Rose Marie Toussaint

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at GREENBELT
In Re: 	*
*
Rose Marie Toussaint, 	*
* 	Case No. 01-12690-TJC
Debtor. 	*
* 	Chapter 7
*
*
*
* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OPINION
Before the Court is the Motion for Approval of Proposed Compromise and
Settlement (the “Application”) filed by Roger Schlossberg, the Chapter 7 Trustee (the
“Trustee”). Docket No. 74. Rosemarie Toussaint (the “Debtor” ) filed Debtor Rose
Marie Toussaint’s: (i) Objection to Trustee's Motion for Approval of Compromise and
Settlement of Claims Against Howard University and (ii) Cross-Motion for Removal of
Trustee Pursuant to 11 U.S.C. § 324(a) (the “Opposition” or the “Motion to Remove,” as
the case may be). Docket No. 75.
In the Application, the Trustee seeks to settle the estate’s litigation claim against
Howard University College of Medicine and Howard University Hospital (collectively,
Date signed February 13, 2008
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“Howard”). In the Opposition, the Debtor objects to the settlement, and in the Motion to
Remove, she seeks to remove the Trustee pursuant to 11 U.S.C. § 324(a). For the reasons
stated hereafter, the Court will: (1) deny the Application without prejudice; (2) deny the
Motion to Remove.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334, 157(a),
and Local Rule 402 of the United States District Court for the District of Maryland. This
is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2) (A),(O). The following
constitute the Court’s findings of fact and conclusions of law:
I. 	FINDINGS OF FACT
A. 	Procedural Background
On March 7, 2001, the Debtor filed a petition under Chapter 7 of the Bankruptcy
Code. The Debtor received a discharge on June 18, 2001. The Debtor did not list a claim
against Howard on her schedule of assets. On July 19, 2001, the Trustee filed his Report
of No Assets, signifying there were no assets in the estate that could be administered for
the benefit of creditors. The case was closed as a no asset case on July 24, 2001.
On October 18, 2004, the Trustee filed Trustee’s Motion to Re-open Case and
Withdraw Trustee’s Report of No Distribution and For Other Relief. Docket No. 10. In
that motion, the Trustee sought to reopen the Debtor’s bankruptcy case in order to pursue
a claim against Howard. That motion was granted by order entered on October 25, 2004,
and the Trustee was appointed pursuant to a notice issued by the United States Trustee on
April 4, 2005. After the Trustee filed a designation that the case contains assets available
for administration, the Court issued a notice of need to file proofs of claims setting
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January 20, 2006 as the bar date for filing proofs of claims. Four creditors filed proofs of
claims in the total amount of approximately $13,600.
B. 	The Claim Against Howard.
The Debtor first filed her claim against Howard with the Equal Employment
Opportunity Commission (“EEOC”) in December, 1997. The EEOC conducted its
administrative review of the Debtor’s Claim. On April 28, 2000, the EEOC issued a
determination regarding the Debtor’s claim against Howard (the “EEOC
Determination”). The EEOC Determination provided in pertinent part:
On behalf of the Commission, I issue the following
determination on the merits of the subject charge filed
under Title VII of the Civil Rights Act of 1964, as amended
and the Americans with Disabilities Act of 1990.
[The Debtor] alleges that she was subjected to hostile
environment, denied tenure and promotion, and discharged
based on her sex (female) in violation of Title VII of the
Civil Rights Act of 1964, as amended. [The Debtor] further
alleges that she was denied a reasonable accommodation
for 	her 	disability 	in 	violation 	of 	the 	Americans 	with
Disabilities Act of 1990.
***
The evidence shows that four candidates, including [the
Debtor] were eligible for tenure and or promotions. The
other three candidates were male. Two male candidates
were granted tenure and the other male candidate was
promoted from Instructor to Assistant Professor. Although
it is the contention of the Respondent [Howard] that [the
Debtor] did not do rounds, or take night calls which
affected her possible tenure status, witness testimony
contradict those contentions and prove otherwise. The
evidence shows that [the Debtor] submitted just as strong a
tenure application as her similarly situated male
counterparts.
