Charmaine Hamer v. Neighborhood Housing Services , 897 F.3d 835 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3764
CHARMAINE HAMER,
Plaintiff-Appellant,
v.
NEIGHBORHOOD HOUSING SERVICES OF CHICAGO and FANNIE
MAE,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
On Remand from the Supreme Court of the United States.
No. 12 C 10150 — Rubén Castillo, Chief Judge.
____________________
ARGUED MAY 15, 2018 — DECIDED JULY 30, 2018
____________________
Before EASTERBROOK, SYKES, and BARRETT, Circuit Judges.
EASTERBROOK, Circuit Judge. Charmaine Hamer worked at
Fannie Mae’s Mortgage Help Center from 2010 to 2012. Fan-
nie Mae contracted with Neighborhood Housing Services of
Chicago (Hamer’s employer) to run the Center but main-
tained the right to remove individual employees. After
Hamer’s application for a promotion was denied and she
2 No. 15-3764
was removed from the Center, she sued both Neighborhood
Housing and Fannie Mae for discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e–17, and the Age Discrimination in Em-
ployment Act, 29 U.S.C. §§ 621–34. The district court granted
summary judgment in the defendants’ favor, and Hamer
appealed the retaliation claims.
A statute requires notices of appeal to be filed within
thirty days after entry of judgment but provides that district
courts may “extend the time for appeal upon a showing of
excusable neglect or good cause.” 28 U.S.C. §2107. This stat-
ute does not set a limit on extensions’ length, but the rule
implementing the statute provides that “[n]o extension un-
der this Rule 4(a)(5) may exceed 30 days after the prescribed
time or 14 days after the date when the order granting the
motion is entered, whichever is later.” Fed. R. App. P.
4(a)(5)(C).
On September 14, 2015, the district court entered sum-
mary judgment in favor of defendants. On October 8
Hamer’s counsel submijed a motion to withdraw and to ex-
tend the time for appeal by 60 days (to December 14), to give
Hamer time to acquire new counsel. The district court grant-
ed the motion, despite Rule 4(a)(5)(C), and Hamer filed her
notice of appeal pro se on December 11—within the time er-
roneously allowed but outside the maximum under Rule
4(a)(5)(C). None of the litigants appears to have given any
thought to the violation of Rule 4 until this court, on review
of the docketing statements, ordered the parties to submit
jurisdictional memoranda on the timeliness issue.
This court dismissed Hamer’s appeal, concluding that the
time limit imposed by Rule 4(a)(5)(C) is jurisdictional. 835
No. 15-3764 3
F.3d 761 (7th Cir. 2016). The Supreme Court vacated that de-
cision, holding that statutory time limits are jurisdictional
but that those imposed by rule are not—though they remain
mandatory if properly invoked. 138 S. Ct. 13 (2017). See also
Bowles v. Russell, 551 U.S. 205 (2007). We must now decide
whether defendants properly invoked Rule 4(a)(5)(C) and, if
not, must reach the merits.
Hamer contends that the defendants may not now chal-
lenge her appeal as untimely because they failed either to
appeal from the district court’s order granting the extension
or to cross-appeal from the judgment. An appeal is necessary
when a party seeks to ajack the judgment in a way that ei-
ther expands its own rights or narrows the rights of its op-
ponent. United States v. American Railway Express Co., 265 U.S.
425, 435 (1924); MassachuseDs Mutual Life Insurance Co. v.
Ludwig, 426 U.S. 479 (1976); Robert L. Stern, When to Cross-
Appeal or Cross-Petition—Certainty or Confusion?, 87 HARV. L.
REV. 763 (1974). Defendants are not seeking to alter the
judgment, so they did not need to appeal. This conclusion
aligns us with the Tenth Circuit, United States v. Madrid, 633
F.3d 1222 (10th Cir. 2011), although the Third and Sixth Cir-
cuits have held otherwise. Amatangelo v. Donora, 212 F.3d 776(3d Cir. 2000); United States v. Burch, 781 F.3d 342 (6th Cir.
