David Feldman v. Olin Corporation

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3955
D AVID F ELDMAN,
Plaintiff-Appellant,
v.
O LIN C ORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-168-GPM—G. Patrick Murphy, Judge.
A RGUED A PRIL 19, 2012—D ECIDED A UGUST 27, 2012
Before E ASTERBROOK , Chief Judge, and F LAUM and
W OOD , Circuit Judges.
W OOD , Circuit Judge. In May 2007, David Feldman
was working as a tractor operator on the day shift at
a manufacturing facility then owned by Olin Corpora-
tion. Because of Feldman’s medical problems with
fibromyalgia and sleep apnea, his doctors had advised
him to work regular day positions, without rotation and
overtime. This was possible until Olin realigned its work
2 No. 10-3955
force, causing Feldman’s position to change from one
limited to daytime work to one that required rotation
among day, evening, and night shifts. Although he tried
to work under the new regime for a few weeks,
Feldman found that his fatigue and pain made it impos-
sible for him to do so. When he presented Olin with
a medical restriction from the shift rotation, Olin
promptly laid him off. It did not place him in a
different position, because (it asserted) no other posi-
tions were available that did not require overtime or flex-
time. Over the course of the next several months, Olin
continued to refuse to place Feldman in another spot,
maintaining that either flex-time or overtime were
essential functions for everything that was available.
Finally, a straight-day position came open in Decem-
ber 2007; Feldman successfully bid for it. Since then,
Feldman has continued working at the plant.
Feldman brought this suit alleging that the defen-
dants’ failure to offer a reasonable accommodation in
the form of a straight-day shift, without overtime,
violated the Americans with Disabilities Act (ADA), 42
U.S.C. § 12111 et seq. He also argued that once he
returned to work, Olin retaliated against him for having
filed discrimination complaints with various state and
federal agencies. Feldman also brought claims under
the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq., and state law retaliation claims,
but those are not at issue on this appeal.
The district court granted summary judgment in the
defendants’ favor, dismissing all of Feldman’s claims.
No. 10-3955 3
We conclude, however, that this was error. Feldman
can prevail if the trier of fact resolves two genuinely
disputed points in his favor: first, whether he is “dis-
abled” under the ADA, and second, whether he is “quali-
fied” to work in certain positions given his overtime
restriction. Feldman’s retaliation claims, in contrast,
were properly dismissed for lack of evidence that
the adverse employment actions were caused by any
protected conduct. Finally, both parties on appeal
have discussed sanctions. As we explain below, Feldman’s
attorneys failed to file a timely notice of appeal from
the order awarding sanctions against them, and so we
lack jurisdiction to consider it. Feldman’s appeal from
the court’s denial of his own motion for sanctions
is, however, properly before us, and we conclude that
the district court rejected it too hastily. We thus
remand that issue to the district court for further con-
sideration.
I
The account of the facts that follows presents them
in the light most favorable to Feldman, who was the
party opposing summary judgment. See, e.g., Lagestee-
Mulder, Inc. v. Consolidated Ins. Co., 682 F.3d 1054, 1056
(7th Cir. 2012). In general, our review is de novo.
Since 1974 Feldman has worked at the metal manu-
facturing facility in East Alton, Illinois, in a variety of
production and manual labor positions. Until Novem-
ber 2007, this was the brass division of Olin. In Novem-
ber 2007, defendant Global Brass & Copper, Inc., a Dela-
4 No. 10-3955
ware corporation, acquired that division. It now operates
the same facility under the name Olin Brass, but the
true entity is GBC Metals, LLC, whose sole member is
Global Brass. Unless the context requires otherwise, as
it does when we come to the question of sanctions, we
refer to both defendants as Olin.
For many years Feldman typically worked the swing
shift (or “flex-time”), which required him to work day,
afternoon, and midnight rotating shifts along with some
overtime. Things changed when, in 2002, Feldman was
diagnosed with fibromyalgia. According to Feldman’s
rheumatologist, Dr. Tanphaichitr, as well as his general
practitioner, Dr. Green, Feldman experiences significant
pain, sporadic sleeping patterns, insomnia, and extreme
fatigue as a result of the fibromyalgia. Working the
swing shift was exacerbating these symptoms, and so
toward the end of 2004, Dr. Green recommended that
Feldman switch to a “straight-time” schedule. An em-
ployee on a straight-time shift is assigned a daytime
shift of eight hours, without rotation to afternoons
and nights. Dr. Green recommended this schedule for
Feldman because it would allow him to have a more
stable sleep cycle, which in turn would help to reduce
pain and fatigue. Following his doctor’s advice, Feldman
bid on and obtained a straight-day tractor-operator posi-
tion in January 2005. In February 2005, Feldman sub-
mitted a no-overtime medical restriction. Olin agreed to
honor this restriction after consulting with Dr. Green.
