                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0564n.06
                              Filed: July 6, 2005

                                            No. 04-5675

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


CRYSTAL A. LEWIS,                                  )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
WEYERHAEUSER CO., d/b/a BARDCOR                    )   WESTERN DISTRICT OF KENTUCKY
CORPORATION,                                       )
                                                   )
       Defendant-Appellee.




       BEFORE: COLE and SUTTON, Circuit Judges; ZATKOFF, District Judge.*


               ZATKOFF, District Judge. Plaintiff-Appellant Crystal Lewis (hereinafter “Lewis”)

appeals the district court’s grant of summary judgment to Defendant-Appellee Weyerhaeuser Co.,

d/b/a Bardcor Corporation (hereinafter “Weyerhaeuser”). Lewis filed her Complaint in the Western

District of Kentucky on October 1, 2002, alleging failure to promote and wrongful discharge on the

basis of sex, race, and maternity status, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. On April 21, 2004, the district court granted Weyerhaeuser’s motion for

summary judgment. The district court determined that the doctrine of judicial estoppel precluded

Lewis from pursuing her discrimination action because she failed to list the action as an asset on a


       *
          The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 04-5675
Lewis v. Weyerhaeuser, Co.

Chapter 13 bankruptcy petition she filed shortly after Weyerhaeuser terminated her employment.

For the reasons set forth below, we AFFIRM the district court’s ruling.




                                       II. BACKGROUND


       Lewis, an African-American female, began her employment with Weyerhaeuser in July

2000. Weyerhaeuser hired Lewis to work as a “stacker/counter” in the production department of

Weyerhaeuser’s Guthrie, Kentucky, cardboard manufacturing plant.1 In April 2001, Lewis requested

maternity leave.


       Weyerhaeuser granted Lewis’s request for 12 weeks of maternity leave, which began on May

15, 2001, and was scheduled to end on August 7, 2001. Lewis, however, did not return to work on

August 7, 2001, and Weyerhaeuser alleges that she failed to contact anyone at the Guthrie plant to

provide a return date. On October 3, 2001, Ronnie Face, the Guthrie plant’s Production Manager,

sent a letter to Lewis terminating her employment:


               Since we have not heard from you since mid-August, we are forced
               to make the assumption that you have resigned. Under the FMLA
               provisions, we are not obligated to hold a position for you beyond the
               12 week time period.
               Therefore, this letter is to inform you of your termination with


       1
          Weyerhaeuser operated the plant under the trade name “Bardcor Corp.,” which Lewis
initially named as the Defendant. Lewis filed an Amended Complaint naming Weyerhaeuser on
July 29, 2003.

                                                 2
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Lewis v. Weyerhaeuser, Co.

               Weyerhaeuser Company.


J.A. at 75.


        On December 26, 2001, two months after her termination, Lewis and her husband filed a

joint voluntary Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the

Western District of Kentucky. Two sections of the petition are relevant for purposes of this appeal.

First, the “Statement of Financial Affairs” section of the petition required Lewis and her husband

to list “the gross amount of income the debtor has received from employment . . . from the beginning

of this calendar year to the date this case was commenced.” J.A. at 86. It is undisputed that Lewis

did not list the wages she received from Weyerhaeuser during 2001, but she did list the wages she

received from another employer called Manpower, Inc. Second, the “Schedule B - Personal

Property” section of the petition required Lewis and her husband to list “[o]ther contingent and

unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights

to setoff claims.” J.A. at 92. It is undisputed that Lewis did not list her discrimination claim against

Weyerhaeuser. It is also undisputed that Lewis never amended her bankruptcy schedules to

accurately reflect either her prior income or the existence of her discrimination claim. On February

26, 2002, the bankruptcy court confirmed Lewis’s Chapter 13 bankruptcy plan, which required

Lewis and her husband to repay 32 percent of their outstanding indebtedness.


        On March 29, 2002, approximately one month after the bankruptcy court confirmed Lewis’s

bankruptcy plan, Lewis’s attorney sent a letter to the Equal Employment Opportunity Commission,



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Lewis v. Weyerhaeuser, Co.

(hereinafter “EEOC”), alleging that Weyerhaeuser discriminated against Lewis on the basis of “her

sex, race, and pregnancy status” by awarding new jobs at the Guthrie plant to males with less

seniority than her while she was away on pregnancy leave. J.A. at 81. On July 18, 2002, Lewis

filed a formal charge of discrimination with the EEOC, again alleging discrimination on the basis

of sex, race, and pregnancy status. On September 12, 2002, the EEOC dismissed the complaint and

issued a right-to-sue letter. Lewis filed the present action alleging Title VII violations on October

10, 2002.


