Donna Barger v. City of Cartersville Georgia and Sam Grove

Donna Barger began working for the City of Cartersville, Georgia, in
January 1978. She rose to the position of Personnel Director in 1997.
In November 2000, Barger underwent back surgery to repair a ruptured disc.
On January 8, 2000, shortly after Barger returned to work, City Manager Sam
Grove demoted Barger from her $42,000.00 per year Personnel Director position
to a $14.62 per hour customer service representative. She reacted by filing a
discrimination charge with the Equal Employment Opportunities Commission (the
"EEOC") on January 22, 2001, alleging that her demotion violated the Family
Medical Leave Act, the Americans With Disabilities Act, and the Age Discrimination in Employment Act.

The EEOC issued Barger a right to sue letter on June 11, 2001. On July 18,
2001, Barger sued Grove and the City in district court to win back the Personnel
Director position from which she had been demoted.

Because Barger's demotion resulted in less pay, she decided to seek Chapter
7 bankruptcy protection. Her bankruptcy attorney prepared a Chapter 7 petition
which, among other things, stated that Barger had not been a party to any suit or
administrative proceeding in the year preceding her petition. On August 27, 2001, Barger signed a Statement of Financial Affairs which declared under penalty of
perjury that she read the bankruptcy petition and that its contents were true and
accurate. She filed her bankruptcy petition on September 4, 2001, and the
bankruptcy schedule she filed with her petition did not list her discrimination suit
as an asset. On September 5, Barger's employment discrimination attorney sent a
letter to Grove and the City which sought to negotiate a settlement in a way that
would benefit Barger and not her creditors. Specifically, the attorney proposed
that Barger be allowed to retire approximately two years early at the City's
expense.

On November 5, 2001, about three months after the failed settlement
proposal, Barger filed a motion to amend her discrimination suit by adding claims
for compensatory and punitive damages. The District court allowed the motion on
November 7, 2001. The next day, Barger attended a creditors' meeting as part of
her bankruptcy petition. Barger told her bankruptcy attorney that she had a
discrimination suit pending and she orally informed the bankruptcy trustee about
the case's existence during the creditors meeting. However, when the trustee
asked Barger about the case, she told him that the discrimination suit merely
sought reinstatement of her position as Personnel Director.

As Barger's discrimination suit continued to proceed in the District court, Grove and the City served her with discovery requests. In an interrogatory dated
October 31, 2001, Sam Grove asked Barger to list any legal proceedings to which
she was or had been a party and to describe the nature of the proceedings. On
December 10, 2001, Barger responded by stating that she had gotten divorced in
1976. She did not mention anything about her pending bankruptcy petition.

On January 12, 2002, the bankruptcy court granted Barger a complete
discharge of her debts, a figure which amounted to $58,664. Since it was a "no
asset discharge", no assets were distributed and the trustee was relieved of all
further duties.

On February 7, 2002, Barger sent Grove and the City documents relating to
their discovery requests. Included in these documents was a copy of the
bankruptcy court's discharge order and its one page explanation of the order.
Upon receiving these materials, Grove and the City moved for summary judgment
on the basis of judicial estoppel.

Barger tried to thwart Grove and the City's efforts by reopening her
bankruptcy petition and listing her discrimination claim as an asset. She moved
the bankruptcy court to reopen her case and on June 5, 2002, the bankruptcy court
held a hearing to address the issue. Barger, Grove, and the City all argued at the
hearing. Ruling from the bench, the bankruptcy judge allowed Barger to reopen her case.

A week later, on June 12, 2002, the District court dismissed Barger's
discrimination case by entering summary judgment against her. The District
court's order determined that Barger was estopped from bringing suit and,
alternatively, she lacked standing to sue. Subsequently, the bankruptcy court
issued a June 18, 2002, written order finding that Barger "did not conceal the
[discrimination] claim or attempt to obtain a financial advantage for herself". In
the bankruptcy court's estimation, the failure to list the discrimination suit in
Barger's Statement of Financial Affairs was caused by her bankruptcy attorney's
"inadvertence" and had no substantive effect on the bankruptcy petition.

On June 24, 2002, Barger, with the bankruptcy court's decision in hand,
moved the District court for reconsideration of its summary judgment order. The
District court denied Barger's motion on August 7, 2002, and she timely filed a
Notice of Appeal on September 3, 2002.

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A plaintiff has standing to assert a claim if: (1) she can show that she has
suffered an injury in fact that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely speculative, that the
injury will be redressed by a favorable decision. See Kelly v. Harris, 331 F.3d
817, 819-20 (11th Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)(additional citations
omitted)). It is undisputed that Barger's employment discrimination claims satisfy
all of these requirements. The issue is really about who can litigate the claim,
Barger or the Trustee.

Determining the identity of the party who can properly assert the
employment discrimination claims begins with Federal Rule of Civil Procedure
17(a). Rule 17(a) states that "[e]very action shall be prosecuted in the name of the
real party in interest." Id. It also provides that "[n]o action shall be dismissed on
the ground that it is not prosecuted in the name of the real party in interest until a
reasonable time has been allowed after objection for ratification of commencement
of the action by, or joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same effect as if the action had
been commenced in the name of the real party in interest." Id. Because Barger
filed her bankruptcy petition after she filed her discrimination claims her
discrimination claims are the property of the bankruptcy estate. See 11 U.S.C. §
541(a) (property of bankruptcy estate includes all potential causes of action that exist at the time petitioner files for bankruptcy). Accordingly, the Trustee is the
real party in interest and it has exclusive standing to assert any discrimination
claims. See Weiburg v. GTE Southwest Incorporated, 272 F.3d 302, 306 (5th Cir.
2001)(finding that a trustee is the real party in interest with exclusive standing to
assert claims which are property of the bankruptcy estate)(citations omitted)).

Although it was Barger who pursued the discrimination claims in the district
court and it was she who filed this appeal, the Trustee may succeed her position
from this point forward by virtue of Federal Rule of Civil Procedure 25(c). Rule
25(c) states that "[i]n case of any transfer of interest, the action may be continued
by or against the original party, unless the court upon motion directs the person to
whom interest is transferred to be substituted in the action or joined with the
original party." Id. Since the district court never directed the Trustee to substitute
for Barger or join her in this suit, the Trustee simply takes Barger's place from
hereon.

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