962 F.2d 10 (7th Cir. 1992), 91-2638, Espinueva v. Ball

Docket Nº:91-2638.
Citation:962 F.2d 10
Party Name:Jaime H. ESPINUEVA, Plaintiff-Appellant, v. William L. BALL, III, Secretary of the Navy, Defendant-Appellee.
Case Date:April 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 10

962 F.2d 10 (7th Cir. 1992)

Jaime H. ESPINUEVA, Plaintiff-Appellant,


William L. BALL, III, Secretary of the Navy, Defendant-Appellee.

No. 91-2638.

United States Court of Appeals, Seventh Circuit

April 24, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Decided May 7, 1992.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 88 C 7806; Hubert L. Will, Judge.



Before CUMMINGS, and MANION, Circuit Judges, and GRANT, Senior District Judge. [**]


Appellant Jaime H. Espinueva sought summary judgment of his motion for sanctions, filed pursuant to Fed.R.Civ.P. 37. On June 21, 1991, the district court summarily denied the motion. We affirm the district court's ruling.


After failing to attain a promotion from a GS-5 military pay clerk position to a GS-7 cashier post in the United States Navy, Mr. Espinueva filed an administrative complaint with the Equal Employment Opportunity Commission [EEOC], charging discrimination on the grounds of national origin (Filipino), age (born in 1926), and race (Asian). The EEOC found in his favor. Rather than accept the back pay and promotion to a substantially equivalent GS-7 position, however, he brought an action in district court under Title VII and the Age Discrimination in Employment Act [ADEA], seeking compensatory and punitive damages in the amount of $4,000,000.

On January 18, 1989, the district court issued an agreed order. Finding that the plaintiff, if he had prevailed on the merits, would be entitled only "to a 'make-whole' remedy consisting of promotion to an available GS-7 position ... and back pay ...," it ordered the Navy to promote the plaintiff to the vacant GS-7 position of Supervisory Military Pay Clerk and to give him back pay, "whether or not plaintiff accepts the promotion." Mr. Espinueva accepted the back pay, but did not take the available GS-7 position.

Because the relief did not include damages, Mr. Espinueva appealed. This court found that his demand of "punitive damages equal to the gross national product of a small nation" was frivolous, and affirmed the district court's ruling. Espinueva v. Garrett, 895 F.2d 1164, 1165 (7th Cir.), cert. denied, 110 S.Ct. 3241 (1990).

More than a year later Mr. Espinueva filed a motion for sanctions pursuant to the discovery rule, Fed.R.Civ.P. 37, claiming that there was a failure to comply with the January 18, 1989 order. 1 Three months later he sought summary judgment on his sanctions motion. The district court denied the requested relief.

On appeal Mr. Espinueva presents two reasons for his entitlement to sanctions. He asserts first that the Navy refused to promote him as the court ordered. He claims, as well, that the Navy did not respond to his motion for summary judgment. The government recharacterizes the issue as a post-judgment action seeking the relief granted but not accepted more than one year ago.


We begin our analysis with the motion for sanctions under Rule 37(b). This court reads liberally the submissions brought by plaintiffs proceeding pro se, see Haines v. Kerner, 404 U.S. 519 (1972), but will not construct a litigant's arguments for him. United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990).

Rule 37(b) provides that a district court may impose sanctions for failure to comply with discovery orders. Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 695, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Whether to sanction and the sanctions to be imposed are decisions entrusted to the discretion of the district court. Godlove v. Bamberger, Foreman, Oswald, and Hahn, 903 F.2d 1145, 1148 (7th Cir.1990), cert. denied, 111 S.Ct. 1123 (1991).

Rule 37 is designed to address misconduct during the pendency of the cause of action, not after judgment. Sanctions are invoked after one party, unable to...

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