Kevin Davy v. Star Packaging Corporation ( 2013 )

Case: 12-11367 Date Filed: 04/26/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11367
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-03012-SCJ
KEVIN DAVY,
MARVIN COPELAND,
RICKY DELANEY,
Plaintiffs-Appellants,
MARTHA A. MILLER,
Trustee,
Plaintiff,
versus
STAR PACKAGING CORPORATION,
EDWARD KNAPPER,
BRIAN LORD,
SETH JONES,
Defendants-Appellees.
Case: 12-11367 Date Filed: 04/26/2013 Page: 2 of 5
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(April 26, 2013)
Before HULL, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Kevin Davy, Marvin Copeland, and Ricky Delaney appeal pro se the
summary judgment in favor of Star Packaging Corporation. Davy, an employee of
Star, and Copeland and Delaney, former employees of Star, complained separately
about disparate treatment and a hostile work environment because of their race, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1),
2000e-3(a); retaliation for opposing discriminatory practices, in violation of Title
VII, id., and of their right to the full and equal benefit of all laws, id. § 1981; and
negligent hiring and retention in violation of state law. Delaney also complained
that Star retaliated against him for attempting to exercise his rights under the
Family and Medical Leave Act. 29 U.S.C. § 2615. We dismiss the appeals by
Copeland and Delaney for lack of jurisdiction, and we affirm the summary
judgment in favor of Star and against Davy’s complaint.
Copeland lacks standing to appeal. In 2009, when Copeland petitioned for
bankruptcy, his claims of discrimination and retaliation became property of the
2
Case: 12-11367 Date Filed: 04/26/2013 Page: 3 of 5
bankruptcy estate. See 11 U.S.C. § 541(a); Parker v. Wendy’s Int’l, Inc., 365 F.3d
1268, 1272 (11th Cir. 2004). As a result, only the trustee of Copeland’s estate,
who the magistrate judge recognized as the real party in interest, can appeal the
summary judgment against Copeland’s claims.
Delaney failed to file a timely notice of appeal to invoke this Court’s
jurisdiction. See Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). Davy
filed pro se a notice of appeal ostensibly for himself, Copeland, and Delaney, but
the notice was ineffective for the latter two men without their signatures. See Fed.
R. Civ. P. 11(a); Theriault v. Silber, 579 F.2d 302, 302 n. 1 (5th Cir. 1978).
Although Copeland and Delaney filed a joint notice of appeal, they filed that notice
more than 30 days after entry of the judgment they sought to appeal. See Fed. R.
Civ. P. 4(a)(1).
The district court did not err when it entered summary judgment against
Davy’s complaint of racial discrimination under Title VII and section 1981. Davy
failed to establish that Star treated white employees more favorably than him. See
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Davy argues that white
employees were paid more and were disciplined less severely by Star, but the
uncontroverted evidence establishes that Star hired Davy at a rate of $13 an hour to
operate the Inno-Lok machine; he remained the highest compensated Inno-Lok
operator; Star transferred Davy to the press machine at his request to increase his
3
Case: 12-11367 Date Filed: 04/26/2013 Page: 4 of 5
pay, but he asked to return to the Inno-Lok; and both Davy and a white employee,
Don Middendorf, received warning notices on the same day for failing to notice
the same production error. Davy also argues that he trained white employees who
were promoted over him, but the two employees identified by Davy are dissimilar
in that one employee “left [and later]. . . c[a]me back to Star,” and the second
employee “is a press operator.” Davy also argues that he was denied training on
the Totani machine, but the undisputed evidence establishes that Davy called in
sick during training on the Totani machine and was removed from the machine at
his request. And Davy failed to establish that he suffered harassment so severe or
pervasive that it altered the terms and conditions of his employment and resulted in
a hostile working environment. See Jones v. UPS Ground Freight, 683 F.3d 1283,
1292 (11th Cir. 2012). Davy argues about racially-charged remarks that a vendor
for Star made in his presence, but Davy testified that he never saw the vendor after
he reported the incident to the executive vice president of Star. And Star
established, without dispute, that it directed the vendor not to deliver his product
during Davy’s shift and later terminated the vendor’s contract when he violated
that directive. Davy also argues that he was “offen[ded]” when he overheard a
joke about “rednecks” and “hillbillies,” but he admits that the joke disparaged
“poor whites,” not African-Americans. Davy makes other arguments in support of
his claims of discrimination, but arguments “not raised in the district court and
4
Case: 12-11367 Date Filed: 04/26/2013 Page: 5 of 5
raised for the first time in an appeal will not be considered by this court.” Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
The district court also did not err when it entered summary judgment against
Davy’s complaint of retaliation. Davy argues that Star retaliated against him for
filing a charge of discrimination by moving him to the press machine and failing to
train him on the Totani machine, but neither action had a materially adverse effect
on Davy. See Crawford, 529 F.3d at 973. The undisputed evidence establishes
that Davy’s rate of pay remained the same despite the changes in his work
assignments.
We DISMISS the appeals by Copeland and Delaney, and we AFFIRM the
summary judgment in favor of Star.
DISMISSED IN PART, AFFIRMED IN PART.
5