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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’ MOTION FOR SUMMARY JUDGMENT

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

collectively “Rheem” or Defendants) and respectfully submit the following Motion for Summary 

Judgment based on principles of judicial estoppel. Defendants will file a memorandum of law in 

support thereof upon receipt of Plaintiff’s transcript of her deposition taken on May 24, 2007. 

 1. 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 US Army. On 

December 21, 2005, after Plaintiff had abandoned her job for over twelve (12) months by neither 

working nor providing clarification of new confusing, inconsistent, medical restrictions provided 

by her physician, Rheem terminated Plaintiff’s employment under the belief that Plaintiff had 

abandoned her job with no intention of returning to work at Rheem. Plaintiff has filed suit 

against Rheem, claiming that Rheem violated the Uniform Services Employment and Reemployment Rights Act (“USERRA”) in relation to an injury that she suffered in 2000 while on 

National Guard routine weekend drill, and violated the Employee Retirement Income Security 

Act (“ERISA”) in relation to her retirement and disability benefits. For the reasons set out below 

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and in the forthcoming memorandum of law, the Court should grant summary judgment in favor 

of Rheem and against Plaintiff on all of her claims. 

 2. On September 4, 2004, Plaintiff filed Chapter 13 Bankruptcy. Plaintiff has never 

disclosed her claims against Rheem and Mr. Mears to the Bankruptcy Court although her 

bankruptcy is still pending, she filed a charge with the EEOC on March 15, 2006 and filed this 

lawsuit on August 16, 2006. 

3. Early’s injury during her National Guard drill duty occurred in 2000, and her 

conflict with Rheem over her new inconsistent and contradictory medical restrictions occurred in 

July and August of 2004. Clearly, at the time that she filed for bankruptcy on September 4, 

2004, she was aware of disputes with her employer Rheem that could arise to alleged claims 

against her employer and/or Employee Relations manager Mr. Mears, but she never reported this 

potential lawsuit to the bankruptcy court. After her employment with Rheem formally ended, 

she filed this lawsuit in 2006 and has a continuing duty to update her bankruptcy pleadings to list 

this lawsuit as a potential asset. During Plaintiff’s deposition on May 25, 2007, it emerged that 

she also did not disclose in her pending bankruptcy that she received a sizeable lump sum of 

retroactive disability compensation from the National Guard. 

4. 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 

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 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. 

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§§ 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 Burns, 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). 

5. 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 these reasons, Defendants 

are entitled to summary judgment on all of Early’s claims that existed during the pendency of her 

bankruptcy case. 

 6. Because Plaintiff has failed to disclose the claims she is asserting in this litigation 

in her bankruptcy case, she should be judicially estopped from continuing this litigation. For the 

foregoing reasons and for the reasons that will be presented in the forthcoming memorandum of 

law in support thereof, Rheem 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. 

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 

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CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of May, 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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