Bogle v. Orange County Board ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
12/09/98
No. 97-2577 THOMAS K. KAHN
_______________ CLERK
D. C. Docket No. 95-847-Civ-ORL-22
WILLIAM J. BOGLE,
Plaintiff-Appellant,
versus
ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS
as governing body of Orange County, Florida,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Florida
______________________________
(December 9, 1998)
Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior District
Judge.
BIRCH, Circuit Judge:
*
Honorable William Stafford, Senior U.S. District Judge for the Northern District
of Florida, sitting by designation.
In this appeal we review the standards for granting judgment
as a matter of law in a case arising under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”),
and to determine whether the district court properly awarded
sanctions against Carol Swanson, the plaintiff-appellant's counsel,
pursuant to Federal Rule of Civil Procedure 11 (“Rule 11"). We
conclude that the district court properly entered judgment as a
matter of law at the close of the plaintiff-appellant's case because
he failed to introduce evidence that would have permitted a
reasonable jury to disbelieve the defendant-appellee's reasons for
the adverse employment action. We also conclude that we have
no jurisdiction to entertain an appeal from the district court’s
sanctions order.
BACKGROUND
On August 31, 1993, plaintiff-appellant, William Bogle, lost
his job as a corrections officer at the Central Booking Facility in
2
Orange County, Florida. Bogle had worked as a corrections
officer for the defendant-appellee, the Orange County Board of
County Commissioners (“Orange County”), since November 9,
1987, when it hired him at the age of fifty-eight. Bogle was sixty-
three and was the oldest male employee on his shift when Orange
County terminated his employment.
Bogle's termination notice stated that Orange County
discharged him for violating several policies and ethics rules that
governed his conduct as a corrections officer. Although Orange
County had disciplined Bogle on a few occasions during the
course of his employment, his performance reviews consistently
reflected that he met expectations and his co-workers testified
that he was a competent worker. On June 26, 1993, however,
Bogle's supervisors suspended him for throwing a chair at a door
after his co-workers locked him out of a room. Later, on July 30,
3
1993, Bogle's supervisors and a co-worker reported him for five
separate violations of Orange County rules.1
Upon Bogle's termination, Robert Scanlon took his position
on the day shift. Scanlon was approximately thirty years younger
than Bogle. Bogle's theory of the case was that Sergeant Frank
Walker, who became one of Bogle's supervisors in 1993,
terminated Bogle because of his age and his desire to replace him
with Scanlon, a significantly younger friend. Bogle also sought to
show that his supervisors had disciplined him selectively to justify
his termination and that other, younger employees were not
disciplined for engaging in similar behavior.
After filing an age discrimination complaint with the Orlando
Human Relations Department and the Equal Employment
Opportunity Commission, Bogle filed this cause of action. Bogle's
complaint alleges that Orange County terminated him because of
his age in violation of the ADEA and Florida's Human Rights law,
1
These write-ups were for tardiness, two violations of the smoking policy, using
excessive force with an inmate, and entering a cell without another corrections officer.
4
Fla. Stat. 760.10. Before trial, the district court denied Orange
County's motion for summary judgment, finding that material
issues of fact remained in dispute. In particular, the district court
found that the trier of fact would have to determine whether Bogle
had been replaced by a younger employee and whether Orange
County's stated reasons for terminating him were pretextual. See
R2-54 at 2-3. At the close of Bogle's case in chief, however, the
district court granted Orange County's motion for judgment as a
matter of law. The district court found that Bogle had failed to
present evidence to establish a prima facie case of age
discrimination and, alternatively, that Bogle had failed to cast
doubt on Orange County's stated reasons for firing him. See R5-
103.