Feldman has also since been diagnosed with obstructive
sleep apnea. During a sleep study conducted in 2007,
No. 10-3955 5
Feldman’s sleep efficiency (that is, the amount of time
he actually slept) was rated as “very poor at 48%.”
On May 7, 2007, Olin implemented a “job curtailment,”
which involved realigning or reducing several positions.
As part of that process, it changed one tractor-operator
position from straight days to a rotating shift. Because
Feldman was the least senior of the straight-day tractor
operators, he was the one moved into the new job.
Feldman tried to follow the rotating schedule for two
weeks, but he was unable to do so because of his physical
condition. On May 21, 2007, Feldman submitted a new
doctor’s note restricting him from flex-time shifts;
relying on that, he asked to be assigned to a straight-day
shift. Olin told Feldman that there were no available
straight-day positions, and Feldman was laid off that day.
On June 11, 2007, Feldman filed a Charge of Discrim-
ination with the Illinois Department of Human Rights,
alleging disability and age discrimination. On June 20,
2007, Olin held a reasonable accommodation meeting. It
sent a Position Statement to the Illinois Department
of Human Rights in response to the discrimination
charge, stating that it had considered Feldman for a
variety of positions but could not place him given
his restrictions. Olin also sent Feldman’s doctor,
Dr. Green, questions about his medical restrictions, and
Dr. Green responded that Feldman’s “fibromyalgia and
obstructive sleep apnea cause significant symptoms
in terms of physical pain and excessive sedation,” and
that a day shift would allow Feldman to “have a reduc-
tion in pain and reduction in daytime somnolence so
6 No. 10-3955
that he would be able to perform the functions of his job.”
Olin did not at that time offer Feldman alternative em-
ployment, and so Feldman remained on layoff status.
For the most part, Feldman did not work during the
remainder of 2007, although he submitted several unsuc-
cessful bids for open positions. In December 2007, how-
ever, he bid on and was awarded a position working
straight days as a tractor operator.
Feldman brought this suit against Olin Corporation,
Global Brass, and Olin Brass, on March 4, 2009, alleging
that the defendants had committed age and disability
discrimination in violation of the ADEA and ADA by
failing to accommodate his disability between May
and December of 2007. He also included a claim for
retaliation. The district court granted summary judg-
ment to the defendants on all claims; Feldman has ap-
pealed only from the adverse rulings on the ADA
and retaliation claims.
II
To succeed on a claim under the ADA, a plaintiff must
show: “1) that she is disabled; 2) that she is otherwise
qualified to perform the essential functions of the job
with or without reasonable accommodation; and 3) that
the employer took an adverse job action against her
because of her disability or failed to make a reasonable
accommodation.” Stevens v. Illinois Dep’t of Transp., 210
F.3d 732, 736 (7th Cir. 2000). Feldman argues that Olin
failed to make a reasonable accommodation when it did
No. 10-3955 7
not offer him an available position after he alerted the
company to his flex-time and overtime restrictions.
The district court concluded, after looking at the sum-
mary judgment record, that Feldman could not show
that he was disabled; it therefore saw no need to
address the other ADA requirements. In our view, how-
ever, when the record is viewed in the light most
favorable to Feldman, there is a dispute of material fact
on that threshold issue. In addition, we conclude that
a dispute of material fact exists with respect to
Feldman’s qualification to perform available positions.
There is no dispute that Olin failed to offer Feldman
those positions as a reasonable accommodation, and
so we take that as established.
