FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 12/09/98 

 THOMAS K. KAHN 

 CLERK

*

 Honorable William Stafford, Senior U.S. District Judge for the Northern District

of Florida, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-2577

_______________

D. C. Docket No. 95-847-Civ-ORL-22

WILLIAM J. BOGLE,

Plaintiff-Appellant,

versus

ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS

as governing body of Orange County, Florida,

Defendant-Appellee.

______________________________

Appeal from the United States District Court

for the Middle District of Florida

______________________________

(December 9, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior District

Judge.

BIRCH, Circuit Judge:
2

In this appeal we review the standards for granting judgment

as a matter of law in a case arising under the Age Discrimination

in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”),

and to determine whether the district court properly awarded

sanctions against Carol Swanson, the plaintiff-appellant's counsel,

pursuant to Federal Rule of Civil Procedure 11 (“Rule 11"). We

conclude that the district court properly entered judgment as a

matter of law at the close of the plaintiff-appellant's case because

he failed to introduce evidence that would have permitted a

reasonable jury to disbelieve the defendant-appellee's reasons for

the adverse employment action. We also conclude that we have

no jurisdiction to entertain an appeal from the district court’s

sanctions order.

BACKGROUND

On August 31, 1993, plaintiff-appellant, William Bogle, lost

his job as a corrections officer at the Central Booking Facility in
3

Orange County, Florida. Bogle had worked as a corrections

officer for the defendant-appellee, the Orange County Board of

County Commissioners (“Orange County”), since November 9,

1987, when it hired him at the age of fifty-eight. Bogle was sixtythree and was the oldest male employee on his shift when Orange

County terminated his employment.

Bogle's termination notice stated that Orange County

discharged him for violating several policies and ethics rules that

governed his conduct as a corrections officer. Although Orange

County had disciplined Bogle on a few occasions during the

course of his employment, his performance reviews consistently

reflected that he met expectations and his co-workers testified

that he was a competent worker. On June 26, 1993, however,

Bogle's supervisors suspended him for throwing a chair at a door

after his co-workers locked him out of a room. Later, on July 30,
1

 These write-ups were for tardiness, two violations of the smoking policy, using

excessive force with an inmate, and entering a cell without another corrections officer.

4

1993, Bogle's supervisors and a co-worker reported him for five

separate violations of Orange County rules.1

Upon Bogle's termination, Robert Scanlon took his position

on the day shift. Scanlon was approximately thirty years younger

than Bogle. Bogle's theory of the case was that Sergeant Frank

Walker, who became one of Bogle's supervisors in 1993,

terminated Bogle because of his age and his desire to replace him

with Scanlon, a significantly younger friend. Bogle also sought to

show that his supervisors had disciplined him selectively to justify

his termination and that other, younger employees were not

disciplined for engaging in similar behavior.

After filing an age discrimination complaint with the Orlando

Human Relations Department and the Equal Employment

Opportunity Commission, Bogle filed this cause of action. Bogle's

complaint alleges that Orange County terminated him because of

his age in violation of the ADEA and Florida's Human Rights law,
5

Fla. Stat. 760.10. Before trial, the district court denied Orange

County's motion for summary judgment, finding that material

issues of fact remained in dispute. In particular, the district court

found that the trier of fact would have to determine whether Bogle

had been replaced by a younger employee and whether Orange

County's stated reasons for terminating him were pretextual. See

R2-54 at 2-3. At the close of Bogle's case in chief, however, the

district court granted Orange County's motion for judgment as a

matter of law. The district court found that Bogle had failed to

present evidence to establish a prima facie case of age

discrimination and, alternatively, that Bogle had failed to cast

doubt on Orange County's stated reasons for firing him. See R5-

103. 