Witness testimony further verifies sexist statements made
by the Chairman, Department of Surgery, such as “This is a
man's world and he was King of his castle” and “a woman
will just mess things up”. The nature of the statements as
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well as the frequency of the statements being made rose to
the level of being severe and pervasive enough to cause a
hostile work environment.
The evidence further shows that on February 10, 1997, [the
Debtor] submitted temporary partial disability medical
documentation to substantiate her need for Respondent to
accommodate her disability. Three hours later, [the Debtor]
received a discharge letter which stated that her contract
would not be extended beyond June 30, 1997.
Based on the analysis, I have determined that there is
reasonable cause to believe that [the Debtor] was subjected
to 	a 	hostile 	work 	environment, 	denied 	tenure 	and
promotion, and discharged because of her sex. As for [the
Debtor]’s allegation that she was denied a reasonable
accommodation, there is insufficient evidence to show that
she had a disability which substantially limited a major life
activity. However, it can be concluded that [the Debtor]
was retaliated against in that she exercised her right to
request an accommodation for her disability and she was
subjected to the adverse action of employment termination.
Exhibit A to the Declaration of Shawna Becker, Docket No.75.
On January 3, 2003, the EEOC sent the Debtor a letter determining that its efforts
to conciliate the Debtor’s claim against Howard would not continue. As a result, the
Debtor filed suit against Howard in the Superior Court for the District of Columbia in
April, 2003. Howard subsequently removed the suit from the Superior Court to the
United States District Court for the District of Columbia (the “District Court Case”). In
the District Court Case, the Debtor alleged violations of Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, and the District of Columbia Human Rights
Act. In a preliminary expert report (the “Debtor’s Damages Report”) the Debtor’s
proposed expert witness calculated her approximated economic loss, from the date her
employment ceased with Howard, to be $2.98 million.
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After learning through discovery that the Debtor had been a debtor in the instant
bankruptcy case, Howard initially sought to dismiss the Debtor’s claims on the grounds
that her allegedly wrongful failure to schedule her claims against Howard in her
bankruptcy proceeding deprived her of standing to sue. Subsequently, the Trustee moved
to be substituted as plaintiff and real party in interest in the District Court Case.
In a memorandum decision dated June 20, 2005, the District Court denied
Howard’s motion for dismissal. In that decision, the District Court substituted the
Trustee as plaintiff for the Debtor’s monetary claims, but not her equitable claims. The
District Court reversed this portion of its ruling in a subsequent decision dated November
8, 2005, holding that the Trustee would be substituted as the sole plaintiff on all portions
of the Debtor’s claims.
C. 	The Settlement With Howard
On March 20, 2006, the Trustee filed his initial motion to approve a proposed
settlement with Howard (the “First Settlement Motion”). The substance of that
settlement provided that the Trustee would release all pre-petition claims that the Debtor
holds against Howard in exchange for $25,000. The Debtor opposed that settlement and
the Court held a hearing on the First Settlement Motion in July, 2006. At the hearing, the
Trustee announced that he had begun negotiating a potential agreement with the Debtor
under which the Debtor would be afforded the right to pursue her claims against Howard.
In light of these negotiations, the Court continued the hearing on the First Settlement
Motion for two weeks. 	At the continued hearing on the First Settlement Motion,
Howard announced that it withdrew from the settlement, thus prompting the Trustee to
withdraw the First Settlement Motion. See Docket No. 68.
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The parties explained that the Debtor and the Trustee discussed two potential
resolutions of the dispute between the Debtor and the Trustee. The first potential
resolution involved the Debtor purchasing the claim back from the Trustee for the same
amount as the Howard settlement, i.e. $25,000. This resolution would have enabled the
Debtor to pursue her claim against Howard while allowing the Trustee to pay all creditors
in full. According to Debtor’s counsel, however, the Debtor does not have the necessary
funds to purchase the claim.
