                 Case: 12-15548       Date Filed: 06/12/2018        Page: 1 of 3


                                                                                     [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                     No. 12-15548
                               ________________________

                          D.C. Docket No. 2:09-cv-01732-KOB


SANDRA SLATER,

                                                                          Plaintiff – Appellant,

                                              versus

U.S. STEEL CORPORATION,

                                                                        Defendant – Appellee.

                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Alabama
                              ________________________

                                        (June 12, 2018)


Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and SCOLA, * District
Judge.



       *
          Honorable Robert N. Scola, Jr., United States District Judge for the Southern District of
Florida, sitting by designation.
                Case: 12-15548       Date Filed: 06/12/2018       Page: 2 of 3


PER CURIAM:

       Sandra Slater failed to disclose to the Bankruptcy Court in her pending

Chapter 7 case the employment discrimination claims she was prosecuting in the

instant case against U.S. Steel Corporation. Upon discovering Slater’s failure to

disclose the claims to the Bankruptcy Court, U.S. Steel, citing our precedent in

Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), moved the

District Court to dismiss her claims under the doctrine of judicial estoppel. U.S.

Steel argued that Slater’s maintenance of inconsistent positions in the two judicial

proceedings, standing alone, constituted a “mockery of the judicial system.” See

id. at 1285 (quotation omitted). The District Court agreed and granted U.S. Steel’s

motion, and this panel affirmed. Slater v. U.S. Steel Corp. (“Slater I”), 820 F.3d

1193 (11th Cir. 2016).

       Upon rehearing en banc, this Court overruled the portions of Burnes 1 “that

permitted the inference that a plaintiff intended to make a mockery of the judicial

system simply because he failed to disclose a civil claim” and remanded the case to

the panel for further consideration of the District Court’s judicial estoppel ruling.

Slater v. U.S. Steel Corp. (“Slater II”), 871 F.3d 1174, 1185 (11th Cir. 2017).

       In Slater II, we said that



       1
         Also overruled was the portion of Barger v. City of Cartersville, 348 F.3d 1289 (11th
Cir. 2003), which adhered to the overruled portion of Burnes’ holding.
                                               2
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      to determine whether a plaintiff’s inconsistent statements were
      calculated to make a mockery of the judicial system, a court should
      look to all the facts and circumstances of the particular case. When
      the plaintiff’s inconsistent statement comes in the form of an omission
      in bankruptcy disclosures, the court may consider such factors as the
      plaintiff’s level of sophistication, whether and under what
      circumstances the plaintiff corrected the disclosures, whether the
      plaintiff told his bankruptcy attorney about the civil claims before
      filing the bankruptcy disclosures, whether the trustee or creditors were
      aware of the civil lawsuit or claims before the plaintiff amended the
      disclosures, whether the plaintiff identified other lawsuits to which he
      was party, and any findings or actions by the bankruptcy court after
      the omission was discovered.

Id. We emphasized that this list “is not exhaustive; the district court is free to

consider any fact or factor it deems relevant to the intent inquiry.” Id. n.9.

      The District Court, bound as it was by Burnes, considered none of these

factors in granting U.S. Steel’s motion for summary judgment. Its application of

the judicial estoppel doctrine therefore constituted an abuse of discretion. For that

reason, we vacate its summary judgment order and remand the case for further

proceedings not inconsistent herewith.

      VACATED AND REMANDED.




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