UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ SONIA ORDONEZ, Plaintiff - Appellant,

v. CANYONS SCHOOL DISTRICT, Defendant - Appellee. No. 18-4125 (D.C. No. 2:13-CV-00245-DAK-EJF) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MATHESON , and CARSON , Circuit Judges.

________________ _________________ The district court granted summar y judgment to Canyons School D istrict (Canyons) in Sonia Ordonez’s empl oyment-related lawsuit, ruling that she was judicially estopped from pursui ng the action. She appeals. We affirm.
BACKGROUND Canyons employed Ordonez from November 2008 until April 2011. On October 18, 2010, she attempted t o file a charge of discriminat ion and retaliation

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 7, 2019
Elisabeth A. Shumaker Clerk of Court2 against Canyons with the Equal Em ployment Opportunity Commissio n (EEOC). The EEOC deemed her charge filed tw o months later, on December 22, 2010. A day before the EEOC formally accepted her charge, on December21, 2010, Ordonez filed a Chapter 7 petiti on in the United States Bankrup tcy Court for the District of Utah. On December 30 she filed her statement of fi nancial affairs in the bankruptcy proceeding. The instr uctions for the statement requ ired her to “[l]ist all suits and administrative proceedi ngs as to which the debtor is or was a party within one year immediately preceding th e filing of this bankruptcy ca se.” R., Vol. II at 127. In the statement she failed to disclose her pending admin istrative claim against Canyons. In October 2011 the bankruptcy cour t discharged her debts. Aft er receiving a right-to-sue letter from the EEO C in January 2013, Ordonez file d this action against Canyons in the District of Utah on April 3, 2013. In September 2016 the district court dismissed all of Ordonez’ s claims except her retaliation claim. On February 27, 2017, in a separa te case involving Ordonez also filed in the District of Utah, the district court held a settlement conferen ce. Ordonez admits that Magistrate Judge Dustin Pead infor med her during the conference that she should have disclosed a claim against t he defendant, Air Serv Corporat ion, in her bankruptcy proceeding. In June 2017, Ordonez moved to r eopen her bankruptcy. The bank ruptcy court granted her motion to reopen. O n December 1, 2017, Ordonez ame nded her3 statement of financial affairs to include her T itle VII claims against Air Serv but did not disclose her claims against Canyons. The day before—November 30, 20 17—Canyons had moved in this acti on for summary judgment on Ordonez’s re maining retaliati on claim. Whi le that motion was pending, on January 3, 2018, the d istrict court ordered Ordonez to state whether she had disclosed her administrativ e claim against Canyons during h er 2010 Chapter 7 bankruptcy. The court cited it s prior memorandum decision in t he Air Serv case, in which it had granted summary j udgment against Ordonez on judici al-estoppel grounds for her failure to disclo se her Title VII claims agains t Air Serv during her bankruptcy. Ordonez responded to t he district court’s order, a nd the parties briefed the judicial-estoppel issue. In the Air Serv case the bankrupt cy Trustee reach ed a settlemen t of the (dismissed) claims with Air Serv (now known as ABM Aviation, In c.). 1 Under the terms of the settlement, ABM pai d the Trustee an amount suffici ent to compensate Ordonez’s general unsecured cred itors for the unpaid portion of their allowed claims and to cover the allowed adminis trative expenses of her bankrup tcy. In exchange for this payment, the Trustee agree d to release ABM from Ordonez’s Title VII claims against ABM. The bankruptcy court later ente red orders approving the settlem ent agreement and the Trustee’s final report. The Trustee then distributed t he settlement funds,