On April 10, 1997, three days after the district court entered

judgment as a matter of law, Orange County filed a notice of its

intent to seek Rule 11 sanctions. On May 5, 1997, Bogle filed a

notice of appeal that designated all orders of the district court,
6

including the court's entry of final judgment, for consideration on

appeal. Orange County filed its Rule 11 motion on May 8 and the

district court granted the motion on July 1, 1997. The district court

found that Swanson, Bogle's attorney, had violated Rule 11 by

continuing to advance Bogle's age discrimination case after it

became evident that his claims had no evidentiary support. The

court also faulted Swanson's efforts to investigate Bogle's age

discrimination claims and, in particular, her failure to depose

Charles Perry, the Orange County employee who made the

decision to terminate Bogle. As a sanction, the district court

directed Swanson to complete twenty hours of continuing legal

education on the subjects of federal employment discrimination

law, office or case management, and federal trial or civil

procedure. Bogle seeks to reverse the district court's entry of

judgment as a matter of law and the imposition of Rule 11

sanctions against Swanson.
2

 Rule 50 provides in pertinent part:

If during a trial by jury a party has been fully heard on an issue and there

is no legally sufficient evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue against that party

and may grant a motion for judgment as a matter of law against the party

with respect to a claim or defense that cannot under the controlling law be

maintained or defeated without a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1)

7

DISCUSSION

I. Judgment as a Matter of Law

As noted above, the district court granted Orange County's

motion for judgment as a matter of law at the close of Bogle's

case. Federal Rule of Civil Procedure 50 provides for judgment

as a matter of law at the close of the plaintiff's case if the plaintiff

has failed to present evidence that would permit a reasonable jury

to find for the plaintiff. See Fed. R. Civ. P. 50(a)(1).2

 We review

the district court's decision to grant judgment as a matter of law

de novo and apply the same standards as the district court. See

Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir.

1995). In evaluating a defendant's Rule 50 motion, made at the

close of the plaintiff's case, we must consider all the evidence in
8

the light most favorable to the plaintiff and grant the plaintiff the

benefit of all reasonable inferences. Id. Finally, we may affirm a

judgment as a matter of law only if the facts and inferences “point

so overwhelmingly in favor of the movant . . . that reasonable

people could not arrive at a contrary verdict.” Id. (citations and

internal quotation omitted).

Since Bogle has presented no direct evidence that Orange

County discharged him because of his age and relied, instead, on

circumstantial evidence, the burden-shifting analysis set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 407 (1993), governs his ADEA case. See O'Connor

v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311, 116 S.

Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996) (assuming that the

McDonnell Douglas framework applies to ADEA claims);

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th

Cir. 1998) (applying the McDonnell Douglas framework in an
3

 Despite the adherence of Bogle's evidence to the literal terms of the McDonnell

Douglas test as applied in the ADEA context, the district court appears to have

concluded that Bogle had not established a prima facie case because Orange County

9

ADEA case). Pursuant to this familiar framework, Bogle had to

establish a prima facie case of discrimination by showing:

(1) that he was a member of the protected group of

persons between the ages of forty and seventy; (2) that

he was subject to adverse employment action; (3) that a

substantially younger person filled the position . . . from

which he was discharged; and (4) that he was qualified

to do the job for which he was rejected.

Turlington, 135 F.3d at 1432 (citing Consolidated Coin, 517 U.S.

at 313, 116 S. Ct. at 1310). We note that Bogle presented

evidence that showed he was sixty-three years old when Orange

County fired him, that a man thirty years younger than Bogle

replaced him, and that Bogle received satisfactory performance

reviews for all the years he worked for Orange County. Although

the district court concluded that Bogle had not set forth a prima

facie case of age discrimination, we will assume that Bogle

presented sufficient evidence to carry his burden of production on

this phase of the case.3

 
replaced him pursuant to an age-blind seniority system. Under this system, Orange

County internally advertised the opening created by Bogle's discharge and the applicant

with the most seniority received the job. The district court noted that Bogle had

presented no evidence that Perry, the actor responsible for Bogle's discharge, played

any part in selecting his replacement or even knew who would have been next in line for

