                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                        October 31, 2003
                               FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk
                                         No. 03-60392
                                       Summary Calendar



SANDRA L. KAMONT,

                                                            Plaintiff - Appellant,

versus


TOGO WEST, JR., Head of the Department of Veterans Affairs,
DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES OF AMERICA,

                                                            Defendants - Appellees.

                                       --------------------
                          Appeal from the United States District Court
                            for the Southern District of Mississippi
                                 USDC No. 1:99-CV-570BrR
                                       --------------------


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*



               Plantiff-Appellant Sandra Kamont (Kamont), proceeding pro se, alleges that she

was discriminated against by her former employer, Defendant-Appellee Department of Veterans

Affairs (VA); Defendant-Appellee Togo West, Jr. (West), the Former Secretary of Veterans

         *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Affairs; and Defendant-Appellee the United States of America (collectively Defendants). Kamont

filed six complaints with the Equal Employment Opportunity Commission (EEOC) alleging that

she was discriminated against based on disability, reprisal for filing previous complaints with the

EEOC, failure to accommodate her disability, and harassment with the purpose of forcing her to

resign. While the first three of her EEOC charges were pending, Kamont filed for bankruptcy.

She did not list her discrimination claims on the schedule of assets in her bankruptcy petition, as

she was required to do. The district court granted West’s motion to dismiss or for summary

judgment based on judicial estoppel, holding that Kamont was estopped from pursuing her

discrimination claims since she swore in her bankruptcy petition that she had no claims.

       Kamont argues that Defendants should not be allowed to raise the equitable defense of

judicial estoppel at this late date as they, and the district court, knew about the bankruptcy at the

inception of this case – two and half years prior to the motion. She also argues that she was not

aware of the requirement to list her discrimination claims in the bankruptcy petition and that since

judicial estoppel is an equitable remedy, it should take into account her ignorance of the law.

Finally, she argues that the equitable remedy would be to allow her case to proceed.

       Kamont began work for the VA in 1984 as a File Clerk, GS-3, step 3. She was promoted

three times, becoming a Patient Service Assistant, GS-5, step 5 in 1991. She was injured on the

job in September 1997 and April 1998 and was granted leave without pay on both occasions.

Due to her injury, Kamont required accomodation. In order to place her in a position consistent

with her physician’s restrictions, the VA downgraded Kamont in 2000 to a GS-2 position, but her

pay was retained at GS-5 step 8. She accepted the position under protest. On October 26, 2001,

Kamont resigned.


                                                  2
       Kamont filed a series of administrative employment complaints with the EEOC against

Defendants in connection with her injury and downgrade. The dates on which she filed the

complaints and the dates that the EEOC issued a Final Agency Decision (FAD) on them are as

follows:

       First complaint:       filed October 1, 1997          FAD issued July 30, 1999

       Second complaint:      filed April 1, 1998            FAD issued September 24, 1999

       Third complaint:       filed August 15, 1998          FAD issued April 5, 2001

       Fourth complaint:      filed September 20, 1999       FAD issued May 30, 2001

       Fifth complaint:       filed February 17, 2001        FAD issued March 18, 2002

       Sixth complaint:       filed October 16, 2001         the record does not show when or if
                                                             the EEOC issued a FAD on this
                                                             complaint

       Kamont and her husband, Joseph Kamont, who was identified as her representative in each

of the EEOC complaints, filed a joint voluntary petition for bankruptcy under Chapter 7 on June

29, 1999. In a statement of financial affairs filed with the bankruptcy petition, Kamont declared

under penalty of perjury that she had no suits or administrative proceedings pending. Kamont

never amended her petition to include any of her administrative complaints of employment

discrimination. Kamont says she was suffering from work-related stress and depression at the

time she filed her bankruptcy and only signed the complaints and schedules prepared by her

attorney and her husband. The Kamonts’s debts of $39,108.73 were discharged in bankruptcy on

December 6, 1999.

