                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0431n.06

                                          No. 17-2016

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Aug 22, 2018
 VALARIE DAVIS,                                         )                   DEBORAH S. HUNT, Clerk
                                                        )
         Plaintiff-Appellant,                           )
                                                        )      ON APPEAL FROM THE
 v.                                                     )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE EASTERN
 FIAT CHRYSLER AUTOMOBILES U.S., LLC,                   )      DISTRICT OF MICHIGAN
                                                        )
         Defendant-Appellee.                            )
                                                        )

BEFORE: GIBBONS, BUSH, and LARSEN, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. In 2015, Valarie Davis brought this hostile

work environment claim against her employer, Fiat Chrysler Automobile US LLC (“FCA”),

alleging violations of Title VII of the Civil Rights Act of 1964 and of Michigan’s Elliott-Larsen

Civil Rights Act (“ELCRA”). Davis claimed that she had endured discriminatory conduct from

co-workers, mainly in the form of displays of and references to monkeys around her office. The

district court granted summary judgment for FCA, concluding that Davis was judicially estopped

from asserting a hostile work environment claim because she had not listed the claim as an asset

in an earlier bankruptcy proceeding. The district court further concluded that Davis could not

succeed on her hostile work environment claim as a matter of law because she had not shown a

genuine issue of material fact that any racial harassment was sufficiently severe or pervasive. We

agree that judicial estoppel bars Davis’s hostile work environment claim here and therefore affirm

the district court.
No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


                                                        I.

        Valerie Davis, an African-American woman, is a clay modeler who has worked for FCA

sculpting car models since 2000.1 In 2004, Davis submitted a letter to her EEOC representative at

FCA complaining of actions she considered to be racial discrimination by her co-workers in her

then-workspace, Studio 1. Her complaints included that her supervisor made remarks about

African-American employees’ “kinky hair,” that co-workers referred to her as “my little brown

friend,” and that a co-worker would use a “‘monkey calling’ device every time [she] would walk

by him.” DE 13-3, 2004 Letter, Page ID 175. She also claims that she was called “chicky monkey”

by her Studio 1 co-workers. DE 1, Compl., Page ID 3. She informed her co-workers that she did

not like being referred to as a monkey and complained about these references to her supervisors.

(Id. at 2–3.) Following an investigation by FCA into this complaint, Davis did not experience any

more racially offensive incidents during the next eight years she worked in Studio 1.

        On April 30, 2008, Davis filed a petition for bankruptcy under Chapter 13 of the United

States Bankruptcy Code and was subject to a five-year bankruptcy plan. The United States

Bankruptcy Court for the Eastern District of Michigan issued an order discharging Davis after

completion of her Chapter 13 plan on December 10, 2013. In 2012, while still proceeding in

bankruptcy, Davis was transferred from Studio 1 to Studio 7/8 at FCA—her current workspace.

Incidents at Studio 7/8 form the basis for Davis’s complaint in this case.

        Davis’s alleges that “[a]s recently as 2013, [Davis’s] co-workers began to place monkeys

in different forms around her cubicle and throughout locations known as studios 7 and 8.” DE 1,

Compl., Page ID 3. On March 25, 2013, Davis filed a complaint with FCA’s diversity office

describing offensive behavior by her coworkers across the prior two years, including “her co-


1
  We recite the facts in the light most favorable to Davis. See Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630
(6th Cir. 2018).

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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


workers displaying monkeys.” DE 1, Compl., Page ID 3. In her complaint letter to the diversity

office, she wrote that there was “a monkey hanging from a cubical with Christmas lights wrapped

around it’s [sic] neck” in her studio. DE 13-5, 2013 Letter, Page ID 220. In response to this letter,

two FCA representatives conducted a walk-through of Studio 7/8 on April 4, 2013. The FCA

representatives concluded that the referenced monkey “was a stuffed animal with long arms that

could velcro together” and that it “hung from the edge of a cubicle” and that “the Christmas lights

did not wrap around its neck.” DE 13-6, FCA Memo, Page ID 222. The representatives also noted

that they observed a second monkey, an “Ape or a Gorilla,” sitting on another designer’s overhead

cabinet. They concluded that “[n]either monkey[] appeared to be racially offensive in any way.”

