UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-10255

_____________________

WENDY J. AHRENS,

Plaintiff-Appellant,

versus

PEROT SYSTEMS CORP.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________ March 3, 2000

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Summary judgment having been awarded Perot Sy stems Corp.,

primarily at issue is whether judicial estoppel precludes Wendy J.

Ahrens’ claim of discriminatory discharge by Perot Systems, in the

light of her claim, in an earlier action, of discharge because of

tortious interference with that employment. We AFFIRM

.

I.

Perot Systems hired Ahrens in 1992. She took a medical leave

of absence in November 1994, and was released to return to work the

following February.

That November, her supervisor, Howard, told her that, because

of the 1996 budget, it was possible that Ahrens’ role would change,

and suggest ed that she look for other positions. On 1 December,

Howard discharged Ahrens.2

That same day, Ahrens filed an action in state court against

Image Sciences, Inc. (a former employer), Andereck (its president),

Morton (apparently its employee), International Business Machines

Corporation (Image Sciences’ co-defendant in an act ion in which

Ahrens was deposed), Cravath, Swain & Moore (law firm which

represented IBM), and Chesler (Crav a th attorney who allegedly

contacted Perot Systems in January 1995 and requested Ahrens’

termination). She claimed, i nter alia

, that IBM, Chesler, and

Cravath had tortiously in terfered with her employment with Perot

Systems.

In April 1996, Ahrens filed a discrimination charge with the

Equal Employment Opportunity Commission, in which she swore that

Perot Systems discriminated against her on the basis of her gender

by discharging her in December 1995. In early May, she received a

notice of right to sue letter for that charge. That July, she

filed this action in federal court against Perot Systems, claiming

gender discrimination discharge, in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.

Shortly before filing this action, Ahrens filed a second EEOC

charge, in wh ich she swore that Perot Systems discharged her

because it regarded her as disabled. That August, she received a

notice of right to sue letter for that charge. That November, she

amended her complaint to add that her discharge was also motivated

by disability discrimination, in violation of the Ame ricans with

Disabilities Act, 42 U.S.C. § 12101, et seq . (ADA).3

Perot Systems moved for summary judgment, asserting, inter

alia

, that Ahrens was jud icially estopped from pursuing her

discrimination claims because of sworn statements made during the

earlier-filed tortious interference action; and, alternatively,

that she could not prove that her discharge was motivated by either

gender or disability discrimination.

Summary judgment was granted Perot Systems in February 1999,

on the judicial estoppel basis, the court concluding that Ahrens’

claim i n this discrimination action was inconsistent with that

asserted previously in the interf erence action, and that the

district court in the latter had relied on her inconsistent

position there in granting her motion to remand that action to

state court. Alternatively, such judgment was awarded Perot

Systems because Ahrens had not created a material fact issue for

her discrimination claims.

II.

Ahrens challenges b oth bases for the summary judgment.

Because we agree with the district court on judicial estoppel, we

do not reach its alternate ruling.

A summary judgment is reviewed de novo

, applying the same

standard applied by the district court. E .g.

, Horton v. City of

Houston, Tex.

, 179 F.3d 188, 191 (5th Cir.), cert. denied

,

___ U.S.

___, 120 S. Ct. 530 (1999). Such judgment is proper if the summary

judgment record, viewed in the light most favorable to the nonmovant, establishes that “there is no genuine issue as to any

material fact and

... the moving party is entitled to a judgment as4

a matter of law”. F E D

. R. C IV

. P. 56(c ); H orton

, 179 F.3d at 191.

The district court ’s invocation of judicial estoppel is

reviewed for abuse of discretion. I n re Coastal Plains, Inc.

, 179

F.3d 197, 205 (5th Cir. 1999), cert. denied , ___ U.S. ___, 120 S.

Ct. 936 (2000). “Judicial estoppel applies to protect the

integrity of the courts—preventing a litigant from contradicting

its previous, inc onsistent position when a court has adopted and

relied on it.” A fram Carriers, Inc. v. Moeykens

, 145 F.3d 298, 303

(5th Ci r. 1998), c ert. denied

, 525 U.S. 1141 (1999). It “is a

common law doctrine by which a party who has assumed one position

in his pleadings may be estopped from assuming an inconsistent

position”. C

oastal Plains

, 179 F.3d at 205 (internal quotation

marks and citation omitted). “Most courts have identified at least

two limitations on the application of the doctrine: (1) it may be

applied only where the position of the party to b e estopped is

clearly inconsistent with its previous one; and (2) that party must

have convinced the court to accept that previous position.” I d

. at

206.

A.

Ahrens maintains that neither of the two bases for judi cial

estoppel is satisfied.

1.

Ahrens contends that her position in this action

— discharged

because of discrimination — is not inconsistent with her position

in her first action

— discharged because Chesler, Cravath, and IBM5

(the IBM defendants) tortiously interfered with her employment with

Perot Systems.

The complaint in the interference action, filed 1 December

1995, the day of termination , claimed:

[T]he contact of Perot Systems

... by [the IBM

defendants] constituted interference with the

emplo yment relationship. [The IBM

defendants’] interference altered Perot

Systems’ good relationship with

... Ahrens.

