David Feldman v. Olin Corporation

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3955

D AVID F ELDMAN,

Plaintiff-Appellant,

v.

O LIN C ORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-168-GPM—G. Patrick Murphy, Judge.

A RGUED A PRIL 19, 2012—D ECIDED A UGUST 27, 2012

Before E ASTERBROOK , Chief Judge, and F LAUM and

W OOD , Circuit Judges.

W OOD , Circuit Judge. In May 2007, David Feldman

was working as a tractor operator on the day shift at

a manufacturing facility then owned by Olin Corpora-

tion. Because of Feldman’s medical problems with

fibromyalgia and sleep apnea, his doctors had advised

him to work regular day positions, without rotation and

overtime. This was possible until Olin realigned its work

2 No. 10-3955

force, causing Feldman’s position to change from one

limited to daytime work to one that required rotation

among day, evening, and night shifts. Although he tried

to work under the new regime for a few weeks,

Feldman found that his fatigue and pain made it impos-

sible for him to do so. When he presented Olin with

a medical restriction from the shift rotation, Olin

promptly laid him off. It did not place him in a

different position, because (it asserted) no other posi-

tions were available that did not require overtime or flex-

time. Over the course of the next several months, Olin

continued to refuse to place Feldman in another spot,

maintaining that either flex-time or overtime were

essential functions for everything that was available.

Finally, a straight-day position came open in Decem-

ber 2007; Feldman successfully bid for it. Since then,

Feldman has continued working at the plant.

Feldman brought this suit alleging that the defen-

dants’ failure to offer a reasonable accommodation in

the form of a straight-day shift, without overtime,

violated the Americans with Disabilities Act (ADA), 42

U.S.C. § 12111 et seq. He also argued that once he

returned to work, Olin retaliated against him for having

filed discrimination complaints with various state and

federal agencies. Feldman also brought claims under

the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 621 et seq., and state law retaliation claims,

but those are not at issue on this appeal.

The district court granted summary judgment in the

defendants’ favor, dismissing all of Feldman’s claims.

No. 10-3955 3

We conclude, however, that this was error. Feldman

can prevail if the trier of fact resolves two genuinely

disputed points in his favor: first, whether he is “dis-

abled” under the ADA, and second, whether he is “quali-

fied” to work in certain positions given his overtime

restriction. Feldman’s retaliation claims, in contrast,

were properly dismissed for lack of evidence that

the adverse employment actions were caused by any

protected conduct. Finally, both parties on appeal

have discussed sanctions. As we explain below, Feldman’s

attorneys failed to file a timely notice of appeal from

the order awarding sanctions against them, and so we

lack jurisdiction to consider it. Feldman’s appeal from

the court’s denial of his own motion for sanctions

is, however, properly before us, and we conclude that

the district court rejected it too hastily. We thus

remand that issue to the district court for further con-

sideration.

I

The account of the facts that follows presents them

in the light most favorable to Feldman, who was the

party opposing summary judgment. See, e.g., Lagestee-

Mulder, Inc. v. Consolidated Ins. Co., 682 F.3d 1054, 1056

(7th Cir. 2012). In general, our review is de novo.

Since 1974 Feldman has worked at the metal manu-

facturing facility in East Alton, Illinois, in a variety of

production and manual labor positions. Until Novem-

ber 2007, this was the brass division of Olin. In Novem-

ber 2007, defendant Global Brass & Copper, Inc., a Dela-

4 No. 10-3955

ware corporation, acquired that division. It now operates

the same facility under the name Olin Brass, but the

true entity is GBC Metals, LLC, whose sole member is

Global Brass. Unless the context requires otherwise, as

it does when we come to the question of sanctions, we

refer to both defendants as Olin.

For many years Feldman typically worked the swing

shift (or “flex-time”), which required him to work day,

afternoon, and midnight rotating shifts along with some

overtime. Things changed when, in 2002, Feldman was

diagnosed with fibromyalgia. According to Feldman’s

rheumatologist, Dr. Tanphaichitr, as well as his general

practitioner, Dr. Green, Feldman experiences significant

pain, sporadic sleeping patterns, insomnia, and extreme

fatigue as a result of the fibromyalgia. Working the

swing shift was exacerbating these symptoms, and so

toward the end of 2004, Dr. Green recommended that

Feldman switch to a “straight-time” schedule. An em-

ployee on a straight-time shift is assigned a daytime

shift of eight hours, without rotation to afternoons

and nights. Dr. Green recommended this schedule for

Feldman because it would allow him to have a more

stable sleep cycle, which in turn would help to reduce

pain and fatigue. Following his doctor’s advice, Feldman

bid on and obtained a straight-day tractor-operator posi-

tion in January 2005. In February 2005, Feldman sub-

mitted a no-overtime medical restriction. Olin agreed to

honor this restriction after consulting with Dr. Green.