On April 10, 1997, three days after the district court entered
judgment as a matter of law, Orange County filed a notice of its
intent to seek Rule 11 sanctions. On May 5, 1997, Bogle filed a
notice of appeal that designated all orders of the district court,
5
including the court's entry of final judgment, for consideration on
appeal. Orange County filed its Rule 11 motion on May 8 and the
district court granted the motion on July 1, 1997. The district court
found that Swanson, Bogle's attorney, had violated Rule 11 by
continuing to advance Bogle's age discrimination case after it
became evident that his claims had no evidentiary support. The
court also faulted Swanson's efforts to investigate Bogle's age
discrimination claims and, in particular, her failure to depose
Charles Perry, the Orange County employee who made the
decision to terminate Bogle. As a sanction, the district court
directed Swanson to complete twenty hours of continuing legal
education on the subjects of federal employment discrimination
law, office or case management, and federal trial or civil
procedure. Bogle seeks to reverse the district court's entry of
judgment as a matter of law and the imposition of Rule 11
sanctions against Swanson.
6
DISCUSSION
I. Judgment as a Matter of Law
As noted above, the district court granted Orange County's
motion for judgment as a matter of law at the close of Bogle's
case. Federal Rule of Civil Procedure 50 provides for judgment
as a matter of law at the close of the plaintiff's case if the plaintiff
has failed to present evidence that would permit a reasonable jury
to find for the plaintiff. See Fed. R. Civ. P. 50(a)(1).2 We review
the district court's decision to grant judgment as a matter of law
de novo and apply the same standards as the district court. See
Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir.
1995). In evaluating a defendant's Rule 50 motion, made at the
close of the plaintiff's case, we must consider all the evidence in
2
Rule 50 provides in pertinent part:
If during a trial by jury a party has been fully heard on an issue and there
is no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue, the court may determine the issue against that party
and may grant a motion for judgment as a matter of law against the party
with respect to a claim or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1)
7
the light most favorable to the plaintiff and grant the plaintiff the
benefit of all reasonable inferences. Id. Finally, we may affirm a
judgment as a matter of law only if the facts and inferences “point
so overwhelmingly in favor of the movant . . . that reasonable
people could not arrive at a contrary verdict.” Id. (citations and
internal quotation omitted).
Since Bogle has presented no direct evidence that Orange
County discharged him because of his age and relied, instead, on
circumstantial evidence, the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 407 (1993), governs his ADEA case. See O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311, 116 S.
Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996) (assuming that the
McDonnell Douglas framework applies to ADEA claims);
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th
Cir. 1998) (applying the McDonnell Douglas framework in an
8
ADEA case). Pursuant to this familiar framework, Bogle had to
establish a prima facie case of discrimination by showing:
(1) that he was a member of the protected group of
persons between the ages of forty and seventy; (2) that
he was subject to adverse employment action; (3) that a
substantially younger person filled the position . . . from
which he was discharged; and (4) that he was qualified
to do the job for which he was rejected.
Turlington, 135 F.3d at 1432 (citing Consolidated Coin, 517 U.S.
at 313, 116 S. Ct. at 1310). We note that Bogle presented
evidence that showed he was sixty-three years old when Orange
County fired him, that a man thirty years younger than Bogle
replaced him, and that Bogle received satisfactory performance
reviews for all the years he worked for Orange County. Although
the district court concluded that Bogle had not set forth a prima
facie case of age discrimination, we will assume that Bogle
presented sufficient evidence to carry his burden of production on
this phase of the case.3
3
Despite the adherence of Bogle's evidence to the literal terms of the McDonnell
Douglas test as applied in the ADEA context, the district court appears to have
concluded that Bogle had not established a prima facie case because Orange County
9
Once Bogle made out his prima facie case of discrimination,
Orange County had to respond with a legitimate,
nondiscriminatory reason for its actions. See Turlington, 135 F.3d
at 1432. Although the district court granted judgment as a matter
of law before Orange County had the opportunity to present its
case, it is clear that Orange County's stated legitimate,
nondiscriminatory reason was before the district court in
admissible form because Bogle introduced evidence regarding
that reason during the presentation of his case.4 Cf. Impact v.