S he became suspect and has not been provide d

the same status and pay she would have

attained absent the interference. Because of

the interference,

... Ahrens’ employment has

become more burdensome and difficult.

On 2 January 1996, claiming fraudulent join der, the IBM

defendants removed the action to federal court. Ahrens submitted

a sworn declaration late that month, in support of her response to

the IBM defendants’ motion to dismiss. The declaration, which

employed language almost identical to that in her complaint, quoted

above, stated:

The contac t of Perot Systems, by [the IBM

defendants] constituted i nterference with my

e mployment relationship. [The IBM

defendants’] interference altered Perot

Systems’ good relationship with me. I became

suspe ct and was not provided the same status

and pay I would have at tained absent the

interference. Because of the interference, my

employment with Perot Systems became more

burdensome and difficult, and I was ultimately

terminated.

Early that February, Ahrens moved to remand her interference

action to state court. In support, she submitted a sworn

declaration, in which she adopted and incorporated by reference her

statements in the above-quoted January declaration, and stated that

“[t]he IBM defendants disparaged [me] to Perot Syst ems and6

requested that Perot Systems terminate [me]”. The district court

granted the remand motion.

In state court in late August 1996, following remand, Ahrens

filed a sworn application for an inju nction, seeking to prohibit

defendants from interfering with her employment, and a supporting

affidavit, in which she stated that “Perot Systems terminated [her]

employment as a direct result of the interference by the IBM

Defendants ....” (Emphasis added.) This “direct result” claim was

made less than two months after her gender discrimination claim was

filed in federal court.

In her deposition in the interference action in late October

1996, approximately three months after she filed her original

complaint in this action, claiming gender discrimination, and just

weeks before she amended it to add a claim for perceived disability

discrimination, Ahrens testified as follows:

Q. Well, why were you terminated from Perot

Systems?

A. I was terminated because

... Chesler

tort[i]ously interfered with my

employment contract.

(Emphasis added.)

On 19 November 1996, four days after she filed her amended

complaint in this action, claiming gender and perceived disability

discrimination, Ahrens filed a “Response to Special Appearance” in

the state court interference action, in which she stated:

The contact of Perot Systems, by [the IBM

defendants] constituted interfere nce with my

employment relationship. [The IBM defendants’] interference altered Perot Systems’

good relationship with me. [I] became suspect7 and was n ot provided the same status and pay

[I] would have attained absent the

interference. Because of the interference, my

employment with Perot Systems became more

burdensome and difficult, and I was ultimately

terminated. [The IBM defendants] knew about

[my] employment relationship and intended to

induce a breach or termination of the

relationship proximately causing damages to

[me].

In contrast, in her deposition on 18 July 1998 in this action,

Ahrens testified that she was discharged because of her gender and

perceived disability:

Q

.... Why were you terminated from

Perot Systems?

A I was terminated from Perot Systems

because of my sex: Female; that women weren’t

given the opportunity to be successful at

Perot Systems that men would be; and that –

b e cause of the fact that I was considered

damaged goods or handicapped and unable to

provide value to the company.

In opposing Perot Systems’ summary jud gment motion on her

discrimination claims, and in order to provid e evidence of

discriminatory animus, Ahrens relied on statements by Perot

Systems’ employees dating as early as 1993, approximately two years

before she was discharged in December 1995 and filed the tortious

interference action . But, as noted, in that interference action,

she maintained that her employment relationship with Perot Systems

had been good until January 1995

, when the IBM defenda nts

tortiously interfered with it through Chesl er contacting Perot

Systems.

Ahrens ma intains that there is n o inconsistency in her

positions in the two actions because she has never claimed, or been8

required to prove, that her discharge was caused solely either by

tortious interference or by discrimination. She asserts that her

statements in the first act ion (discharged because of tortious

interference) were not admissions that there were no other causes

for discharge; and that, even if tortious interference was part of

the reason fo r discharge, it would n ot foreclose finding

discrimination was also part of the motivation for it.

Ahrens’ claim that she was not required to prove that either

tortious interference or discrimination was the sole cause of

discharge is supported by authority. S ee ACS Investors, Inc. v.

McLaughlin

, 943 S.W.2d 426, 430 (Tex. 19 97) (party alleging

tortious interference must prove, i nter alia

, that tortious

interference “proximately caused” damage); Woodhouse v. Magnolia

Hosp. , 92 F.3d 248, 253 (5th Cir. 1996) (discrimination “need not

be the sole reason for the adverse employment decision, [but] must

actually play a role in the employer’s decision making process and

have a determinative influence on the outcome”); McNely v . Ocala

Star-Banner Corp.

, 99 F.3d 1068, 1077 (11th Cir. 1996) (in ADA

context, “because of” does not mean “so lely because of”), c ert.

denied , 520 U.S. 1228 (1997).

