Bogle v. Orange County Board of County Commissioners , 162 F.3d 653 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 97-2577.
William J. BOGLE, Plaintiff-Appellant,
v.
ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS as governing body of Orange
County, Florida, Defendant-Appellee.
Dec. 9, 1998.
Appeal from the United States District Court for the Middle District of Florida. (No. 95-847-Civ-
ORL-22), Anne C. Conway, Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior District Judge.
BIRCH, Circuit Judge:
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
*
Honorable William Stafford, Senior U.S. District Judge for the Northern District of Florida,
sitting by designation.
On August 31, 1993, plaintiff-appellant, William Bogle, lost his job as a corrections officer
at the Central Booking Facility in 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 coworkers 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, 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
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.
2
complaint alleges that Orange County terminated him because of his age in violation of the ADEA
and Florida's Human Rights law, 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, 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
3
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.
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 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).
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)
4
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 668 (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 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 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
5
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. 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
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. 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.
6
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 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 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
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 County maintained that the cumulation of
disciplinary violations led to Bogle's dismissal rather than any one event.
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
7
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 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 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
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.
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.
8
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 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 disciplinary policies, particularly as to what violations
of policy Orange County considered serious and when the cumulation of incidents would lead to an
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., 146 F.3d 1286 (11th Cir.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.
9
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.
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 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
10
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
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. § 1988 and 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 regarding the Rule 11 order in her briefs before this court and asks us to reverse the
district court's imposition of sanctions.
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).
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.
11
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...." 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.
12
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 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.1994), cert. denied, 513 U.S. 872, 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.
13
Furthermore, even if it were clear that counsel intended to participate as an additional
appellant, the notice of appeal in this 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 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).
14
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 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 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.
15
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
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.
16