Douglas Katerinos v. United States Department of the Treasury , Neil P. Saari , Gerald A. Ontko

* After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted
on the briefs and the record. See Fed. R. P. 34(a)(2).
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3247 & 02-3485
D OUGLAS K ATERINOS ,
Plaintiff-Appellant,
v.
U NITED S TATES D EPARTMENT OF THE T REASURY ,
N EIL P. S AARI , G ERALD A. ONTKO , et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
Nos. 99 C 1137 & 01 C 1151—Lynn Adelman, Judge.
____________
S UBMITTED M ARCH 19, 2004*—D ECIDED M AY 12, 2004
____________
Before R IPPLE , K ANNE and D IANE P. W OOD , Circuit Judges.
P ER C URIAM . 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

-- 1 of 7 --

2 Nos. 02-3247 & 02-3485
appellees. In the second, arising tangentially from the first,
Mr. Katerinos appeals the dismissal of his claims of retalia-
tory harassment. We affirm the judgment in the first case
and stay the appeal in the second.
Katerinos I
Douglas Katerinos was employed by the IRS as a proba-
tionary special agent for approximately six months in 1995.
According to his supervisors, Mr. Katerinos’s performance
during this probationary period fell short of their expecta-
tions: he took too long to complete assignments; he improp-
erly 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 (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.

-- 2 of 7 --

Nos. 02-3247 & 02-3485 3
In arguing on appeal that summary judgment was inap-
propriate, 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 circum-
stances 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 circum-
stances: at a training exercise early in his term of employ-
ment 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) (plaintiff alleging
discriminatory termination must show that she was meeting
her employer’s reasonable job expectations); Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 548 (7th Cir.
2002) (plaintiff must show that employer’s proffered reasons
for termination are factually baseless or otherwise
pretextual). We agree with the district court that Mr.
Katerinos failed to make out a prima facie case, and there-
fore we affirm the order of summary judgment.
Katerinos II
Mr. Katerinos’s Title VII case against the Department of
the Treasury led, though somewhat indirectly, to a second

-- 3 of 7 --

4 Nos. 02-3247 & 02-3485
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 retalia-
tory fashion by harassing members of Mr. Katerinos’s
family. Jurkowski and Jarosz say that they were just inves-
tigating a complaint from an IRS employee who alleged that
Mr. Katerinos—again for reasons that are unclear— fraudu-
lently 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 pre-
sided over both cases. The defendants, however, argue that
this court is without jurisdiction to address Mr. Katerinos’s

-- 4 of 7 --

Nos. 02-3247 & 02-3485 5
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 dis-
miss 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 (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 disposition of the post-judgment motion, litigants easily
could miss the filing deadline and inadvertently forfeit their
right to appeal. See Averhart v. Arrendondo, 773 F.2d 919, 920
(7th Cir. 1985); Advisory Committee Notes to Fed. R. App.
P. 4, 1993 Amendment, Note to Paragraph (a)(4), ¶¶ 1-2; see
also EEOC v. Unión Independiente de la Autoridad de
Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 53-54

-- 5 of 7 --

6 Nos. 02-3247 & 02-3485
(1st Cir. 2002); Burt v. Ware, 14 F.3d 256, 259-60 (5th Cir.
1994) (per curiam). The rule therefore was amended in 1993
to provide that a premature notice of appeal is no longer
void, but merely suspended; it “becomes effective . . . when
the order disposing of the last such remaining motion is
entered.” Fed. R. App. P. 4(a)(4)(B)(i). See also United States
v. Powers, 168 F.3d 943, 947-48 (7th Cir. 1999); Otis v. City of
Chicago, 29 F.3d 1159, 1166 (7th Cir. 1994); 16A Wright et al.,
Federal Practice & Procedure, § 3950.5 at 221 (3d ed. 1999).
Nevertheless, until a notice of appeal becomes effective,
this court lacks jurisdiction. As we noted in Florian, 294 F.3d
at 829, this sort of jurisdictional defect should be identified
as early as possible—ideally before a case proceeds to
briefing—so that the appeal may be dismissed. Such an
order of dismissal should reflect that the appeal is dismissed
as premature and that, although no further notice of appeal
is necessary, the appeal cannot be perfected until the
disposition of the motion pending in the district court. Once
the motion has been decided, the district court should
provide notice to the court of appeals. We shall then be able
to verify that the judgment is final, that the notice of appeal
has become effective and that appellate jurisdiction has
vested. Any new issues raised or old issues resolved by the
disposition of the post-judgment motion may then be
brought to this court’s attention, either by the filing of a
timely amended notice of appeal or as a motion to withdraw
or strike the appeal. See Fed. R. App. P. 4(a)(4)(B)(ii);
Advisory Committee Notes to Fed. R. App. P. 4, 1993
Amendment, Note to Paragraph (a)(4), ¶¶ 3-4; see also Life
Plus Int’l v. Brown, 317 F.3d 799, 804-05 (8th Cir. 2003);
United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 761
(9th Cir. 2002); Miles v. Gen. Motors Corp., 262 F.3d 720, 722-
23 (8th Cir. 2001).
If, as here, the premature notice of appeal is not discov-
ered until significant judicial and attorney resources have

-- 6 of 7 --

Nos. 02-3247 & 02-3485 7
been expended, the court of appeals may choose to stay the
appeal until the motion is decided. See Florian, 294 F.3d at
829; Webb v. Clyde L. Choate Mental Health & Dev. Ctr., 230
F.3d 991, 995 (7th Cir. 2000); see also Life Plus Int’l, 317 F.3d
at 804; Union Pac. R.R. Co. v. Greentree Transp. Trucking Co.,
293 F.3d 120, 124 (3d Cir. 2002); United States v. McGlory, 202
F.3d 664, 668 (3d Cir. 2000) (en banc). The decision to
proceed in this manner is discretionary, see Simmons v.
Reliance Standard Life Ins. Co. of Tex., 310 F.3d 865, 870 (5th
Cir. 2002) (dismissing premature appeal after briefing);
Miller v. Marriott Int’l, Inc., 300 F.3d 1061, 1065 (9th Cir.
2002) (same); Square D Co., 107 F.3d at 450-51 (same).
We choose in this case to stay the appeal. In order to
prevent this appeal from languishing on the appellate doc-
ket, we also order the parties to provide periodic updates
every three months concerning the status of the pending
motion.
It is so ordered.
No. 02-3247—A FFIRMED
No. 02-3485—S TAYED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-12-04

-- 7 of 7 --