In the

    United States Court of Appeals
                 For the Seventh Circuit

No. 14-1511

AFRAM BOUTROS,
                                                    Plaintiff-Appellant,

                                   v.

AVIS RENT A CAR SYSTEM, LLC,
                                                   Defendant-Appellee.


            Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 10 CV 08196 — John J. Tharp, Jr., Judge.



 ARGUED SEPTEMBER 22, 2014 — DECIDED SEPTEMBER 23, 2015



   Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
   SYKES, Circuit Judge. Afram Boutros worked for Avis Rent
A Car as a courtesy bus driver at the company’s facility at
O’Hare Airport. One night in May 2008, Boutros informed his
supervisor that the fire extinguisher on his bus inexplicably
discharged, spraying fire retardant near the driver’s seat. He
2                                                   No. 14-1511

reported no injury at the time, but the next morning he claimed
that chemicals from the discharge had harmed him. Avis
launched an investigation and eventually fired Boutros for
dishonesty and insubordination in connection with his shifting
accounts of the fire-extinguisher accident.
    Boutros sued, claiming that Avis fired him because of his
race and subjected him to a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., and also retaliated against him for exercising
his rights under the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301 et
seq. The case was tried to a jury, which found for Avis on all
claims. After a perfunctory and unsuccessful motion for a new
trial, Boutros appealed, raising claims of evidentiary error and
challenging the denial of his posttrial motion.
    Avis asks us to dismiss the appeal because Boutros’s
appellate submissions violate several rules of appellate
procedure. That’s true, but we prefer to decide the case on the
merits. The appeal is frivolous, so we affirm the judgment and
issue an order to show cause why sanctions should not be
imposed under Rule 38 of the Federal Rules of Appellate
Procedure.


                        I. Background
   Boutros began working at Avis’s O’Hare Airport facility in
2002. He quit in 2005 to join the Army, but his tenure in the
military was brief. In 2006 he was honorably discharged based
on unsatisfactory performance. Boutros tried to return to Avis,
No. 14-1511                                                    3

but the company was reluctant to rehire him. He filed suit
under USERRA, which guarantees reemployment rights to
persons “whose absence from a position of employment is
necessitated by reason of service in the uniformed services.”
38 U.S.C. § 4312(a)(1). Avis maintained that USERRA did not
apply but eventually settled the suit by agreeing to rehire
Boutros. On May 4, 2007, he returned to Avis as a courtesy bus
driver at O’Hare Airport.
    The job of a courtesy bus driver involves driving customers
from the airport to Avis’s rental-car lot and back again, and
also assisting customers with their luggage. On the evening of
May 27, 2008, Boutros was driving Courtesy Bus No. 35 from
the rental-car lot to the airport when the on-board fire extin-
guisher fell off its bracket and sprayed fire-suppressant
powder inside the bus. No passengers were aboard at the time.
    Boutros drove the bus back to Avis’s facility and informed
his shift manager, Rolando Trujillo, of the accident. His initial
story was that a customer knocked the extinguisher over and
it sprayed fire suppressant next to the driver’s seat. Trujillo
saw a small amount of powder suppressant near the driver’s
seat and instructed Boutros to take the bus to Avis’s mechanic
shop for cleaning. If no mechanics were available, he told
Boutros to take the bus out of service and use a different one
for the remainder of his shift.
    A bit later that same evening, Boutros encountered another
shift manager, Mario Foster, and told him what happened.
Like Trujillo, Foster instructed Boutros to have a mechanic
clean the bus. Boutros said there were no mechanics available
and that he had already cleaned the bus himself. He also told
4                                                   No. 14-1511