The second proposed resolution provided that the Debtor’s current counsel would
represent the Trustee in the District Court Case on a contingency basis. This solution
would provide the Trustee with the ability to prosecute the District Court Case with
minimal out of pocket expense, which is necessary because the estate has no funds or
other resources. The Debtor, however, initially refused to waive the conflict to allow her
counsel to represent the Trustee or to agree to give control of the litigation to the Trustee.
The Debtor and the Trustee were unable to come to terms. On April 26, 2007 the
Trustee filed the Application again seeking to settle the Debtor’s pre-petition claims
against Howard for $25,000. The Debtor then filed the Opposition and the Motion to
Remove. The Court held a hearing on the Application on July 11, 2007.
At the hearing, the Trustee testified that, in his business judgment, a $25,000
settlement of the claim against Howard is in the best interest of the estate. In making this
determination, the Trustee (1) reviewed documents from the District Court Case that
were provided to him; (2) discussed the merits of the case with the Debtor’s counsel; and
(3) discussed the merits of the case with Howard’s counsel. Based on this review, the
Trustee questioned whether the Debtor could establish liability against Howard. The
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Trustee pointed to the Debtor’s Damages Report which shows that the Debtor earned
over $270,000 four years after she was allegedly damaged by Howard’s conduct and
believed that her ability to earn such a substantial amount undermined the ability of the
Debtor to establish both liability on the claim and damages. The Trustee recognized,
however, that in subsequent years the Debtor’s income dropped substantially.
In addition, the Trustee testified that he is not confident that the Debtor will be
cooperative in pursuing the claim against Howard. In support of this belief, the Trustee
stated that he requested to meet with the Debtor in June of 2006 to evaluate her as a
plaintiff and potential witness, and the Debtor refused. As such, the Trustee stated that he
could not determine, without meeting with the Debtor, whether she would cooperate with
him in his pursuit of the case or whether she would be a credible witness.
The Trustee also testified that he was not an employment lawyer and did not have
the requisite expertise to litigate the claim against Howard. The Trustee acknowledged
that the Debtor ultimately agreed, in October 2006, to waive the conflict to allow her
counsel to represent the Trustee on a contingency basis to pursue the claim against
Howard. He testified, however, that by that time, he had lost interest in pursuing this
strategy because of what he viewed as bad faith by the Debtor in refusing to meet with
him, her prior refusal to waive the conflict or provide him with control of the litigation,
and her failure to make a bona fide offer to buy the claim.
The Debtor did not appear at the hearing. Her counsel submitted into the record
various documents, including the EEOC Determination, the Debtor’s Damages Report
and the letter of October 26, 2006, in which the Debtor agreed to waive any conflict in
order to allow her counsel to represent the estate on a contingency fee basis and that the
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proceeds from the District Court Case would be allocated 80% to the estate and 20% to
the Debtor. The Debtor also submitted into the record two affidavits from her attorneys.
In one of the affidavits, the Declaration of Shana Becker (the “Becker Affidavit”), Ms.
Becker states that she called the Trustee on a number of occasions and she spoke to him
ten times, and had sent him emails and letters as well. The Becker Affidavit was dated
April 10, 2006, some 15 months before the hearing on the Application. These documents
were admitted without objection.
II. 	CONCLUSIONS OF LAW
A. 	Approval of the Settlement
Pursuant to Fed. R. Bankr. P. 9019(a) “[o]n motion by the trustee and after notice
and a hearing, the court may approve a compromise or settlement.” A Court may
approve a settlement if it is “fair and equitable.” Protective Comm. for Independent
Stock Holders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157,
1163-64, 20 L. Ed. 2d 1, 9-10. (1968). In making this determination, a court must be
apprised “…of all facts necessary for an intelligent and objective opinion of the
probabilities of ultimate success should the claim be litigated.” Id. In addition, a court
“…should form an educated estimate of the complexity, expense, and likely duration of
such litigation, the possible difficulties of collecting on any judgment which might be
obtained, and all other factors relevant to a full and fair assessment of the wisdom of the
proposed compromise.” Id.
