those in the case at bar, the plaintiff in Snowden (“Glaston”) filed 

for bankruptcy on September 19, 2002, started working for the defendant in September 2003, 

and learned from a customer in April of 2005 that her employer may have violated her rights 

under the Fair Labor Standards Act (“FLSA”). Id. at 1369. On April 13, 2005, Glaston opted 

into an already existing lawsuit against her employer. On June 3, 2005, less than two months 

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after Glaston joined the FLSA lawsuit, the defendant moved for summary judgment against 

Glaston based on judicial estoppel grounds. 6

 On August 22, 2005 (four months after Glaston 

first learned about and opted into the FLSA lawsuit), Glaston moved the bankruptcy court to 

amend her bankruptcy plan to reflect her participation in the lawsuit against her employer in her 

schedule of assets. Id.

Declining to apply judicial estoppel to these facts, the court found that although Glaston 

stated in her 2002 bankruptcy pleadings that she did not have any unliquidated claims at the time 

that she filed her documents, this statement was not inconsistent with her claims in her FLSA 

suit. While the court held that the employee's four-month delay in amending the bankruptcy 

schedule was not conclusive proof of an intent to mislead bankruptcy court, the court did 

acknowledge that “a delay in amending bankruptcy filings can be probative of a party's intent, 

and a lengthy delay alone could warrant a finding that the plaintiff intended to mislead the 

bankruptcy court.” Id. at 1374. In fact, hypothetically presenting facts similar to those in this 

case, the court stated: 

Indeed, if Glaston had learned of her claims when they began to 

accrue in September 2003, yet failed to amend her bankruptcy 

filings until two years later and only after FST moved for summary 

judgment, this court would certainly not abuse its discretion to 

conclude that she was attempting to manipulate the judicial process 

in her favor and, accordingly, apply judicial estoppel. 

Id. at 1372. The court’s hypothetical scenario is similar to the one at bar and, thus, supports the 

 

6

 In Snowden, the Court criticized Defendant for moving for summary judgment only two months after Plaintiff 

joined the FLSA lawsuit. In Early’s case, Rheem discovered that she was in Chapter 13 bankruptcy in March of 

2006 shortly after Plaintiff filed an EEOC charge against Rheem. In contrast to the defendants in Snowden, after 

discovering the bankruptcy, Rheem waited 14 months to depose Plaintiff and file its motion for summary judgment 

on judicial estoppel grounds. Rheem did so in large measure to afford the Plaintiff a lengthy opportunity to 

voluntarily amend her bankruptcy pleadings on her own accord. Rheem did immediately proceed to file its motion 

for summary judgment on May 25, 2007 (Doc. no. 17), the day following Plaintiff’s deposition because, in Rheem’s 

view, Plaintiff did not under the law or notions of fairness deserve an opportunity to amend her bankruptcy filings 

after it became clear to all concerned from her deposition that she had been “caught” “playing fast and loose” with 

the Courts. See Burnes, 291 F.3d at 1288; Coastal Plains, 179 F.3d at 205. 

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application of judicial estoppel in this case. 

Unlike the plaintiff in Snowden, but like the Plaintiffs in Burnes and De Leon, the 

evidence clearly shows that Early possesses a “financial motive to secret assets” in her Chapter 

13 bankruptcy case. Donna Early filed a Chapter 13 Bankruptcy case on September 3, 2004, and 

her case is still pending.7

 See Petition for Bankruptcy, attached hereto as Ex. T, Statement of 

Financial Affairs, p. 2, ¶ 7. Early’s injury during her National Guard drill duty occurred in 2000, 

and her conflict with Rheem/Mears over her new and contradictory medical restrictions occurred 

in July and August of 2004, and her last day of work with Rheem was on August 11, 2004. 

Clearly, at the time that she filed for bankruptcy on September 3, 2004, she was aware of 

ongoing disputes with her employer that could arise to legal claims against her employer, but she 

never reported this potential lawsuit to the bankruptcy court. 

Finally, on or about December 21, 2005, Rheem terminated Plaintiff’s employment under 

the belief that Plaintiff had abandoned her job and had no intention of returning to work. Early 

filed a Charge of Discrimination with the E.E.O.C. on February 23, 2006. She filed this lawsuit 

on August 13, 2006. Throughout 2006 and 2007 to date, Early knew she had alleged claims 

against her employer, but despite her continuing duty to update her bankruptcy pleadings to list 

this lawsuit as a potential asset, Early has failed to report this to the bankruptcy court.8

B. There is Strong Collateral Evidence that Plaintiff’s Failure to Report this Suit to the 

Bankruptcy Court was an Intentional Deception. 

Although the Court can and should infer that Plaintiff’s actions were calculated to 

deceive the Bankruptcy Court solely from her failure to disclose that she had claims against 

 

7

 Early is no stranger to Chapter 13 bankruptcy proceedings. She filed a Chapter 13 bankruptcy in 1996 and her 

case was closed in 2001, three years before she filed again in 2004. 8

 Early has been represented by competent bankruptcy counsel during both of her bankruptcy proceedings. See 

Burnes, 291 F.3d at 1284 (Eleventh Circuit pointing out that plaintiff had a lawyer for the entirety of his bankruptcy 

proceedings). 