Foster that the extinguisher fell on its own (not that a customer
knocked it over) and that it sprayed on his pants and face (not
next to the driver’s seat). Finally, he claimed that the fire-
suppressant powder caused him to cough and made it difficult
to breathe. He also expressed concern about his exposure to
chemicals. But he declined medical assistance.
    The next day Boutros changed his mind and requested
medical attention. Avis sent him to a health clinic. Boutros
thereafter went to the emergency room. He later claimed that
the clinic doctors sent him to the hospital because
fire-extinguisher chemicals can cause cancer. Boutros remained
off of work for three days and filed a workers’ compensation
claim regarding the incident.
    This was not the first time Boutros had made an unusual
medical claim. A few months before the fire-extinguisher
accident, Boutros had complained about an odd “hugging
incident” involving Trujillo. According to Trujillo’s version of
this event, Boutros was having a hard day, so he gave him a
hug. Boutros, on the other hand, said it wasn’t just a hug—it
was a hug accompanied by a shove. But he also said he wasn’t
hurt. The next day, however, Boutros left work to seek medical
attention, claiming that Trujillo had injured him. The day after
that he complained of serious damage to his kidneys. Trujillo
was disciplined for the incident under the company’s zero-
tolerance policy for unwelcome workplace touching. Boutros’s
claim of injury was unsubstantiated.
    Based on Boutros’s conflicting statements about the fire-
extinguisher accident and his peculiar claim of injury from the
“hugging incident,” Avis decided to open an investigation. Bill
No. 14-1511                                                   5

Rogers, Avis’s Chicago-area manager, checked the “Bus
Inspection Form” Boutros had completed to verify the condi-
tion of Bus No. 35 at the beginning of his shift on May 27. The
form listed the fire extinguisher as “OK.” His suspicions
aroused, Rogers told Eva Liss, Avis’s human-resources
manager, that he thought Boutros’s story about the fire-
extinguisher accident was “fraudulent” and asked if Avis could
“get rid” of Boutros “once and for all.”
    On June 8 Avis suspended Boutros for dishonesty and
insubordination. He had given Trujillo one account of the fire-
extinguisher accident but a different one to Foster, and the
preliminary investigation didn’t support either version. He
also violated a direct order from his supervisor by cleaning the
bus himself rather than delivering it to maintenance or taking
it out of service and using another bus.
    While Boutros was serving his suspension, Rogers and Liss
continued their investigation, taking written statements from
Boutros, his managers, and other potential witnesses, and
interviewing the doctors who treated Boutros. Boutros had
claimed that no mechanics were available on the evening of
May 27, but that wasn’t true; records showed that several
mechanics were on duty and available. Doctors at the clinic
denied ever telling him to go to the emergency room due to
cancer concerns. The bracket holding the extinguisher in place
on Bus No. 35 showed no signs of rust or disrepair.
   They also interviewed Dane McCartney, a representative of
Avis’s fire-extinguisher vendor, asking him how the extin-
guisher might have accidentally discharged. McCartney wrote
a short report for Avis comparing the weight of the extin-
6                                                    No. 14-1511

guisher after the incident to the weight listed on its label. He
concluded that it discharged only about 5.5 ounces of powder.
That was inconsistent with Boutros’s claim that the extin-
guisher sprayed “a lot.”
    At some point during the investigation, Boutros changed
his story again, claiming that Trujillo had authorized him to
clean the bus himself and that his coworker, Ricky Sappington,
had seen him vomiting in the parking lot on the night of the
incident. Sappington denied this and gave Avis a handwritten
statement to that effect. At the conclusion of the investigation,
Avis fired Boutros for dishonesty and insubordination.
    Boutros then filed suit against Avis alleging that he was
fired because of his race in violation of Title VII. He also
alleged that Avis had subjected him to a hostile work environ-
ment in violation of Title VII and retaliated against him for his
earlier USERRA suit. Although the Title VII claims specifically
alleged discrimination on the basis of race, it became clear later
in the litigation that Boutros actually was claiming that Avis
discriminated against him because of his perceived national
origin (or perhaps ethnicity) and religion. Boutros is a native of
Lebanon, a Christian, and an ethnic Assyrian; he claimed that
his supervisors and coworkers perceived him to be Arab and
Muslim.
    The case proceeded to jury trial. Avis moved in limine to
exclude certain evidence related to the prior USERRA lawsuit.
The district judge withheld ruling, instead encouraging the
parties to stipulate to the relevant facts about the prior litiga-
tion. They did so and entered the following stipulation, which
was read to the jury during trial:
No. 14-1511                                                    7

