1 

 UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KENTA HAWKINS, 

 

 Plaintiff, Case No. 15-cv-10172 

 Hon. Mark A. Goldsmith 

vs. 

MICHIGAN DEPARTMENT OF 

CORRECTIONS, 

 Defendant. 

____________________________/ 

OPINION AND ORDER 

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. 24) AND 

DENYING AS MOOT DEFENDANT’S MOTION TO COMPEL DISCOVERY (Dkt. 32)

 

This is a status-based discrimination and retaliation case, brought under Title VII of the 

Civil Rights Act of 1964. Plaintiff Kenta Hawkins claims that her employer, the Michigan 

Department of Corrections (“MDOC”), failed to promote her and took other unfavorable action 

toward her due to her race and gender. Hawkins also claims that, after she complained about this 

alleged discrimination, MDOC further denied her promotions and subjected her to other 

unfavorable treatment in retaliation for her complaints. 

 Following discovery, MDOC filed a motion for summary judgment, raising a number of 

defenses. One defense, in particular, is both meritorious and simple: Hawkins’ claim is barred 

by judicial estoppel due to her failure to identify this lawsuit in her bankruptcy petition. MDOC 

is correct, and its motion for summary judgment is granted. 

I. BACKGROUND 

 Kenta Hawkins — an African American female — was employed by Defendant MDOC 

as a Corrections Officer in 2002, worked as an MDOC Sergeant since 2004, and has been 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 1 of 7 Pg ID 1170
2 

assigned to the Women’s Huron Valley Correctional Facility (“WHV”) since 2012. From 2012 

to the present, Hawkins has applied for numerous Lieutenant or Shift Commander positions 

within MDOC. Compl. ¶ 11 (Dkt. 1). Hawkins has experience in these positions, albeit in a 

temporary capacity. Id. ¶ 10. Nevertheless, “most, if not all,” of these positions went to 

Caucasians, and most went to males. Id. ¶ 12. 

 On June 30, 2014, Hawkins filed a charge with the EEOC by way of a handwritten EEOC 

intake questionnaire (Dkt. 26-2). The formal EEOC charge (Dkt. 26-3) was also dated June 30, 

2014, and was drafted by an EEOC employee as a summary of the claimant’s questionnaire. Pl. 

Resp. at 1 (Dkt. 26). Subsequently, the EEOC closed its file on Hawkins’ charge and issued a 

Dismissal and Notice of Rights to Hawkins on November 18, 2014. Compl. at 8 (cm/ecf page). 

 On January 15, 2015, Hawkins filed this suit under Title VII of the Civil Rights Act of 

1964, alleging that she was discriminated against, harassed, and refused promotions (i) due to her 

race; (ii) due to her sex; (iii) in retaliation for filing a grievance regarding a November 2013 

“counseling memorandum”; and (iv) in retaliation for her March 2014 discrimination complaint. 

Id. ¶ 34. 

 Thereafter, Hawkins filed a voluntary petition for bankruptcy under Chapter 13, which 

was dated May 26, 2015. See Ex. 43 to Def. Mot. (Dkt. 24-44). She did not disclose this lawsuit 

as an asset. MDOC filed its motion for summary judgment on December 29, 2015 (Dkt. 24). 

Hawkins has since voluntarily dismissed the bankruptcy petition, but did not move to do so until 

after MDOC’s motion for summary judgment was filed. 

II. DISCUSSION 

A. Judicial Estoppel 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 2 of 7 Pg ID 1171
3 

Here, Hawkins received her EEOC notice of right to sue on November 18, 2014, and 

filed her complaint on January 15, 2015. Months later, on May 26, 2015, Hawkins filed a 

voluntary petition for bankruptcy under Chapter 13. See generally Ex. 43 to Def. Mot. In her 

summary of schedules, Hawkins denied the existence of any unliquidated claim and denied being 

party to any lawsuit in the preceding year. See Ex. 44 to Def. Mot. at 7, 26 (cm/ecf page) (Dkt. 

24-45). A payment order entered on June 10, 2015, and the bankruptcy judge confirmed the 

bankruptcy plan on August 27, 2015. In re Hawkins, 2015-48158 (E.D. Mich. 2015) [Dkts. 17, 

28]. Hawkins moved to voluntarily dismiss her bankruptcy claim on February 2, 2016 — after 

MDOC filed its December 29, 2015 motion, which pointed out the errors in her bankruptcy 

petition. Id. [Dkt. 44]. Thereafter, Judge Walter Shapero entered an order dismissing the 

bankruptcy [Dkt. 45]. 

