*1 of which stand convicted. the crimes that the trial court acted

We also conclude denying Mr. Kamel’s motion for

properly ground newly discov-

a new trial on the conclude

ered We furthermore evidence. short Mr. has fallen far Kamel

showing required for a new trial on the

ground assistance of counsel. of ineffective

Therefore, of Kamel Kamel the convictions are affirmed.

and Musa Khabbas

AFFIRMED. COLOSI, Plaintiff-Appellant,

Mariano COMPANY,

ELECTRI-FLEX

Defendant-Appellee. 91-3795.

No. Appeals, States Court

United

Seventh Circuit.

Argued May 1992. 16, 1992.

Decided June

Rehearing En Bane July

Denied *2 Ill., (argued), Chicago, N.

James Vail plaintiff-appellant. (ar- Atkinson, genuine sincerity prof- issue of the Dale J. Atkinson F.

John Thollander, discharge: fered reasons for his were Atkinson & gued), C. David reasons, latter, If Evanston, Ill., pretexts? the real or Atkinson, defendant-ap- age. the real reason have been Colosi’s pellee. present The second route was direct *3 POSNER, CUDAHY, and Before age played that had a role in evidence his EASTERBROOK, Judges. Circuit the decision. The record with which Colosi had to work consisted of his POSNER, Judge. Circuit deposition by Wolbing, and an affidavit his Age Discrimina- successor, under the understudy (briefly) This is a suit his as and Act, 29 U.S.C. Employment presented by in the tion well as the nine affidavits §§ count for breach of pendent a seq., company. et with law, brought by Mari- contract under state age evidence of There is no direct employer, former against his ano Colosi in discrimination. Colosi does state his judge The district Company. Electri-Flex deposition shortly that before he was fired judgment for the defen- granted summary planning twice asked when he was his boss dismissed the suit. counts and dant on both replied, retire and times he “Nev to both manufactur Electri-Flex is a small er,” to infer that the and Colosi asks us products. It is er of electrical owned company thought him too old to be work vice-presi family. Colosiwas legitimate inter ing. company But a has a manufacturing opera charge dent in of learning employees’ plans in for the est its meaning he oversaw the work that tions— in the future, and it would be absurd to deter fired at the factory he was —when by treating them as evidence inquiries such age and the fact age of Because of his complains conduct. also of unlawful Colosi by pair a of taken over that his duties were (though him he sick that his boss told burden, men, it Electri-Flex’s younger wasn’t) him to take sick and ordered get rid of the case at the if it wanted to go Mayo for an leave and to the Clinic produce stage, to rea summary judgment day returned examination. The Colosi in sons, age, for its action unrelated to compelled from his “sick leave” was Health firing Lindsey v. Baxter Colosi. day explain But he does not was fired. F.2d Cory., 962 care company’s ac the connection between the Co., 1992); Skager Upjohn age and The Kinan tion discrimination. (7th Cir.1990). placed in the It 400-01 trying force him out ders were no doubt affidavits, portray Colosi which record nine plant (maybe they see how the wanted to stubborn, irascible, irresponsible. and as him) they may in a run without would that he accusation is The most colorful offering him a face- clumsy way have been displeased had gave employee, one who age saving way out. The discrimination much, talking a choice between him too graceful to deal law does not firms pay without three-day suspension a of, get rid ly employees they with want lungs for one shouting top at the of probably sued though firms that do are (The employee plant. hour outside less. shouting option.) The most seri chose the failed to un is that Colosi ous accusation question with re The more difficult computer output of a and use the derstand count spect age-discrimination to the in company had installed system genuine issue concern there was a whether inventory control hope improving company’s prof ing sincerity of the minimizing its costs. and otherwise firing Colosi. Colosi fered reasons single corporate points out that: not a ways two point had At this Colosi alleged any of his short record mentions summary judgment. Lindsey staving off company’s affidavits comings; Healthcare, Inc., one supra, at 587- Baxter August “during period 88; WLS-TV, 