                                                                    [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                          _____________________________         FILED
                                                       U.S. COURT OF APPEALS
                                   No. 06-12417          ELEVENTH CIRCUIT
                                                             MAR 28, 2007
                          _____________________________
                                                          THOMAS K. KAHN
                                                               CLERK
                        D. C. Docket No. 04-02053 CV-RLV-1

JOSE CASANOVA,

                                                         Plaintiff-Appellant,

        versus

PRE SOLUTIONS, INC.,
H.J. GALLETLY,

                                                         Defendants-Appellees.

                              ______________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                            _______________________

                                    (March 28, 2007)

Before EDMONDSON, Chief Judge, TJOFLAT and GIBSON,* Circuit Judges.

PER CURIAM:



    *
     Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
      Jose Casanova (“Plaintiff”) brought this action under Title VII of the Civil

Rights Act of 1964 (“Title VII”) against his former employer, PRE Solutions

(“PRE”), and H.J. Galletly (“Galletly”) (collectively, “Defendants”). The district

court granted Defendants’ motion for summary judgment. We affirm.



                                   I. Background



      In 2001, PRE’s Chief Executive Officer, David Traversi (“Traversi”), and

Senior Vice President of Sales and Marketing, Jerry Ferlisi (“Ferlisi”), hired

Plaintiff, a U.S. citizen of Cuban descent, as a District Sales Leader (“DSL”) to set

up and manage the company’s new Hispanic sales division. Cindy Daly (“Daly”)

served as the direct supervisor over Plaintiff and all other DSLs.

       Plaintiff alleges that Daly exhibited racial animus toward him, often

referring to him by Hispanic names other than his own, such as “Carlos” and

“Julio.” He also alleges that, on one occasion after Plaintiff submitted an expense

report covering a meal at a Miami restaurant, Daly asked Plaintiff, “Were you guys

having some sort of fiesta at the company’s expense?” Later, while discussing

another expense report, Daly told Plaintiff, “You people can’t add.” Once, at a

trade show dinner, Daly referred to Plaintiff as a “fat wetback” in front of other

                                          2
employees. Plaintiff also contends that, in conducting company business, Daly

treated Plaintiff differently than she treated other DSLs. He claims that Daly did

not allow him to use professional recruiters to hire sales representatives,

scrutinized his expense reports “very, very closely,” denied his requests for

Spanish marketing materials, increased the sales quota for his division, and, at one

point, required him to drive rather than fly from Miami to Atlanta. Daly was

unsatisfied with Plaintiff’s job performance and communicated these problems to

Traversi, who was also concerned that Plaintiff “had real performance problems

that needed to be addressed.”1

       On 21 May 2001, Plaintiff filed his first discrimination charge with the

Equal Employment Opportunity Commission (“EEOC”).2 A few days later, Daly

sent Traversi an email in which Daly wrote, “I want to make sure that we are

totally prepared to make this end when the time comes.” Attached to the email

was a memorandum written by Daly discussing a list of tasks assigned to Plaintiff.

Responding to Daly’s request for comments before sending the memorandum,

Traversi wrote, “excellent. go for it.”

  1
    Traversi and Daly met with Plaintiff to discuss these concerns and to develop a list of strategic
tasks for Plaintiff to complete. The parties now dispute whether and to what extent Plaintiff
completed these tasks.
   2
    After Plaintiff filed his initial EEOC charge, he met with human resource managers at PRE to
discuss his complaints; but he did not provide full and complete information.

                                                 3
          Later, Traversi met with Plaintiff and told him that Traversi understood

Daly had not treated Plaintiff properly. Traversi then gave Plaintiff a

memorandum informing him of Traversi’s decisions to eliminate the Hispanic

division and to promote Plaintiff to Business Development Leader, Independent

Sales, in which position he would report directly to Galletly.3 Although Plaintiff

claims this change was a sham promotion into a “dead-end” job,4 the change

resulted in a $10,000 increase in salary, a wider commission structure, and a

higher reporting status.

          On 21 August 2001, Plaintiff filed a second charge with the EEOC. Two

days later, Plaintiff filed a voluntary petition to declare Chapter 13 bankruptcy.

Later, Plaintiff filed his Statement of Financial Affairs (“SFA”) in bankruptcy

court. The SFA did not disclose his two pending EEOC actions, despite the

requirement that he list “all suits and administrative proceedings to which the

debtor is or was a party within one year immediately preceding the filing of this




   3
       Galletly had replaced Ferlisi as the company’s Senior Vice President of Sales and Marketing.
   4
    Plaintiff asserts that the problems associated with his new position were caused by the lack of
a formal job description and his ostracization from the company -- including his alleged exclusion
from the company’s computer network and email system, as well as his isolation from sales meetings
and management decisions. Galletly, on the other hand, claims that he saw no activity or
contribution from Plaintiff in his new position.