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Rheem, Defendants can show additional collateral evidence of Plaintiff’s intent to deceive. The 

Eleventh Circuit in Burnes considered the particular issue of judicial estoppel and the omission 

of assets in a bankruptcy case, and concluded that deliberate or intentional manipulation can be 

inferred from the record. 291 F.3d at 1287. 

 First, Plaintiff received a V.A. disability rating of 20% for her 2000 slip and fall injury. 

on November 18, 2002. See Early Depo., Ex. B, p. 60, l. 13-17. Plaintiff thereafter sought to 

have the 20% rating increased. Her efforts in this regard were in progress when she filed for 

bankruptcy in 2004. On October 6, 2006 the V.A. notified Plaintiff that it had increased her 

disability rating from 20% to 60% retroactive to July 1, 2002. In addition to increasing her 

monthly disability amount, this resulted in Plaintiff receiving a lump sum back payment of at 

least $10,000.00. Id. at p. 60, l. 22 – p. 62, l. 7. In her deposition Plaintiff testified that she used 

approximately $3,000.00 of the money to purchase a car for a teenage child and repaid some 

loans to her brother. She testified that she could not remember what she did with the rest of the 

money, and did not say that she recalled sending any of the money to the bankruptcy court. Id. at 

p. 64, l. 4 – p. 65, l. 12. Importantly, Plaintiff did not report this large lump sum of disposable 

income to the Bankruptcy Court nor did she previously ever reveal to the Court that she had a 

claim pending to have her disability rating, and thus her monthly payment, increased. See 

Bankruptcy Schedule B, no. 20. 

Plaintiff’s bankruptcy plan provided for payment of her creditors over fifty-five (55) 

months. See Bankruptcy Plan, attached hereto as Ex. U, at p. 2, ¶3. Sixty (60) months is the 

longest Chapter 13 payment plan allowed by law. See 11 U.S.C. §§ 1322(d), 1329(c). Even 

though Plaintiff schedule was near the outer limit for paying her creditors, she did not disclose 

her receipt of this sizeable amount of disposable income or that her monthly V.A. benefit 

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increased by nearly $600.00 per month from $199.00 to $794.00. Clearly this omission 

prejudiced Plaintiff’s creditors and the bankruptcy court. During her bankruptcy, Plaintiff has 

made twenty-one (21) of thirty-three (33) scheduled payments, meaning that she has missed her 

payment thirty-six percent (36%) of the time. See Chapter 13 Trustee Print Out, attached hereto 

as Ex. V. Plaintiff has not made up the missed payments. Id. 

Additionally, on January 30, 2006, the Chapter 13 Bankruptcy Trustee moved to dismiss 

Plaintiff’s bankruptcy due to failure to comply with her payment schedule. See Trustee’s Motion 

to Dismiss, attached hereto as Ex. W. In response to the Trustee’s Motion to Dismiss, Plaintiff 

filed an Objection wherein she stated that she “was hospitalized for two months.” See Objection 

to Conditional Dismissal, attached hereto as Ex. Y. During Plaintiff’s deposition, she 

acknowledged that her attorney had represented to the Bankruptcy Court that she had been 

hospitalized for a two-month period when, in fact, she “missed a couple of days” of work due to 

illness.9

 Early Depo., Ex. B, p. 286, l. 1 – p. 287, l. 15. This misrepresentation strongly 

indicates that Plaintiff mislead the Bankruptcy Court in an attempt to excuse her failure to make 

payments. The Court denied the motion to dismiss because, by the time the hearing occurred for 

the motion on July 10, 2006, Plaintiff had resumed making her payments. See Order Denying 

Motion to Dismiss, attached hereto as Ex. X. 

Also, when Plaintiff filed for bankruptcy on September 3, 2004, she represented that she 

had made no charitable contributions within the preceding twelve (12) months. See Petition for 

Bankruptcy, Ex. T, at p. 2, # 7. Yet on January 26, 2005, Plaintiff filed her federal and state 

income tax returns for the calendar year 2004 and claimed deductions for charitable 

contributions in the amount of $3,450.00, $3,000.00 of which Plaintiff claimed was donated in 

 

9

 Rheem assumes that Plaintiff’s attorney was simply providing to the Bankruptcy Court information that was 

provided by his client. 

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cash. See 2004 Tax Return, attached hereto as Ex. Z at Form 1040, Sched. A, Itemized Deductions, 

Line 15, Form 40 Sched. A, Itemized Deductions Line 14. Unless there is a missing piece to this 

puzzle of which Rheem is unaware, apparently Plaintiff either made $3,450.00 in charitable 

contributions between September 3, 2004 and December 31, 2004 without informing the 

Bankruptcy Court, or her 2004 federal and state tax returns are false. 