Bogle's job, and concluded that it was merely a “coincidence” that the replacement was

significantly younger than Bogle. See R5-103 at 2. We note that the district court

arrived at its conclusion on this point without citation to authority and that Orange

County also failed to identify any case support for the proposition that such an ageneutral replacement system necessarily precludes an ADEA plaintiff from making out a

prima facie case. As Orange County's counsel conceded at oral argument, however, if

the decision-maker knows that the replacement necessarily will be significantly younger

(i.e. because every possible replacement happens to be younger) a discharged

employee would still be able to make out a prima facie case. Nevertheless, since we

conclude, on alternative grounds, that the district court properly entered judgment

against Bogle, we assume that Bogle made out his prima facie case and will not

consider the issue further.

4

 Bogle correctly observes that once he set forth his prima facie case for age

discrimination he enjoyed a presumption of unlawful discrimination. See Combs v.

10

Once Bogle made out his prima facie case of discrimination,

Orange County had to respond with a legitimate,

nondiscriminatory reason for its actions. See Turlington, 135 F.3d

at 1432. Although the district court granted judgment as a matter

of law before Orange County had the opportunity to present its

case, it is clear that Orange County's stated legitimate,

nondiscriminatory reason was before the district court in

admissible form because Bogle introduced evidence regarding

that reason during the presentation of his case.4

 Cf. Impact v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied -- U.S. –, 118 S.

Ct. 685, 139 L. Ed. 2d 632 (1998) (quoting Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981)). Without any

evidence to rebut this presumption, Orange County would not have been entitled to

judgment as a matter of law. Id. Bogle, however, presented Orange County's reason

for his termination by introducing the discharge letter and then attempted to cast doubt

on that legitimate, nondiscriminatory reason. Given Bogle's introduction of this evidence,

his failure to present evidence from which a reasonable jury could find pretext permitted

Orange County to move for, and the court to grant, judgment as a matter of law at the

close of Bogle's case.

5

 As we explained in Combs, the level of generality at which the parties and the

court conceptualize the defendant's legitimate, non-discriminatory reasons for the

discharge can be significant, particularly when the plaintiff attempts to demonstrate that

the reasons are pretextual. See Combs, 106 F.3d at 1534-35. In this case, Orange

11

Firestone, 893 F.2d 1189, 1193 (11th Cir. 1990) (noting that the

defendant must introduce legitimate, nondiscriminatory reasons

for its actions in the form of admissible evidence) (quoting

Burdine, 450 U.S. at 254-55, 101 S. Ct. at 1095). During the

presentation of his case-in-chief, Bogle introduced into evidence a

letter from Orange County that notified Bogle both of his dismissal

and the reason for that dismissal. The letter lists several previous

disciplinary problems and Bogle's violation of a number of policies

and procedures as the grounds for his termination. The letter,

therefore, established Orange County's position that it fired Bogle

because of excessive disciplinary problems.5

 Indeed, Bogle
County maintained that the cumulation of disciplinary violations led to Bogle's dismissal

rather than any one event.

12

devoted the majority of his efforts at trial to an attempt to

demonstrate that this justification was pretextual and that he had

been the victim of selective discipline.

Once Bogle introduced Orange County's legitimate

nondiscriminatory reason for his discharge, the initial presumption

of discrimination accompanying the prima facie case dissolved,

and the McDonnell Douglas framework required Bogle to

demonstrate that the stated reason was pretextual. Combs, 106

F.3d at 1528. As the district court noted, we reviewed the

application of this framework and the standards for granting

judgment as a matter of law in employment discrimination cases

extensively in Combs. In that case, we noted that a plaintiff could

establish pretext indirectly “by showing that the employer's

proffered explanation is unworthy of credence.” Id. (quoting

Burdine, 450 U.S. at 256, 101 S. Ct. at 1095). We then

conducted an exhaustive review of when the law in this area
6

 The Combs panel expressly rejected the suggestion, that had appeared in at

least two of our prior decisions, that a defendant could succeed on a motion for

summary judgment or a motion for judgment as a matter of law even though the plaintiff

had plausibly discredited the defendant's proffered legitimate, nondiscriminatory

reasons. Id. at 1533-35. Instead, in Combs we concluded that the decisions of the

Supreme Court and our own circuit required the submission of a circumstantial case of

discrimination to the jury as long as the plaintiff presents a prima facie case as well as

plausible evidence that would permit a jury to disbelieve the employer's stated

legitimate, nondiscriminatory reasons. Id. at 1538.

