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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ELPHEGE VIETTE

 Plaintiff,

 v.

HOSPITALITY STAFFING INC., 

 Defendants.

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No. 12 C 2327

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Elphege Viette filed a four-count complaint against Defendant Hospitality 

Staffing, Inc. (“Hospitality”) alleging that Hospitality violated Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e et seq., and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. 

§ 1981 by discriminating against him due to his race and by retaliating against him for engaging 

in activity protected by these statutes. Hospitality has moved for summary judgment on all of 

Viette’s claims. For the reasons set forth below, Hospitality’s motion is granted.

STATEMENT OF UNDISPUTED FACTS1

Hospitality hired Viette in August 2004 as a shuttle bus driver but terminated him on 

December 1, 2010. (Def. 56. 1 ¶¶ 4-5.) On December 6th and then again on December 8, 2010, 

Viette filed charges of discrimination with the Illinois Department of Human Rights (“IDHR”), 

which were then cross-filed with the Equal Employment Opportunity Commission. (Id. at ¶¶ 6-

 1 Throughout this Opinion, the Court refers to the Parties’ Local Rule 56.1 Statements of 

Undisputed Material Facts as follows: citations to the Defendants’ Statement of Uncontested 

Facts have been abbreviated to “Def. 56.1 ¶ or Ex. , p. .”; and citations to Viette’s Response to 

the Defendants’ L.R. 56.1 Statement of Material Facts have been abbreviated to “Pl. 56.1 Resp. ¶ 

.” 
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7.) Viette alleged that Hospitality discriminated against him as a result of his race, age and 

national origin. (Id.) He received a right-to-sue letter from the EEOC on May 30, 2012. (Id. at 

¶ 8.)

On May 20, 2011, Viette filed a voluntary petition for Chapter 7 bankruptcy in the United 

States Bankruptcy Court for the Northern District of Illinois. (Id. at ¶ 10; see also In re Elphege 

Viette, No. 11-21394 (Bankr. N.D. Ill. 2011)). Viette was represented by an attorney during this 

bankruptcy proceeding. (Id.) As part of his petition, Viette included schedules listing contingent 

and unliquidated claims he possessed at the time of filing. (Id. at ¶ 11.) He also submitted a 

statement listing the lawsuits and administrative proceedings to which he was a party during the 

prior year. (Id. at ¶ 12.) However, Viette never disclosed his charges of discrimination and the 

existence of the claims he now asserts against Hospitality to either the Bankruptcy court, the 

United States Trustee or to his creditors. (Id. at ¶¶ 13, 16.) On September 9, 2011, the 

Bankruptcy court entered an order discharging Viette’s unsecured debts. (Id. at ¶ 14.) The court 

closed the bankruptcy case on September 12, 2011. (Id. at ¶ 15.)

STANDARD OF REVIEW

Summary judgment is proper when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P 56(c). When determining if a genuine issue of fact exists, the Court must 

view the evidence and draw all reasonable inferences in favor of the party opposing the motion. 

Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will “limit its analysis of the facts on 

summary judgment to evidence that is properly identified and supported in the parties' [Local 
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Rule 56.1] statement.” Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th 

Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately 

rebutted, the court will accept that statement as true for purposes of summary judgment. An 

adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is 

not adequate. See Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) 

(“Rule 56 demands something more specific than the bald assertion of the general truth of a 

particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the 

existence of the truth of the matter asserted.”)(citing Hadley v. County of Du Page, 715 F.2d 

1238, 1243 (7th Cir. 1983)). Rebuttals based purely on “self-serving affidavits without factual 

support in the record will not defeat a motion for summary judgment.” Albiero v. City of 

Kankakee, 246 F.3d 927, 933 (7th Cir. 2001) (citing Slowiak v. Land O'Lakes, Inc., 987 F.2d 

1293, 1295 (7th Cir.1993)).

DISCUSSION

I. Viette Lacks Standing Because His Claims Are Property of the Bankruptcy Estate

Hospitality argues that the Court should enter summary judgment in its favor because 

Viette lacks standing to bring this lawsuit as the claims are the property of his Chapter 7 

bankruptcy estate. A plaintiff must have standing in order for the Court to entertain their suit. 

