### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 3764
C HARMAINE H AMER , Plaintiff

- Appellant ,

v.

N EIGHBORHOOD H OUSING S ERVICES OF C HICAGO and F ANNIE M AE , 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

.

____________________
A RGUED M AY 15, 2018

— D ECIDED J ULY 30, 2018

____________________

Before E ASTERBROOK , S YKES , and B ARRETT , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Charmaine Hamer worked atFannie Mae’s Mortgage Help Center from 2010 to 2012. Fannie Mae contracted with Neighborhood Housing Services of Chicago (Ham er’s employer) to run the Center but maintained the right to remove individual employees. After Hamer ’s application for a promotion was denied and she2 No. 15

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was removed from the Center, she sued both Neighborhood Housing and Fannie Mae for discrimination and ret aliation 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 retali ation 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

excusa ble neglect or good cause.” 28 U.S.C. §2107. This statute do es 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 giveHamer 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 timelin ess issue

. This court dismissed Hamer’s appeal, concluding that the time limit imposed by Rule 4(a)(5)(C) is jurisdictional. 835No. 15

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F.3d 761 (7th Cir. 2016). The Supreme Court vacated that decision, holding that statutory time limits are jurisdictional but th at 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 mer its.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 cros s

- 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 Cross

Appeal or Cross

- Petition

— Certainty or Confusion? , 87 H ARV

. L. R EV

. 763 (1974) . Defendants are not seek ing 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 a n 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 co urt or an insistence upon majer overlooked or ignored by it.” American Railway Express , 265 U.S. at 435.4 No. 15

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Hamer’s argument that defendants forfeited the timeliness issue by not protesting in the district court likewise goes nowhere . Because the district ju dge granted the motion for extension immedi ately, 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. S ee 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 “A ppellate 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 “Plai ntiff

- Appellant timely filed a Notice of Appeal”. Defendants argue that la nguage 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 t he argument.
M andatory claim

- processing rules, “[i]f properly invoked, ... must be en forced, 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 statutor y 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). T reating timelines s under Rule 4(a)(5)(C) identically respects “the principle of party presentation so basic to our system ofNo. 15

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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 c ircuits that cha racterize docketing
stat ements 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
stat ements that differ from ours

. Many courts of a ppeals require docketing statements, but the Seventh Circuit may beunique in requiring them to take the form of prose paragraphs rather than responses to a printed form. Docketing statements serve several impo rtant 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 o f Appeals for the Seventh Circuit 19 ( 2017 ed.) . The court also uses docketing statements to determine “whether an a ppeal 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 juris dictional 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 “c o mplete and correct”.6 No. 15

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The fact that some information required in docketing statements relates to subject

- majer jurisdiction

— a topic that cannot be waived

— does not imply that p r onouncements within docketing statements on other topics can never waiv e a right under a claim

- processing rule

. This court has emphasized the importance of docketing statements. United States v. Lloyd , 398 F.3d 978, 9 80

– 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 failure s to comply with jurisd ic tional

- statement requirements)

. G iving 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.

D efendants aren’t helped by cases holding that litigants may raise in their briefs issues that were not in their docketing state ments. 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 n onjurisdictional rules , we therefore hold, can be waived in docketing statements. In holding so, we are not the first court of a ppeals to give language contained in a docketing statement effect on a majer other than subject

- majer jurisdiction : Several courts have look ed to information included in docketing statement s to supplement otherwise

- insufficient notice s of appeal

. Díaz Aviation Corp. v. Airport Aviation Serv ices , Inc. , 716 F.3d 256, 261

– 63 (1st Cir. 2013); Haney v. Addison , 175 F.3d 1217, 1219No. 15

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(10th Cir. 1999); Small Business in Telecommunications v. FCC , 251 F.3d 1015, 1020

– 21 (D.C. Cir. 2001)

. And the Fou rth 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 Tenness ee, 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. The y take
t he traditional form of a waiver: affirmative statements that Hamer’s appeal is “ timely”. Defendants contend, however, that b ecause 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 timeline ss. 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

. T he

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 “comple te 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 incl uded at a litigant’s discretion

.Waiver is an “intentional relinquishment or abandonment of a known right”. Johnson v. Zerbst , 304 U.S. 458, 4648 No. 15

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(1938). But courts look to litigants’ (and their ajorneys’) words and action s 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). T he requirement that a right be “known” in this case means only that defendants h ad 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 thatwaiver. 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 retalia tion claim. Hamer was passed over for a promotion in February 2012in 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 o f 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, And erson emailed Robin Coffey, Neighborhood Housing’s AssistantNo. 15

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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 Cen ter . (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

. Gi ven this factual dispute, which the d istrict c ourt 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 Ham er’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 realreason 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 c ourt held that being given the choice between accepting a demotion and voluntarily resigning was10 No. 15

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no t 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 co rrect on the constructive discharge point, however, because Hamer has not established a causal link between her discrimination complaint and either adverse ac tion. 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 w hether they learned of the plan in some other way, as she conjectures they might

. Glenn knew that Hamer had met with Anderson ; maybe s he inferred, when Anderson called the next day to discuss the reasons Hamer wasn’t promoted , that the meeting concerned allegations of discrimina tion. Or the notes that Anderson took while meeting with Hamer may have fallen into the decisionmaker s’ laps

. But Hamer did not depose Glenn, Coffey, Green, or anyone else, and she has not offered any s upport 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 personnelNo. 15

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file and that the decision makers looked in it

. S peculative 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 ther efore

AFFIRMED

.