Id.

       Following this inspection, Davis e-mailed one of the representatives to report that both

monkeys were still on display and that she took the matter “very seriously,” as “monkeys have

been used to depict [African Americans] historically in derogatory terms.” DE 14-27, Davis E-

mail, Page ID 952. But, Davis alleges, these monkey displays did not end, and there were “at least

8 to 10 monkeys” on display in her work area between 2013 and January 2015. DE 1, Compl.,

Page ID 3.

       Davis filed a discrimination charge with the EEOC on March 10, 2015. She received notice

of the EEOC’s decision to close its file on her charge and was issued a right to sue letter on August

20, 2015. Davis then filed this hostile work environment lawsuit on October 26, 2015, alleging

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and of Michigan’s

Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq.,.

       The district court granted summary judgment for FCA. It concluded, after holding oral

argument, that because Davis had not listed her potential hostile work environment claim against



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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


FCA as an asset in her bankruptcy proceeding, she was judicially estopped from bringing her

claims here. The district court further held that Davis’s Title VII and ELCRA hostile work

environment claims failed on the merits, as she had not shown a genuine issue of material fact

regarding the severity and pervasiveness of any discrimination; it therefore concluded that FCA

was entitled to summary judgment on those grounds as well. Davis then filed this appeal.

                                                          II.

         We review a district court’s grant of summary judgment de novo. Kalich v. AT&T Mobility,

LLC, 679 F.3d 464, 469 (6th Cir. 2012). 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). In considering a motion for summary judgment, the court

must “draw all reasonable inferences in favor of the nonmoving party.” Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)). But a nonmoving plaintiff must come forward with more than “a

scintilla of evidence” in support of its position such that “the jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We then ask “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Id. at 251–52. Additionally, “[t]his court

reviews de novo the district court’s application of judicial estoppel.”2 White v. Wyndham Vacation

Ownership, Inc., 617 F.3d 472, 476 (6th Cir. 2010).



2
  We addressed the seeming incongruity of applying de novo review to the inherently discretionary decision of a court
to apply judicial estoppel in Lewis v. Weyerhaeuser Co., 141 F. App’x 420 (6th Cir. 2005), noting:
         [T]he Supreme Court [in New Hampshire v. Maine] has recently described judicial estoppel as “an
         equitable doctrine invoked by the court at its discretion.” In the Sixth Circuit, “[g]enerally matters
         that are committed to the sound discretion of the district court are reviewed by the court of appeals
         for abuse of discretion.” Workman v. Frito-Lay, Inc., 165 F.3d 460, 465 (6th Cir. 1999). Indeed, a
         majority of federal courts that have addressed the issue apply the abuse of discretion standard to a
         district court’s application of judicial estoppel. In light of New Hampshire and the extensive

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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


                                                          III.

         The district court held that Davis was judicially estopped from bringing this hostile work

environment claim because she had enough information prior to the closing of her bankruptcy

estate to suggest that she had a possible cause of action and therefore had to disclose her possible

claims in the bankruptcy proceeding. Davis contends that estoppel was improper because at the

time of her bankruptcy estate discharge, she had not yet been subjected to pervasive acts of

discrimination at FCA and therefore did not have knowledge of facts giving rise to a hostile work

environment claim. We agree with the district court that, viewing the evidence in the light most

favorable to Davis, she knew enough information about a possible cause of action for

discrimination against FCA by December 2013 to trigger her duty to disclose the claim to the

bankruptcy court, making the application of judicial estoppel proper. See White, 617 F.3d at 478.

         Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.” New

Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th

Cir. 1990)). Its purpose is “to preserve ‘the integrity of the courts by preventing a party from

abusing the judicial process through cynical gamesmanship,’” White, 617 F.3d at 476 (quoting

