             Case: 14-10048    Date Filed: 03/25/2015   Page: 1 of 9


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-10048
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 1:10-cv-00116-JRH-BKE



VERONICA B. D'ANTIGNAC,

                                                               Plaintiff-Appellant,

                                      versus

DEERE & COMPANY,
d.b.a. John Deere Commercial Products, Inc.,

                                                             Defendant-Appellee,

ALFREDO RENIZ,

                                                                       Defendant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                        ________________________

                               (March 25, 2015)
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Before ED CARNES, Chief Judge, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Veronica D’Antignac appeals the grant of summary judgment in favor of her

employer Deere & Co. on her Title VII employment discrimination claim.

      In 2005, D’Antignac entered Chapter 13 bankruptcy. In August 2008, while

still in bankruptcy, D’Antignac filed a “Charge of Discrimination” against Deere

with the Equal Employment Opportunity Commission. The charge, arising out of

a June 2008 incident, alleged employment discrimination on the basis of her race

in violation of Title VII of the Civil Rights Act, 42 U.S.C § 2000e-2(a).

D’Antignac successfully completed her payment plan, and the bankruptcy court

discharged her bankruptcy in November 2008 and closed the case on January 13,

2009. D’Antignac did not disclose her employment discrimination claim to the

bankruptcy court before the bankruptcy case closed in 2009.

      On June 1, 2010, the EEOC issued a “Dismissal and Notice of Rights”

responding to D’Antignac’s charge. The EEOC determined that it was “unable to

conclude that the information obtained establishe[d] violations of the statutes,” but

notified D’Antignac that she could sue within 90 days. On August 31, 2010,

D’Antignac filed a complaint in the district court alleging discrimination on the




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basis of race and sex. 1 The district court granted summary judgment to Deere on

the ground that D’Antignac was judicially estopped from bringing her claims. It

reasoned that D’Antignac had a continuing duty to inform the bankruptcy court of

any new assets (including claims for damages) that arose during the pendency of

her bankruptcy. And because D’Antignac failed to disclose her employment

discrimination claim to the bankruptcy court, she was estopped from later bringing

that claim in district court. D’Antignac moved for reconsideration of the summary

judgment order under Federal Rule of Civil Procedure 59(e), and the court denied

that motion. This is her appeal of the judgment and the order denying her Rule 59

motion.

       We review the district court’s application of judicial estoppel only for an

abuse of discretion and its factual findings only for clear error. Robinson v. Tyson

Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010); Burnes v. Pemco Aeroplex,

Inc., 291 F.3d 1282, 1284 (11th Cir. 2002). Under the abuse-of-discretion

standard, we will affirm unless we conclude that the district court made a “clear

error of judgment, or has applied the wrong legal standard,” Robinson, 595 F.3d at


       1
         D’Antignac’s EEOC charge raised only a race discrimination claim. The sex
discrimination claim in her 2010 complaint arose out of the same 2008 incident that gave rise to
the race discrimination claim. The estoppel issue is the same for both claims. And even if the
sex discrimination claim is not estopped, it is time barred because D’Antignac did not file a
timely EEOC charge. See 42 U.S.C. § 2000e-5(e)(1) (requiring filing of a charge “within one
hundred eighty days after the alleged unlawful employment practice”); H & R Block E. Enters.,
Inc. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010) (requiring exhaustion of administrative
remedies before filing a complaint and noting the 180-day filing requirement).
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1273, or if it “misconstrues its proper role, ignores or misunderstands the relevant

evidence, and bases its decisions upon considerations having little factual support,”

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 61 (11th Cir. 2013) (citation and

quotation marks omitted).

      The doctrine of judicial estoppel precludes a party from asserting a claim

that is inconsistent with a claim it made in an earlier proceeding. Burnes, 291 F.3d

at 1285 (affirming grant of summary judgment in defendant’s favor when evidence

showing plaintiff failed to disclose his employment discrimination claims in

concurrent bankruptcy proceedings warranted judicial estoppel). The purpose of

the doctrine is to “protect the integrity of the judicial process by prohibiting parties

from deliberately changing positions according to the exigencies of the moment.”

Id. (quotation omitted). For this reason, parties asserting judicial estoppel need not

demonstrate individual prejudice. Id. at 1286.

      The Supreme Court has enumerated three non-exclusive considerations that

may inform a court’s decision of whether to apply judicial estoppel: (1) whether

the present position is “clearly inconsistent” with the earlier position; (2) whether

another tribunal accepted the earlier position; and (3) whether the party advancing

the inconsistent position would derive an unfair advantage. Id. at 1285. We have

added two other considerations to the list: (1) whether “the allegedly inconsistent

positions were made under oath in a prior proceeding”; and (2) whether the


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inconsistencies were “calculated to make a mockery of the judicial system.” Id.

These two factors are not “inflexible or exhaustive; rather, courts must always give

due consideration to all of the circumstances of a particular case.” Id. at 1286.

      When applying the first factor, we have held that failure to disclose a claim

in bankruptcy constitutes an inconsistent position taken under oath if the debtor

later pursues that claim, as D’Antignac is doing here. See id.; see also Ajaka v.

Brooksamerica Mortg. Corp., 453 F.3d 1339, 1344 (11th Cir. 2006) (failure to

disclose Truth In Lending Act claim to bankruptcy court during Chapter 13

proceedings satisfied first judicial estoppel prong). We explained:

      A debtor seeking shelter under the bankruptcy laws must disclose all
      assets, or potential assets, to the bankruptcy court. The duty to
      disclose is a continuing one that does not end once the forms are
      submitted to the bankruptcy court; rather, a debtor must amend his
      financial statements if circumstances change. Full and honest
      disclosure in a bankruptcy case is crucial to the effective functioning
      of the federal bankruptcy system.

