Marquez, Raymond R. v. Mineta, Norman ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2421
RAYMOND RIVERA MARQUEZ,
Plaintiff-Appellant,
v.
NORMAN Y. MINETA,
Secretary of Transportation,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 4970—George W. Lindberg, Judge.
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ARGUED AUGUST 2, 2005—DECIDED SEPTEMBER 12, 2005
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Before COFFEY, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Raymond Marquez, a 62-year-old
man from Puerto Rico, was terminated because of poor
performance after only seven months as an Aviation Safety
Inspector for the Federal Aviation Administration. He
sued the Department of Transportation (“DOT”) for age
discrimination under the Age Discrimination in Employ-
ment Act, 29 U.S.C. § 633a(c), and for race and national
origin discrimination under Title VII, 42 U.S.C. § 2000e et
seq. The district court granted the DOT’s motion for
summary judgment. Marquez filed a notice of appeal one
day late, but successfully moved the district court to extend
the time to appeal on grounds that he committed “excusable
2 No. 04-2421
neglect” by miscalculating the filing deadline. The district
court, however, abused its discretion in granting an exten-
sion, and we therefore dismiss the appeal for lack of
appellate jurisdiction.
Marquez was recruited and hired by Gerardo Martinez, a
supervisor also of Puerto Rican heritage at the O’Hare
Flight Standards District Office. Marquez’s primary trainer
was Donald Rigg, but after only two months of training he
had become frustrated with Marquez’s performance and
asked that someone else evaluate him. Rigg testified in an
affidavit that Marquez lacked both skill and integrity; was
computer illiterate; could not follow written instructions or
even fill out his time card; was disorganized; and could not
retain information whatsoever. Rigg became so frustrated
that he concluded he could never certify Marquez as a
qualified inspector. Rigg’s assessment was seconded by
senior inspector Sam Latorre, who opined that Marquez’s
training would take two years beyond the normal time to
train an inspector. Latorre added that Marquez was the
weakest trainee he had seen in his 11 years as senior
inspector, and that Marquez should never have been hired.
Three other inspectors whom Martinez assigned to train
Marquez all found him to be very slow at learning and
retaining information.
Martinez discussed Marquez’s poor job performance with
him, and when Marquez responded with a poorly written
letter, Martinez had Marquez enrolled in an “effective
writing” course. In May and June 2001, Marquez attended
training courses at the Aeronautical Center in Oklahoma
City, and returned the following month for more courses.
Marquez achieved barely passing scores, and Martinez
learned later from course instructors and co-workers that
Marquez had difficulty understanding instructions and
embarrassed himself by asking off-topic questions. By
September 2001 Martinez believed that Marquez had been
No. 04-2421 3
provided adequate time for evaluation, and terminated him.
Marquez then filed this discrimination suit.
On April 2, 2004, the district court granted summary
judgment for the DOT. For purposes of the indirect burden-
shifting method, the court determined that Marquez could
not show that he was satisfactorily performing his job;
during his training period he failed to achieve final certifi-
cation on any task and had difficulty retaining information
and understanding computers. And even if Marquez could
establish a prima facie case, the court added, he could not
show that Martinez did not honestly believe he should be
terminated for poor performance.
Marquez filed a notice of appeal on June 2, 2004, 61 days
after the district court’s entry of judgment—one day too late
under FED. R. APP. P. 4(a)(1)(B). We suspended briefing and
ordered Marquez to explain why his appeal should not be
dismissed for lack of jurisdiction. Marquez then filed a
motion with the district court, seeking a one-day extension
of time to file his notice of appeal on grounds of excusable
neglect—his own miscalculation of the filing deadline. The
district court granted the extension without explanation.
On July 2, 2004, we directed Marquez to explain why the
appeal should not be dismissed for lack of jurisdiction,
noting that his only reason for the tardiness was a “miscal-
culation of the time to appeal” and as such the district court
“may have abused its discretion in granting the motion.”
As a threshold matter, we must ascertain whether we
have appellate jurisdiction over this appeal. Marquez
argues that the district court properly exercised its discre-
tion in extending the time to file a notice of appeal because
the one-day delay caused no prejudice to the DOT.
Rule 4(a)(5)(A)(ii) of the Federal Rules of Appellate
Procedure permits a district court to extend the time for
filing a notice of appeal up to 30 days after the entry of
judgment upon a showing of good cause or excusable
4 No. 04-2421
neglect. The standard for reviewing whether neglect was
“excusable” is an “equitable” one, taking into consideration
all relevant circumstances including “the danger of preju-
dice [to the non-moving party], the length of the delay and
its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in
good faith.” United States v. Brown, 133 F.3d 993, 996 (7th
Cir. 1998) (quoting Pioneer Investment Serv. Co. v. Bruns-
wick Assocs., 507 U.S. 380, 395 (1993)). But a “simple case
of miscalculation” regarding deadlines is not a sufficient
reason to extend time, United States v. Alvarez-Martinez,
286 F.3d 470, 473 (7th Cir. 2002), and judges do not have
“carte blanche” authority to allow untimely appeals, United
States v. Marbley, 81 F.3d 51, 52 (7th Cir. 1996).
The problem facing Marquez is that there is no basis in
the record for us to conclude that the untimely filing was
due to excusable neglect. Counsel conceded in his motion for
an extension of time that “due to miscalculation of the date,
plaintiff filed his Notice of Appeal with the clerk of the
District Court one day late,” but simple miscalculation is
not excusable neglect. See Alvarez-Martinez, 286 F.3d at
473. Even if the one-day extension did not cause prejudice
to the DOT, we doubt that “it can make a difference that no
harm to the appellee has been shown”; given the short
deadline under Rule 4, “[t]here is unlikely ever to be harm.”
Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th
Cir. 1996). Further, this is an employment discrimination
case, not a bankruptcy or criminal case in which the district
court has broad power to extend the filing deadline to avoid
unjust results; in those cases the consequences of missing
a deadline may include the loss of real property or personal
liberty. See Alvarez-Martinez, 286 F.3d at 473. The district
court here did not identify any excuse, and we see no
ground in the record on which the district court could have
granted the motion. This appeal must be dismissed based
on the absence of appellate jurisdiction.
No. 04-2421 5
We hasten to add that even if we had jurisdiction over
Marquez’s appeal, his case is meritless. The district court
correctly observed that Marquez’s severely deficient work
performance prevented him from establishing a prima facie
case of discrimination.
DISMISSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-05