2015). Our conclusion also is in line with the Supreme
Court’s rule that an appellee seeking to defend a judgment
“may, without taking a cross-appeal, urge in support of [it]
any majer appearing in the record, although his argument
may involve an ajack upon the reasoning of the lower court
or an insistence upon majer overlooked or ignored by it.”
American Railway Express, 265 U.S. at 435.
4 No. 15-3764
Hamer’s argument that defendants forfeited the timeli-
ness issue by not protesting in the district court likewise
goes nowhere. Because the district judge granted the motion
for extension immediately, defendants could not oppose it
before the judge acted. And it is never necessary to remon-
strate with a judge after an order has been entered. Motions
for reconsideration are discretionary, not obligatory. See
Fed. R. Civ. P. 46 (“A formal exception to a ruling or order is
unnecessary.”).
The contention that the defendants waived any challenge
to the timeliness of Hamer’s appeal by saying in their dock-
eting statement that the notice of appeal was “timely” re-
quires more discussion. Under the heading “Appellate Court
Jurisdiction”, the docketing statement declares that “Plain-
tiff-Appellant filed a timely Notice of Appeal” and under the
heading “The Date of Entry of the Judgment Sought to be
Reviewed” that “Plaintiff-Appellant timely filed a Notice of
Appeal”. Defendants argue that language in docketing
statements cannot waive or forfeit a right and that, by ad-
dressing the timeliness issue—in response to this court’s or-
der—before the merits, they have preserved the argument.
Mandatory claim-processing rules, “[i]f properly in-
voked, … must be enforced, but they may be waived or for-
feited.” 138 S. Ct. at 17. Since the Supreme Court’s clarifica-
tion that time limits imposed by federal rules that do not
have a statutory basis are claim-processing rules, Kontrick v.
Ryan, 540 U.S. 443 (2004), this court has held that the limit in
Rule 4(b) for criminal appeals will not be enforced if waived.
See United States v. Neff, 598 F.3d 320, 323 (7th Cir. 2010).
Treating timeliness under Rule 4(a)(5)(C) identically respects
“the principle of party presentation so basic to our system of
No. 15-3764 5
adjudication.” Arizona v. California, 530 U.S. 392, 413 (2000).
See also Greenlaw v. United States, 554 U.S. 237, 243–44 (2008).
We have found scant authority on docketing statements
in general, and we have not located any authority from any
circuit on whether representations within docketing state-
ments can constitute waivers. Defendants point to local rules
and cases from other circuits that characterize docketing
statements as preliminary, nonbinding documents. As de-
fendants observe, however, “a docketing statement is a crea-
ture of a court’s local rules,” and this court is not bound by
other courts’ pronouncements on the effect of docketing
statements that differ from ours. Many courts of appeals re-
quire docketing statements, but the Seventh Circuit may be
unique in requiring them to take the form of prose para-
graphs rather than responses to a printed form.
Docketing statements serve several important functions
in this court. They form part of the “short record” that senior
court staff reviews “[i]n an effort to uncover jurisdictional
defects very early in the appellate process”. See Practitioner’s
Handbook for Appeals to the United States Court of Appeals for
the Seventh Circuit 19 (2017 ed.). The court also uses docket-
ing statements to determine “whether an appeal is related to
other appeals, where an incarcerated party is housed, and
who current public officials are in official capacity suits”. Id.
at 119. We require docketing statements to contain all infor-
mation that Fed. R. App. P. 28 requires in jurisdictional
statements. Circuit R. 3(c). Docketing statements are always
required of an appellant, but an appellee need submit a
docketing statement only if the appellant’s is not “complete
and correct”.
6 No. 15-3764
The fact that some information required in docketing
statements relates to subject-majer jurisdiction—a topic that
cannot be waived—does not imply that pronouncements
within docketing statements on other topics can never waive
a right under a claim-processing rule. This court has empha-
sized the importance of docketing statements. United States
v. Lloyd, 398 F.3d 978, 980–81 (7th Cir. 2005); Baez-Sanchez v.
