United States Court of Appeals
Fifth Circuit
F I L E D
In the June 13, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-60557
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SHARON JETHROE,
Plaintiff-Appellant,
VERSUS
OMNOVA SOLUTIONS, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
______________________________
Before GARWOOD, SMITH, and CLEMENT, I.
Circuit Judges. Jethroe used to work for Omnova, which
promoted her to the position of wind-up oper-
JERRY E. SMITH, Circuit Judge: ator. She alleges that a supervisor told her
that the wind-up position was a “male job” and
Sharon Jethroe challenges a summary judg- that he insisted she return to her previous
ment in favor of Omnova Solutions, Inc. position. Jethroe refused, at which point,
(“Omnova”), granted on the ground that Jeth- according to her, she became subject to “nu-
roe had failed to disclose her pending EEOC merous” write-ups that, she argues, Omnova
charge and potential title VII claim to the would not have issued to male employees.
bankruptcy court. Because summary judgment Jethroe maintains that this behavior continued
is appropriate under the principle of judicial until she was terminated on March 15, 2000.
estoppel, we affirm.
Jethroe filed a grievance with her union and
then on March 21, 2000, filed with the Equal such mistakes.3
Employment Opportunity Commission
(“EEOC”), from which she obtained a right- B.
to-sue letter in July 2002. While pursuing her In Browning, 179 F.3d at 205, this court
title VII claim, Jethroe filed a chapter 13 bank- explained that judicial estoppel is
ruptcy petition in November 2000. On one of
the forms, under penalty of perjury, she “a common law doctrine by which a party
marked “X” in a column indicating that she who has assumed one position in his plead-
had no “other contingent and unliquidated ings may be estopped from assuming an
claims of [any] nature.” On another form, inconsistent position . . . .” Because the
again under penalty of perjury, she indicated doctrine is intended to protect the judicial
that she had no pending “suits and administra- system, rather than the litigants, detrimen-
tive proceedings.” In the chapter 13 proceed- tal reliance by the opponent of the party
ings, Jethroe did not inform the bankruptcy against whom the doctrine is applied is not
court of her EEOC claim or the title VII suit.1 necessary.
In October 2002 Jethroe filed the instant (Internal citations omitted.) A court should
discrimination suit, at which time she claims apply judicial estoppel if (1) the position of the
she informed her attorney of the bankruptcy party against which estoppel is sought is
proceedings. The bankruptcy case was closed plainly inconsistent with its prior legal posi-
in May 2003 because she had failed to comply tion; (2) the party against which estoppel is
with an agreed order. The district court held sought convinced a court to accept the prior
that the title VII claim was judicially estopped position; and (3) the party did not act inadver-
because Jethroe had failed to disclose her tently. See id. at 206-07. Judicial estoppel is
pending EEOC charge and potential lawsuit particularly appropriate where, as here, a party
during the bankruptcy proceedings. fails to disclose an asset to a bankruptcy court,
but then pursues a claim in a separate tribunal
II. based on that undisclosed asset.
A.
We review a judicial estoppel determination A plaintiff is judicially estopped from pur-
for abuse of discretion.2 Because a court, by suing an EEOC charge filed while his bank-
definition, abuses its discretion when it makes ruptcy petition was pending and where he did
an error of law, an appellate court may correct not fulfill his duty to amend the petition to in-
clude that claim. See Kamont v. West, 83 Fed.
Appx. 1, 3 (5th Cir. 2003) (unpublished). The
1
logic of Kamont is sound: Jethroe was under
Jethroe apparently made several filings in the a duty both to disclose the existence of her
bankruptcy court, and appeared before it for hear-
pending EEOC complaint when she filed her
ings in June, August, and December 2001. She
filed an amended voluntary petition in April 2002.
2 3
See Hall v. GE Plastic Pac. PTE Ltd., 327 See Browning Mfg. v. Mims (In re Coastal
F.3d 391, 396 (5th Cir. 2003) (citing Ahrens v. Plains, Inc.), 179 F.3d 197, 205 (5th Cir.1999)
Perot Sys. Corp., 205 F.3d 831, 833 (5th Cir. (quoting Koon v. United States, 518 U.S. 81
2000)). (1996)).