Feldman has also since been diagnosed with obstructive

sleep apnea. During a sleep study conducted in 2007,

No. 10-3955 5

Feldman’s sleep efficiency (that is, the amount of time

he actually slept) was rated as “very poor at 48%.”

On May 7, 2007, Olin implemented a “job curtailment,”

which involved realigning or reducing several positions.

As part of that process, it changed one tractor-operator

position from straight days to a rotating shift. Because

Feldman was the least senior of the straight-day tractor

operators, he was the one moved into the new job.

Feldman tried to follow the rotating schedule for two

weeks, but he was unable to do so because of his physical

condition. On May 21, 2007, Feldman submitted a new

doctor’s note restricting him from flex-time shifts;

relying on that, he asked to be assigned to a straight-day

shift. Olin told Feldman that there were no available

straight-day positions, and Feldman was laid off that day.

On June 11, 2007, Feldman filed a Charge of Discrim-

ination with the Illinois Department of Human Rights,

alleging disability and age discrimination. On June 20,

2007, Olin held a reasonable accommodation meeting. It

sent a Position Statement to the Illinois Department

of Human Rights in response to the discrimination

charge, stating that it had considered Feldman for a

variety of positions but could not place him given

his restrictions. Olin also sent Feldman’s doctor,

Dr. Green, questions about his medical restrictions, and

Dr. Green responded that Feldman’s “fibromyalgia and

obstructive sleep apnea cause significant symptoms

in terms of physical pain and excessive sedation,” and

that a day shift would allow Feldman to “have a reduc-

tion in pain and reduction in daytime somnolence so

6 No. 10-3955

that he would be able to perform the functions of his job.”

Olin did not at that time offer Feldman alternative em-

ployment, and so Feldman remained on layoff status.

For the most part, Feldman did not work during the

remainder of 2007, although he submitted several unsuc-

cessful bids for open positions. In December 2007, how-

ever, he bid on and was awarded a position working

straight days as a tractor operator.

Feldman brought this suit against Olin Corporation,

Global Brass, and Olin Brass, on March 4, 2009, alleging

that the defendants had committed age and disability

discrimination in violation of the ADEA and ADA by

failing to accommodate his disability between May

and December of 2007. He also included a claim for

retaliation. The district court granted summary judg-

ment to the defendants on all claims; Feldman has ap-

pealed only from the adverse rulings on the ADA

and retaliation claims.

II

To succeed on a claim under the ADA, a plaintiff must

show: “1) that she is disabled; 2) that she is otherwise

qualified to perform the essential functions of the job

with or without reasonable accommodation; and 3) that

the employer took an adverse job action against her

because of her disability or failed to make a reasonable

accommodation.” Stevens v. Illinois Dep’t of Transp., 210

F.3d 732, 736 (7th Cir. 2000). Feldman argues that Olin

failed to make a reasonable accommodation when it did

No. 10-3955 7

not offer him an available position after he alerted the

company to his flex-time and overtime restrictions.

The district court concluded, after looking at the sum-

mary judgment record, that Feldman could not show

that he was disabled; it therefore saw no need to

address the other ADA requirements. In our view, how-

ever, when the record is viewed in the light most

favorable to Feldman, there is a dispute of material fact

on that threshold issue. In addition, we conclude that

a dispute of material fact exists with respect to

Feldman’s qualification to perform available positions.

There is no dispute that Olin failed to offer Feldman

those positions as a reasonable accommodation, and

so we take that as established.