Sessions, 862 F.3d 638, 639 (7th Cir. 2017) (Wood, C.J., in
chambers). And we enforce our requirements in a manner
calculated to induce compliance. See, e.g., BondPro Corp. v.
Siemens Power Generation, Inc., 466 F.3d 562 (7th Cir. 2006)
(penalizing failures to comply with jurisdictional-statement
requirements). Giving an affirmative statement the same
effect whether it is made in a docketing statement, in the ar-
gument section of a brief, or at oral argument creates an in-
centive for litigants and lawyers to take the rules and their
representations to this court seriously.
Defendants aren’t helped by cases holding that litigants
may raise in their briefs issues that were not in their docket-
ing statements. That substantive arguments are not forfeited
by omission from a docketing statement does not bear on
whether they can be waived by language included in a dock-
eting statement. Rights under nonjurisdictional rules, we
therefore hold, can be waived in docketing statements.
In holding so, we are not the first court of appeals to give
language contained in a docketing statement effect on a
majer other than subject-majer jurisdiction: Several courts
have looked to information included in docketing statements
to supplement otherwise-insufficient notices of appeal. Díaz
Aviation Corp. v. Airport Aviation Services, Inc., 716 F.3d 256,
261–63 (1st Cir. 2013); Haney v. Addison, 175 F.3d 1217, 1219
No. 15-3764 7
(10th Cir. 1999); Small Business in Telecommunications v. FCC,
251 F.3d 1015, 1020–21 (D.C. Cir. 2001). And the Fourth Cir-
cuit has looked to the list of issues in a docketing statement,
among other things, to find that a party was aware of an ar-
gument, then intentionally abandoned it by omijing it from
the appellate brief. South Atlantic Limited Partnership of Ten-
nessee, LP v. Riese, 356 F.3d 576, 587 (4th Cir. 2004).
So the question now is whether the declarations in de-
fendants’ docketing statement constitute waivers. They take
the traditional form of a waiver: affirmative statements that
Hamer’s appeal is “timely”. Defendants contend, however,
that because docketing statements pertain primarily to juris-
diction, the two relevant sentences assert only that the ap-
peal was timely in a jurisdictional sense, while reserving the
right to challenge nonjurisdictional timeliness. Yet both sen-
tences are unconditional statements that the appeal is timely.
Defendants could have included a caveat that they were dis-
cussing only jurisdictional timeliness, but they didn’t. The
common-sense meaning of defendants’ affirmative state-
ments: the appeal is timely, period.
Defendants argue that Circuit Rule 3(c)’s imperative—
that appellees supplement appellants’ docketing statements
that are not “complete and correct”—does not encompass a
duty to identify nonjurisdictional defects. But “complete and
correct” doesn’t mean “complete and correct on jurisdiction-
al majers alone.” And even if defendants’ reading of Rule
3(c) were correct, language doesn’t fall into a safe haven
from waiver merely because it is included at a litigant’s dis-
cretion.
Waiver is an “intentional relinquishment or abandon-
ment of a known right”. Johnson v. Zerbst, 304 U.S. 458, 464
8 No. 15-3764
(1938). But courts look to litigants’ (and their ajorneys’)
words and actions as objective manifestations, rather than
asking what parties were thinking when they said or did
something. See, e.g., United States v. Fuentes, 858 F.3d 1119,
1121 (7th Cir. 2017); United States v. Ford, 798 F.3d 655, 660
(7th Cir. 2015). The requirement that a right be “known” in
this case means only that defendants had to know that time-
liness majers. Cf. Iowa v. Tovar, 541 U.S. 77, 92 (2004); United
States v. Ruiz, 536 U.S. 622, 629 (2002). Because defendants
actively asserted that the appeal was timely, they cannot
now argue otherwise.
Defendants contend that, even if they waived the timeli-
ness argument, Hamer likewise waived the benefit of that
waiver. Because Hamer argued in her jurisdictional memo-
randum during the first round of appellate litigation that de-
fendants “forfeited and wa[i]ved their right to motion for
dismissal of case based on untimely filing of appellant’s mo-
tion to appeal”, this contention is unavailing. See 835 F.3d at
763 (recognizing that Hamer had argued that defendants
waived the timeliness issue). So we must reach the merits of
Hamer’s retaliation claim.