A
An individual is “disabled” under the ADA if he (1) has
an actual disability that substantially limits one or
more major life activities, (2) has a “record of” such an
impairment, or (3) his employer regards him as having
such an impairment. Powers v. USF Holland, Inc., 667
F.3d 815, 819 (7th Cir. 2011) (citing 42 U.S.C. § 12102(2)
(2006)).1 Feldman argues that he is disabled because
of substantial limitations in his ability to sleep, a major
1
Although this definition changed with the 2009 amend-
ments to the ADA, the amendment was not retroactive and
the parties agree that Feldman’s claim is controlled by the
earlier definition. See Fredricksen v. United Parcel Serv., Co.,
581 F.3d 516, 521 n.1 (7th Cir. 2009).
8 No. 10-3955
life activity. See Scheerer v. Potter, 443 F.3d 918, 919 (7th
Cir. 2006); E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d
606, 616 (5th Cir. 2009) (“Every circuit that has
addressed the issue has concluded that sleeping is a
major life activity.”). In the alternative, Feldman asserts
that a jury could find that Olin regarded him as being
substantially limited in his ability to work, also a major
life activity, see Powers, 667 F.3d at 817. Feldman
alleges that the latter argument is supported by the
fact that Olin had a “100% healed policy.” We address
each of these in turn.
1
A plaintiff claiming disability on the basis of sleep
problems must show that his “limitations on sleeping . . .
are sufficiently ‘prolonged, severe and long-term’ to
warrant classification as a disability.” Squibb v. Memorial
Med. Ctr., 497 F.3d 775, 784 (7th Cir. 2007) (quoting Burks
v. Wisconsin Dep’t of Transp., 464 F.3d 744, 757 (7th Cir.
2006)). Summary judgment for the defendant, however,
may be appropriate if the plaintiff relies only on “general-
ized assertions that she is unable to sleep for sub-
stantial periods of time, unsupported by any additional
evidence, medical or otherwise, and unenhanced by
claims that this lack of sleep affects her daytime func-
tions.” Squibb, 497 F.3d at 784.
Olin relies on these cases to argue that Feldman’s
claim, too, should fail. But Feldman’s case does not
suffer from the same defect. He presented significant
evidence of severe sleep problems resulting from sleep
No. 10-3955 9
apnea and fibromyalgia, including medical evidence
from his treating physicians and the results of a sleep
study. He did not rely solely on his own say-so, although
his deposition testimony and the records he kept from
2005 to 2007 documenting his sleeping difficulties bol-
stered the medical evidence.
The district court nonetheless granted summary judg-
ment for Olin because it thought that some facts in the
record cast doubt on the severity of Feldman’s sleeping
limitations. It noted that (1) Feldman’s sleep quality
is better if he uses a CPAP machine (a mask that delivers
continuous positive airway pressure), (2) Feldman’s
doctor said that he could work 40 hours a week of
straight-time shifts, and (3) Feldman is able to drive
and engage in some recreational activities. Perhaps these
pieces of evidence do cut in Olin’s favor; they suggest
that Feldman’s sleeping problems might not be a “disabil-
ity” for ADA purposes because they are easily remedied
or do not significantly affect his daytime functions.
The question, however, is not whether there was some
evidence in the record favoring Olin; it is whether
there was anything on the other side of the scale.
The answer to the latter question is yes. First, it is not
clear that the CPAP machine actually helps Feldman,
even if it theoretically ought to. Feldman testified that
it was difficult to wear the mask at night and thus the
machine did not work as effectively as possible. A jury
could conclude that even with a CPAP machine,
Feldman would have significant sleeping problems.
Second, although Feldman’s doctor advised he could
10 No. 10-3955
work 40 hours a week, he emphasized that this was only
if Feldman was not assigned to work flex-time. The
doctor believed that Feldman’s sleeping problems were
substantial enough to make a change in schedule neces-
sary. The fact that Feldman could have worked in
some capacity during the day cannot be enough to over-
come Feldman’s other medical evidence of sleeping
problems. To hold otherwise would be akin to saying
“that no one is disabled under the ADA unless the
person is unable to work,” which would “render all
the provisions in the ADA governing reasonable accom-
modations at work entirely empty of meaning.” Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999).
Finally, even though some evidence indicates that
Feldman is able to do things like go to movies and
attend church, other evidence shows that Feldman has
significantly reduced his social activities because of
his pain and sleeping difficulties.
On this record, we cannot conclude as a matter of
law that Feldman is not disabled. The evidence
supporting Feldman’s claim is sufficient to create a genu-
ine dispute of material fact that he was disabled by a
substantial, severe, and long-term limitation on his
ability to sleep.