Nevertheless, her attempt to reconcile her inconsistent

positions on the basis that she was never asked for the sole reason

for discharge is unavailing. She is n ot excused from giving

incomplete, inconsistent responses to broad, open-ended, identical

questions simply because they did not ask for the sole reason for

her discharge.9

In each action, she was asked: why were you terminated. For

each action, she gave a glaringly inconsistent, all-encompassing,

non-qualified response. For the first action, discharge was due to

tortious interference; for the second, discrimination.

Accordingly, the first requirement for judicial estoppel — use of

inconsistent positions — is satisfied.

2.

As noted, in applying judicial esto ppel, the district court

held that, in granting Ah rens’ motion to remand the interference

action to state court, the district court had accepted, and relied

on, Ahrens’ position that Perot Systems terminated her employment

because of tortious in terference. Ahrens contends that her

statements concerning discharge because of such interference (which

were inconsistent with her later discriminatory-discharge

statements) were neither accepted, nor relied on, by the district

court in deciding to remand her first action. She maintains that,

in determining that the Texas resident defendants had not been

fraudulently joined and that remand was appropriate, the district

court accepted as true, to permit joinder, only her statements that

the claims against defendants were sufficiently related and arose

out of the same series of transactions, but not her statements

regarding the cause of discharge.

We disagree. Ahrens named six defendants in her interference

action: Image Sciences, Inc. (ISI), Andereck, and Morton

(collectively, the ISI defendants), and the three IBM defendants.

The ISI defendants were Texas residents. Ahrens presented breach10

of contract claims against all three ISI defendants; and invasion

of privacy, intentional infli ction of emotional distress, fraud,

negligent misrepresentation, rescission, and breach of fiduciary

duty claims against ISI and Andereck. Only the IBM defendants were

charged with tortious interference.

The IBM defendants, Texas non-residents, removed the action to

federal court on the basis that Ahrens’ claims against the ISI

defendants arose out of facts unrelated to, and separate from, her

claims against the IBM defendants; and that Ahrens had joined the

ISI defendants in order to prevent removal. In support of her

remand motion, Ahrens asserted that her claims against the ISI

defendants and the IBM defendants arose out of the same series of

transactions, and were sufficiently related to permit joinder. She

explained tha t ISI, her former employer, facilitated the IBM

defendants’ tortious interference by providing confidential and

disparaging information to them for their use against her; and that

both ISI and the IBM defendants sought to intimidate her and

discredit her testimony as a witness in an action against ISI and

IBM. In her sworn declaration in support of her remand motion,

Ahrens stated that, in an effort to discredit and pressure her

regarding her testimony in that action, the IBM defendants

disparaged her to Perot Systems and requested her termination.

I n remanding the action to state court, the district court,

construing the contested issues of law and fact in favor of Ahrens,

concluded that defendants had not met their burden of demonstrating

that the ISI defendants were fraudulently joined. The remand order11

quotes Ahrens ’ remand motion, including her assertion that, by

p r oviding confidential and disparaging information to the IBM

defendants for use against her, the ISI defendants facilitated the

IBM defendants’ tortious interference with her employment at Perot

Systems. Thus, in concluding that Ahrens’ claims against the six

defendants were sufficiently related to permit joinde r (and,

thereby, compel remand), the court necessarily accepted, and relied

on, Ahrens’ statements that, by providing disparaging and

confide ntial information that the IBM defendants used to cause

Perot Systems to discharge her, the ISI defendants had facilitated

the IBM defendants’ tortious interference with her employment with

Perot Systems.

Acco rdingly, the second requirement for judicial estoppel —

judicial acceptance of, and reliance on, Ahrens’ pre vious

inconsistent position — is satisfied.

B.

Ahrens contends, for the first time on a ppeal, t hat

application of judicial estoppel would violate public policy,

because she did not intentionally mislead either court. She

maintains that, because her statement s (opinions) concerning her

belief that she was discriminatorily discharged cannot conclusively

establish discriminatory intent on the part of Perot Systems, and

were not presented by her as evidence in opposition to summary

judgm ent, those statements should n ot be used to preclude her

discrimination claims.12

Because Ahrens did not present this contention in dis trict

court, she cannot prevail on it here, unless she succeeds under our

quite restricted review for plain error: establishes a clear or

obvious error that affected her s ubstantial rights, and a lso

persuades us to exercise our discretion to correct it. S ee

Highlands Ins. Co. v. National Union Fire Ins. Co. , 27 F.3d 1027,

1032 (5th Cir. 1994), cert. denied , 513 U.S. 1112 (1995).

Contrary to Ahrens’ assertion, she did , in opposing summary

judgment, rely on her statements (opinions) regarding the cause of

her discharge. Her response to the motion includes her deposition

testimony that Perot Systems discriminated against her because she

is a woman and was perceived as disabled.

In any event, Ahrens has not cited any authority for the

proposition that, in discrimination actions, public policy exempts

plaintiffs from application of judicial estoppel to preclude their

reliance on inconsistent positions regarding the cause of adverse

employment decisions. Ahrens has not shown plain error.

III.

For the foregoing reasons, the judgment is

AFFIRMED.