Against that backdrop, in order to approve a settlement, a court must consider the
following factors:
(1) the probability of success in litigation;
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(2) the likely difficulties in collection;
(3) the complexity of the litigation involved, and the
expense, inconvenience and delay necessarily attending it;
and
(4) the paramount interest of the creditors.
Will v. Northwestern Univ. (In re Nutraquest, Inc.), 434 F.3d 639, 644 (3d Cir. 2006)
(quoting Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir. 1996); See also,
In re Bowman, 181 B.R. 836, 843 (Bankr. D. Md. 1995). “Basic to this process in every
instance, of course, is the need to compare the terms of the compromise with the likely
rewards of litigation.” TMT, 390 U.S. at 424-425. While the approval of a settlement is
within the discretion of the bankruptcy court, it must actually exercise discretion and not
simply “rubber stamp” the Trustee’s proposal. Depoister v. Mary M. Holloway Found.,
36 F.3d 582, 587 (7th Cir. 1994) (citing In re American Reserve Corp., 841 F.2d 159, 162
(7th Cir. 1987). “A court may approve a settlement over objections unless the proposed
settlement falls below the ‘lowest point of reasonableness.’” United States ex rel.
Rahman v. Oncology Assocs., P.C., 269 B.R. 139, 149-150 (D. Md. 2001), affid, United
States ex rel. Rahman v. Colkitt, 61 Fed. Appx. 860 (4th Cir. 2003) (quoting In re W.T.
Grant Co., 699 F.2d 599, 608, 613 (2d Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78
L. Ed. 2d 97 (1983). “A settlement should be approved if it provides for ‘the best
possible realization upon the available assets . . .without undue waste or needless or
fruitless litigation.’” 	Oncology Assocs., 269 B.R. at 150 (quoting In re Bowman, 181
B.R. at 847). “The Trustee, as proponent of the proposed settlement, has the burden of
establishing that the settlement is fair and equitable and should be approved by the
Court.” In re Kay, 223 B.R. 816, 819 (Bankr. M.D. Fla. 1998)(citing In re A & C
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Properties, 784 F2d 1377, 1381 (9th Cir. 1986), cert. denied sub nom., 479 U.S. 854, 107
S.Ct. 189, 93 L.ed. 2d 122 (1986)).
Based on the record as presented, the Court cannot find that the Trustee carried
his burden of showing that the settlement is “fair and equitable” or is above the “lowest
point of reasonableness.” The Court is unable, based on the relatively sparse facts
presented by the Trustee, to assess the wisdom of the compromise. Specifically, the
Court cannot determine: (1) the probability of success if the litigation was to go forward;
and (2) the complexity of the litigation involved, and the expense, inconvenience and
delay necessarily attending it.
The Trustee urges the Court to approve the settlement primarily for two reasons.
First, the Trustee states, after reviewing documents from the District Court Case that
were provided to him, and after discussing the case with the Debtor’s and Howard’s
counsel, he determined, based on his business judgment, the settlement is fair and
appropriate. But while a trustee’s business judgment to enter into a settlement is afforded
substantial weight, a court cannot rubber stamp a trustee’s proposal. See, Depoister, 36
F.3d at 587. Rather, as mandated by the Supreme Court in TMT, a court must be
apprised of the “facts necessary for an intelligent and objective opinion of the
probabilities of ultimate success should the claim be litigated.” 390 U.S. at 424.
In this regard, the most probative evidence -- if not the only evidence going to the
merits of the District Court case -- is the EEOC Determination. There, the EEOC found
“that there is reasonable cause to believe that [the Debtor] was subjected to a hostile work
environment, denied tenure and promotion, and discharged because of her sex.” See
Supra at 3-4. The EEOC further “concluded that [the Debtor] was retaliated against in
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that she exercised her right to request an accommodation for her disability and she was
subjected to the adverse action of employment termination.” Id. Moreover, the Debtor’s
Damages Report estimates the Debtor’s actual damages to be in excess of $2.9 million.