1 We take judicial notice of the appellate record filed in this court in the ABM Aviation litigation, see Appeal Nos. 17-4188, 18-40 94, 18-4095, and 18-4096.4 paying all of Ordonez’s credito rs, the Trustee’s fees, and the Trustee’s attorney’s fees. Ordonez appealed from the bankruptcy court’s orders to t he United States Bankruptcy Appellate Panel of th e Tenth Circuit (BAP). Because the settlement had been effectuated, the BAP dismi ssed her appeals as moot. She t hen appealed to this court the BAP’s dismissals and th e district court’s dismissal o f her underlying Title VII action against ABM, a nd we dismissed her appeals as m oot. While proceedings were ongoing in t he bankruptcy courts, on Jun e 28, 2018, the magistrate judge assigned to t his case entered a report and recommendation that summary judgment be granted to C anyons based on judicial estopp el. The magistrate judge reasoned that Ordonez had a dopted an incons istent positio n when she represented to the bankruptcy c ourt that she did not have any a dministrative proceedings, lawsuits or other da mage claims, even while pursui ng her EEOC claim; that she “succeeded in persuading the bankruptcy court to adopt her position when it proceeded to discharge her debt s without knowledge of her claim against Canyons”; and that she “would gain an unfai r advantage if not estopped fr om pursuing her claim against Canyons because the bankruptcy court did discharge her debts.” R., Vol. 2 at 423. The magistrate judge stated Ordonez had learned in Februa ry 2017 that she should have disclosed her EEOC filing during her bankruptcy. U nder these circumstances, she concluded, t he equities weighed in favor of judicially estopping Ordonez from proceeding with the claim. The district court adopted the m agistrate judge’s recommendatio n. It entered final judgment dismissing this ac tion, from which Ordonez appea ls.5 ANALYSIS “On summary judgment, we view t he facts and draw all reasonable inferences in a light most favorable to th e nonmovant, . . . in determinin g whether [Canyons] is entitled to judgment as a matter of law.” Asarco, LLC v. Noranda Mining, Inc. , 844 F.3d 1201, 1207 (10th Cir. 2017). We review the district court ’s decision to judicially estop Ordonez for an abuse of discretion. See id. at 1207. We construe her pro se filings lib erally without serving as her advocate. See James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). Judicial estoppel is an equitabl e remedy used “to protect the i ntegrity of the judicial process by prohibiting pa rties from deliberately chang ing positions according to the exigencies of the moment.” New Hampshire v. Maine , 532 U.S. 742, 749-50 (2001) (citation and internal quotation marks omitted). “Where a party a ssumes a certain position in a legal pro ceeding, and succeeds in maintai ning that position, he may not thereafter, simply becaus e his interests have changed, assume a contrary position, especially if it be to th e prejudice of the party who has acquiesced in the position formerly taken by him.” Id. at 749 (brackets and in ternal quotation marks omitted). In determining whether to judici ally estop a party, courts typi cally examine three factors. First, has the p arty taken a position that is “ clearly inconsistent with its earlier position”? Id. at 750 (internal quotation ma rks omitted). Second, would judicial acceptance of the lat er position create the impression “that either the first or the second court was misled”? Id. (internal quotation mark s omitted). And third,6 would allowing the party to cha nge its position give it “an unf air advantage or impose an unfair detriment on the opposing party if not estoppe d”? Id. at 751. These factors “do not establish inflexi ble prerequisite s or an exhaus tive formula for determining the applicability of judicial estoppel.” Id. “[I]t may be appropriate to resist application of judicial est oppel when a party’s prior po sition was based on inadvertence or mistake.” Id. at 753 (internal quotati on marks omitted). The ultimate issue is whether “consid erations of equity persuade [t he court] that application of judicial e stoppel is appropriate.” Id. at 755. Construing Ordonez’s opening bri ef liberally, she makes several arguments in opposition to the application of j udicial estoppel. She claims the omission of her claim against Canyons was an hone st mistake, which she made ina dvertently and without any intent to conceal herclaim from the bankruptcy cou rt. She asserts she was hindered by her lack of comp rehension of English, her ignor ance of the law, and bad advice from a person she paid to prepare her petition. In general, she contends that the district court insuffici ently considered the fact that she acted in subjective good faith. These arguments fail to demonstrat e that the district court abu sed its discretion in applying judicial estoppel. The district court reasoned tha t despite Ordonez’s assertions about good faith, l ack of knowledge, or misleading a dvice, the equities favored application of judicial estoppel: Assuming someone misadvised Ms. O rdonez when she filed for bankruptcy in December 2010, Ms. Ordonez knew of the existence of her clai ms against Canyons when she filed her lawsuit in April 2013, and h ad7 sufficient notice after February2017 that she needed to amend her bankruptcy filings to reflect any administrative claims, lawsui ts, or any other claims for damages. Moreove r, Ms. Ordonez knew of her cl aim against Canyons, reope ned and amended her b ankruptcy filings in2017, but again omitted mention of the cla im against Canyons. Not until January 16, 2018, after the Court ordered he r to reveal whether she had dis closed her administrative claims against Canyons during he r bankruptcy, di d Ms. Ordonez finally amend to incl ude the claim. Ms. Ordonez kn ew of her duty to amend her bankruptcy fili ngs no later than February 201 7 because of her case against Air Serv. Magistrate Judge’s Recommenda tion, R., Vol. II at 423-24. Even if Ordonez asserts that her failure to disclose her claim before February 2017 was the result of a mistak e (say, from mistaken advice), t hat failure could still support judicial estoppel. We ha ve said that “courts addressin g a debtor’s failure to satisfy the legal duty of full disclosure to the bankruptcy cou rt have deemed such failure inadvertent or mistaken only when, in general, the debt or either lacks knowledge of the undisclosed cla ims or has no motive for their concealment.”
Eastman v. Union Pac. R.R. Co. , 493 F.3d 1151, 1157 (10t h Cir. 2007) (internal quotation marks omitted). Ordon ez has failed to show either la ck of knowledge or lack of motive fo r concealment. See Anderson v. Seven Falls Co. , 696 F. App’x 341, 347 (10th Cir. 2017) ( holding district cour t did not abuse its discretion when inferring that debtor knew about potential claim and that she h ad a motive to conceal a potential asset that could resu lt in the denial of a discharg e in bankruptcy). She blames a bankruptcy preparer, w ho purportedly failed to tell he r to include the claims on her statement of financial aff airs, for the omission of her claims against her employers from her original filings. But in Eastman we rejected a similar attempt by8 the debtor to claim inadvertence or mistake and to place the bl ame for an omission on his bankruptcy attorney. See Eastman , 493 F.3d at 1157-58. Ordonez also blames the Trustee for permitting her to obtain a discharge in bankruptcy even after she sent him a letter in which she mentio ned that the Labor Commission was investigating he r unfair termination from her jo b with Air Serv and that she was trying to get her job back. But even assuming suc h an offhand reference to her claim against Air Serv c ould weigh against application o f judicial estoppel in the Air Serv case , she fails to point us to speci fic evidence that before discha rge she informed the Trustee of her claims against Canyons