2
Feldman’s alternative argument that he is disabled
because Olin regarded him as substantially limited in
his ability to work is another matter. In order for
No. 10-3955 11
Feldman to satisfy the “regarded as” theory of ADA
disability, there must be evidence that Olin believed
Feldman was “limited in [his] ability to perform not merely
one particular job but a class or broad range of jobs.”
Hanson v. Caterpillar, Inc., ___ F.3d ___, 2012 WL 3139946
(7th Cir. Aug. 3, 2012) (quotation omitted). The most
the evidence shows is that at the time Olin laid him off,
it regarded Feldman as unable to perform jobs that re-
quired overtime or flex-time. Patterson v. Chicago Ass’n
for Retarded Citizens, 150 F.3d 719, 725 (7th Cir. 1998) (an
inability to “work long shifts” or be available for on-call
duties does not “rise to the level of disability required
under the ADA”) (quotation omitted).
Even taking into account Olin’s alleged “100% healed
policy,” our analysis does not change. As we explained
in Powers, “[w]ithout some evidence that the employer
actually viewed the . . . individual as unable to work
for other employers in a class of jobs or a broad
range of jobs, a 100% healed policy merely shows that
this employer’s preference is to hire someone without
any impairments. Under the ADA that would not be a
violation unless the individual is actually disabled.”
667 F.3d at 815.
B
Feldman has shown that a dispute of fact exists on
the question whether he is disabled, but to survive sum-
mary judgment he must also show that he is a “qualified
individual,” i.e., that he is “an individual with a disability
12 No. 10-3955
who, with or without reasonable accommodation, can
perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C.
§ 12111(8). Olin argues that Feldman cannot meet this
requirement because overtime and rotating shifts—exactly
the job demands from which Feldman needed to be
excused—are “essential functions” of the job.
We generally defer to an employer’s determination of
the essential functions of a job. See Lloyd v. Swifty Transp.,
Inc., 552 F.3d 594, 601 (7th Cir. 2009) (“The employer, not
a court, determines what functions are essential, and
we will not second-guess that decision.”). But this does
not mean that we completely abdicate independent
review. The ADA provides that “consideration shall be
given to the employer’s judgment as to what functions
of a job are essential, and if an employer has prepared
a written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job.” 42 U.S.C.
§ 12111(8). Under ADA regulations, “other factors to
consider are: (1) the amount of time spent on the job
performing the function, (2) the consequences of not
requiring the incumbent to perform the function, (3) the
terms of the collective bargaining agreement, (4) the work
experience of past incumbents in the job, and (5) the
current work experience of incumbents in similar jobs.”
D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th
Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)). Thus we “con-
sider, but [are] not limited to, evidence of the employer’s
judgment as to which functions are essential, and the
written job description in effect before the employee
No. 10-3955 13
interviewed for the position.” Serednyi v. Beverly Health-
care, LLC, 656 F.3d 540, 550 (7th Cir. 2011).
Feldman points to several straight-time positions
that were open during his seven month lay-off that he
believes Olin should have reassigned him to, including
two straight-time shifts in the bag house and four
adjustor positions. Olin retorts that all of these required
overtime as an essential function of the job. Once
again, however, we cannot resolve this in Olin’s favor
at the summary judgment stage, because the evidence
on each of these points is mixed. Notably, Olin concedes
that overtime is not listed as a required job feature in
the written job descriptions. Olin counters that it
should not have to list a requirement that is required by
all of its jobs, but Feldman points to evidence of some
jobs that do specifically list mandatory overtime as a
requirement in their written descriptions. Feldman has
also furnished data indicating that overtime is rarely
worked by bag house operators. On the other hand, Olin
argues that the consequences of exempting bag house
workers from overtime would be dire, as fires some-
times break out that require all essential personnel to
work until the fires are put out, even if that requires
overtime. There is evidence, in short, going both ways,
and so we cannot conclude that overtime was an
essential function of the bag house or adjustor positions.
See D’Angelo, 422 F.3d at 1232-33 (evidence that em-
ployees rarely performed a task created a genuine issue
of material fact regarding whether the task was essential).
