Randall J. Davis v. Crumbley Backhoe Service

380 Fed. Appx. 843, 380 F. App'x 843, 2010 U.S. App. LEXIS 10798, 2010 WL 2079687

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 26, 2010
• Docket: 09-16031
• Status: Unpublished

Opinion

PER CURIAM:

Appellant, the estate of Randall Jack Davis, appeals the district court’s affir-mance 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), ce rt. denied, 516 U.S. 930, 116 S.Ct. 336, 133 L.Ed.2d 235 (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 § 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.