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. Fannie Mae contracted with Neighborhood Housing Services of 

Chicago (Hamer’s employer) to run the Center but maintained 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 Employment 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 statute does not set a limit on extensions’ length, but the rule 

implementing the statute provides that “[n]o extension under 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 summary judgment in favor of defendants. On October 8

Hamer’s counsel submijed a motion to withdraw and to extend the time for appeal by 60 days (to December 14), to give 

Hamer time to acquire new counsel. The district court granted the motion, despite Rule 4(a)(5)(C), and Hamer filed her 

notice of appeal pro se on December 11—within the time erroneously 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 decision, 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 challenge 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 either expands its own rights or narrows the rights of its opponent. 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 CrossAppeal 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 Circuits 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 timeliness 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 remonstrate 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 docketing statement that the notice of appeal was “timely” requires more discussion. Under the heading “Appellate Court 

Jurisdiction”, the docketing statement declares that “Plaintiff-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 addressing the timeliness issue—in response to this court’s order—before the merits, they have preserved the argument.

Mandatory claim-processing rules, “[i]f properly invoked, ... must be enforced, but they may be waived or forfeited.” 138 S. Ct. at 17. Since the Supreme Court’s clarification 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 statements can constitute waivers. Defendants point to local rules 

and cases from other circuits that characterize docketing 

statements as preliminary, nonbinding documents. As defendants observe, however, “a docketing statement is a creature 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 require docketing statements, but the Seventh Circuit may be 

unique in requiring them to take the form of prose paragraphs 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 docketing 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 information 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 emphasized 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 argument section of a brief, or at oral argument creates an incentive 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 docketing 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 docketing 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 Circuit has looked to the list of issues in a docketing statement, 

among other things, to find that a party was aware of an argument, then intentionally abandoned it by omijing it from 

the appellate brief. South Atlantic Limited Partnership of Tennessee, LP v. Riese, 356 F.3d 576, 587 (4th Cir. 2004).

So the question now is whether the declarations in defendants’ 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 jurisdiction, the two relevant sentences assert only that the appeal was timely in a jurisdictional sense, while reserving the 

right to challenge nonjurisdictional timeliness. Yet both sentences are unconditional statements that the appeal is timely. 

Defendants could have included a caveat that they were discussing only jurisdictional timeliness, but they didn’t. The 

common-sense meaning of defendants’ affirmative statements: 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 jurisdictional 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 discretion.

Waiver is an “intentional relinquishment or abandonment 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 timeliness 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 timeliness argument, Hamer likewise waived the benefit of that 

waiver. Because Hamer argued in her jurisdictional memorandum during the first round of appellate litigation that defendants “forfeited and wa[i]ved their right to motion for

dismissal of case based on untimely filing of appellant’s motion 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 adverse employment action constituted age and sex discrimination, 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 supervisor, 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 personnel 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 temporarily assigned alternative duties at Neighborhood Housing’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. According to Hamer, these issues could not have been the real 

reason for her removal because Glenn, the day before Anderson 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 conference in March. This suspicious timing, Hamer asserts, is evidence that Neighborhood Housing’s proffered reason is pretextual.

The district court held that being given the choice between 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 established 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 intention to file a charge but didn’t make any employment decisions, 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 Anderson 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 conjectures they might. Glenn knew that Hamer had met with Anderson; 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 provided even a “scintilla” of evidence, see Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248–52 (1986), to support her conjecture that the notes may have been included in her personnel 
No. 15-3764 11

file and that the decisionmakers looked in it. Speculative assertions 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.