Hamer was passed over for a promotion in February 2012
in favor of a younger, male colleague. Believing that this ad-
verse employment action constituted age and sex discrimi-
nation, Hamer met with Linda Anderson, Neighborhood
Housing’s Director of Human Resources, on February 27,
and discussed her intention to file a charge of discrimination
with the EEOC. Anderson called Toya Glenn, Hamer’s su-
pervisor, on February 28 to discuss the reasons that Hamer
was not offered the promotion. On March 1, Anderson
emailed Robin Coffey, Neighborhood Housing’s Assistant
No. 15-3764 9
Deputy Director, to request a meeting to “discuss a person-
nel issue.” Later that day, Coffey replied to Anderson’s
email that the decision had been made to remove Hamer
from the Mortgage Help Center. (Defendants assert that
Glenn and Coffey made this decision without Fannie Mae
exercising its right to remove employees from the Mortgage
Help Center, but Hamer points to evidence that Mark Green,
the Fannie Mae Site Manager, requested her removal. Given
this factual dispute, which the district court did not resolve,
we refer to all three as “decisionmakers”.) Hamer was tem-
porarily assigned alternative duties at Neighborhood Hous-
ing’s central office. On March 14 Anderson told Hamer she
could stay with Neighborhood Housing in a job that came
with a 25% pay cut and a longer, more expensive commute,
or she could refuse the job and be deemed to have resigned.
She chose the lajer.
Neighborhood Housing argues that Hamer’s removal
was prompted, not by a complaint that the decisionmakers
were unaware of, but by ongoing communication issues that
her supervisor had noted in multiple performance reviews
and that Green complained of during February 2012. Ac-
cording to Hamer, these issues could not have been the real
reason for her removal because Glenn, the day before An-
derson called her, drafted a career progression plan giving
Hamer a month to improve her communication skills and,
hours before the call, arranged for Hamer to ajend a confer-
ence in March. This suspicious timing, Hamer asserts, is evi-
dence that Neighborhood Housing’s proffered reason is pre-
textual.
The district court held that being given the choice be-
tween accepting a demotion and voluntarily resigning was
10 No. 15-3764
not a constructive discharge and that Hamer had failed to
show that her removal from the Center (which defendants
conceded was an adverse employment action) was caused by
the discrimination complaint. We don’t need to decide
whether the district court was correct on the constructive
discharge point, however, because Hamer has not estab-
lished a causal link between her discrimination complaint
and either adverse action.
To retaliate against a complainant, decisionmakers must
be aware of the complaint. Anderson knew of Hamer’s inten-
tion to file a charge but didn’t make any employment deci-
sions, and Hamer has not established a genuine dispute
about the decisionmakers’ knowledge. Glenn, Coffey, and
Green all filed affidavits asserting they were never told of
Hamer’s plan to file a complaint with the EEOC, and Ander-
son asserts that she never told anyone about it. In response
Hamer offers only speculation.
Hamer observes that the affiants say they were not “told”
about her plan to file a complaint but do not discuss whether
they learned of the plan in some other way, as she conjec-
tures they might. Glenn knew that Hamer had met with An-
derson; maybe she inferred, when Anderson called the next
day to discuss the reasons Hamer wasn’t promoted, that the
meeting concerned allegations of discrimination. Or the
notes that Anderson took while meeting with Hamer may
have fallen into the decisionmakers’ laps. But Hamer did not
depose Glenn, Coffey, Green, or anyone else, and she has not
offered any support for her speculation. Hamer has not pro-
vided even a “scintilla” of evidence, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248–52 (1986), to support her conjec-
ture that the notes may have been included in her personnel
No. 15-3764 11
file and that the decisionmakers looked in it. Speculative as-
sertions about decisionmakers’ knowledge are insufficient to
establish a genuine dispute about a material fact. See Nagle v.
Calumet Park, 554 F.3d 1106, 1121–22 (7th Cir. 2009). The
judgment of the district court is therefore
AFFIRMED.