[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16031 ELEVENTH CIRCUIT
MAY 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 09-00783-CV-3-MEF, 08-08017-DHW
In Re: RANDALL J. DAVIS,
Debtor.
__________________________________________________________________
ESTATE OF RANDALL J. DAVIS,
Plaintiff-Appellant,
versus
CRUMBLEY BACKHOE SERVICE,
RON CRUMBLEY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 26, 2010)
Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant, the estate of Randall Jack Davis, appeals the district court’s
affirmance of the bankruptcy court’s order granting the defendant’s motion for
summary judgment. Despite the plain language of the statute and precedent from
this circuit to the contrary, Appellant argues that a debtor may seek relief under 11
U.S.C. § 525(b) even when the discrimination alleged by the debtor took place
before the filing of the bankruptcy petition.
Section 525(b) provides, in relevant part:
No private employer may terminate the employment of, or
discriminate with respect to employment against, an individual who is
or has been a debtor under this title . . . solely because such debtor or
bankrupt . . . is or has been a debtor under this title or a debtor or
bankrupt under the Bankruptcy Act.
11 U.S.C. § 525(b) (emphasis added). In In re Kanouse, 53 F.3d 1286 (11th Cir.
1995), cert. denied, 516 U.S. 930 (1995), we affirmed the district court’s holding
that only one “who is or has been a debtor” is afforded protection under § 525(b),
and that “[t]he statute does not allow a remedy to ‘will be’ debtors.” In re
Kanouse, 168 B.R. 441, 447 (S.D. Fla. 1994). The district court in Kanouse held
that because the plaintiff “was not a debtor nor had been a debtor at the time of the
alleged acts of discrimination by [his employer], he is not entitled to relief under §
2
525(b).” Id. The Ninth Circuit agreed with the Kanouse analysis and reached the
same conclusion in In re Majewski, 310 F.3d 653, 656 (9th Cir. 2002). The only
cases that Appellant can cite that reach a contrary result are two bankruptcy court
decisions: In re Mayo, 322 B.R. 712 (Bankr. Vt. 2005), and In re Tinker, 99 B.R.
957 (Bankr. W.D. Mo. 1989). These decisions are clearly contrary to the court’s
decision in Kanouse and therefore are not persuasive in this circuit.1
Like the debtor in Kanouse, it is undisputed that the debtor in this case was
terminated from his employment before he filed for bankruptcy. Therefore, as in
Kanouse, he was not entitled to relief under § 525(b).
AFFIRMED.
1
In fact, the district court in Kanouse expressly questioned Tinker, stating that the court in
Tinker relied “upon questionable legislative history.” Kanouse, 168 B.R. at 447.
3