6 F.3d 836 (1st Cir. 1993), 93-1050, LeBlanc v. Great American Ins. Co.

Docket Nº:93-1050.
Citation:6 F.3d 836
Party Name:63 Fair Empl.Prac.Cas. 288, , 26 Fed.R.Serv.3d 1309 Theodore L. LeBLANC, Plaintiff, Appellant, v. GREAT AMERICAN INSURANCE COMPANY, Defendant, Appellee.
Case Date:September 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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6 F.3d 836 (1st Cir. 1993)

63 Fair Empl.Prac.Cas. 288,

, 26 Fed.R.Serv.3d 1309

Theodore L. LeBLANC, Plaintiff, Appellant,



No. 93-1050.

United States Court of Appeals, First Circuit

September 29, 1993

Heard May 3, 1993.

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[Copyrighted Material Omitted]

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Walter M. Phillips, Jr., with whom Phillips and Phelan, Sigmund J. Roos and Peabody & Brown were on brief, for plaintiff, appellant.

Kalvin M. Grove with whom Joel W. Rice and Fox and Grove, Chartered were on brief for defendant, appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

On October 19, 1990, the defendant-appellee, Great American Insurance Company ("Great American"), terminated its employment of the plaintiff-appellant, Theodore L. LeBlanc, who was then fifty-nine years old. LeBlanc brought this action in the district court against his former employer pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1985 & Supp.1993), and Mass.Gen.L. ch. 151B, Sec. 4. The district court entered summary judgment in Great American's favor, and this appeal followed. We affirm.



Great American contends that this court is without jurisdiction over LeBlanc's appeal from the district court's order granting summary judgment in its favor. To follow

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this argument, it is necessary to understand the procedural history of this case.

The district court rendered its final judgment granting summary judgment to Great American on November 2, 1992. On November 10, LeBlanc moved for reconsideration under Fed.R.Civ.P. 59(e). On December 2, 1992, while this motion for reconsideration was still pending, LeBlanc filed a notice of appeal from the November 2, 1992, grant of summary judgment. Because at the time LeBlanc filed his notice of appeal the district court had not yet ruled on LeBlanc's motion for reconsideration, we determined that we were without jurisdiction to consider the appeal and accordingly dismissed it. On December 21, 1992, the district court denied LeBlanc's motion for reconsideration. LeBlanc filed a second notice of appeal on December 28. The second notice of appeal asked for relief "from the Order entered December 21, 1992, denying Plaintiff's Motion for Reconsideration of the court's previously entered order of November 2, 1992, granting summary judgment in favor of defendant Great American Insurance Companies [sic]."

Great American argues that LeBlanc's second notice of appeal, because it only challenges the district court's denial on December 21, 1992, of LeBlanc's Rule 59(e) motion, does not confer jurisdiction upon this court to entertain an appeal from the district court's judgment of November 2, 1992, granting summary judgment. Appellee insists we possess jurisdiction only to consider the narrower factors relevant to the district court's denial of LeBlanc's motion for reconsideration. We disagree.

It is true that Fed.R.App.P. 3(c) states that "[t]he notice of appeal shall specify the ... order or part thereof appealed from." Rule 3(c)'s "commands are jurisdictional and mandatory." Kotler v. American Tobacco Co., 981 F.2d 7, 10-11 (1st Cir.1992) (citing Smith v. Barry, --- U.S. ----, ----, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S.Ct. 2405, 2407-08, 101 L.Ed.2d 285 (1988)). Nevertheless, courts have been admonished to interpret Rule 3(c) liberally. Id.;see Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 228-30, 9 L.Ed.2d 222 (1962).

In general, "an appeal from the denial of a Rule 59(e) motion is not an appeal from the underlying judgment." Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.1991) (citing Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2-3 (1st Cir.1989); Pagan v. American Airlines, Inc., 534 F.2d 990, 992-93 (1st Cir.1976)). Yet this rule is not inflexible. This circuit has allowed a timely appeal from the denial of a timely Rule 59(e) motion to serve as notice of an appeal from the underlying judgment in cases where the appellant's intent to appeal from the judgment is clear. Id.; seeFoman, 371 U.S. at 181-82, 83 S.Ct. at 229-30. In making this assessment, we consider the notice of appeal "in the context of the record as a whole." Kotler, 981 F.2d at 11.