13

precludes the entry of judgment as a matter of law and concluded

that in this circuit, as well as in eight others: “[O]nce a plaintiff has

. . . put on sufficient evidence to allow a factfinder to disbelieve an

employer's proffered explanation for its actions, that alone is

enough to preclude entry of judgment as a matter of law.” Id. at

1532, 1535.6

 Once the plaintiff carries this burden, it is up to the

jury either to accept or reject the inference that the falsity of the

employer's reasons for the discharge supports a finding of

discrimination: “That decision is entrusted to the jury's discretion,

but to exercise that discretion, the jury has to get the case.” Id. at

1538. Accordingly, Orange County was not entitled to judgment

as a matter of law if Bogle produced any evidence that would
7

 We note that although the standard for granting a motion for summary

judgment and a motion for judgment as a matter of law are precisely the same in an

employment discrimination case, see Combs, 106 F.3d at 1533 n.8, the district court in

this case denied Orange County's motion for summary judgment but granted the motion

for judgment as a matter of law. The only situation in which this discord seems possible

is when the non-movant's evidence, when presented at trial, does not live up to its

promise at the summary judgment stage. This could result from the non-movant's

carelessness or mistake at trial. We note our deference to the explanation of this point

in Combs only to avoid the potential for further confusion on this issue. 

14

permit a reasonable jury to disbelieve the proffered reasons for

his discharge.7

 

Bogle attempted to cast doubt on Orange County's stated

reasons for his discharge by introducing evidence that his

supervisors had singled him out for selective discipline and that,

although Bogle formally may have violated a variety of

procedures, the discipline he received in connection with those

violations and his dismissal for the cumulation of incidents was

grossly disproportionate to the treatment other employees

received. In particular, Bogle sought to establish that his receipt

of five separate written reprimands in one day was unusual and

thereby create an inference of selective discipline. As the

discussion above makes clear, had Bogle successfully presented
15

evidence in support of such an inference, Combs would preclude

judgment as a matter of law. Our review of the record, however,

reveals that, during three days of trial, Bogle failed to carry his

burden to produce evidence that would cast doubt on Orange

County's decisions to discipline and terminate him.

Bogle attempted to demonstrate that a number of other

Orange County employees who had lost their jobs had engaged in

conduct that was far more egregious than his. He also sought to

show that other Orange County employees had violated the

smoking policy and engaged in similar types of horseplay but

received no discipline at all. Bogle's evidence in this respect,

however, consisted of unverifiable, anecdotal testimony from his

co-workers and from his own experience regarding isolated

incidents and Orange County's alleged disciplinary response. 

This evidence could not support a reasonable jury finding that

Orange County had singled Bogle out for unusually harsh

treatment. The witnesses who testified regarding these other
8

 This is not to say that stronger anecdotal evidence might not, in some

cases, be enough to cast sufficient doubt on the defendant's

stated reasons for the adverse employment action. Cf. Ross v.

Rhodes Furniture, Inc., No. 97-6729, (11th Cir.

July 20, 1998) (evidence that showed the

decision maker engaged in the same policy

violation given to support the plaintiff's

termination was sufficient to preclude judgment

as a matter of law). In the present case,

however, Bogle's evidence was too tenuous and

speculative to reasonably support an inference of selective

discipline.

16

incidents had no personal knowledge of how Orange County

had disciplined the employees in question and no knowledge

regarding the disciplinary histories of those employees.