See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (citing Warth 

v. Seldin, 422 U.S. 490, 498 (1975)). When a debtor files a bankruptcy petition, generally all of

his or her property becomes property of the estate. See Matter of Yonikus, 996 F.2d 866, 869 

(7th Cir. 1993). The Bankruptcy Code defines property to include all of the debtor’s legal and 

equitable interests. See 11 U.S.C. § 541; see also Yonikus, 996 F.2d at 869. This includes causes 

of action. See In re Polis, 217 F.3d 899, 901 (7th Cir. 2000). Therefore, once a party files a 
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Chapter 7 petition, only the trustee for the bankruptcy estate has the capacity to sue or be sued. 

See Cable v. Ivy Tech State College, 200 F.3d 467, 472 (7th Cir. 1999) (citing In re New Era, 

Inc., 135 F.3d 1206, 1209 (7th Cir. 1998)). 

The only way that a debtor can then assert a claim in their own name that arose prior to 

the filing of the petition is if the trustee abandons the debtor’s claims. If this happens, title to the 

claim reverts to the debtor as if the debtor “had owned them continuously and the bankruptcy 

never happened.” Matthews v. Potter, 316 Fed. Appx. 518, 521-22 (7th Cir. 2009) (citing Collier 

on Bankruptcy, ¶ 554.02 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.)); see also 11 

U.S.C. § 554. However, abandonment cannot occur if the debtor fails to disclose the claim to the 

trustee.

In this case, there is no dispute that Viette filed a Chapter 7 petition in the United States 

Bankruptcy Court for the Northern District of Illinois on May 20, 2011. There is no dispute that 

his claims accrued prior to the time he filed his petition. Finally, there is no dispute that Viette 

failed to disclose the existence of the claims he asserts here to the Bankruptcy court and the 

trustee. Accordingly, Viette has no standing to assert this lawsuit. 

II. The Doctrine of Judicial Estoppel Precludes Viette’s Claims

Viette concedes that he currently lacks standing to prosecute this lawsuit; however, he 

contends that the Court should stay the case so that he may petition the Bankruptcy court to 

reopen his case, amend his schedules and then pursue this case in the event the trustee abandons 

the claims. However, even if this scenario were ever to come to pass, Viette’s claims are still 

precluded by the doctrine of judicial estoppel. This equitable doctrine “prevents a party from 

adopting a position in a legal proceeding contrary to a position successfully argued in an earlier 

legal proceeding.” Johnson v. ExxonMobil Corp., 426 F.3d 887, 891 (7th Cir. 2005). The 
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Seventh Circuit has repeatedly stated that the doctrine precludes a “debtor in bankruptcy who 

denies owning an asset, including a chose in action or other legal claim, [from] realiz[ing] on that 

concealed asset after the bankruptcy ends.” Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 

2006); see also Biesek v. Soo Line R.R. Co., 440 F.3d 410, 412 (7th Cir. 2006) (“Plenty of 

authority supports the...conclusion that a debtor in bankruptcy who receives a discharge (and 

thus a personal financial benefit) by representing that he has no valuable choses in action cannot 

turn around after the bankruptcy ends and recover on a supposedly nonexistent claim.”).

Since Viette failed to disclose these claims in his bankruptcy petition, he is judicially 

estopped from pursuing them here even in the unlikely scenario that he regains standing. Viette, 

however, contends that judicial estoppel should not apply to his claims in this case because his 

failure to disclose was inadvertent due to his “imperfect grasp of written and spoken English.” 

(Doc. 42 at 9.) Viette also argues that the Seventh Circuit in Cannon-Stokes suggests that if a 

party moved to amend their disclosures to include their unliquidated claim, the doctrine of 

judicial estoppel should not apply. (Id. at 8-9.) Neither of these arguments have merit.