replaced him pursuant to an age-blind seniority system. Under this system, Orange
County internally advertised the opening created by Bogle's discharge and the applicant
with the most seniority received the job. The district court noted that Bogle had
presented no evidence that Perry, the actor responsible for Bogle's discharge, played
any part in selecting his replacement or even knew who would have been next in line for
Bogle's job, and concluded that it was merely a “coincidence” that the replacement was
significantly younger than Bogle. See R5-103 at 2. We note that the district court
arrived at its conclusion on this point without citation to authority and that Orange
County also failed to identify any case support for the proposition that such an age-
neutral replacement system necessarily precludes an ADEA plaintiff from making out a
prima facie case. As Orange County's counsel conceded at oral argument, however, if
the decision-maker knows that the replacement necessarily will be significantly younger
(i.e. because every possible replacement happens to be younger) a discharged
employee would still be able to make out a prima facie case. Nevertheless, since we
conclude, on alternative grounds, that the district court properly entered judgment
against Bogle, we assume that Bogle made out his prima facie case and will not
consider the issue further.
4
Bogle correctly observes that once he set forth his prima facie case for age
discrimination he enjoyed a presumption of unlawful discrimination. See Combs v.
10
Firestone, 893 F.2d 1189, 1193 (11th Cir. 1990) (noting that the
defendant must introduce legitimate, nondiscriminatory reasons
for its actions in the form of admissible evidence) (quoting
Burdine, 450 U.S. at 254-55, 101 S. Ct. at 1095). During the
presentation of his case-in-chief, Bogle introduced into evidence a
letter from Orange County that notified Bogle both of his dismissal
and the reason for that dismissal. The letter lists several previous
disciplinary problems and Bogle's violation of a number of policies
and procedures as the grounds for his termination. The letter,
therefore, established Orange County's position that it fired Bogle
because of excessive disciplinary problems.5 Indeed, Bogle
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied -- U.S. –, 118 S.
Ct. 685, 139 L. Ed. 2d 632 (1998) (quoting Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981)). Without any
evidence to rebut this presumption, Orange County would not have been entitled to
judgment as a matter of law. Id. Bogle, however, presented Orange County's reason
for his termination by introducing the discharge letter and then attempted to cast doubt
on that legitimate, nondiscriminatory reason. Given Bogle's introduction of this evidence,
his failure to present evidence from which a reasonable jury could find pretext permitted
Orange County to move for, and the court to grant, judgment as a matter of law at the
close of Bogle's case.
5
As we explained in Combs, the level of generality at which the parties and the
court conceptualize the defendant's legitimate, non-discriminatory reasons for the
discharge can be significant, particularly when the plaintiff attempts to demonstrate that
the reasons are pretextual. See Combs, 106 F.3d at 1534-35. In this case, Orange
11
devoted the majority of his efforts at trial to an attempt to
demonstrate that this justification was pretextual and that he had
been the victim of selective discipline.
Once Bogle introduced Orange County's legitimate
nondiscriminatory reason for his discharge, the initial presumption
of discrimination accompanying the prima facie case dissolved,
and the McDonnell Douglas framework required Bogle to
demonstrate that the stated reason was pretextual. Combs, 106
F.3d at 1528. As the district court noted, we reviewed the
application of this framework and the standards for granting
judgment as a matter of law in employment discrimination cases
extensively in Combs. In that case, we noted that a plaintiff could
establish pretext indirectly “by showing that the employer's
proffered explanation is unworthy of credence.” Id. (quoting
Burdine, 450 U.S. at 256, 101 S. Ct. at 1095). We then
conducted an exhaustive review of when the law in this area
County maintained that the cumulation of disciplinary violations led to Bogle's dismissal
rather than any one event.