Moreover, in several instances the testimony amounted to

nothing more than an allegation that a particular employee had

broken a rule but had never been caught and, therefore, never

been disciplined. This testimony thus failed to provide any

comparison to similarly situated but significantly younger

employees who might have been treated less severely.8

Bogle also failed to call a single witness who could testify

authoritatively and comprehensively regarding Orange County's
17

disciplinary policies, particularly as to what violations of policy

Orange County considered serious and when the cumulation of

incidents would lead to an employee's termination. Bogle's efforts

to present a comparison between his own record and those of

other Orange County employees were limited to his attempt to

elicit such a comparison from Jacqueline Miller, an Orange

County employee who reviewed Bogle's file after he made his

age discrimination complaint. Indeed, Miller testified that she

thought Bogle's file was unusual in some respects. See Supp.

R2 at 190 & 202 (admitting that she had never reviewed a file in

which the employee had been written up twice in one day for

smoking or had received four separate infractions of any kind in

one day). Miller's experience, however, was limited to

reviewing the files of those employees who alleged some form

of employment discrimination. Her experience, therefore, could

not provide a reliably comprehensive sample against which to

compare Bogle's treatment.
18

Finally, Bogle failed to call Perry, the actual decision maker

in this case, to testify regarding his evaluation of Bogle's record

and how it would have compared to other Orange County's

decisions with respect to younger employees. Bogle defends his

failure to call Perry during his case and argues that he should not

be put to the task of putting forth the defendant's case. That

much is true, but in order to survive a defendant's motion for

judgment as a matter of law, offered at the conclusion of the

plaintiff's case, the plaintiff must present evidence that would

permit a reasonable jury to find in the plaintiff's favor on each and

every element of the claim. See Fed. R. Civ. P. 50(a)(1); Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91

L. Ed. 2d 265 (1986) (noting that the standard for a directed

verdict and summary judgment are the same and that the

absence of evidence on an essential element of a party's case will

support judgment as a matter of law against that party); Reeves v.

City of Jackson, 532 F.2d 491, 494 (5th Cir. 1976) (“If, after a full
9

 Our conclusion on this matter precludes any need to address Bogle's

remaining arguments concerning his state law claims of age discrimination. See

generally Florida Dep't of Comm. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. Dist. Ct.

App. 1991) (applying the McDonnell Douglas framework to discrimination claims under

Florida law and noting that since Florida's Human Rights law is modeled after federal

law, federal case law interpreting discrimination claims applies).

19

development of the facts the plaintiff's cause is too weak to string

the Constitution's bow or unsheath the sword provided for the

redress of such grievances . . . it may be washed out on summary

judgment . . . or, if it gets beyond that, by motion for directed

verdict . . . at the end of the plaintiff's case . . . .”) To survive

Orange County's motion, therefore, Bogle had to call a witness or

present other competent evidence that could have cast doubt on

Orange County's stated reason for his termination—a reason that

Bogle, himself, introduced into evidence. Since Bogle failed to

meet this burden, the district court correctly entered judgment as

a matter of law against him.9
10 The district also court concluded that Orange County could not recover

attorneys' fees for prevailing in an age discrimination case. Orange County has not

contested this point on appeal.

20

II. Rule 11 Sanctions

As noted above, the district court entered judgment as a

matter of law against Bogle on April 7, 1997. Bogle filed a timely

notice of appeal on May 5, 1997, which stated that Bogle intended

to pursue an appeal from the order. Thereafter, Orange County

filed a motion for attorneys' fees pursuant to 42 U.S.C. § 1988

and sanctions pursuant to Federal Rule of Civil Procedure 11

(“Rule 11"). On June 30, 1997, the district court found that

Bogle's attorney, Swanson, had forced a trial regarding intentional

age discrimination even though she reasonably should have

known Bogle's claim had no evidentiary support and granted

Orange County's motion for Rule 11 sanctions.10 Significantly,

Swanson did not file another notice of appeal or amend the

previous notice of appeal within thirty days of the district court's

Rule 11 order. Nevertheless, Swanson has included arguments
21

regarding the Rule 11 order in her briefs before this court and

asks us to reverse the district court's imposition of sanctions.

