Cluck v. Brentlinger Enters.

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ANDREW CLUCK, Plaintiff, v. BRENTLINGER ENTERPRISES, INC. dba MIDWESTERN AUTO GROUP, et al., Defendants.

Civil Action No. 2:22-cv-290

United States District Court, S.D. Ohio, Eastern Division

February 28, 2024

OPINION AND ORDER

ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

This matter is before the Court to consider Motions for Summary Judgment filed by Defendants Brentlinger Enterprises dba Midwestern Auto Group (misidentified as Brentlinger Enterprises, Inc. in the Complaint) (“MAG”) and Kirby Morrow (“Morrow”) (ECF No. 43) and Defendant Richard Hertenstein (“Hertenstein”) (ECF No. 44) (collectively, “Defendants”). Plaintiff Andrew Cluck has filed one joint response directed to both motions (ECF No. 47) and Defendants have replied (ECF Nos. 51, 52). For the following reasons, the Motions for Summary Judgment (ECF Nos. 43, 44) are DENIED without prejudice to refiling.

I.

Plaintiff asserts various employment-related claims under Title VII and Ohio law, including for discrimination, sexual harassment hostile work environment, retaliation, and constructive discharge. He also asserts a claim for the intentional infliction of emotional distress. Plaintiff's claims arise from alleged discrimination based upon his Japanese heritage and the inappropriate conduct of Defendant Hertenstein. Plaintiff seeks compensatory and punitive damages as well as equitable relief. All Defendants have moved for summary judgment, contending that Plaintiff's Complaint is barred by the doctrine of judicial estoppel because Plaintiff failed to disclose his potential employment-related claims in his bankruptcy proceeding. Defendant Hertenstein also asserts that summary judgment is appropriate because the bankruptcy trustee, and not the Plaintiff, is the real party in interest.

II.

A. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The burden of proving that no genuine issue of material fact exists falls on the moving party, “and the court must draw all reasonable inferences in the light most favorable to the nonmoving party.” Stransberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (citing Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 710 (6th Cir. 2001); cf. Fed.R.Civ.P. 56(e)(2) (providing that if a party “fails to properly address another party's assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific facts showing that there is a genuine issue for trial.'” Kimble v. Wasylyshyn, 439 Fed.Appx. 492, 495 (6th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317-324 (1986)); see also Fed.R.Civ.P. 56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must, however ‘do more than simply show that there is some metaphysical doubt as to the material facts,'. . . there must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a ‘genuine' dispute.” Lee v. Metro. Gov't of Nashville & Davidson Cty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (citations omitted). In considering the factual allegations and evidence presented in a motion for summary judgment, the Court “must afford all reasonable inferences, and construe the evidence in the light most favorable to the nonmoving party.” Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

B. RELEVANT FACTS

For purposes of the current motions, the following relevant facts are undisputed. Plaintiff filed this action on January 25, 2022, and attached a copy of his right to sue letter dated November 1, 2021. (ECF No. 1.) That right to sue letter related to an EEOC charge dated December 18, 2019. (ECF No. 43 at 72.) The EEOC charge reads as follows:

I am an Asian-American of Japanese descent and identify as a Japanese-American male. I began working for Respondent in 2017 as Service Advisor. As of today, I am currently still employed by Respondent, but I have recently taken a Leave of Absence due to job-related stress conditions.

In January 2019, Respondent promoted me to an Aftersales Manager. Soon after the promotion, I overheard my manager, Kirby Morrow - the Director of Fixed Operations - make several discriminatory statements regarding other ethnicities. For example, Mr. Morrow referred to clients as “Orientals” and expressed that he would not call back some of the Indian clients because “they can barely speak English.”

My race and national origin is not a topic I normally discuss while at work. In July 2019, Mr. Morrow was informed for the first time that I am Japanese. A week later, I was informed by another employee that Mr. Morrow intended to demote me. In August 2019, Mr. Morrow in fact demoted me back to a Service Advisor with no reasonable justification. Respondent demoted me and hired a Caucasian male, Rich Hertenstein, to take over my previous management position. Mr. Hertenstein therefore became my superior.