A

An individual is “disabled” under the ADA if he (1) has

an actual disability that substantially limits one or

more major life activities, (2) has a “record of” such an

impairment, or (3) his employer regards him as having

such an impairment. Powers v. USF Holland, Inc., 667

F.3d 815, 819 (7th Cir. 2011) (citing 42 U.S.C. § 12102(2)

(2006)).1 Feldman argues that he is disabled because

of substantial limitations in his ability to sleep, a major

1

Although this definition changed with the 2009 amend-

ments to the ADA, the amendment was not retroactive and

the parties agree that Feldman’s claim is controlled by the

earlier definition. See Fredricksen v. United Parcel Serv., Co.,

581 F.3d 516, 521 n.1 (7th Cir. 2009).

8 No. 10-3955

life activity. See Scheerer v. Potter, 443 F.3d 918, 919 (7th

Cir. 2006); E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d

606, 616 (5th Cir. 2009) (“Every circuit that has

addressed the issue has concluded that sleeping is a

major life activity.”). In the alternative, Feldman asserts

that a jury could find that Olin regarded him as being

substantially limited in his ability to work, also a major

life activity, see Powers, 667 F.3d at 817. Feldman

alleges that the latter argument is supported by the

fact that Olin had a “100% healed policy.” We address

each of these in turn.

1

A plaintiff claiming disability on the basis of sleep

problems must show that his “limitations on sleeping . . .

are sufficiently ‘prolonged, severe and long-term’ to

warrant classification as a disability.” Squibb v. Memorial

Med. Ctr., 497 F.3d 775, 784 (7th Cir. 2007) (quoting Burks

v. Wisconsin Dep’t of Transp., 464 F.3d 744, 757 (7th Cir.

2006)). Summary judgment for the defendant, however,

may be appropriate if the plaintiff relies only on “general-

ized assertions that she is unable to sleep for sub-

stantial periods of time, unsupported by any additional

evidence, medical or otherwise, and unenhanced by

claims that this lack of sleep affects her daytime func-

tions.” Squibb, 497 F.3d at 784.

Olin relies on these cases to argue that Feldman’s

claim, too, should fail. But Feldman’s case does not

suffer from the same defect. He presented significant

evidence of severe sleep problems resulting from sleep

No. 10-3955 9

apnea and fibromyalgia, including medical evidence

from his treating physicians and the results of a sleep

study. He did not rely solely on his own say-so, although

his deposition testimony and the records he kept from

2005 to 2007 documenting his sleeping difficulties bol-

stered the medical evidence.

The district court nonetheless granted summary judg-

ment for Olin because it thought that some facts in the

record cast doubt on the severity of Feldman’s sleeping

limitations. It noted that (1) Feldman’s sleep quality

is better if he uses a CPAP machine (a mask that delivers

continuous positive airway pressure), (2) Feldman’s

doctor said that he could work 40 hours a week of

straight-time shifts, and (3) Feldman is able to drive

and engage in some recreational activities. Perhaps these

pieces of evidence do cut in Olin’s favor; they suggest

that Feldman’s sleeping problems might not be a “disabil-

ity” for ADA purposes because they are easily remedied

or do not significantly affect his daytime functions.

The question, however, is not whether there was some

evidence in the record favoring Olin; it is whether

there was anything on the other side of the scale.

The answer to the latter question is yes. First, it is not

clear that the CPAP machine actually helps Feldman,

even if it theoretically ought to. Feldman testified that

it was difficult to wear the mask at night and thus the

machine did not work as effectively as possible. A jury

could conclude that even with a CPAP machine,

Feldman would have significant sleeping problems.

Second, although Feldman’s doctor advised he could

10 No. 10-3955

work 40 hours a week, he emphasized that this was only

if Feldman was not assigned to work flex-time. The

doctor believed that Feldman’s sleeping problems were

substantial enough to make a change in schedule neces-

sary. The fact that Feldman could have worked in

some capacity during the day cannot be enough to over-

come Feldman’s other medical evidence of sleeping

problems. To hold otherwise would be akin to saying

“that no one is disabled under the ADA unless the

person is unable to work,” which would “render all

the provisions in the ADA governing reasonable accom-

modations at work entirely empty of meaning.” Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999).

Finally, even though some evidence indicates that

Feldman is able to do things like go to movies and

attend church, other evidence shows that Feldman has

significantly reduced his social activities because of

his pain and sleeping difficulties.

On this record, we cannot conclude as a matter of

law that Feldman is not disabled. The evidence

supporting Feldman’s claim is sufficient to create a genu-

ine dispute of material fact that he was disabled by a

substantial, severe, and long-term limitation on his

ability to sleep.