Standing alone, these two documents lead to the conclusion that a $25,000 settlement of
the claim is not fair and equitable. The Trustee did not provide a sufficient record to
overcome that conclusion.
Second, the Trustee testified that the Debtor has refused to meet with him and
therefore he has not been able to assess her demeanor as a witness or her resolve as a
party litigant. In addition, the Trustee is frustrated because the Debtor (1) refused to
relinquish control of the litigation to him and refused to allow her counsel to represent
him in the District Court Case until the fall of 2006; and (2) negotiated with him,
according to the Trustee, in bad faith in the summer of 2006 with respect to the
possibility of the Debtor buying back the claim from the Trustee.
It is extraordinarily troubling, to say the least, that the Debtor has refused to meet
with the Trustee to discuss the case and to allow the Trustee to assess the Debtor’s
presentation as a witness. This is particularly true in this case, where, in light of the small
amount of claims against the estate, any further pursuit of the District Court Case will
serve to benefit the Debtor personally, and not the creditors. Debtor’s counsel explained
that the relationship between the Trustee and the Debtor had become “adverse” and
“hostile” and therefore the Debtor and her counsel believed nothing would be gained by
attending a meeting. The Court finds no justification for this position. The Court,
however, will not penalize the Debtor by approving a settlement on this record because of
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what appears to be an ill-conceived litigation strategy.1 But the Debtor and her counsel
are forewarned: The Debtor’s further refusal to meet with the Trustee or her failure to
cooperate fully in pursuit of the District Court Case may lead to the conclusion that the
proposed settlement, in which the creditors are paid in full but no value would be realized
by the Debtor, is fair and equitable under the circumstances.
Finally, the Court notes that counsel for Howard, in his closing argument, averred
numerous factual allegations about the merits and the posture of the District Court Case
that would be relevant to the Court’s evaluation of the settlement. These recitals were not
part of the evidentiary record. These allegations and similar facts regarding the merits of
the District Court Case, if made part of the evidentiary record, may result in the Court
reaching a different conclusion on the fairness of the proposed settlement.
The Court recognizes that the claim against Howard is a difficult asset for the
Trustee to administer. First, the Debtor failed to include the asset on her schedules of
assets filed in the bankruptcy case.2 It wasn’t until three years after the bankruptcy case
was closed that the Trustee learned of the claim. By then the claim was more than seven
years old. Further, and more significantly, other than the potential recovery from
Howard, there are no assets in the Debtor’s bankruptcy estate. Thus, from the outset, the
Trustee was faced with the problem of how to realize value from the claim or finance the
litigation against Howard. But once the Debtor agreed to allow her counsel to represent
the Trustee, and given counsel’s willingness to do so on a contingency fee basis, it was
incumbent on the Trustee to explore the viability of that option further.
1 Based on the record before it, the Court has serious misgivings as to whether the Debtor herself (as
opposed to her counsel) has any interest in pursuing the District Court Case.
2 The judge to whom the District Court Case is assigned has ruled that the Debtor’s failure to list the claim
on her schedules was an honest and understandable mistake, and hence excusable. Toussaint v. Howard
Univ., Case No. 03-1395 (JDB), Slip Op. at p.6 (D.D.C, June 20, 2005),
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In sum, it may be that a $25,000 settlement of the District Court Case is a fair and
equitable settlement. However, for the foregoing reasons the Court finds and concludes
that the Trustee did not carry his burden of establishing that. This finding and conclusion
is made without prejudice, however, to the Trustee’s further determination in light of (1)
his assessment of the Debtor’s willingness to support the District Court Case and
demeanor as a witness upon meeting her; (2) his further exploration of the viability of
having Debtor’s counsel represent him on a contingency fee basis; and (3) further
development, or at least presentation, of the facts from which the Court can assess the
likelihood of the Debtor’s success and the cost and complexity of the District Court Case.
B. 	Motion to Remove
Pursuant to 11 U.S.C. § 324(a), “the court, after notice and a hearing, may remove
a trustee…for cause.” What constitutes sufficient cause is not defined in the Bankruptcy
Code. As such, courts must make the determination on a case by case basis. Miller v.