       [Boutros] worked for Avis from 2002 into 2005[,]
       when he left to serve in the United States Army.
       In 2006, after [Boutros’s] discharge from the
       military, he sought to return to work at Avis. The
       parties disputed whether he was entitled to
       return to work at Avis. [Boutros] filed a lawsuit
       against Avis regarding his reemployment rights
       under USERRA. The parties resolved that law-
       suit. In May of 2007, [Boutros] returned to work
       at Avis.
    Boutros moved in limine to exclude Sappington’s out-of-
court statement and also to preclude Avis from using
McCartney as an expert witness. The judge denied the first
motion, reasoning that Sappington’s statement wasn’t hearsay
because Avis was not presenting it for its truth but only for its
effect on Avis’s managers as they considered whether to fire
Boutros. The judge denied the second motion too, after Avis’s
lawyer said she wasn’t planning to call McCartney as an expert
witness.
    At trial Rogers testified about the course of the investiga-
tion and Avis’s decision to fire Boutros for dishonesty and
insubordination. Avis introduced Sappington’s and
McCartney’s out-of-court statements through Rogers for the
nonhearsay purpose of showing their effect on Avis’s decision
to fire Boutros. Avis also called Juanita Chaidez, another Avis
manager, who testified about (among other things)
Sappington’s and McCartney’s out-of-court statements.
  Boutros objected to the introduction of Sappington’s and
McCartney’s statements on hearsay grounds. The judge
8                                                      No. 14-1511

overruled each objection, allowed the testimony, and at
Boutros’s request gave the jury a limiting instruction explain-
ing that the statements were not offered for the truth of the
facts asserted but rather to prove their effect on Avis. Regard-
ing McCartney’s out-of-court statement, the judge also
instructed the jury that the statement was neither offered nor
admitted as the opinion of an expert witness.
    The jury found for Avis on all claims. Boutros thereafter
hired a new lawyer, who filed a boilerplate, multipurpose
posttrial motion requesting the alternative remedies of judg-
ment as a matter of law, see FED. R. CIV. P. 50; a new trial, see 

or relief from judgment, see 

The motion
contained no meaningful content but merely quoted the rules
and requested an opportunity to file a supplement at an
unspecified later time. The judge denied the motion in its
entirety, saying that it “barely qualifies as a motion” and “was
plainly a placeholder” in a futile quest for an extension of time
to file a proper motion for a new trial. The judge noted that
Rule 59(b) sets a 28-day deadline for motions for a new trial,
and Rule 6(b) prohibits the court from extending that deadline.
    Boutros timely appealed.


                          II. Discussion
    Boutros raises three issues on appeal. He challenges the
admission of Sappington’s and McCartney’s out-of-court
statements. He also argues that the judge “erred in limiting
[the] testimony of the previous [USERRA] lawsuit.” Finally, he
challenges the denial of his Rule 59 motion for a new trial.
No. 14-1511                                                      9

    Before turning to the merits of these claims (or, as we shall
see, their abject lack of merit), we note some serious procedural
irregularities in Boutros’s appellate submissions. Although
Boutros is represented by counsel, his opening brief violates
several appellate and circuit rules. The statement of facts lacks
any citation to the record, in violation of Rule 28(a)(7) of the
Federal Rules of Appellate Procedure and Circuit Rule 28(c).
The appendix lacks a copy of the judgment, complete tran-
scripts of the evidentiary rulings challenged on appeal, and a
transcript of the posttrial hearing at which his Rule 59 motion
was denied. This violates Rule 10(b)(2) and Rule 30(a) of the
Federal Rules of Appellate Procedure, and also Circuit
Rules 30(a) and (b).
    Avis noted these deficiencies in its response brief and
supplied a copy of the judgment and relevant transcripts in its
own appendix. Based on the rules violations, however, Avis
urges us to dismiss the appeal. See Morisch v. United States,

, 529 (7th Cir. 2011) (“A violation of Rule 10(b)(2)
is grounds for forfeiture and dismissal.”); Cole v. C.I.R.,

, 773 (7th Cir. 2011) (“Complete failure to comply
with Rule 28 will result in dismissal of the appeal.”) (internal
quotation marks omitted). Alternatively, Avis asks that we
decide the appeal based solely on its recitation of the facts and
the transcripts it has submitted. See Albrecthsen v. Bd. of Regents
of Univ. of Wis. Sys., 