Browning v. Levy, 283 F.3d 761, 776 (6th Cir. 2002)), and it therefore “generally prevents a party

from prevailing in one phase of a case on an argument and then relying on a contradictory argument



         contrary authority, we question the continued use of the de novo standard in the context of judicial
         estoppel.
Id. at 423–24 (third alteration in original) (some citations omitted). The court in Lewis, however, declined to resolve
the issue because it found “the district court’s ruling was proper under either standard.” Id. at 424; see also Kimberlin
v. Dollar Gen. Corp., 520 F. App’x 312, 313 n.1 (6th Cir. 2013) (again declining to resolve this question). But our
later cases have clarified that the de novo standard is proper for questions of judicial estoppel. See Mirando v. U.S.
Dep’t of Treas., 766 F.3d 540, 545 n.1 (6th Cir. 2014) (“[B]ecause the Court [in New Hampshire] did not instruct us
to review for abuse of discretion, we continue to apply de novo review absent a more definitive statement from the
Court.”); see also Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, 546 F.3d 752, 757 (6th Cir. 2008) (“[T]he
Supreme Court [in New Hampshire] did not instruct that an abuse of discretion standard is appropriate, and this Court
has continued to adhere to the de novo standard after New Hampshire. Without a more definitive statement from the
Supreme Court, this Court is bound by its own precedent and will therefore apply the de novo standard to the district
court’s order.” (citations omitted)).

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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


to prevail in another phase,” New Hampshire, 532 U.S. at 749 (quoting Pegram v. Herdrich, 530

U.S. 211, 227, n.8 (2000)). In the bankruptcy context, judicial estoppel functions to bar “a party

from asserting a position that is contrary to one the party has asserted under oath in a prior

proceeding, where the prior court adopted the contrary position ‘either as a preliminary matter or

as part of a final disposition.’” Eubanks v. CBSK Fin. Grp., Inc., 385 F.3d 894, 897 (6th Cir. 2004)

(quoting Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990)).

       Although “judicial estoppel has not been reduced to a hard-and-fast test,” our precedent

articulates certain “guiding factors” to consider in assessing whether judicial estoppel should

function to bar a claim. Haddad v. Randall S. Miller Assocs., PC, 587 F. App’x 959, 965 (6th Cir.

2014); see also New Hampshire, 532 U.S. at 750 (observing that “[t]he circumstances under which

judicial estoppel may appropriately be invoked are probably not reducible to any general

formulation of principle” (alteration in original) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162,

1166 (4th Cir. 1982))). The clearest application of these considerations in the employment

discrimination and bankruptcy context in our circuit comes from White v. Wyndham Vacation

Ownership, Inc., which indicates that judicial estoppel will bar a claim when (1) a party “assumed

a position that was contrary to the one that she asserted under oath in the bankruptcy proceedings,”

(2) “the bankruptcy court adopted the contrary position either as a preliminary matter or as part of

a final disposition,” and (3) the omission “did not result from mistake or inadvertence.” 617 F.3d

at 478; see also Kimberlin v. Dollar Gen. Corp., 520 F. App’x 312, 314 (6th Cir. 2013) (applying

these factors). The second question—whether the bankruptcy adopted the position—is not at issue

in this case. The bankruptcy court confirmed Davis’s bankruptcy plan without the potential claim

listed as an asset, which is sufficient to satisfy the second consideration. See White, 617 F.3d at

479. Our analysis therefore focuses on the remaining two considerations.



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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


                                                 1.

       A debtor in a Chapter 13 proceeding has a duty to disclose any potential claim as an asset

to the bankruptcy court in a schedule of assets and liabilities. Lewis, 141 F. App’x at 424; see 11

U.S.C. § 521. This disclosure obligation is ongoing, meaning a debtor has “an express, affirmative

duty to disclose all assets, including contingent and unliquidated claims” that arise at any time

during the bankruptcy proceeding. White, 617 F.3d at 479 n.5 (quoting In re Coastal Plains, Inc.,

179 F.3d 197, 207–08 (5th Cir. 1999)). “[T]he disclosure obligations of consumer debtors are at

the very core of the bankruptcy process and meeting these obligations is part of the price debtors

pay for receiving the bankruptcy discharge.” Lewis, 141 F. App’x at 424 (alteration in original)

(quoting In re Colvin, 288 B.R. 477, 481 (Bankr. E.D. Mich. 2003)). And therefore, as this court

has recognized, applying judicial estoppel to bar known, potential claims a debtor fails to declare

to the bankruptcy court “recognizes the importance of the bankruptcy debtor’s affirmative and

ongoing duty to disclose assets, including unliquidated litigation interests.” Kimberlin, 520 F.