2

Feldman’s alternative argument that he is disabled

because Olin regarded him as substantially limited in

his ability to work is another matter. In order for

No. 10-3955 11

Feldman to satisfy the “regarded as” theory of ADA

disability, there must be evidence that Olin believed

Feldman was “limited in [his] ability to perform not merely

one particular job but a class or broad range of jobs.”

Hanson v. Caterpillar, Inc., ___ F.3d ___, 2012 WL 3139946

(7th Cir. Aug. 3, 2012) (quotation omitted). The most

the evidence shows is that at the time Olin laid him off,

it regarded Feldman as unable to perform jobs that re-

quired overtime or flex-time. Patterson v. Chicago Ass’n

for Retarded Citizens, 150 F.3d 719, 725 (7th Cir. 1998) (an

inability to “work long shifts” or be available for on-call

duties does not “rise to the level of disability required

under the ADA”) (quotation omitted).

Even taking into account Olin’s alleged “100% healed

policy,” our analysis does not change. As we explained

in Powers, “[w]ithout some evidence that the employer

actually viewed the . . . individual as unable to work

for other employers in a class of jobs or a broad

range of jobs, a 100% healed policy merely shows that

this employer’s preference is to hire someone without

any impairments. Under the ADA that would not be a

violation unless the individual is actually disabled.”

667 F.3d at 815.

B

Feldman has shown that a dispute of fact exists on

the question whether he is disabled, but to survive sum-

mary judgment he must also show that he is a “qualified

individual,” i.e., that he is “an individual with a disability

12 No. 10-3955

who, with or without reasonable accommodation, can

perform the essential functions of the employment

position that such individual holds or desires.” 42 U.S.C.

§ 12111(8). Olin argues that Feldman cannot meet this

requirement because overtime and rotating shifts—exactly

the job demands from which Feldman needed to be

excused—are “essential functions” of the job.

We generally defer to an employer’s determination of

the essential functions of a job. See Lloyd v. Swifty Transp.,

Inc., 552 F.3d 594, 601 (7th Cir. 2009) (“The employer, not

a court, determines what functions are essential, and

we will not second-guess that decision.”). But this does

not mean that we completely abdicate independent

review. The ADA provides that “consideration shall be

given to the employer’s judgment as to what functions

of a job are essential, and if an employer has prepared

a written description before advertising or interviewing

applicants for the job, this description shall be considered

evidence of the essential functions of the job.” 42 U.S.C.

§ 12111(8). Under ADA regulations, “other factors to

consider are: (1) the amount of time spent on the job

performing the function, (2) the consequences of not

requiring the incumbent to perform the function, (3) the

terms of the collective bargaining agreement, (4) the work

experience of past incumbents in the job, and (5) the

current work experience of incumbents in similar jobs.”

D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th

Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)). Thus we “con-

sider, but [are] not limited to, evidence of the employer’s

judgment as to which functions are essential, and the

written job description in effect before the employee

No. 10-3955 13

interviewed for the position.” Serednyi v. Beverly Health-

care, LLC, 656 F.3d 540, 550 (7th Cir. 2011).

Feldman points to several straight-time positions

that were open during his seven month lay-off that he

believes Olin should have reassigned him to, including

two straight-time shifts in the bag house and four

adjustor positions. Olin retorts that all of these required

overtime as an essential function of the job. Once

again, however, we cannot resolve this in Olin’s favor

at the summary judgment stage, because the evidence

on each of these points is mixed. Notably, Olin concedes

that overtime is not listed as a required job feature in

the written job descriptions. Olin counters that it

should not have to list a requirement that is required by

all of its jobs, but Feldman points to evidence of some

jobs that do specifically list mandatory overtime as a

requirement in their written descriptions. Feldman has

also furnished data indicating that overtime is rarely

worked by bag house operators. On the other hand, Olin

argues that the consequences of exempting bag house

workers from overtime would be dire, as fires some-

times break out that require all essential personnel to

work until the fires are put out, even if that requires

overtime. There is evidence, in short, going both ways,

and so we cannot conclude that overtime was an

essential function of the bag house or adjustor positions.

See D’Angelo, 422 F.3d at 1232-33 (evidence that em-

ployees rarely performed a task created a genuine issue

of material fact regarding whether the task was essential).