 In the bankruptcy context, “judicial estoppel bars a party from (1) asserting a position 

that is contrary to one that the party has asserted under oath in a prior proceeding, where (2) the 

prior court adopted the contrary position ‘either as a preliminary matter or as part of a final 

disposition.’” Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002). “[J]udicial estoppel is 

inappropriate in cases of conduct amounting to nothing more than mistake or inadvertence.” Id. 

at 776. To determine whether a plaintiff’s conduct resulted from mistake or inadvertence, courts 

consider whether: (i) she lacked knowledge of the factual basis of the undisclosed claims; (ii) she 

had a motive for concealment; and (iii) the evidence indicates an absence of bad faith. White v. 

Wyndham Vacation Ownership, Inc., 617 F.3d 472, 478 (6th Cir. 2010). 

 The first two elements are easily met here. Hawkins possessed knowledge of the factual 

basis of the claims; as alleged by her complaint, she was consciously aggrieved by the alleged 

Title VII violations well before she filed for bankruptcy. This satisfies the first element. 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 3 of 7 Pg ID 1172
4 

Similarly, Hawkins had a motive for concealment, because “if the harassment claim became a 

part of her bankruptcy estate, then the proceeds from it could go towards paying [her] creditors, 

rather than simply to paying [her].” Id. at 479. With these two elements met, it is the third 

element — whether Hawkins can show an absence of bad faith — that will dictate whether 

judicial estoppel bars her claim. Two Sixth Circuit cases, in particular, guide this fact-intensive 

inquiry, and, together, they make it clear that Hawkins has failed to show an absence of bad 

faith. 

In White, the plaintiff failed to list her harassment claim on her Chapter 13 bankruptcy 

petition. Id. at 474-475. After the defendants filed a motion to dismiss raising the issue of 

judicial estoppel, the plaintiff filed an amendment to her bankruptcy petition that listed the 

lawsuit, but did not disclose its amount. Id. at 475. The plaintiff had filed an “application to 

employ counsel” with the bankruptcy court for her harassment claim, but the application did not 

reflect the facts of the suit, whether she was a plaintiff or defendant, or the amount of the lawsuit. 

Id. Following the defendants’ motion to dismiss, the plaintiff’s attorney filed an affidavit stating 

that (i) the plaintiff told him about the lawsuit; (ii) he told the bankruptcy court about the lawsuit; 

and (iii) he did not know why the lawsuit was not listed as an asset. Id. 

The Sixth Circuit held that the White plaintiff failed to show an absence of bad faith. It 

gave little weight to the attorney’s affidavit because it contained “no evidence as to what, exactly 

was discussed [before the bankruptcy court], whom it was discussed with, or whether the 

omission from the initial filings was discussed or emphasized.” Id. at 480. The application to 

employ counsel was similarly given little weight, because it contained so little information 

regarding the lawsuit that it “did not appear to trigger any request for additional information 

from the bankruptcy court or the trustee.” Id. at 481. And the post-motion to dismiss 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 4 of 7 Pg ID 1173
5 

amendment was “not consider[ed] favorably” because “[t]o do so would encourage 

gamesmanship.” Id. Accordingly, the Sixth Circuit held that the White plaintiff failed to carry 

her burden to show an absence of bad faith or that her omission resulted from mistake or 

inadvertence.1

 

Based on distinguishable facts, the Sixth Circuit reached the opposite result in 

Stephenson v. Malloy, 700 F.3d 265 (6th Cir. 2012). That plaintiff sought Chapter 7 bankruptcy 

protection, and among his assets was a negligence suit arising out of an auto accident, brought 

against the other motorist. Id. at 267. The plaintiff did list a suit against the insurer arising out 

of the same accident, but neglected to list the suit against the individual. Id. In a supplemental 

response to a motion for summary judgment filed by the defendants, plaintiff produced copious, 

detailed documentation, including an affidavit from the bankruptcy trustee, as well as 

corroborating letters and emails, proving that the bankruptcy trustee had been told about the 

plaintiff’s lawsuit well before the defendants’ motion for summary judgment had been filed. Id. 

at 269-270. 