First, courts have generally found that an omission of a claim from a bankruptcy filing is 

only inadvertent when “‘the debtor either lacks knowledge of the undisclosed claims or has no

motive for their concealment.’” Esparza v. Costco Wholesale Corp., No. 10 C 5406, 2011 WL 

6820022, at *5 (N.D. Ill. Dec. 28, 2011) (quoting Eastman v. Union Pac. R. Co., 493 F.3d 1151, 

1157-58 (10th Cir. 2007)). Viette had motive to conceal because he sought to receive the benefit 

of the discharge. He also had knowledge of his claims since he had already filed charges with 

the IDHR and the EEOC prior to filing his bankruptcy petition. Therefore, the facts show the 

omission was intentional. Moreover, it is undisputed that Viette was represented by counsel 

when he filed his Chapter 7 petition. Presumably, his counsel explained to him what he was 
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required to do with respect to his filings. If Viette did not understand his obligations, he could 

have asked his counsel who could have explained it. Therefore, Viette’s imperfect grasp of the 

English language is no excuse for his failure to accurately disclose his assets in his Chapter 7 

filings. Moreover, Viette cannot shift the blame for this failure to his attorney to escape judicial 

estoppel. Even if he were to allege that he received bad legal advice (which he does not), that 

would not relieve him of his own acts. See Cannon-Stokes, 453 F.3d at 449 (“[B]ad legal advice 

does not relieve the client of the consequences of her own acts.”).

Second, Viette cites to Cannon-Stokes to suggest that the Seventh Circuit would approve 

of Viette’s course of action here: namely, the attempt to stay this case, reopen the bankruptcy, 

amend the schedules and determine whether the trustee will abandon the claims. Yet, CannonStokes states the opposite: that “a debtor in bankruptcy is bound by her own representations, no 

matter why they were made, at least until the debtor moves to amend the disclosures and pay the 

creditors their due” and a debtor could only be released from an earlier representation regarding

the status of his assets if he moved to amend the bankruptcy schedules as soon as he realized an

asset had been omitted. Id. at 448-49. Here, Viette waited until after Hospitality filed its motion 

for summary judgment in this case to attempt to reopen his bankruptcy proceeding, which is not 

the scenario envisioned by the court and defined as “as soon as [he] realized.” 

Allowing amendment now would not be appropriate because such a ruling would only 

encourage debtors to conceal assets since they would have an escape hatch if they are caught. 

See Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General Motors Corp., 337 F.3d 314, 321 

(3d. Cir. 2003) (“The bankruptcy rules were clearly not intended to encourage this kind of 

inadequate and misleading disclosure by creating an escape hatch debtors can duck into to avoid 

sanctions for omitting claims once their lack of candor is discovered.”); Burnes v. Pemco 
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Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir. 2002) (“Allowing [Plaintiff] to back-up, reopen 

the bankruptcy case, and amend his bankruptcy filings, only after his omission has been 

challenged by an adversary, suggests that a debtor should consider disclosing potential assets 

only if he is caught concealing them. This so-called remedy would only diminish the necessary 

incentive to provide the bankruptcy court with a truthful disclosure of the debtors’ assets.”). 

Other district courts within this circuit have agreed with this reasoning. See, e.g., Esparza, 2011 

WL 6820022, at *4 (“allowing [plaintiff] to avoid the consequences of her deception by 

amending her filings only after being caught would diminish the incentive to provide truthful 

disclosures to the bankruptcy court”); Smith v. Am. Gen. Life Inc. Co., 544 F. Supp. 2d 732, 734 

(C.D. Ill. 2008); Bland v. Rahar, No. 09 C 3072, 2008 WL 109388, at *3 (C.D. Ill. Jan. 9, 2008). 

Accordingly, the Court finds that Viette should not be able to evade the doctrine of judicial 

estoppel by seeking to amend his bankruptcy schedules now. Therefore, summary judgment in 

favor of Hospitality is warranted here.2

CONCLUSION

For the reasons set forth above, the Court grants Hospitality’s motion for summary 

judgment.

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: June 5, 2013

 2 The Ninth Circuit has found that reopening a bankruptcy proceeding is a “permissible 

alternative to judicial estoppel.” Dunmore v. U.S., 358 F.3d 1107, 1113 (9th Cir. 2004). 

However, this Court disagrees with the Ninth Circuit’s decision because allowing a debtor to 

reopen a bankruptcy after they are caught omitting assets would encourage dishonest behavior by 

debtors.