Orange County argues that we are without jurisdiction to

consider Swanson's arguments regarding the Rule 11 order

because Swanson never filed a notice of appeal stating her intent

to appeal the sanctions. Federal Rule of Appellate Procedure 4

(“FRAP 4") requires a civil litigant who makes an appeal as of

right to file a notice of appeal within thirty days after the date that

the district court entered its order. See Fed. R. App. P. 4(a)(1). 

As the Supreme Court has explained, filing a timely notice of

appeal is “mandatory and jurisdictional”; without it a Court of

Appeals is “without jurisdiction to review the decision on the

merits.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203,

108 S. Ct. 1717, 1722, 100 L. Ed. 2d 178 (1988). Federal

Rule of Appellate Procedure 3 (“FRAP 3") governs the required

contents of a notice of appeal and demands that the notice

“designate the judgment, order, or part thereof appealed from . . .
22

.” Fed. R. App. P. 3(c). In McDougald v. Jenson, 786 F.2d 1465,

1474 (11th Cir. 1986), we held that a litigant who filed a notice of

appeal prior to the entry of the relevant order without referring to

that order had failed to satisfy FRAP 3. We also held that

because the litigant had failed to file an additional or amended

notice of appeal referring to the subsequent order, the Court of

Appeals was without jurisdiction to hear the appeal on the merits. 

Id.

In its entirety, the notice of appeal in this case states as

follows: “Notice is given that WILLIAM J. BOGLE,

Plaintiff/Appellant, appeals to the United States Eleventh Circuit

Court of Appeal all Orders of this Court, including the Final

Judgment rendered on April 7, 1997, a copy of which is attached

hereto as Exhibit ‘A’.” This notice of appeal was filed three days

before Orange County filed its Rule 11 motion for sanctions and

almost two months before the district judge entered her order

awarding sanctions against Bogle’s counsel.
23

Federal Rule of Appellate Procedure 3(c) provides that “[a]

notice of appeal must specify the party or parties taking the

appeal by naming each appellant in either the caption or the body

of the notice of appeal.” Rule 3(c) also provides that “an appeal

will not be dismissed...for failure to name a party whose intent to

appeal is otherwise clear from the notice.” The test for

determining the sufficiency of a notice of appeal is “whether it is

objectively clear that a party intended to appeal.” Fed. R. App. P.

3(c) advisory committee’s note (1993 amendment).

In this case, it must be remembered that sanctions were not

imposed against Bogle. Instead, the district judge sanctioned

Bogle’s counsel. Yet there is nothing in Bogle’s notice of appeal

to suggest that counsel joins her client as an appellant. To be

sure, counsel’s name appears on the notice of appeal where she

signed the notice as Bogle’s attorney. Her name is not

mentioned, however, in either the caption or the body of the notice
24

of appeal. In both the caption and the body, the notice refers

only to “WILLIAM J. BOGLE, Plaintiff/Appellant.”

At least three circuit courts have determined that no

appellate jurisdiction exists over an appeal of a district court’s

award of sanctions against counsel where the notice of appeal

fails to make clear that counsel intends to participate as an

appellant rather than as an appellant’s attorney. Maerki v. Wilson,

128 F.3d 1005 (6th Cir. 1997); Agee v. Paramount

Communications, Inc., 114 F.3d 395 (2d Cir. 1997); Dietrich v.

Sun Exploration and Prod. Co., Nos. 92-1981, 93-1442, (6th Cir.

Mar. 30, 1994), cert. denied, 513 U.S. 1872, 115 S. Ct. 197, 130

L.Ed.2d 128 (1994). Because there is nothing in Bogle’s notice of

appeal to suggest that counsel intended to participate in her own

right as a party appellant, we are without jurisdiction to entertain

counsel’s appeal from the imposition of sanctions.