       Kamont filed suit pro se in federal district court on her discrimination claims on December

17, 1999. Kamont later obtained legal counsel, and he entered a second amended complaint on


                                                 3
August 29, 2001. On December 6, 2002, the district court entered a Minute Entry Order

allowing West to submit a motion to dismiss or for summary judgment based on judicial estoppel.

The district court then granted West’s motion on March 13, 2003.

       Judicial estoppel is an equitable doctrine within the district court’s discretion, so it is

reviewed for abuse of discretion. In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999).

We apply federal law where judicial estoppel is applied based on a debtor’s failure to disclose

assets in violation of the federal Bankruptcy Code. Id.

       A debtor is required to disclose all potential claims in a bankruptcy petition. See 11

U.S.C. § 521(1). A debtor must amend her schedules if circumstances change. Coastal Plains,

179 F.3d at 208. When a debtor fails to disclose a pending or potential claim in her bankruptcy

petition, she is judicially estopped from bringing that claim later. Id. at 210.

       Kamont argues that as an equitable remedy, judicial estoppel needed to be raised sooner,

and the Court cannot, in equity, address it now. There is, however, no requirement that equitable

defenses be raised early in the proceedings. Furthermore, a motion for summary judgment may be

made by a defendant “at any time.”1 Fed. R. Civ. P. 56(b). It was not an abuse of discretion for

the district court to allow West to file his motion in 1992.

       Kamont also argues that the district court should have considered her ignorance of the

law, because a court in equity should consider all the circumstances, not just the strict rules of the

law. She says she had a legal aid lawyer who spent less than hour with her, that she was in court

before the bankruptcy judge for less than ten minutes, and that she simply did not understand

what was happening. We noted in Coastal Plains that many courts require that “the party to be


       1
        The district court treated the motion as a motion for summary judgment.
                                                   4
estopped must have acted intentionally, not inadvertently,” in order for judicial estoppel to apply.

Coastal Plains, 179 F.3d at 206 (emphasis in original). We found, however, that based on the

importance of full disclosure in bankruptcy, “in considering judicial estoppel for bankruptcy cases,

the debtor’s failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general,

the debtor either lacks knowledge of the undisclosed claims or has no motive for their

concealment.” Id. at 210 (emphasis in original). A lack of awareness of the statutory disclosure

duty is simply not relevant to the question of judicial estoppel. Id. at 212. Kamont therefore

must show that she was unaware of the facts giving rise to her claim, not of her duty to report her

claim. This she cannot do.

        Finally, Kamont argues that the Court should provide equitable justice. She says she is

requesting equitable relief, but her only claim is for monetary damages. Equitable relief refers to

the type of remedy sought, not to the merits of the case. See BLACK’S LAW DICTIONARY 1297

(7th ed. 1999). Kamont does not now work for the VA, so she has no claim for injunctive relief

against it.

        The doctrine of judicial estoppel thus applies to bar those of Kamont’s claims that she

failed to disclose in her bankruptcy proceeding. Kamont’s first three complaints filed with the

EEOC were pending when she filed for bankruptcy, and they are estopped based on her disavowal

in the bankruptcy petition of having any claims. Kamont filed her fourth claim while the

bankruptcy was pending, triggering a duty to amend her bankruptcy petition. See Coastal Plains,

179 F.3d at 208. As she did not amend her petition, that claim is also estopped. Kamont filed her

last two EEOC complaints after her discharge in bankruptcy and after filing suit in this case. She




                                                   5
never amended her complaint with the district court to include those EEOC complaints,2 however,

so they are not part of this case.

        For the foregoing reasons, we find that the district court properly granted the motion to

dismiss or for summary judgment.



                AFFIRM.




        2
       Kamont amended her complaint in 2001, specifically including the four previous EEOC
complaints, but these two complaints were not yet ripe at the time of the amended complaint, as
the EEOC had not yet issued a Final Agency Determination on either one.
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