       On February 2, 2004, Weyerhaeuser moved for summary judgment on the basis of judicial

estoppel. Weyerhaeuser argued that under prevailing case law in the Sixth Circuit, as well as the

Eleventh Circuit, judicial estoppel precluded Lewis from pursuing her discrimination claim because

she had knowledge of the claim and a motive to conceal it when she filed her bankruptcy petition.

In response, Lewis provided an affidavit alleging that she relied on her bankruptcy counsel’s

paralegal, who advised her not to mention her potential discrimination lawsuit or the wages she

earned at Weyerhaeuser:


               At the time that my bankruptcy petition was prepared, I specifically
               spoke with Kim Vaught who was, at that time, a paralegal with the
               firm of Kemp Ison Harton Tilley & Holland. I specifically asked
               Kim if I should list the Defendant as an employer or whether I should
               list my claim against them for wrongful termination as an asset of my
               bankruptcy estate. I was specifically advised by Kim Vaught not to
               do so and that is the reason the Defendant is not mentioned in my
               bankruptcy petition.


J.A. at 207-8 (Lewis Aff. ¶ 3). Lewis also alleged in her affidavit that she notified the Chapter 13

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Lewis v. Weyerhaeuser, Co.

Trustee’s office of her potential discrimination claim:


               Sometime after the start of my bankruptcy plan, I contacted a lady by
               the name of Phyllis who works . . . for the Chapter 13 bankruptcy
               trustee to whom I make my Chapter 13 plan payments. I have not
               withheld from them the existence of this lawsuit. I specifically
               discussed with Phyllis what I should do with any proceeds of this
               lawsuit in the event that I am successful. Phyllis explained that some
               of the proceeds of the lawsuit would have to be paid into the
               bankruptcy plan. That is exactly what I intend to do.


J.A. at 208 (Lewis Aff. ¶ 4). Lewis averred that she relied in good faith on the advice of her

bankruptcy attorney and his staff, and “never intended to mislead anyone in any way.” J.A. at 208

(Lewis Aff. ¶ 5).


       On April 21, 2004, the district court granted Weyerhaeuser’s motion for summary judgment.

The district court found that Lewis intentionally omitted from her bankruptcy schedules both her

prior employment with Weyerhaeuser and her discrimination claim. The district court rejected

Lewis’s argument that her omission was a good-faith mistake, finding that the “only ‘mistake’ was

in relying on bad legal advice . . . .” J.A. at 23 (D. Ct. Op. at 3). Lewis appeals that judgment,

arguing once again that judicial estoppel should not bar her claim because she relied on the advice

of her bankruptcy counsel and informed the Trustee’s staff of the potential discrimination claim.




                                   III. LEGAL STANDARD




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No. 04-5675
Lewis v. Weyerhaeuser, Co.

       This court reviews de novo a district court’s grant of summary judgment. See Smith v.

Henderson, 376 F.3d 529, 533 (6th Cir. 2004). Summary judgment is appropriate only if the

answers to interrogatories, depositions, admissions, and pleadings combined with the affidavits in

support show that no genuine issue as to any material fact remains and the moving party is entitled

to a judgment as a matter of law. See FED. R. CIV. P. 56(c). A genuine issue of material fact exists

when there is “sufficient evidence favoring the non-moving party for a jury to return a verdict for

that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In

application of this summary judgment standard, the Court must view all materials supplied,

including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “If the evidence is merely

colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S.

at 249-50 (citations omitted).


       The moving party bears the initial responsibility of informing the court of the basis for its

motion and identifying those portions of the record that establish the absence of a genuine issue of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has

met its burden, the nonmoving party must go beyond the pleadings and come forward with specific

facts to demonstrate that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Celotex, 477

U.S. at 324. The non-moving party must do more than show that there is some abstract doubt as to

the material facts. It must present significant probative evidence in support of its opposition to the

motion for summary judgment in order to defeat the motion for summary judgment. See Moore v.



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No. 04-5675
Lewis v. Weyerhaeuser, Co.

Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).


       Additionally, this court reviews de novo a district court’s application of judicial estoppel.

See Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002); Eubanks v. CBSK Financial Group, Inc.,

385 F.3d 894, 897 (6th Cir. 2004). We note, however, that the Supreme Court has recently

described judicial estoppel as “an equitable doctrine invoked by the court at its discretion.” See New

Hampshire v. Maine, 532 U.S. 742, 750 (2001). 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. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374

F.3d 23, 30-31 (1st Cir. 2004); Klein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 108 (3d

Cir. 1999); King v. Herbert J. Thomas Mem. Hosp., 159 F.3d 192, 196 (4th Cir. 1998); In re Coastal

Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999); Broussard v. Univ. of California, 192 F.3d 1252,

1255 (9th Cir. 1999); Barger v. City of Cartersville, GA, 348 F.3d 1289, 1293 (11th Cir. 2003); Data

Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996); but see United States v. Hook, 195 F.3d

299, 305 (7th Cir. 1999) (applying de novo standard of review). In light of New Hampshire and the

extensive contrary authority, we question the continued use of the de novo standard in the context

of judicial estoppel. Nevertheless, because we find that the district court’s ruling was proper under

either standard, we need not resolve this issue here. See Leonard v. Southwestern Bell Corp.

Disability Income Plan, 341 F.3d 696, 700 (8th Cir. 2003) (declining to adopt an abuse of discretion



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No. 04-5675
Lewis v. Weyerhaeuser, Co.

standard for review of judicial estoppel rulings based on New Hampshire because the district court

would be affirmed under the de novo standard).




                                          IV. ANALYSIS


        Section 521(1) of the Bankruptcy Code requires a debtor to file “a schedule of assets and

liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s

financial affairs.” 11 U.S.C. § 521(1). It is well-settled that a cause of action is an asset that must

be scheduled under § 521(1). See Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 897 (6th

Cir. 2004); Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). Moreover, “[t]he duty of disclosure

is a continuing one, and a debtor is required to disclose all potential causes of action.” In re Coastal

Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999) (quoting Youngblood Group v. Lufkin Fed. Savings

& Loan Ass’n, 932 F. Supp. 859, 867 (E.D. Tex. 1996)). “[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.” In re Colvin, 288 B.R. 477, 481 (Bankr.

E.D. Mich. 2003); In re Coastal Plains, Inc., 179 F.3d at 208 (citing Oneida Motor Freight, Inc. v.

United Jersey Bank, 848 F.2d 414 (3d Cir. 1988)) (“Viewed against the backdrop of the bankruptcy

system and the ends it seeks to achieve, the importance of this disclosure duty cannot be

overemphasized.”).


        The doctrine of judicial estoppel “generally prevents a party from prevailing in one phase

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No. 04-5675
Lewis v. Weyerhaeuser, Co.

of a case on an argument and then relying on a contradictory argument to prevail in another phase.”

New Hampshire, 532 U.S. at 749 (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)).

Judicial estoppel “preserve[s] the integrity of the courts by preventing a party from abusing the

judicial process through cynical gamesmanship.” Browning v. Levy, 283 F.3d 761, 776 (6th Cir.

2003) (quotation omitted). This court has previously described judicial estoppel as a rule against

“playing fast and loose with the courts,” “blowing hot and cold as the occasion demands,” or

“hav[ing] [one’s] cake and eat[ing] it too.” Reynolds v. Comm’r, 861 F.2d 469, 472 (6th Cir. 1988)

(citations omitted) (alteration in original).


        The Supreme Court has noted that “the circumstances under which judicial estoppel may

appropriately be invoked are probably not reducible to any general formulation or principle.” New

Hampshire v. Maine, 532 U.S. 742, 750 (2001). Nevertheless, despite the “amorphous nature of

judicial estoppel,” Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 30-31 (1st Cir.

2004), the Supreme Court identified three considerations that are typically relevant in determining

whether judicial estoppel should apply: (1) “a party’s later position must be clearly inconsistent with

its earlier position”; (2) “whether the party has succeeded in persuading a court to accept that party’s

earlier position, so that judicial acceptance of an inconsistent position in a later proceedings would

create the perception that either the first or the second court was misled”; and (3) “whether the party

seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair

detriment on the opposing party if not estopped.” Id. at 750-51 (internal quotes and citations

omitted). These factors, however, are not “inflexible prerequisites or an exhaustive formula for



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No. 04-5675
Lewis v. Weyerhaeuser, Co.

determining the applicability of judicial estoppel.” Id. at 751. In Browning v. Levy, 283 F.3d 761,

775 (6th Cir. 2002), this court, focusing on the first two factors identified in New Hampshire,

described judicial estoppel as barring a party from “(1) asserting a position that is contrary to one

that the party has asserted under oath in a prior proceeding, where (2) the prior court adopted the

contrary position either as a preliminary matter or as part of a final disposition.” Browning, 283 F.3d

at 775 (internal quotation omitted).