Furthermore, even if it were clear that counsel intended to

participate as an additional appellant, the notice of appeal in this
25

case does not confer jurisdiction over a sanctions order that was

entered almost two months after the notice of appeal was filed. 

Indeed, at the time the notice of appeal was filed, neither Bogle

nor his counsel could be certain that Orange County, as the

prevailing defendant, would follow through with its earlier-filed

notice of intent to seek sanctions. Nor could either know that the

district judge would ultimately award sanctions as she did. It may

be true that the subsequent Rule 11 order was (or should have

been) within counsel’s contemplation. It would not have been

unreasonable, however, for Bogle and his counsel to believe that

Orange County, having won its case, would choose not to further

litigate the matter of sanctions. Moreover, to the extent that

sanctions should have been within counsel’s contemplation,

perhaps counsel should also have contemplated that the district

judge had no authority to grant a post-judgment Rule 11 motion. 

That an order imposing sanctions may have been

contemplated does not change the fact that, at the time the notice
26

of appeal was filed, a decision regarding sanctions had not yet

been announced and sanctions had not yet been imposed. Rule

3(c) provides that a “notice of appeal...must designate the

judgment, order, or part thereof appealed from.” Although notices

of appeal are to be given expansive rather than hypertechnical

construction, Rule 3(c) requires that a notice of appeal designate

an existent judgment or order, not one that is merely expected or

that is, or should be, within the appellant’s contemplation when

the notice of appeal is filed. See 20 James Wm. Moore, Moore’s

Federal Practice § 303.21[3][c] (explaining that a notice of appeal

does not ordinarily include orders that have not been entered at

the time a notice of appeal is filed and that, for post-notice orders,

a second notice or appeal, or an amended notice of appeal, is

usually necessary).

The Ninth Circuit has held that even where a notice of

appeal does not designate a post-judgment order, appellate

jurisdiction may nevertheless exist over a post-judgment order if
27

the appellant’s brief raises the post-judgment issue and the brief

is filed before the deadline for filing a notice of appeal from the

post-judgment order has expired. Intel Corp. v. Terabyte Int’l,

Inc., 6 F.3d 614 (9th Cir. 1993). The Ninth Circuit concluded in

Terabyte that appellant’s opening brief served as a timely-filed

notice of appeal of the district court’s post-judgment (and postnotice) order setting the amount of attorney’s fees.

In this case, the notice of appeal did not, and could not,

designate the district judge’s order imposing sanctions because

no such order had than been entered. Furthermore, Bogle’s brief

on appeal was not filed until January 20, 1998, more than six

months after the district judge entered the order imposing

sanctions. Assuming that an appellate brief may serve as a

notice of appeal, Bogle’s brief was filed long after expiration of the

time to file an appeal of the sanctions order. In the absence of a

timely notice of appeal following entry of the district judge’s
28

sanction order, we are without jurisdiction to consider an appeal of

that order.

CONCLUSION

Bogle asks us to reverse the district court's decision to enter

judgment as a matter of law at the close of his case-in-chief and

its decision to impose sanctions pursuant to Rule 11. Although

we assume that Bogle's evidence was sufficient to present a

prima facie case of age discrimination under the McDonnell

Douglas regime as it applies in ADEA cases, we hold that Bogle

failed to present evidence that could lead a reasonable jury to

disbelieve Orange County's stated reasons for his discharge and

therefore make an inference of illegal discrimination. As a result,

we affirm the district court's entry of judgment as a matter of law.

We also conclude that Bogle's notice of appeal, filed before

the entry of the district court's order sanctioning Swanson for

violating Rule 11, was insufficient to designate the order for
29

consideration on appeal and, therefore, hold that we do not have

jurisdiction to review the sanctions. 

We AFFIRM the district court's entry of judgment as a matter

of law on the merits of the case. The appeal from the district

court’s order imposing sanction is DISMISSED FOR LACK OF

JURISDICTION.