Olin also argued that Feldman could not have

obtained the bag house positions because he needed to

14 No. 10-3955

bid on the vacant positions, and because he was not

entitled to bump junior employees currently holding

those positions. (These arguments do not appear to

apply to the adjustor positions, for which Olin relies

solely on the overtime defense.) But Olin has failed to

press these points on appeal and they are thus waived.

Even if they were not, we do not think the evidence is

so clear that these positions were unavailable to

Feldman that summary judgment would be appropri-

ate. For instance, the evidence suggests that Olin

treated Feldman as being on “curtailment,” a status that

gave Feldman the right under the applicable collective

bargaining agreement to bump junior employees. Even

when employment practices generally require bidding

before being awarded a position, we have held that

employers may be required to bypass procedural require-

ments like bidding in order to meet their obligations

under the ADA of providing reasonable accommodations.

See, e.g., Gile v. United Airlines, Inc., 213 F.3d 365, 374

(7th Cir. 2000). Feldman’s alleged failure to bid on

certain open positions is thus not dispositive.

Olin’s argument that flex-time was an essential func-

tion of certain positions (such as the tractor-operator

positions) is stronger than its argument with respect to

overtime. Flex-time was mentioned in the written job

descriptions, and there is no evidence that truck drivers

who are in flex-time positions actually work straight

shifts instead. But we need not resolve this one way or

the other because we find that Feldman has presented

enough evidence to establish a genuine dispute of

material fact about his qualification to work available

No. 10-3955 15

straight-time positions, and Olin did not offer him those

positions. This is enough to withstand summary judg-

ment on his ADA claim.

III

Feldman also appeals the district court dismissal of

his retaliation claim. To prevail on this theory, a

plaintiff must show that he engaged in statutorily pro-

tected activity (such as filing a charge of discrimination),

that he suffered a materially adverse employment action,

and that there is a causal link between the two. Chapin

v. Fort-Rohr Motors, Inc., 621 F.3d 673, 677 (7th Cir.

2010). Feldman alleges that he engaged in statutorily

protected activity by filing a charge of discrimination

with the Illinois Department of Human Rights alleging

disability and age discrimination in September 2006

and again in June 2007, and in August 2007 by filing a

discrimination charge with the EEOC. He asserts that

Olin retaliated against him by refusing to rehire him, by

assigning him to physically demanding work upon his

return in December 2007, and by suspending him for

minor misconduct in May 2008.

We agree with the district court that Feldman cannot

succeed on his retaliation case because there is no

genuine dispute over causation. The evidence regarding

Olin’s refusal to rehire Feldman (until December 2007)

suggests that Olin was strictly applying its overtime

and flex-time requirements, not that Olin was retaliating

against Feldman for filing charges of discrimination.

16 No. 10-3955

Feldman points to nothing suggesting that Olin’s failure

to put him back to work before December 2007 had any-

thing to do with his charges of discrimination. Although

the evidence does indicate that Feldman was assigned

unpleasant tasks upon his return to work, such as the

coil-miller job, this task was performed by others as

well. There is no evidence that Feldman’s assignment to

the coil-miller job was punitive or involved anything

more than what the job typically required. See Nagle v.

Village of Calumet Park, 554 F.3d 1106, 1120 (7th Cir. 2009).

Finally, we agree with the district court that the eight-

month period between the latest filing and the his sus-

pension in May 2008 is too long, absent some other evi-

dence, to establish a casual connection between the two.

See Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001)

(“[T]he length of time between the protected speech and

the adverse employment action is at least four months,

which, without more, is too long to support a rea-

sonable inference of causation.”). Feldman believes that

his infraction—crashing a tractor into a door—was too

minor to warrant a suspension (and indeed, during a

subsequent union grievance process the company

reduced the length of the suspension), but the real

problem is that there is nothing to connect this suspen-

sion to his earlier activity. We thus affirm summary

judgment for Olin on Feldman’s retaliation claims.