12
precludes the entry of judgment as a matter of law and concluded
that in this circuit, as well as in eight others: “[O]nce a plaintiff has
. . . put on sufficient evidence to allow a factfinder to disbelieve an
employer's proffered explanation for its actions, that alone is
enough to preclude entry of judgment as a matter of law.” Id. at
1532, 1535.6 Once the plaintiff carries this burden, it is up to the
jury either to accept or reject the inference that the falsity of the
employer's reasons for the discharge supports a finding of
discrimination: “That decision is entrusted to the jury's discretion,
but to exercise that discretion, the jury has to get the case.” Id. at
1538. Accordingly, Orange County was not entitled to judgment
as a matter of law if Bogle produced any evidence that would
6
The Combs panel expressly rejected the suggestion, that had appeared in at
least two of our prior decisions, that a defendant could succeed on a motion for
summary judgment or a motion for judgment as a matter of law even though the plaintiff
had plausibly discredited the defendant's proffered legitimate, nondiscriminatory
reasons. Id. at 1533-35. Instead, in Combs we concluded that the decisions of the
Supreme Court and our own circuit required the submission of a circumstantial case of
discrimination to the jury as long as the plaintiff presents a prima facie case as well as
plausible evidence that would permit a jury to disbelieve the employer's stated
legitimate, nondiscriminatory reasons. Id. at 1538.
13
permit a reasonable jury to disbelieve the proffered reasons for
his discharge.7
Bogle attempted to cast doubt on Orange County's stated
reasons for his discharge by introducing evidence that his
supervisors had singled him out for selective discipline and that,
although Bogle formally may have violated a variety of
procedures, the discipline he received in connection with those
violations and his dismissal for the cumulation of incidents was
grossly disproportionate to the treatment other employees
received. In particular, Bogle sought to establish that his receipt
of five separate written reprimands in one day was unusual and
thereby create an inference of selective discipline. As the
discussion above makes clear, had Bogle successfully presented
7
We note that although the standard for granting a motion for summary
judgment and a motion for judgment as a matter of law are precisely the same in an
employment discrimination case, see Combs, 106 F.3d at 1533 n.8, the district court in
this case denied Orange County's motion for summary judgment but granted the motion
for judgment as a matter of law. The only situation in which this discord seems possible
is when the non-movant's evidence, when presented at trial, does not live up to its
promise at the summary judgment stage. This could result from the non-movant's
carelessness or mistake at trial. We note our deference to the explanation of this point
in Combs only to avoid the potential for further confusion on this issue.
14
evidence in support of such an inference, Combs would preclude
judgment as a matter of law. Our review of the record, however,
reveals that, during three days of trial, Bogle failed to carry his
burden to produce evidence that would cast doubt on Orange
County's decisions to discipline and terminate him.
Bogle attempted to demonstrate that a number of other
Orange County employees who had lost their jobs had engaged in
conduct that was far more egregious than his. He also sought to
show that other Orange County employees had violated the
smoking policy and engaged in similar types of horseplay but
received no discipline at all. Bogle's evidence in this respect,
however, consisted of unverifiable, anecdotal testimony from his
co-workers and from his own experience regarding isolated
incidents and Orange County's alleged disciplinary response.
This evidence could not support a reasonable jury finding that
Orange County had singled Bogle out for unusually harsh
treatment. The witnesses who testified regarding these other
15
incidents had no personal knowledge of how Orange County
had disciplined the employees in question and no knowledge
regarding the disciplinary histories of those employees.
Moreover, in several instances the testimony amounted to
nothing more than an allegation that a particular employee had
broken a rule but had never been caught and, therefore, never
been disciplined. This testimony thus failed to provide any
comparison to similarly situated but significantly younger
employees who might have been treated less severely.8
Bogle also failed to call a single witness who could testify
authoritatively and comprehensively regarding Orange County's
8
This is not to say that stronger anecdotal evidence might not, in some
cases, be enough to cast sufficient doubt on the defendant's
stated reasons for the adverse employment action. Cf. Ross v.
Rhodes Furniture, Inc., No. 97-6729, (11th Cir.