Miller (In re Miller), 302 B.R. 705, 709 (B.A.P. 10th Cir. 2003) (citing In re Haugen
Constr. Serv., Inc., 104 B.R. 233, 240 (Bankr. D.N.D. 1989)). “[R]emoval of a Trustee is
an extreme remedy even where a trustee has acted negligently.” In re Sheehan, 185 B.R.
819, 822 (Bankr. D. Ariz. 1995) (citing In re Cee Jay Discount Stores, Inc., 171 B.R. 173,
175 (Bankr. E.D.N.Y. 1994)).
A Chapter 7 trustee is given a substantial degree of
discretion in deciding how to administer the bankruptcy
estate and his or her actions are governed by a business
judgment standard.… [A] trustee will not be removed for
mistakes in judgment where the judgment is discretionary
and reasonable under the circumstances.
Alan N. Resnick et al., Collier on Bankruptcy, ¶ 324.02 (15th ed. 2007).
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The Court finds and concludes that the Debtor has provided no basis to support
her claim that the Trustee should be removed in this case. Indeed, the only evidence the
Debtor presented in support of the Motion to Remove was the Becker Affidavit, which
stated that she attempted to contact the Trustee by telephone twenty-six times between
September 20, 2004 and July 13, 2005, and that the Trustee had talked to her ten times
during that period. During that time she also sent him a number of emails and letters.
The Debtor’s motive in submitting the Becker Affidavit is unclear. It provides
little probative value on the Motion to Remove. It is dated April 10, 2006, more than one
year before the Debtor filed the Motion to Remove and some 15 months before the
hearing on the motion. If anything, it establishes that the Trustee spoke to one of
Debtor’s counsel ten times during the period covered by the affidavit. Further, the
Debtor is represented in these proceedings by two law firms as well as the Washington
Lawyers Committee for Civil Rights and Urban Affairs. The record is clear that the
Trustee engaged in conversations and correspondence with lawyers from each of the
three entities on a number of occasions. Thus, at best, the Becker Affidavit provides an
incomplete picture of the relationship between the Trustee and Debtor’s counsel. As an
example, the Becker Affidavit states that “To my knowledge, since the initial
administration of Dr. Toussaint’s bankruptcy case in 2001, Mr. Schlossberg has not
interviewed or met with Dr. Toussaint, nor has he requested that I or my firm arrange
such a meeting or interview.” Becker Affidavit at ¶5. But the Debtor readily
acknowledged at the hearing that the Trustee requested to meet with the Debtor in June
2006, through lawyers other than Ms. Becker.
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The Court concludes that the Motion to Remove was simply filed as part of the
Debtor’s effort to prevent the Trustee from obtaining approval of the settlement with
Howard. Although as stated above, the claim against Howard is a difficult asset for the
Trustee to administer, he nevertheless timely and properly sought to reopen the Debtor’s
bankruptcy case to administer it. The Trustee embarked on several strategies to resolve
the claim, including (1) having the Debtor acquire it from the estate; (2) exploring having
the Debtor’s counsel represent the estate in the District Court Case and (3) settling with
Howard.
The Trustee’s difficulty in administering the asset was further complicated by
the Debtor’s refusal to meet with the Trustee or, for a substantial period of time, to allow
her counsel to represent the Trustee. As a result, the Trustee twice agreed to a settlement
with Howard that would provide a 100% distribution to creditors.
Even though the Court has not approved the proposed settlement with Howard,
based on the foregoing facts and the record before it, the Court finds that the Trustee
acted reasonably in pursuing the settlement. The Court finds no cause to remove the
Trustee.
III. 	CONCLUSION
For the forgoing reasons, the Court will deny the Application without prejudice.
Additionally, the Court will deny the Motion to Remove.
Copies To:
Debtor
Debtor’s Attorney
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Trustee
Trustee’s Attorney
U.S. Trustee
Howard’s Attorney
All Creditors on Mailing Matrix
END OF MEMORANDUM
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