452 states Oxman v. through 1986 ... a October [the affiant] was to create The first Mr. manners haven’t seen discussed before. If a personally party observed Colosi’s overseeing the foremen ... would presents multiple in summary affidavits on [he] scream, at the foremen on a yell, and swear covering judgment, ground, the same basis,” when in fact Colosi was constant unworthy are some shown to be of belief August from 22 to sick leave his forced not, others do but those others entitle 28; Wolbing affidavit October party summary judgment or can the Mr. indi- that “at no time did Colosi states falsity support negative of some a infer- comput- cate that he did not understand ence about the others? We should think more, is a little printouts.” er There latter, (to at least extreme cases. If sick leave to cast Colosi uses the forced random) party choose a number at company’s bona fides deal- doubt on the presents saying nine affidavits each him, ing these are the main items. with but *4 thing, eight same and shown to be view, don’t, quite create a They in our perjurious, party we would doubt that the fact. Take the genuine issue of material summary judgment merely was entitled to point corporate records. Electri- about the last stood because uncontradicted. But small, company. It family-owned Flex is a understand, passages do not from the we employees. than a hundred has no more brief, quoted above from his that Colosi is companies this size con- Family-owned of arguing falsity that the of one Kinander’s formality operations with less duct their (more precisely part affidavit of of that corporations. large publicly owned than affidavit) any made of the defendant’s oth- symptoms of the paper Blizzards of are one unworthy of belief. If is er affidavits that bureaucracy bureaucracy, and is the argument, sketchily his it is too made to small, enterprises. plague large, not of it. “personally affidavit: us to consider In re James As for the observed” prepared years Associates, 160, (7th several after It was 965 F.2d 170 Wilson events, may innocently and the affiant Cir.1992), and cases cited there. Maybe the dates. not. have confused Wolbing’s only forAs affidavit—the perjurious. can Maybe the affidavit is We affirmative evidence that Colosi tendered imagine argument it is and that an deposition—the district besides his own firing that the reasons for Colo- this shows judge “say”: as at no time read “indicate” are a tissue of given si in all the affidavits Wolbing told that he did not had Colosi (the Kinanders affidavit fabrications computer printouts. And understand the Kinander). question junior that of a is pointed sensibly out that the fact judge argument in the did not make the Colosi Wolbing his never confessed to that Colosi argued merely There he district court. output computer’s disregard inability the affida- to use the that the court should eight That left uncontradicted The alterna vit. Fine. he could use it. didn’t mean enumerating many grounds however, affidavits affidavit, way tive to read the incident, shouting firing for The Colosi. context, way given the is the most natural unrebutted, example, and is indeed Wolbing any gave indica that Colosi never admitted. printouts, read the tion that he couldn’t picked deputy have Wolbing as his would his attack some Colosi broadens would be up any such Colosi by saying in this court that the issue what indication. proofs of incon plaintiff’s “is whether the of the doubt entitled to the benefit implausibilities in the defen sistencies and interpretation to the alternative therefore discharge proffered reasons for rea dant’s it, opening his brief if he asked for but had inference that the sonably support could an narrower question not in this court did not act for non-discriminato defendant did argu made the interpretation. He first by a list of ry This is followed reasons.” brief, too late. which was reply ment in his alleged implausibilities, inconsistencies Corp., 956 Health Care Beraha v. Baxter including num inconsequential but as most 1436, 1441 n. 5 14 affidavit described as ber summary judg The test for whether suspect mistaken if not “exceedingly ... simple granted is a properly ment has been is perjurious.” Buried in this submission whether, if the record It is interesting general question that we one. 504 him company might have entitled proceeding were

