Jethroe v. Omnova Solutions Inc

United States Court of Appeals
Fifth Circuit
F I L E D
June 13, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-60557
_______________
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Sharon Jethroe challenges a summary judg-
ment in favor of Omnova Solutions, Inc.
(“Omnova”), granted on the ground that Jeth-
roe had failed to disclose her pending EEOC
charge and potential title VII claim to the
bankruptcy court. Because summary judgment
is appropriate under the principle of judicial
estoppel, we affirm.
I.
Jethroe used to work for Omnova, which
promoted her to the position of wind-up oper-
ator. She alleges that a supervisor told her
that the wind-up position was a “male job” and
that he insisted she return to her previous
position. Jethroe refused, at which point,
according to her, she became subject to “nu-
merous” write-ups that, she argues, Omnova
would not have issued to male employees.
Jethroe maintains that this behavior continued
until she was terminated on March 15, 2000.
Jethroe filed a grievance with her union and

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then on March 21, 2000, filed with the Equal
Employment Opportunity Commission
(“EEOC”), from which she obtained a right-
to-sue letter in July 2002. While pursuing her
title VII claim, Jethroe filed a chapter 13 bank-
ruptcy petition in November 2000. On one of
the forms, under penalty of perjury, she
marked “X” in a column indicating that she
had no “other contingent and unliquidated
claims of [any] nature.” On another form,
again under penalty of perjury, she indicated
that she had no pending “suits and administra-
tive proceedings.” In the chapter 13 proceed-
ings, Jethroe did not inform the bankruptcy
court of her EEOC claim or the title VII suit.1
In October 2002 Jethroe filed the instant
discrimination suit, at which time she claims
she informed her attorney of the bankruptcy
proceedings. The bankruptcy case was closed
in May 2003 because she had failed to comply
with an agreed order. The district court held
that the title VII claim was judicially estopped
because Jethroe had failed to disclose her
pending EEOC charge and potential lawsuit
during the bankruptcy proceedings.
II.
A.
We review a judicial estoppel determination
for abuse of discretion.2 Because a court, by
definition, abuses its discretion when it makes
an error of law, an appellate court may correct
such mistakes.3
B.
In Browning, 179 F.3d at 205, this court
explained that judicial estoppel is
“a common law doctrine by which a party
who has assumed one position in his plead-
ings may be estopped from assuming an
inconsistent position . . . .” Because the
doctrine is intended to protect the judicial
system, rather than the litigants, detrimen-
tal reliance by the opponent of the party
against whom the doctrine is applied is not
necessary.
(Internal citations omitted.) A court should
apply judicial estoppel if (1) the position of the
party against which estoppel is sought is
plainly inconsistent with its prior legal posi-
tion; (2) the party against which estoppel is
sought convinced a court to accept the prior
position; and (3) the party did not act inadver-
tently. See id. at 206-07. Judicial estoppel is
particularly appropriate where, as here, a party
fails to disclose an asset to a bankruptcy court,
but then pursues a claim in a separate tribunal
based on that undisclosed asset.
A plaintiff is judicially estopped from pur-
suing an EEOC charge filed while his bank-
ruptcy petition was pending and where he did
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
logic of Kamont is sound: Jethroe was under
a duty both to disclose the existence of her
pending EEOC complaint when she filed her
1 Jethroe apparently made several filings in the
bankruptcy court, and appeared before it for hear-
ings in June, August, and December 2001. She
filed an amended voluntary petition in April 2002.
2 See Hall v. GE Plastic Pac. PTE Ltd., 327
F.3d 391, 396 (5th Cir. 2003) (citing Ahrens v.
Perot Sys. Corp., 205 F.3d 831, 833 (5th Cir.
2000)).
3 See Browning Mfg. v. Mims (In re Coastal
Plains, Inc.), 179 F.3d 197, 205 (5th Cir.1999)
(quoting Koon v. United States, 518 U.S. 81
(1996)).

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petition and to disclose her potential legal
claims throughout the pendency of that peti-
tion. See Browning, 179 F.3d at 208.
Accordingly, she was estopped from raising
the claims in the district court. The obligation
to disclose pending and unliquidated claims in
bankruptcy proceedings is an ongoing one.
See id. at 207-08.
1.
There is little question that the first element
of judicial estoppel is satisfied. Jethroe filed
her EEOC charge approximately eight months
before she filed her bankruptcy petition. She
concealed this charge and the legalities associ-
ated with it, even though she had made various
appearances before the bankruptcy court. She
filed this lawsuit while her bankruptcy case
remained open.
2.
The second element of the judicial estoppel
test, acceptance by the bankruptcy court, is al-
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-
ruptcy parties’ stipulation as sufficient to
demonstrate that the bankruptcy court had ac-
cepted the party’s statement of assets to the
court. See id.
3.
Jethroe contests that she should not be es-
topped, because the circumstances fail to sat-
isfy the third prong of the Browning test, in-
tentionality. To establish that her failure to
disclose was inadvertent, Jethroe may prove
either that she did not know of the inconsistent
position or that she had no motive to conceal
it from the court. See id.
Jethroe claims that her failure to inform the
bankruptcy court of her other claims was inad-
vertent because she relied on her bankruptcy
attorney’s advice that those claims were irrele-
vant. According to Browning, to claim that
her failure to disclose was inadvertent Jethroe
must show not that she was unaware that she
had a duty to disclose her claims but that, at
the time she filed her bankruptcy petition, she
was unaware o f the facts giving rise to them.
See id. at 211-12.4
Another circuit has considered the “motiva-
tion” requirement in light of EEOC claims not
disclosed during bankruptcy proceedings. In
Burnes v. Pemco Aeroplex, Inc., 291 F.3d
1282 (11th Cir. 2002), the court inferred
intentionality where the debtor had “filed and
pursued his employment discrimination claims
during the pendency of his chapter 13 case but
never amended his financial statement to in-
clude the lawsuit” and then subsequently con-
verted to a chapter 7 filing, also without dis-
closing the claim. This reasoning is sound.
4 There is some persuasive authority that would
lessen what is required to demonstrate inadver-
tence. See, e.g., Ryan Operations G.P. v. San-
tiam-Midwest Lumber Co., 81 F.3d 355, 362-63
(3d Cir. 1996). In Browning we cited Ryan, 81
F.3d at 363, which explored whether the potentially
estopped claimant had “deliberately asserted incon-
sistent positions in order to gain advantage.”
Although using somewhat different language,
Browning, 179 F.3d at 212, makes plain that the
controlling inquiry, with respect to inadvertence, is
the knowing of facts giving rise to inconsistent po-
sitions. Moreover, Browning states that “[a claim-
ant’s] lack of awareness of [a] statutory disclosure
duty for its [legal claims] is not relevant.” See id.
Finally, the instant facts are materially in-
distinguishable from those in Kamont, which, al-
beit unpublished, is a Fifth Circuit opinion
nonetheless.

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4
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.

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