2
petition and to disclose her potential legal bankruptcy court of her other claims was inad-
claims throughout the pendency of that peti- vertent because she relied on her bankruptcy
tion. See Browning, 179 F.3d at 208. attorney’s advice that those claims were irrele-
Accordingly, she was estopped from raising vant. According to Browning, to claim that
the claims in the district court. The obligation her failure to disclose was inadvertent Jethroe
to disclose pending and unliquidated claims in must show not that she was unaware that she
bankruptcy proceedings is an ongoing one. had a duty to disclose her claims but that, at
See id. at 207-08. the time she filed her bankruptcy petition, she
was unaware o f the facts giving rise to them.
1. See id. at 211-12.4
There is little question that the first element
of judicial estoppel is satisfied. Jethroe filed Another circuit has considered the “motiva-
her EEOC charge approximately eight months tion” requirement in light of EEOC claims not
before she filed her bankruptcy petition. She disclosed during bankruptcy proceedings. In
concealed this charge and the legalities associ- Burnes v. Pemco Aeroplex, Inc., 291 F.3d
ated with it, even though she had made various 1282 (11th Cir. 2002), the court inferred
appearances before the bankruptcy court. She intentionality where the debtor had “filed and
filed this lawsuit while her bankruptcy case pursued his employment discrimination claims
remained open. during the pendency of his chapter 13 case but
never amended his financial statement to in-
2. clude the lawsuit” and then subsequently con-
The second element of the judicial estoppel verted to a chapter 7 filing, also without dis-
test, acceptance by the bankruptcy court, is al- closing the claim. This reasoning is sound.
so satisfied. That court certainly confirmed
Jethroe’s plan at least in part based on its as-
sessment of her assets and liabilities. See id. at
210. In Browning, the court treated the bank- 4
There is some persuasive authority that would
ruptcy parties’ stipulation as sufficient to lessen what is required to demonstrate inadver-
demonstrate that the bankruptcy court had ac- tence. See, e.g., Ryan Operations G.P. v. San-
cepted the party’s statement of assets to the tiam-Midwest Lumber Co., 81 F.3d 355, 362-63
court. See id. (3d Cir. 1996). In Browning we cited Ryan, 81
F.3d at 363, which explored whether the potentially
3. estopped claimant had “deliberately asserted incon-
Jethroe contests that she should not be es- sistent positions in order to gain advantage.”
topped, because the circumstances fail to sat- Although using somewhat different language,
isfy the third prong of the Browning test, in- Browning, 179 F.3d at 212, makes plain that the
controlling inquiry, with respect to inadvertence, is
tentionality. To establish that her failure to
the knowing of facts giving rise to inconsistent po-
disclose was inadvertent, Jethroe may prove sitions. Moreover, Browning states that “[a claim-
either that she did not know of the inconsistent ant’s] lack of awareness of [a] statutory disclosure
position or that she had no motive to conceal duty for its [legal claims] is not relevant.” See id.
it from the court. See id. Finally, the instant facts are materially in-
distinguishable from those in Kamont, which, al-
Jethroe claims that her failure to inform the beit unpublished, is a Fifth Circuit opinion
nonetheless.
3
Moreover, Browning, 179 F.3d at 210, re-
quires that there be “no” motive for conceal-
ment. As the district court noted, Jethroe had
an incentive to conceal her claims from cred-
itors. Although her bankruptcy confirmation
plan required her to pay approximately $9,000
of her $9,300 in secured debt, it did not re-
quire her to pay any of her unsecured debt of
$8,373.
C.
For the first time on appeal, Jethroe (who
was represented by counsel in the district
court) attributes to her title VII attorney’s
flawed advice her failure to disclose her pend-
ing EEOC charge and potential lawsuit to the
bankruptcy court. This statement is unsup-
ported and, moreover, it appears only in a doc-
ument that Jethroe did not introduce into the
record. Arguments not raised in the district
court are waived. See Great Plains Trust Co.
v. Morgan Stanley Dean Witter & Co., 313
F.3d 305, 317 (5th Cir. 2002).5
AFFIRMED.
5
Jethroe also argues, for the first time on ap-
peal, that she lacked motivation because she just as
easily could have filed a chapter 7 bankruptcy,
thereby avoiding the claims of her unsecured cred-
itors altogether. We likewise refuse to consider
this theory.
4