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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 Systems 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 suggested that she look for other positions. On 1 December,
Howard discharged Ahrens.

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 action in which
Ahrens was deposed), Cravath, Swain & Moore (law firm which
represented IBM), and Chesler (Cravath attorney who allegedly
contacted Perot Systems in January 1995 and requested Ahrens'
termination). She claimed, inter alia, that IBM, Chesler, and
Cravath had tortiously interfered 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 which 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 Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (ADA).
2

Perot Systems moved for summary judgment, asserting, inter
alia, that Ahrens was judicially 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 in this discrimination action was inconsistent with that
asserted previously in the interference 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 both 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 non-
movant, establishes that "there is no genuine issue as to any
material fact and ... the moving party is entitled to a judgment as
3

a matter of law". FED. R. CIV. P. 56(c); Horton, 179 F.3d at 191.
The district court's invocation of judicial estoppel is
reviewed for abuse of discretion. In 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, inconsistent position when a court has adopted and
relied on it." Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303
(5th Cir. 1998), cert. 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". Coastal 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 be estopped is
clearly inconsistent with its previous one; and (2) that party must
have convinced the court to accept that previous position." Id. at
206.
A.
Ahrens maintains that neither of the two bases for judicial
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 IBM
4

(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
employment relationship. [The IBM
defendants']
interference
altered
Perot
Systems' good relationship with ... Ahrens.
She became suspect and has not been provided
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 joinder, 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 contact of Perot Systems, by [the IBM
defendants] constituted interference with my
employment
relationship. [The IBM
defendants']
interference
altered
Perot
Systems' good relationship with me. I became
suspect and was not 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.
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 Systems and
5

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 injunction, 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 interference with my
employment relationship. [The IBM defen-
dants'] interference altered Perot Systems'
good relationship with me. [I] became suspect
6

and was not 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
because of the fact that I was considered
damaged goods or handicapped and unable to
provide value to the company.
In opposing Perot Systems' summary judgment motion on her
discrimination claims, and in order to provide 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 defendants
tortiously interfered with it through Chesler contacting Perot
Systems.
Ahrens maintains that there is no inconsistency in her
positions in the two actions because she has never claimed, or been
7

required to prove, that her discharge was caused solely either by
tortious interference or by discrimination. She asserts that her
statements in the first action (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 for discharge, it would not 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. See ACS Investors, Inc. v.
McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997) (party alleging
tortious interference must prove, inter 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 "solely because of"), cert.
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 not 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.
8

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 estoppel, the district court
held that, in granting Ahrens' 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 interference. 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 breach
9

of contract claims against all three ISI defendants; and invasion
of privacy, intentional infliction 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 that 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.
In 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 order
10

quotes Ahrens' remand motion, including her assertion that, by
providing 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 joinder (and,
thereby, compel remand), the court necessarily accepted, and relied
on, Ahrens' statements that, by providing disparaging and
confidential 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.
Accordingly, the second requirement for judicial estoppel --
judicial acceptance of, and reliance on, Ahrens' previous
inconsistent position -- is satisfied.
B.
Ahrens contends, for the first time on appeal, that
application of judicial estoppel would violate public policy,
because she did not intentionally mislead either court. She
maintains that, because her statements (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
judgment, those statements should not be used to preclude her
discrimination claims.
11

Because Ahrens did not present this contention in district
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 substantial rights, and also
persuades us to exercise our discretion to correct it. See
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.
12