Katerinos v. U.S. Dept. of Treasury, 02-3247.
| Decision Date | 12 May 2004 |
| Docket Number | No. 02-3485.,No. 02-3247.,02-3247.,02-3485. |
| Parties | Douglas KATERINOS, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE TREASURY, Neil P. Saari, Gerald A. Ontko, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Douglas Katerinos (submitted), Milwaukee, WI, pro se.
Craig A. Oswald, Office of the United States Attorney, Chicago, IL, Edward S. Knight, Washington, DC, for Defendants-Appellees.
Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.
We have consolidated these two appeals brought by Douglas Katerinos from separate though related district court cases. In the first, a "reverse discrimination" employment case, Mr. Katerinos appeals from the district court's order granting summary judgment in favor of the appellees. In the second, arising tangentially from the first, Mr. Katerinos appeals the dismissal of his claims of retaliatory harassment. We affirm the judgment in the first case and stay the appeal in the second.
Douglas Katerinos was employed by the IRS as a probationary special agent for approximately six months in 1995. According to his supervisors, Mr. Katerinos's performance during this probationary period fell short of their expectations: he took too long to complete assignments; he improperly reported the hours he worked; and he displayed poor attitude and lack of judgment. By the end of the year, Mr. Katerinos was given the choice to resign or be fired; he chose to resign.
After exhausting his administrative remedies, Mr. Katerinos filed a lawsuit in the district court, alleging that the Department of the Treasury discriminated against him as a white male in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. He alleged that his supervisors set him up to fail by providing inadequate training and resources, and that other employees who committed similar infractions were not equally disciplined. The district court concluded, however, that Mr. Katerinos could neither make out a prima facie case of discrimination nor show that the reason the Department gave for its action was pretextual, as required under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court therefore granted summary judgment for the Department. Mr. Katerinos filed a post-judgment "objection" to the order of summary judgment, which the court construed as a motion for reconsideration and denied.
In arguing on appeal that summary judgment was inappropriate, Mr. Katerinos faces a major hurdle: because he is alleging reverse discrimination — that is, discrimination against him as a white male — he must demonstrate, as part of his prima facie case, that there are "background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against whites [or men] or evidence that there is something `fishy' about the facts at hand." Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir.2003) (internal quotation marks omitted). Mr. Katerinos points to only one example of such circumstances: at a training exercise early in his term of employment with the IRS, two female employees climbed onto a government vehicle, danced on top of it and proceeded to "moon" the audience, yet were not disciplined. We fail to see how this episode demonstrates a propensity on the part of the Department to favor women or minorities in its employment practices. Nor has Mr. Katerinos made any showing that the Department's stated reason for asking him to leave — his inadequate job performance — was either baseless or pretextual. See Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 530-31 (7th Cir.2003) (); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 548 (7th Cir.2002) (). We agree with the district court that Mr. Katerinos failed to make out a prima facie case, and therefore we affirm the order of summary judgment.
Mr. Katerinos's Title VII case against the Department of the Treasury led, though somewhat indirectly, to a second case against two department agents. Joel Jurkowski and Sharon Jarosz are special agents for the Treasury Inspector General for Tax Administration. For some reason — it is not entirely clear why — Mr. Katerinos served Jurkowski with a subpoena in the first lawsuit. According to Mr. Katerinos, Jurkowski and Jarosz reacted to this subpoena in a retaliatory fashion by harassing members of Mr. Katerinos's family. Jurkowski and Jarosz say that they were just investigating a complaint from an IRS employee who alleged that Mr. Katerinos — again for reasons that are unclear — fraudulently attempted to obtain information about her husband's suicide. The agents claim that they approached Mr. Katerinos's family in order to locate Mr. Katerinos, whose only known home address was a post-office box.
Whatever their motive, the agents' investigation prompted Mr. Katerinos to request the district court in Katerinos I for a restraining order. The court initially told defense counsel to try to stop the agents from bothering Mr. Katerinos and his family, but ultimately the court denied the motion. Mr. Katerinos then filed a separate lawsuit against Jurkowski, Jarosz and several other defendants, alleging retaliation in violation of Title VII and commission of various state-law torts. The case was assigned to the same judge as Katerinos I, who, at a hearing on July 19, 2002, dismissed each of the lawsuit's claims and, on July 22, 2002, dismissed the case with prejudice. Eight days later, as in the first case, Mr. Katerinos filed a set of "objections" to the judgment. The court ordered the defendants to respond, but, before any response was submitted, Mr. Katerinos filed a notice of appeal.
Mr. Katerinos now challenges the dismissal of his case, arguing primarily that the district court improperly presided over both cases. The defendants, however, argue that this court is without jurisdiction to address Mr. Katerinos's challenge because the judgment of the district court is not yet final. Mr. Katerinos's "objections" to the judgment were filed within ten days of its entry, and thus are treated as a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment. See Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986). Under the Federal Rules of Appellate Procedure, a timely motion under Rule 59(e) suspends the time for appealing, and a notice of appeal filed while such a motion is pending is premature. See Fed. R.App. P. 4(a)(4)(B)(i); Florian v. Sequa Corp., 294 F.3d 828, 829 (7th Cir.2002) (per curiam). Because Mr. Katerinos's self-styled "objections" are pending, this court lacks jurisdiction to entertain this appeal until the district court has ruled on Mr. Katerinos's motion.
This situation raises a practical question: should we dismiss this appeal, as we are generally obliged to do when we find ourselves lacking jurisdiction? See Square D Co. v. Fastrak Softworks, Inc., 107 F.3d 448, 450 (7th Cir.1997). Under the pre-1993 version of Fed. R.App. P. 4, we would have no choice; the rule then provided that a notice of appeal filed before the disposition of a Rule 59 motion to alter or amend the judgment (among other specified post-judgment motions) would "have no effect," which left courts of appeals with no option but to dismiss any appeal based on such a notice. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). However, this rule created a potential trap for unwary litigants. Not realizing that a new notice of appeal needed to be filed after the...
To continue reading
Request your trial
- Simon v. Fia Card Servs., N.A.
-
Stansell v. Revolutionary Armed Forces Colombia
...now provides that a notice of appeal filed during the pendency of a Rule 59 motion is simply suspended. See Katerinos v. U.S. Dep't of Treasury, 368 F.3d 733, 737–38 (7th Cir.2004) (“The rule therefore was amended in 1993 to provide that a premature notice of appeal is no longer void, but m......
-
Stansell v. Revolutionary Armed Forces Colombia
...of appeal [771 F.3d 746] filed during the pendency of a Rule 59 motion is simply suspended. See Katerinos v. U.S. Dep't of Treasury, 368 F.3d 733, 737–38 (7th Cir.2004) (“The rule therefore was amended in 1993 to provide that a premature notice of appeal is no longer void, but merely suspen......
-
Stansell v. Revolutionary Armed Forces Colombia
...now provides that a notice of appeal filed during the pendency of a Rule 59 motion is simply suspended. See Katerinos v. U.S. Dep't of Treasury, 368 F.3d 733, 737–38 (7th Cir.2004) (“The rule therefore was amended in 1993 to provide that a premature notice of appeal is no longer void, but m......