Burnes, 291 F.3d at 1286 (quotations and citations omitted). Certain claims for

legal relief that arise after the bankruptcy confirmation but before completion of

the plan become property of the bankruptcy estate. Waldron v. Brown (In re

Waldron), 536 F.3d 1239, 1240–41 (11th Cir. 2008). In Waldron, we concluded

that a debtor’s $25,000 claim for underinsured-motorist benefits, which arose after

confirmation of his Chapter 13 plan, was property of the bankruptcy estate under

11 U.S.C. § 1306. Id. at 1241–42. We rejected the debtor’s argument that all


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assets acquired post-confirmation automatically vest in the debtor pursuant to

§ 1327. Id. at 1242. We further held that the bankruptcy court “is entitled to learn

about a substantial asset that the court had not considered when it confirmed the

debtors’ plan.” Id. at 1245.

      We have explicitly held that a Chapter 13 debtor has a continuing statutory

duty to amend her schedule of assets to reflect a claim she raised in an employment

discrimination lawsuit she filed before the bankruptcy was discharged. Robinson,

595 F.3d at 1274 (affirming use of judicial estoppel to bar Title VII claims). By

failing to amend her asset schedule, the debtor in Robinson “represented that she

had no legal claims to the bankruptcy court while simultaneously pursuing her

legal claim against [her employer] in the district court.” Id. at 1275. Both actions

were “taken under oath,” and were “clearly inconsistent” with one another. Id. at

1275. The same is true here.

      As to the second judicial estoppel factor, we require “intentional

contradictions, not simple error or inadvertence.” Burnes, 291 F.3d at 1286

(quotation omitted). A debtor’s failure to disclose an asset is deemed inadvertent

only when “the debtor either lacks knowledge of the undisclosed claims or has no

motive for their concealment.” Id. at 1287 (internal quotation marks omitted). A

district court may thus infer intent from the record when the debtor has knowledge

of the undisclosed claims and has motive to conceal them. See Robinson, 595 F.3d


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at 1275–76 (holding that debtor had motive to conceal her claim because if she

disclosed its existence it would become part of the bankruptcy estate and go to her

creditors to satisfy her debts); Barger v. City of Cartersville, Ga., 348 F.3d 1289,

1294, 1296 (11th Cir. 2003) (explaining that debtor’s omission of lawsuit from

statement of assets appeared to benefit her because she could then “keep any

proceeds for herself and not have them become part of the bankruptcy estate”);

De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003) (“[A]

financial motive to secret assets exists under Chapter 13 . . . because the hiding of

assets affects the amount to be discounted and repaid.”). Motive stems from the

unfair advantage a litigant obtains “from the possibility of defrauding the courts

and not from any actual fraudulent result.” Robinson, 595 F.3d at 1275 (emphasis

added). The inference of intent is considered a factual finding that is reviewed

only for clear error. Id.

      Here, the district court did not abuse its discretion in applying the doctrine of

judicial estoppel to bar D’Antignac’s claims. See Burnes, 291 F.3d at 1285.

D’Antignac made a statement under oath in her Chapter 13 proceeding that is

inconsistent with her statements in this lawsuit. See id. She had a continuing

statutory duty to amend her schedule of assets in that prior proceeding to reflect

her potential employment discrimination claims against Deere. See Robinson, 595

F.3d at 1274; Burnes, 291 F.3d at 1286. By failing to do so and disclose those


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claims, she effectively represented to the bankruptcy court that she had no legal

claims, and then later pursued her undisclosed claim against Deere in the district

court. See Robinson, 595 F.3d at 1275. Both of these actions were taken under

oath, and they are “clearly inconsistent.” See id.

      Second, the inconsistency between her positions was not inadvertent under

our precedent. See Burnes, 291 F.3d at 1285. The record shows that D’Antignac

knew of her claims against Deere while her bankruptcy was pending and that she

had a motive to make the inconsistent statements — namely, that if she did not

disclose the claims to the bankruptcy court, she could keep all the proceeds if she

won her suit against Deere. See Robinson, 595 F.3d at 1275; Barger, 348 F.3d at

1296; De Leon, 321 F.3d at 1291. Under those circumstances, the district court did

not clearly err in inferring from the record that D’Antignac’s inconsistent

statements showed the necessary intent to mislead the bankruptcy court. See

Robinson, 595 F.3d at 1273, 1275. Thus it did not abuse its discretion when it

barred D’Antignac’s claims on the ground of judicial estoppel.

      The district court also did not abuse its discretion in denying D’Antignac’s

Rule 59(e) motion. See Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir.

1998) (denial of Rule 59 motions reviewed only for an abuse of discretion). The

only grounds for granting a Rule 59 motion are “newly-discovered evidence or

manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.


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2007) (quotation marks omitted). Rule 59(e) may not be used “to relitigate old

matters, [or] raise argument[s] or present evidence that could have been raised

prior to the entry of judgment.” Michael Linet, Inc. v. Vill. of Wellington, 408

F.3d 757, 763 (11th Cir. 2005). This prohibition includes new arguments that were

“previously available, but not pressed.” Wilchombe v. TeeVee Toons, Inc., 555

F.3d 949, 957–58, 961 (11th Cir. 2009). D’Antignac’s Rule 59 motion was a

reiteration of arguments she either made or could have made during summary

judgment briefing. See id. The district court did not abuse its discretion in

denying the motion. Michael Linet, 408 F.3d at 763; Lockard, 163 F.3d at 1267.

      AFFIRMED.




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