Wiley v. United Parcel Service, Inc. , 11 F. App'x 176 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TURNER O. WILEY, 
Plaintiff-Appellant,
v.
 No. 99-2277
UNITED PARCEL SERVICE,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, District Judge.
(CA-98-126-1)
Argued: February 28, 2001
Decided: April 27, 2001
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kathleen G. Sumner, LAW OFFICES OF KATHLEEN
G. SUMNER, Greensboro, North Carolina, for Appellant. John James
Doyle, Jr., CONSTANGY, BROOKS & SMITH, L.L.C., Winston-
Salem, North Carolina, for Appellee. ON BRIEF: Jeanette L. Foust,
LAW OFFICES OF KATHLEEN G. SUMNER, Greensboro, North
Carolina, for Appellant. Jill S. Stricklin Cox, CONSTANGY,
BROOKS & SMITH, L.L.C., Winston-Salem, North Carolina, for
Appellee.
2 WILEY v. UPS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Turner Wiley sued his employer, United Parcel Service, Inc.
(UPS), in North Carolina Superior Court, alleging that UPS retaliated
against him for pursuing workers’ compensation benefits. UPS
removed the suit to the U.S. District Court for the Middle District of
North Carolina on the basis of diversity of citizenship. Wiley did not
object to the removal, and the parties proceeded with discovery. After
discovery was completed, UPS moved for summary judgment, and
the motion was granted. The district court held that Wiley did not
make out a prima facie case for unlawful retaliation because he failed
to establish a causal relationship between his application for workers’
compensation benefits and UPS’s adverse employment action.* The
district court also concluded that even if Wiley could establish a
prima facie case, UPS would still be entitled to summary judgment
because the company would have taken the same employment action
absent Wiley’s protected activity. Wiley now appeals.
After considering the joint appendix, the parties’ briefs, and the
oral arguments of counsel, we are persuaded that the district court
reached the correct result. We therefore affirm substantially on the
reasoning of the district court. See Wiley v. United Parcel Serv., No.
1:98CV00126 (M.D.N.C. Aug. 17, 1999). One issue merits further
discussion. Wiley argues for the first time on appeal that UPS’s
removal of his suit to federal court was improper. Wiley contends that
removal is barred by 28 U.S.C. § 1445(c), which provides, "A civil
*Specifically, Wiley’s retaliation claim is that UPS terminated him
because he filed a compensation claim. Wiley was fired following an
altercation with his supervisor, Robert Latchford. Latchford did not
know about Wiley’s pending compensation claim when he fired him. In
any event, Wiley was later reinstated after his grievance was sustained
by the Atlantic Area Panel Grievance Committee.
WILEY v. UPS 3
action in any State court arising under the workmen’s compensation
laws of such State may not be removed to any district court of the
United States." Because Wiley believes that his retaliation claim
arises under North Carolina’s workers’ compensation laws, he asserts
that his suit could not be removed to federal court.
Even if Wiley’s retaliation claim did arise under North Carolina’s
workers’ compensation laws, Wiley nevertheless waived his right to
object to the removal. Under 28 U.S.C. § 1447(c) a "motion to
remand [a] case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the
notice of removal." (emphasis added). Thus, § 1447(c) provides that
a party who fails to note a non-jurisdictional objection within 30 days
of the notice of removal waives the objection. Violations of 28 U.S.C.
§ 1445(c) have been held to constitute procedural, and not jurisdic-
tional, defects. See, e.g., Sherrod v. Am. Airlines, Inc., 132 F.3d 1112,
1117 (5th Cir. 1998); Ayers v. ARA Health Servs., Inc., 918 F. Supp.
143, 146-47 (D. Md. 1995). Accordingly, a party seeking to invoke
§ 1445(c) must object to removal within thirty days after the filing of
a notice of removal. Here, Wiley failed to object to UPS’s removal
of the suit in a timely manner. UPS filed its notice of removal on Feb-
ruary 9, 1998. Wiley, however, did not object until the initiation of
this appeal on September 13, 1999. Because his objection was made
over thirty days after removal, he has waived his argument for
improper removal.
AFFIRMED