July 20, 1998) (evidence that showed the
decision maker engaged in the same policy
violation given to support the plaintiff's
termination was sufficient to preclude judgment
as a matter of law). In the present case,
however, Bogle's evidence was too tenuous and
speculative to reasonably support an inference of selective
discipline.
16
disciplinary policies, particularly as to what violations of policy
Orange County considered serious and when the cumulation of
incidents would lead to an employee's termination. Bogle's efforts
to present a comparison between his own record and those of
other Orange County employees were limited to his attempt to
elicit such a comparison from Jacqueline Miller, an Orange
County employee who reviewed Bogle's file after he made his
age discrimination complaint. Indeed, Miller testified that she
thought Bogle's file was unusual in some respects. See Supp.
R2 at 190 & 202 (admitting that she had never reviewed a file in
which the employee had been written up twice in one day for
smoking or had received four separate infractions of any kind in
one day). Miller's experience, however, was limited to
reviewing the files of those employees who alleged some form
of employment discrimination. Her experience, therefore, could
not provide a reliably comprehensive sample against which to
compare Bogle's treatment.
17
Finally, Bogle failed to call Perry, the actual decision maker
in this case, to testify regarding his evaluation of Bogle's record
and how it would have compared to other Orange County's
decisions with respect to younger employees. Bogle defends his
failure to call Perry during his case and argues that he should not
be put to the task of putting forth the defendant's case. That
much is true, but in order to survive a defendant's motion for
judgment as a matter of law, offered at the conclusion of the
plaintiff's case, the plaintiff must present evidence that would
permit a reasonable jury to find in the plaintiff's favor on each and
every element of the claim. See Fed. R. Civ. P. 50(a)(1); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91
L. Ed. 2d 265 (1986) (noting that the standard for a directed
verdict and summary judgment are the same and that the
absence of evidence on an essential element of a party's case will
support judgment as a matter of law against that party); Reeves v.
City of Jackson, 532 F.2d 491, 494 (5th Cir. 1976) (“If, after a full
18
development of the facts the plaintiff's cause is too weak to string
the Constitution's bow or unsheath the sword provided for the
redress of such grievances . . . it may be washed out on summary
judgment . . . or, if it gets beyond that, by motion for directed
verdict . . . at the end of the plaintiff's case . . . .”) To survive
Orange County's motion, therefore, Bogle had to call a witness or
present other competent evidence that could have cast doubt on
Orange County's stated reason for his termination—a reason that
Bogle, himself, introduced into evidence. Since Bogle failed to
meet this burden, the district court correctly entered judgment as
a matter of law against him.9
9
Our conclusion on this matter precludes any need to address Bogle's
remaining arguments concerning his state law claims of age discrimination. See
generally Florida Dep't of Comm. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. Dist. Ct.
App. 1991) (applying the McDonnell Douglas framework to discrimination claims under
Florida law and noting that since Florida's Human Rights law is modeled after federal
law, federal case law interpreting discrimination claims applies).
19
II. Rule 11 Sanctions
As noted above, the district court entered judgment as a
matter of law against Bogle on April 7, 1997. Bogle filed a timely
notice of appeal on May 5, 1997, which stated that Bogle intended
to pursue an appeal from the order. Thereafter, Orange County
filed a motion for attorneys' fees pursuant to 42 U.S.C. § 1988and sanctions pursuant to Federal Rule of Civil Procedure 11
(“Rule 11"). On June 30, 1997, the district court found that
Bogle's attorney, Swanson, had forced a trial regarding intentional
age discrimination even though she reasonably should have
known Bogle's claim had no evidentiary support and granted
Orange County's motion for Rule 11 sanctions.10 Significantly,
Swanson did not file another notice of appeal or amend the
previous notice of appeal within thirty days of the district court's
Rule 11 order. Nevertheless, Swanson has included arguments
10
The district also court concluded that Orange County could not recover
attorneys' fees for prevailing in an age discrimination case. Orange County has not
contested this point on appeal.