, 436 (7th Cir. 2002) (adopting
this approach for a Rule 28 violation).
   In reply Boutros insists that he has complied with “the
essence of the[] rules.” He has not. The rules violations are
multiple and conspicuous, clearly providing grounds for
10                                                    No. 14-1511

dismissal. Still, we prefer to decide the case on the merits. We
will, however, disregard Boutros’s statement of facts and
decide the appeal based solely on Avis’s account and the
relevant transcripts.
    Boutros raises two claims of evidentiary error. First, he
argues that admitting Sappington’s and McCartney’s out-of-
court statements for nonhearsay purposes was unduly prejudi-
cial under Rule 403 of the Federal Rules of Evidence. Second,
he claims that the judge improperly limited the evidence of his
prior USERRA suit. We review evidentiary rulings for abuse of
discretion. Jenkins v. Chrysler Motors Corp., 

, 664
(7th Cir. 2002).
    The Rule 403 argument is frivolous. Boutros did not object
to this evidence on Rule 403 grounds, so the claim is
unpreserved. See FED. R. EVID. 103(a); see also Williams v. Dieball,

, 961–63 (7th Cir. 2013). Although Rule 103 permits
plain-error review of forfeited claims of evidentiary error, in
civil cases this review is available only in “extraordinary cir-
cumstances.” 

. This requires Boutros to
show that “(1) exceptional circumstances exist; (2) substantial
rights are affected; and (3) a miscarriage of justice will result”
if review is denied. 

of Moreland v. Dieter,

, 756 (7th Cir. 2005)). Boutros has neither acknowl-
edged nor made any effort to shoulder this burden.
    His argument is doomed in any event. Rule 403 permits the
exclusion of evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. FED. R.
EVID. 403; Thompson v. City of Chicago, 

, 971 (7th
Cir. 2013); Javier v. City of Milwaukee, 

, 832 n.8 (7th
No. 14-1511                                                          11

Cir. 2012). Sappington’s and McCartney’s out-of-court state-
ments were presented not for their truth but as evidence of
Avis’s reasons for suspending and then firing Boutros after the
fire-extinguisher accident. Boutros sued Avis for firing him
with improper intent, so the evidence was clearly probative on
that issue.
    Boutros’s argument for undue prejudice is essentially that
these statements made him look dishonest in front of the jury.
But the key question in the case was not whether Boutros was,
in fact, dishonest; it was whether Avis’s nondiscriminatory
reason for firing him was pretextual—that is, just a cover for
discrimination. See Widmar v. Sun Chem. Corp., 

, 464
(7th Cir. 2014) (explaining that the “only question” in an
employment-discrimination case “is whether the employer’s
proffered reason was pretextual, meaning that it was a lie”)
(internal quotation marks omitted). McCartney’s statement
about the fire extinguisher was not offered to prove how the
extinguisher did, in fact, fall and discharge.1 Rather, it was one
of many data points on which Avis relied when it decided to
fire Boutros for dishonesty and insubordination.
    Sappington’s statement was similar. It contradicted what
Boutros had claimed during the investigation—namely, that
Sappington saw him vomiting in the parking lot on the night
of the incident—but it was not admitted to prove that Boutros


1
 Boutros also argues that admitting McCartney’s statement was unduly
prejudicial because the jury might have believed that he was an expert
witness. This is preposterous. McCartney did not testify, and the judge
specifically instructed the jury that his out-of-court statement was not
admitted as the opinion of an expert witness.
12                                                    No. 14-1511

had, in fact, lied, or even that he lacked credibility as a witness
in the case. Rather, it was admitted as evidence that Avis fired
him for nondiscriminatory reasons—specifically, dishonesty
and insubordination. It was the jury’s job to decide whether
Avis’s proffered reasons actually motivated its decision to
terminate Boutros’s employment. Whether those reasons were
“unwise or unfair” is irrelevant. 

undue prejudice was effectively mitigated by
the judge’s limiting instructions. See United States v. Linwood,

, 425 (7th Cir. 1998) (“So long as the judge is
convinced that the potential prejudicial effect of the jury
considering testimony for a hearsay purpose does not substan-
tially outweigh the probativity of the testimony’s intended
non-hearsay use, it is within his broad discretion to admit the
evidence into the record, provided that a limiting instruction
is given upon request.”) (citation omitted). Boutros insists that
the limiting instructions were insufficient to cure the prejudice.
This argument too is a loser. “[T]he law assumes that [juries]
can and do follow the limiting instructions … .” 