summary judgment promise pay. The trial, jury or other trier to further record of a year him the end of the rationally keep paying render a verdict until fact could and, nonmovant, i.e., any for Colosi. Anderson free of contract not thus stood 242, 248, Inc., 477 U.S. Lobby, Liberty being supported consideration—not be v. 2512, 2505, L.Ed.2d 202 252, 91 continuing 106 ing exchange S.Ct. either for his Engineering As (1986); Packer might any Visser benefit he work or for other sociates, Inc., 660 any or for company, rendered the have Co., banc); 1991) (en Shager Upjohn might have made to promise that The answer F.2d at 402-03. supra, 913 Colosi company unenforceable. —was limited use that “no,” given the at least estoppel had argued promissory have could of the Kinander to make Colosi seeks detriment, relied, reasonably limitations, With these Wolbing affidavits. pay. company’s promise to continue his that Colosi conclude jury rational could no Quake Construction, Inc. v. American age. of his fired because had been 281, 309-10, Inc., Airlines, Ill.2d 308, 322, N.E.2d Ill.Dec. of contract to the breach We turn argue promissory (1990). But he does not fired on October claim. Colosi rely he did not estoppel. appears, So far as leave), (the from sick day he returned *5 rely company’s promise, let alone on the on the remain on told that he could but was However, reasonably. it year. end of the payroll till the company’s by the result of an as a error company asks us to award The removed department, he was accounting it appeal, which it sanctions Colosi’s of Decem middle payroll from the in the appeal The on the is rectify the contends to company refused ber. The frivolous. frivolous, not age-discrimination count is entitle a contractual error. Colosi claims count is. So appeal half of on the contract salary for the second but the ment to his pressed in profit-sharing the count feebly and for certain contract December however, would have vest cannot be that we appeal, and vacation benefits this the payroll significant the until expended remained on ed had he the defendant lieve from asks us to infer year. the He defending against end of it. And we in resources re that he was inaccuracies, admission possi the are troubled the end payroll before moved from the worse, in affidavit. We bly of em his contract year in error that brought to face with thus face are till then. ployment continued of the tradi part second question what the sanctions, 38 two-part test Rule tional will, at employee He was (2) sanctions “(1) appeal is frivolous company could dis which meant that the Sup Electric appropriate,” A-Abart notice. cause or even charge him without Co., 956 F.2d Electric ply, Inc. v. Emerson has employee at will even an It is true that Cir.1992), actually means. 1399, (7th 1406 is Employment at will rights. contractual eye. The sec less than meets Rather relationship, en one which a contractual merely a reservation the test is part ond wages other to all employee titles the (Sparks to withhold sanctions of discretion i.e., earned, that ac has benefits Cir.1987)) (7th NLRB, 707 835 F.2d terminated. crued before award of in in circumstances which Corp., 908 Motors McKnight v. General Rule 38. goals of disserve the them would only The re 104, 109 by Brooks v. provided An illustration employ from other it differs spect in which Division, 874 F.2d Allison rela the contractual ment contracts is that than fil rather 1989), appellee, where either at the will of tionship is terminable as friv appeal to ing a motion dismiss here. is critical party. But the difference with olous, this court needlessly 28, 1986, burdened on October Colosiwas fired When merits, thus fail full-fledged on brief earning, and a working, ceased he ceased by the damages caused mitigate the ing to with relation having any contractual ceased appeal. Espinueva Garrett, See also CUDAHY, Judge, Circuit concurring in (7th Cir.1990). 895 F.2d part Rule 38 dissenting part. in grant discretion, is not a of uncanalized Appellate judges are rarely in position a Corp. Mars Steel v. Continental Bank to discern the real life scenario in a sum- N.A., (7th Cir.1989) (en mary judgment case such as this one. My banc) judicial equivalent pardon of the —the conjecture is that Colosi “rough was a dia- power. appellee Here the that the fact did mond” who apparently served his masters (so tell) expend not far as we can substan- high position well in this family busi- against tial resources to defend the friv- ness for years. some Eventually, with ad- component olous appeal can surely vancing years he rough (and became too against it; not held be nor would the denial possibly diamond) less of a for their finer damages of Rule 38 abe sanction tailored sensibilities and dumped age him at wrongfulness, to the if any, filing an fifty-seven. Although I think very the case (or may not) affidavit that have been particularly given totally one off- close— perjurious. the-wall affidavit—I join can majority on the merits. appellee The shall therefore have respect With sanctions, to however, one days within which submit documenta of the tests under Rule “appropriate- 38 is expenses tion of reasonably its incurred in Here, ness.” claim, the contract it defending against the contract count in this seems to me there was obligation a moral court. question Since the whether pay: the company prom- admits that it award fully sanctions was discussed in the ised money only an accounting merits, compliance briefs on the with our error caused the shortfall. Under these recently promulgated Circuit Rule 38 does circumstances, are inappropriate sanctions not *6 that we allow further briefing and, them, as to I respectfully dissent. question, on that ques as distinct from the tion of the amount sanctions. The states,

second sentence of new rule it is

true, that “before imposing sanctions the give

court will reasonable notice to the

person persons or contemplating that it is

sanctioning give persons op those an

portunity respond.” But uncompro this

mising-seeming language must be read America, UNITED STATES against background of the preceding Plaintiff-Appellee, sentence: “The may, court on its own or impose on motion a party, sanc _” (Emphasis added.) tions If the court Gaye FLOOD, Defendant-Appellant. impose is minded to request- sanctions not appellee ed give must appel- it No. 90-3495. explain lant a chance to why sanctions Appeals, United States Court of imposed. should not be But where as in Seventh Circuit. appellee requests this case the sanctions in brief, with a full statement of the rea- Argued Dec. 1991. request, appellant sons for has rea- Decided June 1992. sonable notice that he be sanctioned opportunity reply in his brief to Rehearing Rehearing In Banc explain why he provi- should not be. The July Denied sion of additional notice this court would superfluous be a case and such is not

required by the as we rule read it.

Affirmed, with Sanctions.