       Both of the factors set forth in Browning are present in this appeal. First, Lewis’s pursuit

of her current discrimination action is without question “contrary to” her sworn bankruptcy petition.

Id. Lewis’s bankruptcy petition, which she signed under penalty of perjury, indicates that Lewis had

no contingent and unliquidated claims; yet approximately one month after her Chapter 13 plan was

confirmed she complained of Weyerhaeuser’s conduct to the EEOC. This court has previously

found that pursuing a cause of action that was not disclosed as an asset in a previous bankruptcy

filing creates an inconsistency sufficient to support judicial estoppel. See Eubanks, 385 F.3d at 898;

Browning, 283 F.3d at 775. Second, it is also clear that in confirming Lewis’s Chapter 13 plan, the

bankruptcy court adopted Lewis’s statement that she had no potential causes of action. See

Reynolds, 861 F.2d at 473 (“[W]hen a bankruptcy court - which must protect the interests of all

creditors - approves a payment from the bankruptcy estate on the basis of a party’s assertion of a

given position, that, in our view, is sufficient ‘judicial acceptance’ to estop the party from later

advancing an inconsistent position.”); De Leon v. Comcar Indust., 321 F.3d 1289, 1291 (11th Cir.

2003) (applying judicial estoppel as a result of omissions in a Chapter 13 bankruptcy petition).



                                                  10
No. 04-5675
Lewis v. Weyerhaeuser, Co.

Nevertheless, Lewis maintains that judicial estoppel should not apply because her omissions resulted

from a good-faith mistake; specifically, her reliance on her bankruptcy counsel’s advice.


       It is well-settled that judicial estoppel does not apply where the prior inconsistent position

occurred because of “mistake or inadvertence.” Browning, 283 F.3d at 776; See also New

Hampshire, 532 U.S. at 753 (“We do not question that it may be appropriate to resist application of

judicial estoppel when a party’s prior position was based on inadvertence or mistake.”) (internal

quotation omitted). To determine whether the debtor’s omission might be deemed inadvertent, the

Browning court adopted the approach taken by the Fifth Circuit Court of Appeals in In re Coastal

Plains, Inc., 179 F.3d 197 (5th Cir. 1999). Under that approach, the failure to disclose a cause of

action may be deemed inadvertent where (1) “the debtor lacks the knowledge of the factual basis

of the undisclosed claims,” or (2) “the debtor has no motive for concealment.” Browning, 283 F.3d

at 776 (citing In re Coastal Plains, Inc., 179 F.3d at 210).


       Weyerhaeuser argues that under Browning judicial estoppel must apply if Lewis knew of the

factual basis for her discrimination action and had a motive to conceal it. In other words,

Weyerhaeuser maintains that unless Lewis can demonstrate that her omission was inadvertent under

the factors set forth in Browning and In re Coastal Plains, judicial estoppel must apply. Lewis’s

affidavit clearly establishes that she knew of her potential discrimination claim and, furthermore,

as the district court noted, Lewis had a motive to conceal her claim since “It is always in a Chapter

13 petitioner’s interest to minimize income and assets.” J.A. at 25 (D. Ct. Op. at 4 (citing Burnes

v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir. 2002)). Thus, if Weyerhaeuser’s

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No. 04-5675
Lewis v. Weyerhaeuser, Co.

interpretation of Sixth Circuit precedent is correct, judicial estoppel would prevent Lewis from

pursuing her discrimination claim regardless of her intent or her efforts to place those involved in

her bankruptcy on notice of her potential claim. Although we ultimately conclude that judicial

estoppel bars Lewis from pursuing her claim, we find that Weyerhaeuser’s interpretation of judicial

estoppel is too narrow.