Olin also argued that Feldman could not have
obtained the bag house positions because he needed to
14 No. 10-3955
bid on the vacant positions, and because he was not
entitled to bump junior employees currently holding
those positions. (These arguments do not appear to
apply to the adjustor positions, for which Olin relies
solely on the overtime defense.) But Olin has failed to
press these points on appeal and they are thus waived.
Even if they were not, we do not think the evidence is
so clear that these positions were unavailable to
Feldman that summary judgment would be appropri-
ate. For instance, the evidence suggests that Olin
treated Feldman as being on “curtailment,” a status that
gave Feldman the right under the applicable collective
bargaining agreement to bump junior employees. Even
when employment practices generally require bidding
before being awarded a position, we have held that
employers may be required to bypass procedural require-
ments like bidding in order to meet their obligations
under the ADA of providing reasonable accommodations.
See, e.g., Gile v. United Airlines, Inc., 213 F.3d 365, 374
(7th Cir. 2000). Feldman’s alleged failure to bid on
certain open positions is thus not dispositive.
Olin’s argument that flex-time was an essential func-
tion of certain positions (such as the tractor-operator
positions) is stronger than its argument with respect to
overtime. Flex-time was mentioned in the written job
descriptions, and there is no evidence that truck drivers
who are in flex-time positions actually work straight
shifts instead. But we need not resolve this one way or
the other because we find that Feldman has presented
enough evidence to establish a genuine dispute of
material fact about his qualification to work available
No. 10-3955 15
straight-time positions, and Olin did not offer him those
positions. This is enough to withstand summary judg-
ment on his ADA claim.
III
Feldman also appeals the district court dismissal of
his retaliation claim. To prevail on this theory, a
plaintiff must show that he engaged in statutorily pro-
tected activity (such as filing a charge of discrimination),
that he suffered a materially adverse employment action,
and that there is a causal link between the two. Chapin
v. Fort-Rohr Motors, Inc., 621 F.3d 673, 677 (7th Cir.
2010). Feldman alleges that he engaged in statutorily
protected activity by filing a charge of discrimination
with the Illinois Department of Human Rights alleging
disability and age discrimination in September 2006
and again in June 2007, and in August 2007 by filing a
discrimination charge with the EEOC. He asserts that
Olin retaliated against him by refusing to rehire him, by
assigning him to physically demanding work upon his
return in December 2007, and by suspending him for
minor misconduct in May 2008.
We agree with the district court that Feldman cannot
succeed on his retaliation case because there is no
genuine dispute over causation. The evidence regarding
Olin’s refusal to rehire Feldman (until December 2007)
suggests that Olin was strictly applying its overtime
and flex-time requirements, not that Olin was retaliating
against Feldman for filing charges of discrimination.
16 No. 10-3955
Feldman points to nothing suggesting that Olin’s failure
to put him back to work before December 2007 had any-
thing to do with his charges of discrimination. Although
the evidence does indicate that Feldman was assigned
unpleasant tasks upon his return to work, such as the
coil-miller job, this task was performed by others as
well. There is no evidence that Feldman’s assignment to
the coil-miller job was punitive or involved anything
more than what the job typically required. See Nagle v.
Village of Calumet Park, 554 F.3d 1106, 1120 (7th Cir. 2009).
Finally, we agree with the district court that the eight-
month period between the latest filing and the his sus-
pension in May 2008 is too long, absent some other evi-
dence, to establish a casual connection between the two.
See Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001)
(“[T]he length of time between the protected speech and
the adverse employment action is at least four months,
which, without more, is too long to support a rea-
sonable inference of causation.”). Feldman believes that
his infraction—crashing a tractor into a door—was too
minor to warrant a suspension (and indeed, during a
subsequent union grievance process the company
reduced the length of the suspension), but the real
problem is that there is nothing to connect this suspen-
sion to his earlier activity. We thus affirm summary
judgment for Olin on Feldman’s retaliation claims.