App’x at 314.

       When a debtor has failed to disclose a known potential claim in a bankruptcy proceeding,

this court has held that the “omission was equivalent to a statement that there were no such claims.”

Stephenson v. Malloy, 700 F.3d 265, 274 (6th Cir. 2012); see also Lewis, 141 F. App’x at 425

(“[P]ursuing a cause of action that was not disclosed as an asset in a previous bankruptcy filing

creates an inconsistency sufficient to support judicial estoppel.”). Therefore, in such instances, a

party will have “assumed a position that was contrary to the one that she asserted under oath in the

bankruptcy proceedings,” satisfying that prong of judicial estoppel. White, 617 F.3d at 478.

       Here, Davis acknowledges that she did not list a potential hostile work environment claim

against FCA in her schedule of assets and liabilities filed with the bankruptcy court, nor did she



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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


ever represent to the bankruptcy court that she might have such a claim before her proceeding

terminated in December 2013. But she contends that she did not take a contrary position because

she did not know all the facts supporting her hostile work environment claim before her bankruptcy

discharge in December 2013. She premises this argument on her contention that there was only

one monkey in Studio 7/8 before December 2013—the Christmas-light monkey.3 But her own

assertions in this case belie this claim. Moreover, the test is not whether Davis knew all of the

facts that could possibly support a claim, but instead whether she had sufficient information to

know that she had a possible cause of action against FCA for discrimination before her bankruptcy

was discharged. See White, 617 F.3d at 479; Lewis, 141 F. App’x at 421–22.

         Reading the record in the light most favorable to Davis, she had knowledge of a potential

discrimination claim against FCA prior to December 10, 2013. Her complaint alleges that “[a]s

recently as 2013, [Davis’s] co-workers began to place monkeys in different forms around her

cubicle” and throughout Studio 7/8; that in March 2013 she “complained . . . to human resources

regarding her co-workers displaying monkeys,” including complaining about the Christmas-light

monkey; and that in April 2013 she made another complaint “regarding two more monkeys.” DE

1, Compl., Page ID 3. In her letter to FCA’s diversity office in March 2013 she wrote that she had

been dealing with “unprofessional, ignorant, sexist and even racist” behavior in her office across

the prior two years.” DE 13-5, 2013 Letter, Page ID 220 (emphasis added). And after FCA

representatives indicated that they would not take action regarding the Christmas-light monkey,

on April 8, 2013, Davis sent one of the representatives an e-mail stating that she took the matter

“very seriously,” as “monkeys have been used to depict [African Americans] historically in



3
  The district court focused in particular on this incident in its judicial estoppel analysis but also cited Davis’s claim
in her 2013 letter to FCA’s diversity office that “racial discrimination [at FCA] resumed around 2012” and her
knowledge of and complaints about the earlier racially offensive comments in Studio 1. DE 17, Order, Page ID 1035.

                                                            8
No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


derogatory terms.” DE 14-27, Davis E-mail, Page ID 952. Due to her earlier experience in Studio

1 with monkeys and racially offensive comments, Davis was sensitive to monkey displays and

references and had let her co-workers and supervisors know as much. CA6 R. 23, Appellant Br.,

at 15. But Davis did not file an EEOC complaint of discrimination until March 2015—fifteen

months after the close of her bankruptcy estate—even though she had enough information by

December 2013 to know that she had a possible claim for racial discrimination against FCA.

         On appeal, Davis argues that the district court should not have applied judicial estoppel

because “[b]efore the discharge there was one monkey that appeared in March” and “[t]he first

time [Davis] noticed the presence of other monkeys was after the [d]ischarge.” CA6 R. 23,

Appellant Br., at 26. She therefore claims that she did not know of a potential hostile work

environment claim by December 10, 2013. But, as outlined, Davis’s own claims in this case

contradict this argument and show that she was aware of a potential claim while her bankruptcy

was ongoing. Moreover, the record indicates that many of the additional incidents Davis cites as

having happened after December 10, 2013, actually occurred before that date, while her

bankruptcy was still pending.