        Two days after the district court granted Weyerhaeuser summary judgment, the Sixth Circuit

decided Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894 (6th Cir. 2004). In Eubanks, the court

reversed the district court’s decision to apply judicial estoppel despite the plaintiffs’ knowledge of

a potential lender liability claim that they had omitted from a previous Chapter 7 bankruptcy

petition. The court noted that it “considers reasons of mistake and inadvertence, as well as an

absence of bad faith, in determining judicial estoppel . . . .” Eubanks, 385 F.3d at 895 (emphasis

added). Although the plaintiffs in Eubanks omitted their cause of action from the bankruptcy

schedules, they (1) notified the bankruptcy trustee of the claim during a meeting and the trustee

requested all of the documents regarding the claim; (2) asked the trustee on several occasions over

several months whether he intended to pursue the claim on behalf of the estate; (3) moved the

bankruptcy court for a status conference on the issue of the lender liability claim; (4) unsuccessfully

moved to allow the trustee to be substituted for plaintiffs in the lender liability action after the action

was filed and after the trustee refused to abandon the claim in the bankruptcy proceeding; and (5)

filed an amendment to their original bankruptcy petition to add the lender liability action to their

bankruptcy schedules after the defendant filed a motion to dismiss on the basis of judicial estoppel.



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Lewis v. Weyerhaeuser, Co.

See id. at 895-97. The court held that although the plaintiffs had knowledge of the potential lender

liability claim during the pendency of the bankruptcy proceeding, the above actions by the plaintiffs

demonstrated that their omission was in good faith and in all likelihood inadvertent given the

plaintiffs’ “constant affirmative” efforts to inform the trustee and the bankruptcy court of the claim

“through correspondence, motions, and status conference requests . . . .” Id. at 899 & n.3. Thus,

under Eubanks, even if the debtor has knowledge of a potential cause of action and a motive to

conceal it, if the plaintiff does not actually conceal it and instead takes affirmative steps to fully

inform the trustee and the bankruptcy court of the action, it is highly unlikely that the omission in

the bankruptcy petition was intentional. In such a case, the equitable principles governing judicial

estoppel do not support its application. Accordingly, Weyerhaeuser’s argument that judicial

estoppel must apply where a debtor cannot establish “mistake or inadvertence” under Browning is

unpersuasive.


       Nevertheless, Lewis’s actions in the present case pale in comparison to the actions taken by

the plaintiffs in Eubanks. As the district court noted, none of Lewis’s evidence “suggests that either

her receipt of income from Weyerhaeuser or her claim against Weyerhaeuser were revealed to the

bankruptcy court or to the trustee before approval of the bankruptcy plan.” J.A. at 23 (D. Ct. Op.

at 3). Lewis never sought to amend her bankruptcy schedules, nor did she file a motion or make any

other sort of attempt to inform the bankruptcy court of her discrimination action. Lewis’s failure

to notify the bankruptcy court of her potential discrimination claim is notable because judicial

estoppel is intended to protect the integrity of the courts. See In re Coastal Plains, 179 F.3d at 210



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Lewis v. Weyerhaeuser, Co.

(“Again, the purpose of judicial estoppel is not to protect the litigants; it is to protect the integrity

of the judicial system.”). In addition, her only relevant contact with the trustee was a conversation

with a woman named “Phyllis” whom Lewis alleges worked for the Trustee. Lewis’s description

of that conversation, however, does not indicate that the conversation took place before

Weyerhaeuser raised the issue of judicial estoppel; she alleges only that it occurred “sometime after

the start of [her] bankruptcy plan . . . .” Furthermore, Lewis’s affidavit does not establish that

Phyllis was aware that the cause of action had been omitted from the bankruptcy petition.

Therefore, we find that the minimal alleged effort Lewis put forth to inform the Trustee’s staff of

her potential discrimination claim does not establish that her omissions were inadvertent under

Eubanks.


        We also find unpersuasive Lewis’s assertion that she relied in good faith on the advice of her

attorney’s paralegal. In a similar case, the Eleventh Circuit noted that although the “[debtor’s]

attorney failed to list [the debtor’s] discrimination suit on the schedule of assets despite the fact that

[the debtor] specifically told him about the suit, the attorney’s omission is no panacea.” Barger v.

City of Cartersville, Georgia, 348 F.3d 1289, 1295 (11th Cir. 2003). The Barger court relied upon

Link v. Wabash R.R. Co., 370 U.S. 626 (1962) for the general proposition that a litigant is bound by

the errors of his or her attorney. See Link, 370 U.S. at 633-34 (“Petitioner voluntarily chose this

attorney as his representative in the action, and he cannot now avoid the consequences of the acts

or omissions of this freely selected agent.”). We find the Barger court’s extension of Link to the

doctrine of judicial estoppel appropriate in this particular case.



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Lewis v. Weyerhaeuser, Co.