IV

Our final task is to address the appeals of various

sanctions matters. The night before the district court

was to hear oral argument on the summary judgment

No. 10-3955 17

motions, one of the defendants in this case, Global

Brass, filed a motion for sanctions against Feldman pursu-

ant to Rule 11. Global Brass argued that Feldman had

failed to conduct a proper investigation before filing his

complaint against it, had failed to dismiss Global Brass

after Global Brass offered evidence that it never

employed Feldman and never employed more than 10

people (and so was not covered by the ADA), and that

Feldman failed to omit Global Brass from his amended

complaint. Feldman, in turn, filed a motion for Rule 11

sanctions against Global Brass, on the basis that Global

Brass’s motion for sanctions was for the improper

purpose of harassing counsel and because Global Brass

failed to give him 21 days’ notice of its intent to seek

sanctions, as required by Rule 11(c)(2). See Matrix IV,

Inc. v. American Nat’l Bank & Trust Co. of Chicago, 649

F.3d 539 (7th Cir. 2011) (“This 21-day window gives the

offending party a ‘safe harbor’ within which to with-

draw or correct the offending pleading.”).

On November 29, 2010, the district court granted

Global Brass’s motion for sanctions; it relied on both

Rule 11 and its inherent powers. It reserved judgment

on the amount of attorney’s fees it would impose. The

court denied Feldman’s motion for sanctions. Several

months later, on February 22, 2011, the court awarded

attorney’s fees of $1,475, to Global Brass to be paid by

Feldman’s attorneys. Feldman’s attorneys seek to have

those fees reversed, and Feldman argues that his own

sanctions motion was improperly rejected. We review

the grant or denial of a motion for sanctions for abuse

of discretion. Bilharz v. First Interstate Bank of Wisconsin,

98 F.3d 985, 989 (7th Cir. 1996).

18 No. 10-3955

1

We are sympathetic to Feldman’s contention that the

district court abused its discretion by imposing sanctions.

Global Brass admits that it never gave Feldman advance

notice as required under Rule 11(c)(1). Notice plays

a central part in the Rule 11 process, as the 1993

Committee Note emphasizes. Subdivisions (b) and (c),

¶ 13. That alone should have led to the dismissal of the

motion. And it is our impression that Global Brass’s

argument on the merits for sanctions was flimsy.

Sanctions would have been appropriate only if Feldman

had no legal basis or evidentiary support for keeping

Global Brass in the case as a defendant, or was doing so

for an improper purpose. But Feldman’s lawyers had

good reason to think that Global Brass was a proper

defendant. There was evidence in the record including

pay stub records, job postings, and a letter from defen-

dant’s counsel identifying Global Brass as Feldman’s

employer, all suggesting that Global Brass might have

been the entity employing Feldman. The confusion

about the precise relationship among the three corporate

defendants persists in this court, exacerbated by the

defendants’ failure to follow another procedural rule—this

time, Federal Rule of Appellate Procedure 26.1, which

requires parties to submit a Corporate Disclosure State-

ment. The defendants failed to comply with that rule,

and their carelessness has needlessly complicated both

our review for conflicts and our substantive evaluation

of this part of the case.

As it happens, however, we have no jurisdiction to

address this issue, because Feldman’s attorney failed to

No. 10-3955 19

file a timely notice of appeal from the district court’s

final decision on sanctions. Feldman filed a notice of

appeal from the November 29, 2010, grant of the motion

for sanctions, but that order was nonfinal, because it

explicitly reserved the calculation of fees. When the

fees were ultimately imposed by the court’s order of

February 22, 2011, Feldman failed to file a notice of

appeal. This defect was brought to Feldman’s attention

during the course of briefing in this case. His attorneys

tried to salvage the appeal, raising several arguments

and filing a late notice on August 3, 2011. We dismissed

that appeal as untimely. See Feldman v. Olin Corp., et al.,

673 F.3d 515 (7th Cir. 2012).

Despite their earlier lack of success, Feldman’s attor-

neys are now asking us to treat the first notice of

appeal filed by Feldman from the November order as

effective on the date in February the fees were imposed.

This is possible, they contend, under Federal Rule of

Appellate Procedure 4(a)(2). But they are mistaken.

FRAP 4(a)(2) permits courts to treat a notice of appeal

filed after a court announces a decision or order, but

does not formally enter final judgment, as filed on the

date of the entry of the judgment or order. But this rule

applies “only when a district court announces a deci-

sion that would be appealable if immediately followed

by the entry of judgment.” FirsTier Mortgage Co. v.

Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991). The

Supreme Court has specifically said that Rule 4(a)(2)

does not “permit[] a notice of appeal from a clearly inter-

locutory decision—such as a discovery ruling or a sanc-

tion order under Rule 11 of the Federal Rules of Civil

20 No. 10-3955

Procedure—to serve as a notice of appeal from the

final judgment” because “[a] belief that such a decision

is a final judgment would not be reasonable.” Id.; see

also Carter v. Ashland, Inc., 450 F.3d 795, 797 (8th Cir. 2006)

(“We conclude Rule 4(a)(2) does not save the instant

notice of appeal filed prematurely from the dismissal

order, because the order ‘left unresolved’ the amount of

the attorney’s fees and costs.”). Nor does Rule 4(a)(4)(B)(i)

help. That rule applies to motions for attorney’s fees

only “if the district court extends the time to appeal

under Rule 58,” FED R. A PP. P. 4(a)(4)(A)(iii), and the

court did not do so here.

We note that one other jurisdictional defect dooms

this appeal. As we explained in our earlier rejection of

the attorneys’ late attempt to appeal the fees, the district

court ordered Feldman’s attorneys to pay the fees in its

February order, not Feldman, thereby “relieving the

plaintiff of the obligation imposed by the previous or-

der.” 673 F.3d at 516. Thus, even if we were somehow

to find the early notice of appeal to be effective at a

later date, any issue Feldman might have had with those

fees is now moot. Feldman’s attorneys were the only

parties who could appeal a fee award imposed

against them, but they did not file an appeal from the

November order and their attempt to file an appeal

from the February order was far too late. We therefore

find that we have no jurisdiction to review the award

of attorney’s fees to Global Brass.

No. 10-3955 21

2

We do, however, have jurisdiction to consider the

district court’s denial of Feldman’s own motion for sanc-

tions against Global Brass, because Feldman filed a

timely notice of appeal from that order. We review a

district court’s denial of a motion for sanctions for

abuse of discretion. Matrix IV, Inc., 649 F.3d at 552.

The only explanation the district court offered for its

rejection of Feldman’s motion for sanctions was that

“Mr. Feldman’s claims against Global Brass and Copper

were groundless.” We think that goes too far. As noted

above, Feldman offered evidence showing that he had

a good faith basis to keep Global Brass in the case,

given the confusion about Global Brass’s relationship to

Feldman and the exact corporate identity of his em-

ployer during the relevant time. Cf. Tucker v. Williams,

682 F.3d 654, 662 (7th Cir. 2012) (finding a sanctions

award to be an abuse of discretion when there was no

evidence the party had acted in bad faith). Global Brass

was hardly a model litigant, given the fact that it filed

its motion for sanctions on the eve of oral argument

and failed to follow the safe-harbor provisions of Rule 11.

That alone, we recognize, would probably not warrant

sanctions: lawyers file untimely motions all the time,

and the normal response from the judge is simply to

deny them and move on. But here the judge seems to

have accepted Global Brass’s position that Feldman

never should have sued it on the merits. That conclusion—

if indeed our guess about the district court’s thinking

is correct—is much more troublesome, given the evi-

dence we mentioned earlier.

22 No. 10-3955

“Although our review of a denial of sanctions is

limited, the denial of sanctions with no explanation may

constitute an abuse of discretion.” Ross v. City of

Waukegan, 5 F.3d 1084, 1088 (7th Cir. 1993); see also LaSalle

Nat’l Bank of Chicago v. County of DuPage, 10 F.3d 1333,

1338 (7th Cir. 1993) (“[A] district court abuses its discre-

tion when it denies sanctions with no explanation, or

with an explanation that is so conclusory that the

appellate court cannot review the substance of its deci-

sion.”) (citations omitted). Given the complexities of the

corporate relationships involved here and the lack of

explanation from the district court, we need a better

explanation before we can endorse the court’s decision

to deny Feldman’s motion. We thus reverse the district

court’s denial of Feldman’s motion for sanctions.

***

In summary, we R EVERSE the district court’s grant of

summary judgment in Olin’s favor on Feldman’s ADA

claim (and thus V ACATE the associated entry of costs

of $13,035.20 imposed against the losing party), A FFIRM

summary judgment for Olin on Feldman’s retaliation

claim, D ISMISS the appeal from the award of sanctions

in favor of Global Brass for want of jurisdiction, and

R EVERSE the denial of Feldman’s motion for sanctions.

The case is R EMANDED for further proceedings con-

sistent with this opinion.

8-27-12