In light of these pre-motion attempts to correct the record, the Stephenson court 

distinguished that case from White. The Stephenson plaintiff “presented substantial evidence . . . 

that the bankruptcy trustee was told of this lawsuit long before [the] [d]efendants sought 

summary judgment on judicial estoppel grounds.” Id. at 274. Therefore, “the affidavits and 

correspondence clearly establish[ed] an issue of material fact with respect to whether [the 

plaintiff]’s omission was in bad faith,” and judicial estoppel was not appropriate. Id. 

                                                            

1

 The White court deemed it relevant that the plaintiff included another suit in her list of assets, 

which showed an awareness of that section of the bankruptcy petition. Id. at 482. It was also 

deemed relevant that the plaintiff “waited until just after the plan confirmation hearing to file her 

harassment claim with the district court.” Id. These facts were considered because they 

reinforced the presumption of bad faith, but their absence here does nothing to aid Hawkins in 

her duty to show a lack of bad faith, which is the proper inquiry. Id. at 478. 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 5 of 7 Pg ID 1174
6 

 Hawkins’ case tacks closely to White, and, for that reason, judicial estoppel applies. In 

fact, Hawkins is even more culpable than the White plaintiff. That plaintiff “offered three pieces 

of evidence to show that she had not [acted in bad faith]: an affidavit from her bankruptcy 

attorney, an application to employ counsel that she had filed in the bankruptcy court, and an 

amendment to her bankruptcy filings to add the omitted claim,” and still she failed to make the 

required showing. Id. at 273. Hawkins cannot even show this much. 

She claims that she told her bankruptcy attorney about this lawsuit, see Pl. Resp. at 19, 

but she offers no affidavit from her bankruptcy attorney to that effect, let alone one that has the 

evidentiary substance required by White. Hawkins personally executed an affidavit, but it 

merely claims that she told her bankruptcy attorney about this lawsuit and that, upon personally 

reviewing the petition, she “did not realize” that the lawsuit was left off the petition. See 

Corrected Ex. 9 to Pl. Resp. at 2-3 (Dkt. 27). These are exactly the excuses that the White court 

found unconvincing. See White, 617 F.3d at 483-484 (attorney’s purported mistake, 

compounded by plaintiff’s purported mistake when reviewing and signing inaccurate petition, 

was insufficient to show absence of bad faith); see also Kimberlin v. Dollar Gen. Corp., 520 F. 

App’x 312, 315 (6th Cir. 2013) (disregarding plaintiff-debtor’s sworn statement of good faith 

because “‘the absence of bad faith’ inquiry focuses on affirmative actions taken by the debtor to 

notify the trustee or bankruptcy court of an omitted claim” (citing Stephenson, 700 F.3d at 274)). 

An affidavit alleging unintentional omission “pales in comparison to the evidence of good faith 

presented in Stephenson.” Kimberlin, 520 F. App’x at 315. Furthermore, Hawkins has offered 

nothing resembling the White plaintiff’s application to employ counsel. And, as in White (and 

contrasting with Stephenson), Hawkins did not attempt to correct the record in the bankruptcy 

court until after MDOC’s motion for summary judgment. 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 6 of 7 Pg ID 1175
7 

Together, Hawkins’ actions “indicate[ ] an intent to hide her harassment claim.” 

Stephenson, 700 F.3d at 275. Hawkins has failed to carry her burden to show an absence of bad 

faith. Judicial estoppel, therefore, binds Hawkins to her earlier assertion that the instant lawsuit 

does not exist, and summary judgment is appropriate. 

B. Motion to Compel Discovery 

On April 7, 2016, MDOC filed a motion to compel Hawkins to produce certain 

documentation (Dkt. 32). In light of the above disposition, which grants summary judgment to 

MDOC on all claims against it, further discovery is unnecessary. Accordingly, the motion to 

compel discovery is denied as moot. 

III. CONCLUSION 

 For the reasons set forth above, Hawkins is judicially estopped from asserting her Title 

VII claims, and MDOC’s motion for summary judgment (Dkt. 24) is granted. Accordingly, 

further discovery is unnecessary, and MDOC’s motion to compel (Dkt. 32) is denied as moot. 

The complaint is dismissed with prejudice. A separate judgment will enter. 

SO ORDERED. 

Dated: June 13, 2016 s/Mark A. Goldsmith 

Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on June 13, 2016. 

 s/Karri Sandusky 

 Case Manager 

2:15-cv-10172-MAG-APP Doc # 35 Filed 06/13/16 Pg 7 of 7 Pg ID 1176