20
regarding the Rule 11 order in her briefs before this court and
asks us to reverse the district court's imposition of sanctions.
Orange County argues that we are without jurisdiction to
consider Swanson's arguments regarding the Rule 11 order
because Swanson never filed a notice of appeal stating her intent
to appeal the sanctions. Federal Rule of Appellate Procedure 4
(“FRAP 4") requires a civil litigant who makes an appeal as of
right to file a notice of appeal within thirty days after the date that
the district court entered its order. See Fed. R. App. P. 4(a)(1).
As the Supreme Court has explained, filing a timely notice of
appeal is “mandatory and jurisdictional”; without it a Court of
Appeals is “without jurisdiction to review the decision on the
merits.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203,
108 S. Ct. 1717, 1722, 100 L. Ed. 2d 178 (1988). Federal
Rule of Appellate Procedure 3 (“FRAP 3") governs the required
contents of a notice of appeal and demands that the notice
“designate the judgment, order, or part thereof appealed from . . .
21
.” Fed. R. App. P. 3(c). In McDougald v. Jenson, 786 F.2d 1465,
1474 (11th Cir. 1986), we held that a litigant who filed a notice of
appeal prior to the entry of the relevant order without referring to
that order had failed to satisfy FRAP 3. We also held that
because the litigant had failed to file an additional or amended
notice of appeal referring to the subsequent order, the Court of
Appeals was without jurisdiction to hear the appeal on the merits.
Id.In its entirety, the notice of appeal in this case states as
follows: “Notice is given that WILLIAM J. BOGLE,
Plaintiff/Appellant, appeals to the United States Eleventh Circuit
Court of Appeal all Orders of this Court, including the Final
Judgment rendered on April 7, 1997, a copy of which is attached
hereto as Exhibit ‘A’.” This notice of appeal was filed three days
before Orange County filed its Rule 11 motion for sanctions and
almost two months before the district judge entered her order
awarding sanctions against Bogle’s counsel.
22
Federal Rule of Appellate Procedure 3(c) provides that “[a]
notice of appeal must specify the party or parties taking the
appeal by naming each appellant in either the caption or the body
of the notice of appeal.” Rule 3(c) also provides that “an appeal
will not be dismissed...for failure to name a party whose intent to
appeal is otherwise clear from the notice.” The test for
determining the sufficiency of a notice of appeal is “whether it is
objectively clear that a party intended to appeal.” Fed. R. App. P.
3(c) advisory committee’s note (1993 amendment).
In this case, it must be remembered that sanctions were not
imposed against Bogle. Instead, the district judge sanctioned
Bogle’s counsel. Yet there is nothing in Bogle’s notice of appeal
to suggest that counsel joins her client as an appellant. To be
sure, counsel’s name appears on the notice of appeal where she
signed the notice as Bogle’s attorney. Her name is not
mentioned, however, in either the caption or the body of the notice
23
of appeal. In both the caption and the body, the notice refers
only to “WILLIAM J. BOGLE, Plaintiff/Appellant.”
At least three circuit courts have determined that no
appellate jurisdiction exists over an appeal of a district court’s
award of sanctions against counsel where the notice of appeal
fails to make clear that counsel intends to participate as an
appellant rather than as an appellant’s attorney. Maerki v. Wilson,
128 F.3d 1005 (6th Cir. 1997); Agee v. Paramount
Communications, Inc., 114 F.3d 395 (2d Cir. 1997); Dietrich v.
Sun Exploration and Prod. Co., Nos. 92-1981, 93-1442, (6th Cir.
Mar. 30, 1994), cert. denied, 513 U.S. 1872, 115 S. Ct. 197, 130
L.Ed.2d 128 (1994). Because there is nothing in Bogle’s notice of
appeal to suggest that counsel intended to participate in her own
right as a party appellant, we are without jurisdiction to entertain
counsel’s appeal from the imposition of sanctions.
