                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 22, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    ALICE L. HIGGINS,

                Plaintiff-Appellant,

    v.                                                    No. 10-3234
                                              (D.C. No. 2:08-CV-02646-JWL-GLR)
    JOHN E. POTTER, Postmaster                              (D. Kan.)
    General, United States Postal Service,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.



         Plaintiff Alice L. Higgins appeals from the district court’s judgment in

favor of defendant John E. Potter, Postmaster General of the United States Postal

Service (USPS) on her claims of race discrimination. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mrs. Higgins, an African-American, was employed by the USPS as a letter

carrier. In September 2007, she was the subject of a postal investigation for mail

theft, which resulted in disciplinary action against her on September 13, 2007, on

the ground that she had misdelivered mail.

      Acting pro se, Mrs. Higgins filed this complaint in December 2008,

demanding money damages and injunctive relief on her claim that postal officials

had discriminated against her on account of her race in violation of Title VII of

the Civil Rights Act of 1964 during the mail theft investigation. The district

court granted her motion for appointment of counsel, and counsel filed an

amended complaint in March 2009.

      Mrs. Higgins’s counseled amended complaint asserted that defendant

subjected her to racist comments, unwarranted discipline, an accusation of mail

theft, and a strip search on account of her race during the mail theft investigation.

In lieu of an answer, defendant filed a motion to dismiss for lack of jurisdiction

and/or for summary judgment, arguing that Mrs. Higgins’s first two claims were

unexhausted and the court lacked jurisdiction over them, and that he was entitled

to summary judgment on her other two claims. Mrs. Higgins objected to the

motion for summary judgment because no discovery had yet been done, and

defendant withdrew that part of his combined motion. The district court granted

defendant’s motion to dismiss to the extent that Mrs. Higgins intended to raise

any claims of race discrimination not related to the events of September 13, 2007,

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and denied defendant’s motion to dismiss with regard to her claim for race

discrimination arising from the events on that day. Mrs. Higgins served her first

discovery requests to defendant at the end of October 2009.

      In early November 2009, shortly after she began discovery in her Title VII

case, Mrs. Higgins filed a petition under Chapter 13 of the Bankruptcy Code. She

did not list her Title VII lawsuit as an asset (contingent or otherwise) on her

bankruptcy schedules. Her bankruptcy plan was confirmed in January 2010.

      In April 2010, after Mrs. Higgins’s bankruptcy plan was confirmed,

defendant served his request for admissions, and Mrs. Higgins admitted that this

civil suit was not part of her bankruptcy estate. Her attorney claimed that the

omission was inadvertent and then attempted to correct it. In May 2010,

Mrs. Higgins amended her bankruptcy schedules to include potential proceeds

from a worker’s compensation lawsuit, when she actually had never filed a

worker’s compensation lawsuit. On June 16, 2010, she amended her bankruptcy

schedules to list the potential recovery from this Title VII lawsuit as personal

property and her creditors were informed within a few days.

      On June 14, 2010, defendant moved for summary judgment, asking the

district court to dismiss Mrs. Higgins’s discrimination claim based on the doctrine

of judicial estoppel. Mrs. Higgins’s attorney was unable to persuade the district

court that the omission of her Title VII suit from her bankruptcy schedules was




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inadvertent, and the court granted summary judgment to defendant. Mrs. Higgins

appeals, appearing in this court pro se.

      We review the grant of summary judgment de novo. Jones v. Okla. City

Pub. Schs., 617 F.3d 1273, 1277 (10th Cir. 2010). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). 1 Because the district court entered summary judgment in

this case based on judicial estoppel, however, we review that decision for abuse

of discretion. Bradford v. Wiggins, 516 F.3d 1189, 1193-94 (10th Cir. 2008).

“A court abuses its discretion only when it makes a clear error of judgment,

exceeds the bounds of permissible choice, or when its decision is arbitrary,

capricious or whimsical, or results in a manifestly unreasonable judgment.” Id.

at 1194 (internal quotation marks omitted). Because Mrs. Higgins appears in this

court pro se, we construe her pleadings in this court liberally. Haines v. Kerner,

404 U.S. 519, 520 (1972) (per curiam).

      The district court dismissed this case under the doctrine of judicial

estoppel, relying on our decision in Eastman v. Union Pacific Railroad Co.,


1
      Fed. R. Civ. P. 56 was recently amended, effective December 1, 2010. The
summary judgment standard previously enumerated in subsection (c) was moved
to subsection (a), and one word was changed from the previous version—genuine
“issue” became genuine “dispute.” Rule 56 advisory committee’s note (2010
Amendments). But the “standard for granting summary judgment remains
unchanged.” Id.

                                           -4-
493 F.3d 1151, 1158-59 (10th Cir. 2007). R., Vol. 3, at 269, 273-74. As

explained by the Supreme Court, “the doctrine’s ‘purpose is to protect the

integrity of the judicial process by prohibiting parties from deliberately changing

positions according to the exigencies of the moment.’” Eastman, 493 F.3d

at 1156 (quoting New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)). The

district court thoroughly discussed the parties’ arguments, determining that

judicial estoppel should apply here because: (1) Mrs. Higgins did not list this

discrimination case on her bankruptcy schedules, assuming inconsistent positions

in bankruptcy court and district court; (2) Mrs. Higgins persuaded the bankruptcy

court to confirm her bankruptcy plan based on schedules that omitted the

discrimination suit; and (3) Mrs. Higgins’s failure to disclose her discrimination

case on her bankruptcy schedules put her in a position to reap a recovery from her

lawsuit, giving her an unfair advantage over her creditors. R., Vol. 3, at 268-74.

The district court also noted that Mrs. Higgins corrected her omission only after

defendant filed his motion for summary judgment based on judicial estoppel,

without ever presenting any evidence to show that the omission was inadvertent.

Id. at 269, 273.

      Mrs. Higgins argues on appeal that her failure to show the Title VII lawsuit

on her bankruptcy schedules was a computer error made by her former

counsel—that he incorrectly input a worker’s compensation lawsuit instead of the

Title VII case and that all parties knew about the Title VII case. She also asks

                                         -5-
why her motion for appointment of counsel filed in this court was denied.

Defendant argues that Mrs. Higgins’s “computer error” argument is raised for the

first time on appeal and should be deemed waived, and that the listing of a

worker’s compensation case on her bankruptcy schedules in May 2010 was itself

a belated attempt to cure the omission of her Title VII case from her bankruptcy

schedules in November 2009, not a mistake on her original schedules.

      We have carefully reviewed the record on appeal in light of the parties’

arguments and the governing law. Mrs. Higgins’s “computer error” argument was

not raised in the district court and is deemed waived. Proctor & Gamble Co. v.

Haugen, 222 F.3d 1262, 1270-71 (10th Cir. 2000). The district court correctly

applied the law of this circuit and did not abuse its discretion in applying the

doctrine of judicial estoppel. We affirm the dismissal of Mrs. Higgins’s Title VII

case for the reasons stated in the court’s well-reasoned Memorandum and Order

filed on August 20, 2010. Mrs. Higgins’s motion for appointment of counsel was

denied because she failed to demonstrate that “there is sufficient merit to [her]

claim to warrant the appointment of counsel.” McCarthy v. Weinberg, 753 F.2d

836, 838 (10th Cir. 1985) (per curiam).

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court


                                                     Monroe G. McKay
                                                     Circuit Judge

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