[DO NOT PUBLISH]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, 

(11th Cir.

1995), cert. denied, 

(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, 

, 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).” 

Circuit agreed with the Kanouse analysis and reached the

same conclusion in In re Majewski, 

, 656 (9th Cir. 2002). The only

cases that Appellant can cite that reach a contrary result are two bankruptcy court

decisions: In re Mayo, 

(Bankr. Vt. 2005), and In re Tinker, 

(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.” 

.

                                                  3