                                                  4
bankruptcy case.”5 Within a month of Plaintiff’s second filing with the EEOC,

PRE experienced a reduction in force (“RIF”), which eliminated 33 positions from

the company and resulted in the discharge of both Plaintiff and Daly. CEO

Traversi made the decision to eliminate Plaintiff’s position during the RIF.

         After receiving a right-to-sue letter from the EEOC, Plaintiff brought suit

under Title VII alleging (1) that PRE subjected him to disparate treatment because

of his national origin; (2) that PRE retaliated against him for his complaints and

EEOC charges by transferring him into a new position and ultimately discharging

him; and (3) that Daly’s harassment resulted in a hostile work environment. The

district court granted summary judgment for Defendants after determining that

Plaintiff’s claims for damages were barred under the doctrine of judicial estoppel

and that his claims for injunctive relief failed on the merits.



                                           II. Discussion



         We review a district court’s application of the doctrine of judicial estoppel

for an abuse of discretion. Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284




  5
      Plaintiff later sought and obtained voluntary dismissal of his bankruptcy case.

                                                  5
(11th Cir. 2002). And, we review de novo a district court’s grant of summary

judgment. Rojas v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002).




               A. Judicial Estoppel Bars Plaintiff’s Claims for Damages



       The equitable doctrine of judicial estoppel precludes a party from “asserting

a claim in a legal proceeding that is inconsistent with a claim made by that party in

a previous proceeding.” Barger v. City of Cartersville, 348 F.3d 1289, 1293 (11th

Cir. 2003) (citation and internal quotation marks omitted). The doctrine bars a

plaintiff from pursuing employment discrimination claims for damages that were

not disclosed in a prior bankruptcy proceeding, where the plaintiff knew of the

claims and had a motive to conceal them from the court. Burnes, 291 F.3d at

1287-88; Barger, 348 F.3d at 1293-97; De Leon v. Comcar Indus., 321 F.3d 1289,

1291 (11th Cir. 2003).6


   6
    Plaintiff argues the district court abused its discretion by allowing Defendants to amend their
motion for summary judgment to include the judicial estoppel argument because they had not
pleaded this defense in their answer. Judicial estoppel, however, is an equitable doctrine that
“protects the integrity of the judicial system, not the litigants.” Burnes, 291 F.3d at 1286. Because
Plaintiff had full opportunity to respond to the argument below, the district court did not abuse its
discretion, even if the court considered the issue sua sponte. See Krystal Cadillac-Oldsmobile GMC
Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 325 (3d Cir. 2003).

                                                 6
      That the SFA that Plaintiff filed in his prior bankruptcy case did not disclose

his two EEOC complaints is undisputed. Even though Plaintiff did not file a

lawsuit before or during the pendency of his bankruptcy petition, the pending

EEOC charges constitute “administrative proceedings” and “[o]ther contingent

and unliquidated claims” that Plaintiff was required to disclose on his SFA. The

“property of bankruptcy estate includes all potential causes of action existing at

time petitioner files for bankruptcy.” Barger, 348 F.3d at 1292 (emphasis added)

(citing 11 U.S.C. § 541(a)).

      At the summary judgment stage, we may infer from the record that Plaintiff

purposely concealed the EEOC claims from the bankruptcy court because he filed

his bankruptcy petition only two days after filing the second EEOC charge. See

Burnes, 291 F.3d at 1287. Plaintiff “stood to gain an advantage by concealing the

claims from the bankruptcy court.” Id. at 1288. That Plaintiff later voluntarily

dismissed the bankruptcy case does not alter this analysis because the relevant

inquiry is his intent at the time of nondisclosure. The district court, therefore, did

not abuse its discretion by concluding that judicial estoppel barred Plaintiff from

asserting claims for damages.



                     B. Plaintiff’s Claims for Injunctive Relief

                                           7
       The doctrine of judicial estoppel does not bar Plaintiff’s claims for

injunctive relief. See id. at 1289. So, we turn now to the district court’s grant of

summary judgment in favor of Defendants on Plaintiff’s request for injunctive

relief in the form of reinstatement.