         For example, in her brief, Davis claims that her co-worker Michelle Menendez “brought a

sock monkey to the workplace and hung it in her cubicle” 15 days after Davis’s bankruptcy

discharge. CA6 R. 23, Appellant Br., at 17. But in her deposition, Davis was questioned about a

journal entry dated May 20, 2013, in which she had written “monkey not in ‘site’ [sic]. Michelle

out,” and Davis acknowledged that she must have been referring to Michelle’s monkey.4 DE 13-

2, Davis Dep., Page ID 145–46. Similarly, Davis’s brief claims that her co-worker Joseph Marcum

gave her a clay mold with the word monkey on it after her bankruptcy closed. But in her


4
 The actual journal entries are not in the record; there is only Davis’s deposition testimony in which she acknowledges
them when questioned.

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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


deposition, she acknowledged a journal entry stating “Joe gave me a monkey mold” under the date

December 2, 2013. Id. at 146. Davis’s brief also alleges that her co-worker Tom Cuadrio brought

a blow-up monkey and another monkey to display on his laptop to FCA, though she claims it is

“unclear” when these monkeys appeared. But the only evidence in the record about the date of the

blow-up monkey’s appearance indicates that it was in the office as early as October 1, 2013.

Therefore, these additional incidents actually support the application of judicial estoppel here. See

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (noting that hostile work

environment claims “involve[] repeated conduct”).

       In short, the record and Davis’s own allegations show there was ample information prior

to December 10, 2013, to trigger Davis’s disclosure obligation to the bankruptcy court, meaning

that by her failure to do so she “assumed a position that was contrary to the one that she asserted

under oath in the bankruptcy proceedings.” White, 617 F.3d at 478.

                                                 2.

       These same considerations demonstrate that any omission by Davis was not the result of

“mistake or inadvertence.” Id.

       In determining whether an omission was the result of mistake or inadvertence, we consider

a litigant’s “knowledge of the factual basis of the undisclosed claims,” any “motive for

concealment,” and if “the evidence indicates an absence of bad faith”—with particular focus on

any attempt “to advise the bankruptcy court of [an] omitted claim.” Id.; see Browning, 283 F.3d

at 776; see also Eubanks, 385 F.3d at 897–99. The final two prongs of this inquiry are not at issue

here: there is no evidence that Davis made any disclosure about a potential claim to the bankruptcy

court, White, 617 F.3d at 478, and if a claim existed, there would be a motive to conceal this asset,




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No. 17-2016, Davis v. Fiat Chrysler Automobiles U.S.


see Lewis, 141 F. App’x at 426 (“It is always in a Chapter 13 petitioner’s interest to minimize

income and assets.”); see also White, 617 F.3d at 479.

       This leaves only Davis’s “knowledge of the factual basis of the undisclosed claim.” White,

617 F.3d at 478. This inquiry overlaps with our consideration of her assumption of a contrary

position, supra. To summarize briefly, Davis had a demonstrated sensitivity regarding monkeys

based on her experience at Studio 1, had made a written complaint to FCA’s diversity office about

monkey displays in Studio 7/8, and felt concerned enough about these and other incidents to

document them as journal entries. After her written complaint to FCA but before her bankruptcy

estate closed on December 10, 2013, there were additional monkeys displayed in Studio 7/8 that

Davis now forwards as the basis of her hostile work environment claim. Still, Davis made no

further written complaints to FCA during this time period and waited until fifteen months after her

bankruptcy estate closed to file an EEOC complaint and initiate this lawsuit.

       These actions show Davis had knowledge of the factual basis of a potential hostile work

environment claim before December 10, 2013, and therefore any omission to the bankruptcy court

was not the result of mistake or inadvertence.

                                                 IV.

       Because Davis assumed a position that was contrary to the one that she asserted under oath

in the bankruptcy proceedings, the bankruptcy court adopted this contrary position, and her

omission did not result from mistake or inadvertence, the district court’s decision to apply judicial

estoppel was appropriate here. See White, 617 F.3d at 478. We therefore do not consider the

district court’s alternative holding that that Davis has not shown a genuine issue of material fact

regarding her ability to succeed in her Title VII and ELCRA claims and affirm the district court’s

grant of summary judgment for FCA based on judicial estoppel.



                                                 11