Furthermore, even if it were clear that counsel intended to
participate as an additional appellant, the notice of appeal in this
24
case does not confer jurisdiction over a sanctions order that was
entered almost two months after the notice of appeal was filed.
Indeed, at the time the notice of appeal was filed, neither Bogle
nor his counsel could be certain that Orange County, as the
prevailing defendant, would follow through with its earlier-filed
notice of intent to seek sanctions. Nor could either know that the
district judge would ultimately award sanctions as she did. It may
be true that the subsequent Rule 11 order was (or should have
been) within counsel’s contemplation. It would not have been
unreasonable, however, for Bogle and his counsel to believe that
Orange County, having won its case, would choose not to further
litigate the matter of sanctions. Moreover, to the extent that
sanctions should have been within counsel’s contemplation,
perhaps counsel should also have contemplated that the district
judge had no authority to grant a post-judgment Rule 11 motion.
That an order imposing sanctions may have been
contemplated does not change the fact that, at the time the notice
25
of appeal was filed, a decision regarding sanctions had not yet
been announced and sanctions had not yet been imposed. Rule
3(c) provides that a “notice of appeal...must designate the
judgment, order, or part thereof appealed from.” Although notices
of appeal are to be given expansive rather than hypertechnical
construction, Rule 3(c) requires that a notice of appeal designate
an existent judgment or order, not one that is merely expected or
that is, or should be, within the appellant’s contemplation when
the notice of appeal is filed. See 20 James Wm. Moore, Moore’s
Federal Practice § 303.21[3][c] (explaining that a notice of appeal
does not ordinarily include orders that have not been entered at
the time a notice of appeal is filed and that, for post-notice orders,
a second notice or appeal, or an amended notice of appeal, is
usually necessary).
The Ninth Circuit has held that even where a notice of
appeal does not designate a post-judgment order, appellate
jurisdiction may nevertheless exist over a post-judgment order if
26
the appellant’s brief raises the post-judgment issue and the brief
is filed before the deadline for filing a notice of appeal from the
post-judgment order has expired. Intel Corp. v. Terabyte Int’l,
Inc., 6 F.3d 614 (9th Cir. 1993). The Ninth Circuit concluded in
Terabyte that appellant’s opening brief served as a timely-filed
notice of appeal of the district court’s post-judgment (and post-
notice) order setting the amount of attorney’s fees.
In this case, the notice of appeal did not, and could not,
designate the district judge’s order imposing sanctions because
no such order had than been entered. Furthermore, Bogle’s brief
on appeal was not filed until January 20, 1998, more than six
months after the district judge entered the order imposing
sanctions. Assuming that an appellate brief may serve as a
notice of appeal, Bogle’s brief was filed long after expiration of the
time to file an appeal of the sanctions order. In the absence of a
timely notice of appeal following entry of the district judge’s
27
sanction order, we are without jurisdiction to consider an appeal of
that order.
CONCLUSION
Bogle asks us to reverse the district court's decision to enter
judgment as a matter of law at the close of his case-in-chief and
its decision to impose sanctions pursuant to Rule 11. Although
we assume that Bogle's evidence was sufficient to present a
prima facie case of age discrimination under the McDonnell
Douglas regime as it applies in ADEA cases, we hold that Bogle
failed to present evidence that could lead a reasonable jury to
disbelieve Orange County's stated reasons for his discharge and
therefore make an inference of illegal discrimination. As a result,
we affirm the district court's entry of judgment as a matter of law.
We also conclude that Bogle's notice of appeal, filed before
the entry of the district court's order sanctioning Swanson for
violating Rule 11, was insufficient to designate the order for
28
consideration on appeal and, therefore, hold that we do not have
jurisdiction to review the sanctions.
We AFFIRM the district court's entry of judgment as a matter
of law on the merits of the case. The appeal from the district
court’s order imposing sanction is DISMISSED FOR LACK OF
JURISDICTION.
29