Foman v. Davis involved facts very similar to those in this case. The district court had dismissed the complaint for failure to state a claim upon which relief could be granted. The next day, plaintiff moved to vacate the judgment, pursuant to Fed.R.Civ.P. 59(e), and also moved to amend the complaint. While the motions were still pending, plaintiff filed a notice of appeal from the district court's dismissal of the complaint. Shortly thereafter, the district court denied the plaintiff's motions. The plaintiff then filed a second notice of appeal from the denial of the motions.

Although the parties in Foman briefed and argued the merits of the district court's dismissal of the complaint as well as the district court's denial of the plaintiff's motions, the court of appeals, of its own accord, dismissed the appeal insofar as it was taken from the district court's dismissal of the complaint. The court of appeals held that the second notice of appeal was "ineffective to review the ... judgment dismissing the complaint because the notice failed to specify that the appeal was being taken from that judgment as well as from the orders denying the motions." Foman, 371 U.S. at 180-81, 83 S.Ct. at 229-30.

In reversing the court of appeals, the Supreme Court held that "[t]he defect in the

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second notice of appeal did not mislead or prejudice the respondent." Id. at 181, 83 S.Ct. at 229-30. Although the Court agreed that the first premature notice of appeal had had no effect, 1 it ruled that, "[t]aking the two notices and the appeal papers together, petitioner's intention to seek review of both the dismissal and the denial of the motions was manifest." Id. The Court found support for this conclusion from the fact that both parties had briefed and argued the merits of the dismissal on appeal.

The Court's decision in Foman seems to us to be dispositive here. LeBlanc's intent to appeal from the district court's November 2, 1992, grant of summary judgment was plain. The two notices taken together revealed LeBlanc's desire to appeal not just from the motion for reconsideration but also from the underlying judgment.



Great American is an all lines insurance company with its headquarters in Cincinnati, Ohio. As of October 1990, when Great American dismissed LeBlanc, Great American was divided into four geographical regions: Northeast, South, Midwest, and West. In addition to these geographical divisions, Great American was organized according to the lines of business, distinguishing between personal and commercial lines of insurance. At the time of his discharge, LeBlanc was employed by Great American Northeast, Inc. (the "Northeast Zone") in its commercial lines division.

Great American hired LeBlanc in October 1980 as a branch manager in its Wheaton, Maryland, office. At that time, LeBlanc was forty-nine years old. From 1980 through 1988, LeBlanc worked for Great American in Maryland. In January 1989, Great American transferred the fifty-seven-year-old LeBlanc, with his consent, to eastern Massachusetts to serve as a commercial lines Agency Operations Representative ("AOR"). The transfer was approved by Al Conte, then-acting president of the Northeast Zone, who also agreed to pay for LeBlanc's moving expenses and to give him a sixteen percent pay raise.

In his capacity as an AOR, LeBlanc was expected to market Great American commercial insurance to independent agents or brokers in eastern Massachusetts and assist those agents and brokers who were already selling Great American's insurance products. When LeBlanc started in eastern Massachusetts, he joined Charles DeMartino, then fifty-six years old, as one of two AORs marketing Great American commercial lines insurance in eastern Massachusetts. LeBlanc and DeMartino worked together in eastern Massachusetts until LeBlanc's discharge.

According to Great American's evidence, which is not contradicted, the decision to dismiss LeBlanc had its genesis in August 1990, when Conte began to prepare a budget for the upcoming year for the Northeast Zone. Because the Northeast Zone was experiencing financial problems at the time, Thomas Hayes, Executive Vice-President of Great American, instructed Conte to submit a leaner budget to corporate headquarters. Although Conte sought ways to reduce expenses without dismissing personnel, he concluded, in September and early October 1990, that personnel cuts would have to be made.

Conte decided, with the approval of Hayes and Human Resources personnel in Cincinnati, to eliminate or leave vacant five positions in the Northeast Zone. Those people directly affected by Conte's decision included LeBlanc, William St. George, a forty-seven-year-old underwriter working in the Windsor, Connecticut, headquarters of the Northeast Zone, and Dwight Bowie, the thirty-eight-year-old Profit Center Manager in Hartford, Connecticut. In addition, two other vacant positions in the Northeast Zone were eliminated. They included the AOR Manager in the Syracuse, New York, office, a position that had already been vacated by the resignation of Tim Johnson, age twenty-six, and an underwriting position in Hartford,

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Connecticut, that had been vacant for some time.

On October 19, 1990, Great American informed LeBlanc that he was being dismissed. LeBlanc was told that the decision to eliminate his position was based on budget constraints, and not because of his age or his individual performance. Immediately after LeBlanc's discharge,...

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