       1. Disparate Treatment

       To prevail on a Title VII discrimination claim, a plaintiff must establish that

he suffered an “adverse employment action,” which is a “serious and material

change in the terms, conditions or privileges of employment.” Davis v. Town of

Lake Park, 245 F.3d 1232, 1238-39 (11th Cir. 2001). A plaintiff also must prove

that the decision maker acted with discriminatory intent, as established by either

direct or circumstantial evidence. See Hawkins v. Ceco Corp., 883 F.2d 977, 980-

81 (11th Cir. 1989).7

       In this case, the only evidence of discriminatory intent proffered by Plaintiff

is Daly’s harassment, evidence that relates only to Daly’s state of mind. But,




  7
    We evaluate discrimination claims based on circumstantial evidence under the familiar burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973).

                                               8
Daly’s disparate acts against Plaintiff affecting the conditions of his employment8

are not sufficiently serious and material to rise to the level of “adverse

employment actions” under Title VII. Although Plaintiff alleges that Daly was

instrumental in Traversi’s decision to move Plaintiff out of the DSL position,9 this

promotion was not adverse because Plaintiff suffered no material loss of “pay,

prestige, or responsibility.” Hinson v. Bd. of Educ., 231 F.3d 821, 829 (11th Cir.

2000). To the extent that Plaintiff contends that his ultimate discharge -- the only

actionable adverse employment action in this case -- was motivated by a

discriminatory intent, we conclude that Plaintiff has failed to present direct or

circumstantial evidence of such intent. Traversi, not Daly (who was also let go),

made the decision to discharge Plaintiff in the RIF. Plaintiff also has not

established that the RIF was a mere pretext for discrimination.10 Thus, the district

court correctly granted summary judgment on Plaintiff’s disparate treatment claim.




   8
    Daly’s disparate business treatment includes closer scrutiny of expense reports, denying access
to outside recruiters, refusing to provide marketing materials in Spanish, and increasing sales quotas.
  9
    CEO Traveri’s response to Daly’s email is insufficient to show discriminatory intent on the part
of Traversi.
       10
      The undisputed evidence shows that PRE conducted the company-wide RIF in an effort to
restructure the company and that Traversi and Galletly felt that Plaintiff did not meet their
expectations in his new position. Plaintiff has failed to show that these explanations are not honest.
See Cooper v. Southern Co., 390 F.3d 695, 730 (11th Cir. 2001).

                                                  9
        2. Retaliation

        Plaintiff also alleges that PRE engaged in retaliatory action against him for

his internal complaints and for filing EEOC charges. Although Plaintiff has

established a prima facie case of retaliation,11 he has not shown that PRE’s

legitimate, non-discriminatory reason for his termination -- the company’s RIF --

was a pretext for retaliating against his statutorily protected expression. Thus, the

district court did not err in granting summary judgment in favor of Defendants on

Plaintiff’s retaliation claim.



        3. Hostile Work Environment

        Although the district court reached the merits of Plaintiff’s hostile work

environment claim, we do not do so because we conclude that Plaintiff is entitled

to neither reinstatement nor other injunctive relief on this claim. As the Supreme

Court has commented, “[i]t would be both inequitable and pointless to order the

reinstatement of someone the employer would have terminated, and will terminate,


   11
      To establish a prima facie case of retaliation, a plaintiff must show the following: (1) that he
engaged in statutorily protected expression; (2) that he suffered an adverse employment action; and
(3) that some causal relation between the two events existed. Pennington v City of Huntsville, 261
F.3d 1262, 1266 (11th Cir. 2001). Plaintiff’s EEOC claims constituted protected expression; his
discharge was an actionable adverse employment action; and the short gap between his EEOC filing
and his discharge is sufficient to infer a causal link between the two events. See Bass v. Bd. of
County Comm’rs, 256 F.3d 1095, 1119 (11th Cir. 2001).

                                                 10
in any event and upon lawful grounds.” McKennon v. Nashville Banner Publ.

Co., 115 S. Ct. 879, 886 (1995).12 Because Plaintiff’s termination was the result of

a lawful RIF, ordering PRE to reinstate Plaintiff would frustrate “the lawful

prerogatives of the employer in the usual course of its business.” Id. Thus, as a

matter of law, Plaintiff was not entitled to injunctive relief on his hostile work

environment claim.13

        For these reasons, the district court’s grant of summary judgment in favor of

Defendants is

        AFFIRMED.




  12
     Although this rule applies “in the general class of cases where, after termination, it is discovered
that the employee has engaged in wrongdoing,” McKennon, 115 S. Ct. at 886, we believe the same
reasoning applies here.
   13
    Because reinstatement is inappropriate, Plaintiff is entitled to no other injunctive relief that is
dependent on his reinstatement. See Wallace v. Dunn Const. Co., Inc., 62 F.3d 374, 380 (11th Cir.
1995).

                                                   11