Mr. Hertenstein soon began to sexually harass me and create a hostile working environment. On several occasions, Mr. Hertenstein grabbed my crotch (penis) and buttocks and laughed, telling me he did it as a “joke.” I told Mr. Hertenstein that the touching was not welcomed yet he continued to do it. I also overheard Mr. Hertenstein refer to me as a “Jap,” a controversial ethnic slur among Japanese Americans. I timely reported both Mr. Morrow and Mr. Hertenstein's conduct through Respondent's proper channels. Nothing was done by Respondent to correct their egregrious conduct.

On November 8, 2019, Respondent demoted me again, this time to a Writer position where I would earn one-half of my original salary. On November 9, 2019, I requested a Leave of Absence due to the hostile work environment and discrimination I was facing during my employment with Respondent.

I believe Respondent has discriminated against me due to my race and national origin, has sexually harassed me, and has retaliated against me for reporting such conduct because: (1) I was qualified to perform all the essential duties and functions for the position of Aftersales Manager, but I was unreasonably demoted from my position soon after Mr. Morrow discovered my race/national origin; (2) I was qualified to perform all the essential duties and functions for the position of Service Advisor, but I was unreasonably demoted from my position soon after my race/national origin was discovered, and I reported discriminatory treatment; (3) Mr. Hertenstein subjected me, on more than one occasion, to unwelcomed sexual touches and jokes that interfered with my work performance and created an intimidating, hostile and offensive work environment; and (4) Respondent is in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 and Revised Code 4112.02(A), as it discriminated against me through demotion, harassment on the basis of race and national origin, sexual harassment, and retaliation for engaging in protected activity.

(Id.) Plaintiff's claims rely on the above allegations. As relevant to his constructive discharge claim, Plaintiff alleges in his Complaint that he was constructively discharged on November 12, 2019. (ECF No. 1 at ⁋ 17.)

On November 15, 2019, Plaintiff filed a voluntary bankruptcy petition pursuant to Chapter 13 in the United States Bankruptcy Court for the Southern District of Ohio, Case No. 2:19-bk-57402. (ECF No. 43 at 13-71.) Plaintiff was represented by attorney Bryan C. Barch. (Id. at 51.) Plaintiff sought to discharge $145,733.00 in liabilities. (Id. at 20.) Question No. 33 on the Schedule A/B asked Plaintiff to identify “Claims against third parties, whether or not you have filed a lawsuit or made a demand for payment. Examples: Accidents, employment disputes, insurance claims, or rights to sue.” (Id. at 25.) Plaintiff filled in the box indicating “No.” (Id.)

On February 25, 2020, Plaintiff amended his bankruptcy schedules but did not amend his Schedule A/B to include the claims underlying this lawsuit. (ECF No. 43 at 74-85.) On August 3, 2020, Plaintiff converted his Chapter 13 filing to a Chapter 7 filing. (Id. at 95.) On August 8, 2020, Plaintiff again amended his bankruptcy schedules but did not amend his Schedule A/B to include the claims underlying this lawsuit. (Id. at 99-103.)

On September 10, 2020, a 341(c) hearing was conducted. (Affidavit of Attorney Bryan Barch, ECF No. 43 at 107, ⁋ 2; see also ECF No. 20, “Barch Aff.”) Plaintiff attended the hearing along with Mr. Barch and the bankruptcy trustee, attorney Jim Coutinho. (Id.) At the hearing, Mr. Coutinho questioned Plaintiff under oath regarding his assets, liabilities, and other relevant matters. (Id. at ⁋ 3.) Plaintiff informed Mr. Coutinho of the then pending EEOC charge. (Id.) Mr. Coutinho “received testimony about the EEOC claim.” (Id.) Following the hearing, Mr. Coutinho declined Mr. Barch's offer of additional information regarding Plaintiff's EEOC charge and stated, via email, that he was filing a “‘no asset report.'” (Id. at ⁋ 4, Exhibit 1.)

The Bankruptcy Court docket entry dated September 18, 2020, states:

Meeting of Creditors Held and Chapter 7 Trustee's Report of No Distribution: I, James A. Coutinho, having been appointed trustee of the estate of the above-named debtor(s), report that I have neither received any property nor paid any money on account of this estate; that I have made a diligent inquiry into the financial affairs of the debtor(s) and the location of the property belonging to the

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