*

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

sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 97-2577.

William J. BOGLE, Plaintiff-Appellant,

v.

ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS as governing body of Orange

County, Florida, Defendant-Appellee.

Dec. 9, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 95-847-CivORL-22), Anne C. Conway, Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*

, Senior District Judge.

BIRCH, Circuit Judge:

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
 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. 

2

On August 31, 1993, plaintiff-appellant, William Bogle, lost his job as a corrections officer

at the Central Booking Facility in 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 sixty-three

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 coworkers 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, 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
3

complaint alleges that Orange County terminated him because of his age in violation of the ADEA

and Florida's Human Rights law, 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, 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
 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) 

4

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.

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 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).
 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 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

5

 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 668 (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 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
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 age-neutral 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. 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. 

6

 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. 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
 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 County maintained that the cumulation of

disciplinary violations led to Bogle's dismissal rather than any one event. 

 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

7

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 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 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
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. 

 7We 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. 

8

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 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 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
 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., 146 F.3d 1286 (11th Cir.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. 

9

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 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 disciplinary policies, particularly as to what violations

of policy Orange County considered serious and when the cumulation of incidents would lead to an
10

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.

 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 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
 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). 

 10The 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. 

11

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

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 regarding the Rule 11 order in her briefs before this court and asks us to reverse the

district court's imposition of sanctions.
12

 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...." 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.
13

 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 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.1994), cert. denied, 513 U.S. 872, 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.
14

Furthermore, even if it were clear that counsel intended to participate as an additional

appellant, the notice of appeal in this 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 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).
15

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 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 post-notice) 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 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.
16

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

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.