JUDICIAL ESTOPPEL –PLAINTIFF LOST HER CASE BECAUSE SHE DID NOT DISCLOSE HER DISCRIMINATION SUIT IN HER BANKRUPTCY FILING

Joyce E. Kitchens, Esq. Senior Partner of KNC

Robinson v. Tyson Foods, Inc., 2010 U.S. App. LEXIS 2473 (11th Cir. Ala. Feb. 5, 2010)

Plaintiff filed for Chapter 13 bankruptcy and before discharge filed an employment discrimination claim against her former employer. She failed to report the discrimination suit to the bankruptcy court. Even though she paid her debts in full, the court affirmed the dismissal of her discrimination claim based on judicial estoppel because Plaintiff fulfilled the three-part test—she took inconsistent positions under oath, she persuaded a court to accept the earlier proceeding so that judicial acceptance of the inconsistent position in a later proceeding would create the perception that one of the courts was misled, and she would derive an unfair advantage from the inconsistent position that she took. It is undisputed that a pending lawsuit seeking monetary compensation is an asset. The duty of disclosure to the bankruptcy court was held to be continuing. Her intent was to be determined at the time she filed the discrimination claim, not after the discharge from bankruptcy.