. Ordonez further attributes her b elated disclosure of her claims against Canyons to bad advice from the Trustee. She claims he advised her in F ebruary 2017 that she did not need to reopen her bankrupt cy case and that if she ever received any compensation from her Title VII claims she would just need to i nform him. She also claims that when her case was re opened the Trustee told her he would “take care of everything,” including disclosin g her Title VII claims. Aplt. Opening Br. at 6. She then complains the Trustee failed to schedule her claims or to inform her of her responsibility to do so. But in fact it was Ordonez who m oved to reopen her bankruptcy c ase. And it was Ordonez who amended her statem ent of financial affairs in D ecember 2017 to reflect her claim against Air S erv, at which time she did not disclose her claims against Canyons. Only later, in January 2018, after the distri ct court ordered her to state whether she had disclosed her administrative claims durin g her bankruptcy9 proceeding, did she again amend h er statement of financial affa irs to reflect her claims against Canyons. In sum, e ven viewing the facts in the light most favorable to her, Ordonez fails to show that th e Trustee’s alle ged bad advic e or misstatements prevented her from making an earli er disclosure of her claims a gainst Canyons. Ordonez also argues that on Janua ry 9, 2018, unnamed legal-aid staff misinformed her that because the EEOC officially had accepted h er charge of discrimination for filing on the d ay after she filed her bankruptcy, the claim was not part of her estate. But she fails to show that sh e presented t his argument in the district court. We therefore decline to consider it. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127-28 (10th Cir. 2011). In sum, Ordonez’s nondisclosure per taining to the Air Serv case was specifically brought to her atte ntion before she amended her fi lings, but she still did not disclose the Canyons claim. Cf. Queen v. TA Operating, LLC , 734 F.3d 1081, 1094 (10th Cir. 2013) (noting im portance of factor that a “nond isclosure was specifically brought to the [deb tors’] attention before they am ended their filings, but they still did not fully and accura tely disclose the lawsuit”). In addition, she had a motive in her original filings t o conceal the claim; “it was to [her] benefit to conceal the claim so that [she] could re ceive a full discharge in bankruptcy before proceeding with the lawsuit.” Id. Thus, her assertions of inadvert ence or mistake fail to preve nt the application of judicial estoppel. Addressing the third judicial-e stoppel factor, Ordonez argues t hat her debts have been entirely paid throug h the Air Serv settlement. See Aplt. Opening Br. at10 12-13. Presumably she is conte nding there is no prejudice to h er creditors from her inconsistent positions in this case. But we have rejected simi lar arguments. See
Eastman , 493 F.3d at 1160 (“That [the de btor’s] bankruptcy was reopene d and his creditors were made whole once his omission became known is inc onsequential. A discharge in bankruptcy is suffi cient to establish a basis for judicial estoppel, even if the discharge is later vacated. Allowing [Ordonez] to back up and benefit from the reopening of [her] bankruptcy only after [her] omission had bee n exposed would suggest that a debtorshould consider disclosing potential asse ts only if [she] is caught concealing them.” (brackets and internal quotati on marks omitted)). We also note that Ordonez strenuously op posed the Air Serv settlement e ven though it paid her creditors in full. The fact that her bankruptcy case was r eopened and her creditors were paid does not mak e the application of judicial e stoppel an abuse of discretion.
CONCLUSION “[I]t was not arbitrary, caprici ous, or manifestly unreasonable for the district court to reject [Ordonez’s] argum ents of mistake and inadverten ce.” Queen , 734 F.3d at 1094. We therefore af firm the distric t court’s gra nt of summary judgment on judicial -estoppel grounds.

Entered for the Court

Harris L Hartz Circuit Judge