Finally, Plaintiff has admitted that she routinely lied about her background on several 

employment applications, beginning with the one she submitted to Cancer Care in 2005. See

Employment Applications (with misrepresentations highlighted), attached hereto as Ex. AA. In 

these applications, Plaintiff represented that she had attended the Military Police Academy and 

that she had served as a member of the Military Police Force (“M.P.”) while on active duty in the 

U.S. Army. When confronted with the fact that her military records contained no evidence of 

Military Police training or service, Plaintiff initially insisted that her representations in this 

regard were “typos” she made filling out the job applications. When pressed, Plaintiff eventually 

admitted that she had lied and that she had never been an M.P., but just wanted to be one and had 

taken about two and a half hours of M.P. related courses while in the National Guard. See Early 

Depo., Ex. B, p. 200, l. 10 – p. 215, l. 22; p. 223, l. 11 – p. 224, l. 5; p. 232, l. 15 – p. 233, l. 15. 

In these same applications, Plaintiff failed to disclose that she had ever worked for Rheem and 

misrepresented that she had been on active military duty for most or all of the time that she had, 

in fact, worked at Rheem. See Employment Applications (with misrepresentations highlighted), 

Ex. AA. Plaintiff also claimed to have been a “med tech” in the Army, another fabrication. 

Early Depo., Ex. B, p. 241, lns. 14-19. Plaintiff admitted that she made these misrepresentations 

to inflate her prior employment experience knowing that they would be relied upon by her 

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prospective employer[s]. Id. at p. 220, l. – p. 223, l. 10; p. 237, l. 20 – p. 239, l. 2; p. 242, lns. 3-

14. 

In sum, Plaintiff has now admitted under oath to a pattern of submitting falsified 

documents about herself and her affairs. All of these misrepresentations in combination buttress 

the inference that Early’s omission of assets in her bankruptcy case constituted deliberate and 

intentional manipulation. Early’s admitted misrepresentations, when coupled with the inference 

of intentional manipulation court’s make solely on the basis of the debtor’s failure to disclose 

potential causes of action, makes the case for deception overwhelming.10 

To allow Early to pursue her discrimination claims in this action would constitute a 

“mockery of the judicial system.” See De Leon, 321 F.3d at 1292 (citing Burnes, 291 F.3d at 

1285-87). For these reasons, Defendants are entitled to summary judgment on all of Early’s 

claims that existed during the pendency of her bankruptcy case

 

10 Early should not be allowed to go back to the bankruptcy court and amend her schedules now that she has been 

caught in her deception. That type of remedy has been considered and rejected by the Eleventh Circuit: 

In an attempt to remedy the situation, Billups argues that he should now be 

allowed to re-open his bankruptcy case to amend his filings and include his 

lawsuit against Pemco. We disagree. The success of our bankruptcy laws 

requires a debtor's full and honest disclosure. Allowing Billups to back-up, reopen the bankruptcy case, and amend his bankruptcy filings, only after his 

omission has been challenged by an adversary, suggests that a debtor should 

consider disclosing potential assets only if he is caught concealing them. This 

so-called remedy would only diminish the necessary incentive to provide the 

bankruptcy court with a truthful disclosure of the debtors' assets. See Traylor v. 

Gene Evans Ford, LLC, 185 F.Supp.2d 1338, 1340 (N.D. Ga. 2002)(denying a 

debtor's request to back up and disclose a previously undisclosed claim to the 

bankruptcy court in the face of an adversary's challenge); Scoggins v. Arrow 

Trucking Co., 92 F.Supp.2d 1372, 1376 (S.D. Ga. 2000)(same); Chandler v. 

Samford University, 35 F.Supp.2d 861, 863-865 (N.D. Ala. 1999)(applying the 

doctrine of judicial estoppel to bar a plaintiff from asserting a previously 

undisclosed tort claim, even though she eventually informed her attorney and the 

bankruptcy court of the claim). 

Burnes, 291 F.3d at 1288. 

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V. CONCLUSION 

 Plaintiff has failed to disclose the claims she is asserting in this litigation in her 

bankruptcy case and should be judicially estopped from continuing this litigation. For the 

foregoing reasons, Rheem submits that this Court should enter summary judgment in favor of 

Rheem and Mears as to all counts against it contained in Early’s Complaint, dismiss the 

Complaint and all claims in this lawsuit against Rheem and Mears with prejudice, and tax costs 

against Plaintiff. 

Respectfully submitted, 

s/Henry C. Barnett, Jr. 

HENRY C. BARNETT, JR. (BAR037) 

ATTORNEY FOR DEFENDANTS 

OF COUNSEL: 

CAPELL & HOWARD, P. C. 

150 South Perry Street 

Post Office Box 2069 

Montgomery, Alabama 36104 

(334) 241-8000 

(334) 323-8888 

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of June, 2007, I electronically filed the foregoing with 

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to 

the following: 

Trina S. Williams 

Vicky U. Toles 

TOLES & WILLIAMS, LLP 

1015 South McDonough Street 

Montgomery, Alabama 36104 

s/Henry C. Barnett, Jr. 

OF COUNSEL 

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