IV
Our final task is to address the appeals of various
sanctions matters. The night before the district court
was to hear oral argument on the summary judgment
No. 10-3955 17
motions, one of the defendants in this case, Global
Brass, filed a motion for sanctions against Feldman pursu-
ant to Rule 11. Global Brass argued that Feldman had
failed to conduct a proper investigation before filing his
complaint against it, had failed to dismiss Global Brass
after Global Brass offered evidence that it never
employed Feldman and never employed more than 10
people (and so was not covered by the ADA), and that
Feldman failed to omit Global Brass from his amended
complaint. Feldman, in turn, filed a motion for Rule 11
sanctions against Global Brass, on the basis that Global
Brass’s motion for sanctions was for the improper
purpose of harassing counsel and because Global Brass
failed to give him 21 days’ notice of its intent to seek
sanctions, as required by Rule 11(c)(2). See Matrix IV,
Inc. v. American Nat’l Bank & Trust Co. of Chicago, 649
F.3d 539 (7th Cir. 2011) (“This 21-day window gives the
offending party a ‘safe harbor’ within which to with-
draw or correct the offending pleading.”).
On November 29, 2010, the district court granted
Global Brass’s motion for sanctions; it relied on both
Rule 11 and its inherent powers. It reserved judgment
on the amount of attorney’s fees it would impose. The
court denied Feldman’s motion for sanctions. Several
months later, on February 22, 2011, the court awarded
attorney’s fees of $1,475, to Global Brass to be paid by
Feldman’s attorneys. Feldman’s attorneys seek to have
those fees reversed, and Feldman argues that his own
sanctions motion was improperly rejected. We review
the grant or denial of a motion for sanctions for abuse
of discretion. Bilharz v. First Interstate Bank of Wisconsin,
98 F.3d 985, 989 (7th Cir. 1996).
18 No. 10-3955
1
We are sympathetic to Feldman’s contention that the
district court abused its discretion by imposing sanctions.
Global Brass admits that it never gave Feldman advance
notice as required under Rule 11(c)(1). Notice plays
a central part in the Rule 11 process, as the 1993
Committee Note emphasizes. Subdivisions (b) and (c),
¶ 13. That alone should have led to the dismissal of the
motion. And it is our impression that Global Brass’s
argument on the merits for sanctions was flimsy.
Sanctions would have been appropriate only if Feldman
had no legal basis or evidentiary support for keeping
Global Brass in the case as a defendant, or was doing so
for an improper purpose. But Feldman’s lawyers had
good reason to think that Global Brass was a proper
defendant. There was evidence in the record including
pay stub records, job postings, and a letter from defen-
dant’s counsel identifying Global Brass as Feldman’s
employer, all suggesting that Global Brass might have
been the entity employing Feldman. The confusion
about the precise relationship among the three corporate
defendants persists in this court, exacerbated by the
defendants’ failure to follow another procedural rule—this
time, Federal Rule of Appellate Procedure 26.1, which
requires parties to submit a Corporate Disclosure State-
ment. The defendants failed to comply with that rule,
and their carelessness has needlessly complicated both
our review for conflicts and our substantive evaluation
of this part of the case.
As it happens, however, we have no jurisdiction to
address this issue, because Feldman’s attorney failed to
No. 10-3955 19
file a timely notice of appeal from the district court’s
final decision on sanctions. Feldman filed a notice of
appeal from the November 29, 2010, grant of the motion
for sanctions, but that order was nonfinal, because it
explicitly reserved the calculation of fees. When the
fees were ultimately imposed by the court’s order of
February 22, 2011, Feldman failed to file a notice of
appeal. This defect was brought to Feldman’s attention
during the course of briefing in this case. His attorneys
tried to salvage the appeal, raising several arguments
and filing a late notice on August 3, 2011. We dismissed
that appeal as untimely. See Feldman v. Olin Corp., et al.,
673 F.3d 515 (7th Cir. 2012).
Despite their earlier lack of success, Feldman’s attor-
neys are now asking us to treat the first notice of
appeal filed by Feldman from the November order as
effective on the date in February the fees were imposed.
This is possible, they contend, under Federal Rule of
Appellate Procedure 4(a)(2). But they are mistaken.
FRAP 4(a)(2) permits courts to treat a notice of appeal
filed after a court announces a decision or order, but
does not formally enter final judgment, as filed on the
date of the entry of the judgment or order. But this rule
applies “only when a district court announces a deci-
sion that would be appealable if immediately followed
by the entry of judgment.” FirsTier Mortgage Co. v.
Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991). The
Supreme Court has specifically said that Rule 4(a)(2)
does not “permit[] a notice of appeal from a clearly inter-
locutory decision—such as a discovery ruling or a sanc-
tion order under Rule 11 of the Federal Rules of Civil
20 No. 10-3955
Procedure—to serve as a notice of appeal from the
final judgment” because “[a] belief that such a decision
is a final judgment would not be reasonable.” Id.; see
also Carter v. Ashland, Inc., 450 F.3d 795, 797 (8th Cir. 2006)
(“We conclude Rule 4(a)(2) does not save the instant
notice of appeal filed prematurely from the dismissal
order, because the order ‘left unresolved’ the amount of
the attorney’s fees and costs.”). Nor does Rule 4(a)(4)(B)(i)
help. That rule applies to motions for attorney’s fees
only “if the district court extends the time to appeal
under Rule 58,” FED R. A PP. P. 4(a)(4)(A)(iii), and the
court did not do so here.
We note that one other jurisdictional defect dooms
this appeal. As we explained in our earlier rejection of
the attorneys’ late attempt to appeal the fees, the district
court ordered Feldman’s attorneys to pay the fees in its
February order, not Feldman, thereby “relieving the
plaintiff of the obligation imposed by the previous or-
der.” 673 F.3d at 516. Thus, even if we were somehow
to find the early notice of appeal to be effective at a
later date, any issue Feldman might have had with those
fees is now moot. Feldman’s attorneys were the only
parties who could appeal a fee award imposed
against them, but they did not file an appeal from the
November order and their attempt to file an appeal
from the February order was far too late. We therefore
find that we have no jurisdiction to review the award
of attorney’s fees to Global Brass.
No. 10-3955 21
2
We do, however, have jurisdiction to consider the
district court’s denial of Feldman’s own motion for sanc-
tions against Global Brass, because Feldman filed a
timely notice of appeal from that order. We review a
district court’s denial of a motion for sanctions for
abuse of discretion. Matrix IV, Inc., 649 F.3d at 552.
The only explanation the district court offered for its
rejection of Feldman’s motion for sanctions was that
“Mr. Feldman’s claims against Global Brass and Copper
were groundless.” We think that goes too far. As noted
above, Feldman offered evidence showing that he had
a good faith basis to keep Global Brass in the case,
given the confusion about Global Brass’s relationship to
Feldman and the exact corporate identity of his em-
ployer during the relevant time. Cf. Tucker v. Williams,
682 F.3d 654, 662 (7th Cir. 2012) (finding a sanctions
award to be an abuse of discretion when there was no
evidence the party had acted in bad faith). Global Brass
was hardly a model litigant, given the fact that it filed
its motion for sanctions on the eve of oral argument
and failed to follow the safe-harbor provisions of Rule 11.
That alone, we recognize, would probably not warrant
sanctions: lawyers file untimely motions all the time,
and the normal response from the judge is simply to
deny them and move on. But here the judge seems to
have accepted Global Brass’s position that Feldman
never should have sued it on the merits. That conclusion—
if indeed our guess about the district court’s thinking
is correct—is much more troublesome, given the evi-
dence we mentioned earlier.
22 No. 10-3955
“Although our review of a denial of sanctions is
limited, the denial of sanctions with no explanation may
constitute an abuse of discretion.” Ross v. City of
Waukegan, 5 F.3d 1084, 1088 (7th Cir. 1993); see also LaSalle
Nat’l Bank of Chicago v. County of DuPage, 10 F.3d 1333,
1338 (7th Cir. 1993) (“[A] district court abuses its discre-
tion when it denies sanctions with no explanation, or
with an explanation that is so conclusory that the
appellate court cannot review the substance of its deci-
sion.”) (citations omitted). Given the complexities of the
corporate relationships involved here and the lack of
explanation from the district court, we need a better
explanation before we can endorse the court’s decision
to deny Feldman’s motion. We thus reverse the district
court’s denial of Feldman’s motion for sanctions.
***
In summary, we R EVERSE the district court’s grant of
summary judgment in Olin’s favor on Feldman’s ADA
claim (and thus V ACATE the associated entry of costs
of $13,035.20 imposed against the losing party), A FFIRM
summary judgment for Olin on Feldman’s retaliation
claim, D ISMISS the appeal from the award of sanctions
in favor of Global Brass for want of jurisdiction, and
R EVERSE the denial of Feldman’s motion for sanctions.
The case is R EMANDED for further proceedings con-
sistent with this opinion.
8-27-12