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.
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.
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, 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
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 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.
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).
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:
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.
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.
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.
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 creates 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 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 of isolated incidents and of Orange County's
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 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 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.
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.
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.
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
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[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 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.
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
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.