       The issue here is whether Lewis pursued a “position” before the bankruptcy court that is

inconsistent with the pursuit of her current discrimination claim against Weyerhaeuser. Lewis

alleges that before filing her bankruptcy petition, she informed a paralegal with her law firm that she

had a potential discrimination claim against Weyerhaeuser. For whatever reason, the paralegal or

Lewis’s attorney made a conscious decision not to present that information to the bankruptcy court

in contravention of the clear terms of the bankruptcy petition. Thus, Lewis’s “freely selected agent”

took the position that Lewis had no cause of action against Weyerhaeuser. Link, 370 U.S. at 633-34.

Lewis presents no compelling reason to justify departing from the general rule set forth in Link that

litigants are bound by the actions of their attorneys.2


       We note, however, that another panel of this court recently affirmed a district court’s

decision not to apply judicial estoppel at least in part because the party asserting the inconsistent

position relied on the advice of counsel in the prior court proceeding. See Pennycuff v. Fentress

County Bd. of Educ., 404 F.3d 447, 453 (6th Cir. 2005). In Pennycuff, the court held that a

defendant school board’s admission in a prior court proceeding that the plaintiff employee had


       2
          In Link, the Supreme Court addressed a lawyer’s failure to prosecute, which clients may
have little knowledge of or control over. This court has noted its reluctance to follow Link where
the failure to prosecute is the fault of the attorney. Coleman v. Am. Red Cross, 23 F.3d 1091,
1094-95 (6th Cir. 1994) (“Despite the Supreme Court's unequivocal language, this court, like
many others, has been extremely reluctant to uphold the dismissal of a case merely to discipline
an attorney . . . . [D]ismissal is usually inappropriate where the neglect is solely the fault of the
attorney.”). We have no difficulty applying Link to the present case, however, because Lewis’s
affidavit establishes that she was aware of the terms of the bankruptcy petition requiring her to
disclose under the penalty of perjury her prior employment and any potential claims. Thus, the
actions of Lewis’s attorney and/or paralegal were taken with Lewis’s knowledge and consent.


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Lewis v. Weyerhaeuser, Co.

attained tenure did not prevent the school board from asserting that the employee did not have tenure

in a later proceeding because, among other things, “the defendants relied on the advice of counsel

. . . .” Pennycuff, 404 F.3d at 453. In Pennycuff, however, the school board’s admission occurred

in a proceeding in which the employee’s tenure was not at issue. Pennycuff, 404 F.3d at 453. The

court determined that “[b]ecause the Board’s prior admission that Pennycuff was a tenured teacher

was made on the advice of counsel in a proceeding in which Pennycuff’s tenure was not at issue,”

the Board had not engaged in “intentional self-contradiction . . . as a means of obtaining unfair

advantage.” Id. (quoting New Hampshire, 532 U.S. at 751).


       In contrast, the extent of Lewis’s assets and her earnings were highly relevant in her Chapter

13 bankruptcy proceeding. See In re Coastal Plains, Inc., 179 F.3d at 208 (noting that the “integrity

of the bankruptcy system depends on a full and honest disclosure by debtors of all their assets.”)

(emphasis removed). Furthermore, the facts in this case, unlike those in Pennycuff, support a finding

that Lewis acted intentionally and in bad faith. First, Lewis began the process of filing her

discrimination claim with the EEOC only one month after the bankruptcy plan was approved, which

tends to show that she waited until the plan was approved before pursuing her discrimination action.

Second, she also omitted altogether her prior employment with Weyerhaeuser. While a non-attorney

may not know the exact nature of “[o]ther contingent and unliquidated claims of every nature” (J.A.

at 92), it is hard to believe that Lewis did not understand the language in the bankruptcy petition

requiring her to disclose “the gross amount of income the debtor has received from employment .

. . from the beginning of this calendar year to the date this case was commenced.” J.A. 86. Indeed,



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Lewis v. Weyerhaeuser, Co.

during oral argument Lewis’s counsel conceded that Lewis listed her wages from another prior

employer called Manpower, Inc. Accordingly, although judicial estoppel may not always apply to

positions taken on the advice of an attorney, Lewis’s failure to list Weyerhaeuser as an employer

on her bankruptcy schedules despite the clear requirement that she do so under penalty of perjury,

the heightened importance of full asset disclosure to the bankruptcy court, and the questionable

timing of events in this case support the district court’s decision to apply judicial estoppel.




                                        V. CONCLUSION


       For these reasons, we AFFIRM the judgment of the district court.




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