Boutros has not explained why the normal presumption
should not apply here.
    Boutros next argues that the judge improperly prevented
him from presenting evidence regarding his prior USERRA
lawsuit against Avis. He invokes Rule 106, which codifies the
“rule of completeness”: “If a party introduces all or part of a
writing or recorded statement, an adverse party may require
the introduction … of any other part … that in fairness ought
to be considered at the same time.” FED. R. EVID. 106.
No. 14-1511                                                      13

    There are two glaring problems with this argument. First,
the judge didn’t limit this evidence. Boutros stipulated to the
facts of the prior USERRA suit. Second, Rule 106 doesn’t apply.
    In response to Avis’s motion in limine, the judge encour-
aged the parties to stipulate to the facts of the earlier lawsuit.
Boutros voluntarily did so, and his stipulation below waives
the issue on appeal. Cent. States, Se. & Sw. Areas Pension Fund
v. Koder, 

, 455 (7th Cir. 1992); see also Graefenhain v.
Pabst Brewing Co., 

, 1206 (7th Cir. 1989) (“Stipula-
tions regarding the nature of trial proceedings are crucial to the
prompt and efficient disposition of litigation. Therefore, once
made, a stipulation is binding unless relief from the stipulation
is necessary to prevent a ‘manifest injustice’ or the stipulation
was entered into through inadvertence or based on an errone-
ous view of the facts or law.”).
    Boutros claims that he was acting “with tied hands” after
the judge made “a dispositive ruling on the issue after motions
were filed.” This is flatly incorrect. The judge did not rule on
Avis’s motion in limine but simply invited the parties to try to
reach a stipulation about the relevant facts regarding the prior
suit. This was a reasonable trial-management suggestion, and
Boutros readily agreed and arrived at an acceptable stipulation
with Avis.
    In any event, Rule 106 is a defensive evidentiary tool. When
a party introduces part of a writing or recorded statement into
evidence, the opponent may ask the court’s permission to place
before the jury other parts of the writing or statement that “in
fairness ought to be considered at the same time.” As we’ve
explained, “a party against whom a ‘fragmentary statement’ is
14                                                   No. 14-1511

introduced may ask the district court to admit other parts of
the statement necessary to ‘clarify or explain the portion
already received.’” United States v. Price, 

, 604 (7th
Cir. 2008) (emphasis added) (quoting United States v. Glover,

, 1189 (7th Cir. 1996)). Boutros’s reliance on
Rule 106 is entirely inapt. He hasn’t identified a “fragmentary”
writing or recorded statement that was introduced against him
and needed clarification or explanation. This argument too is
frivolous.
    Lastly, Boutros challenges the denial of his Rule 59 motion
for a new trial. It should be obvious why this argument cannot
succeed. As we’ve noted, Boutros’s posttrial motion was
devoid of meaningful content. Indeed, the judge said it “barely
qualifies as a motion” and was nothing more than a “place-
holder” in a brazen effort to obtain an extension of the
Rule 59(b) deadline, which Rule 6(b)(2) says cannot be ex-
tended. Nothing more needs to be said on this issue.
    For all the foregoing reasons, this appeal is frivolous.
Accordingly, we invoke Rule 38 and issue an order to show
cause why sanctions should not be imposed for filing a
frivolous appeal. See FED. R. APP. P. 38 (“If a court of appeals
determines that an appeal is frivolous, it may, after … notice
from the court and reasonable opportunity to respond, award
just damages and single or double costs to the appellee.”).
Boutros’s attorneys shall respond within 14 days of the date of
this opinion.
                     AFFIRMED; ORDER TO SHOW CAUSE ISSUED.