Case Information
*1 Before F LAUM , S YKES , and T INDER , Circuit Judges .
F LAUM , Circuit Judge . After working for Continental Casualty Company (“Continental”) for nearly twenty years, Howard Fleishman suffered a brain aneurism that required him to intermittently miss work from 2003 to 2005. Following his medical problems, he continued to work on workers’ compensation claims as a staff at- torney and was assigned to a new group that handled high-value cases. Unfortunately for Fleishman, his super- visor began receiving a series of performance-related complaints that ultimately led to his termination in 2007 at the age of fifty-four. Fleishman filed suit under the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”), alleging that Continental discriminated against him because of his age and a disability stemming from the aneurism. The district court granted Continental’s motion for summary judgment, and we affirm. Fleishman offers no evidence of age discrimination and does not meet the definition of disabled under the ADA.
I. Background
Howard Fleishman began working for Continental Casualty Company in 1984 as a trial attorney defending workers’ compensation claims. David Izzо oversaw the attorneys in Continental’s Chicago staff counsel office, including Fleishman. Izzo reported to Jacqueline Johnson, who oversaw all of Continental’s staff counsel offices. Beginning in 2003, Fleishman suffered a series of medical problems related to a brain aneurism. As a result, he took intermittent medical leaves between July 2003 and June 2005. In the midst of these treat- ments, Izzo mentioned to Fleishman that his numbers “were off” because he was out on leave. Izzo inquired whether Fleishman thought аbout retirement and, if so, that Izzo would make sure he received severance. Fleishman declined and did not request another leave or accommodation after his June 2005 return, al- though he now had a noticeable dent on the side of his head and could no longer drive.
In early 2005, Continental created the Major Case Unit (“MCU”) to handle high-exposure claims and assigned Fleishman to the new group. He remained in the staff counsel office overseen by Izzo, but Fleishman prepared reports for adjusters in the MCU aimed at minimizing Continental’s costs and exposure. Early in the assign- ment, Nanette Husnik, a claims manager in the MCU, received complaints from adjusters about Fleishman’s work. In mid-2005 and, upon receiving additional com- plaints, again in 2006, Husnik relayed these complaints to Izzo and Johnson, both of whom confirmed the legiti- macy of the concerns regarding Fleishman. Fleishman’s critics were not limited to the MCU either, as claims specialist Rina Patel requested that Izzo transfer all of her work from Fleishman to another staff attorney in the office in March 2006. Izzo informed him of these concerns, and on one occasion Johnson expressed similar dissatisfaction to Fleishman.
These issues represented a change of course for Fleishman, who had performed his job duties ade- quately until 2005. He received a performance award in 2003 and a raise based on his 2004 performance re- view. However, Fleishman received a “3” on his 2005 performancе review, meaning he only met “most” expecta- tions. This score also made him ineligible for a raise. Izzo discussed the review with Fleishman in the spring of 2006. According to Fleishman, Izzo informed him that Johnson made the ineligibility decision, and when Fleishman got upset, Izzo said “hey, she’s out to get me too,” referring to Johnson. Fleishman further testified that Izzo said he would talk to Mark Stevens, head of legal services, about getting him a raise since he missed time in 2005, but Izzo informed him the next day that Stevens said time off did not mitigate the issuеs in the evaluation unless Fleishman took short- term disability.
Fleishman’s issues persisted. Izzo continued receiving complaints from claims adjusters and, after reviewing a number of Fleishman’s files, Izzo e-mailed Johnson informing her that he saw why the adjusters were dis- satisfied. In September 2006, after consulting with Johnson and a human resources consultant, Izzo placed Fleishman on a performance improvement plan. The plan provided that if Fleishman did not improve in the next sixty days, Continental could take disciplinary action including termination. Despite these measures, Todd Lewis, Husnik’s supervisor, complained that Fleishman “basically did nothing for [the MCU].” In response, Izzo met with Husnik who reiterated her dis- satisfaction with Fleishman. In early 2007, Husnik and Lewis informed Izzo that they would not permit Fleishman to work on any more MCU cases. Izzo believed termination was the appropriate resolution to these issues, and after Izzo consulted with Johnson and Con- tinental’s assistant vice president of human resources, Fleishman’s employment was terminated in Janu- ary 2007. Izzo was forty-eight at the time, while Fleishman was fifty-four. Four months later, Con- tinental hired forty-eight-year-old Patrick Cremin and transferred some of Fleishman’s cases to him.
Shortly after his termination, Fleishman filed suit against Continental alleging violations of the ADEA 5 and ADA. The district court granted Continental’s motion for summary judgment, finding that Fleishman failed to provide direct evidence of age discrimination and was not disabled under the ADA. Fleishman timely appealed.
II. Discussion
Fleishman challenges the district court’s entry of sum- mary judgment against him on both his ADEA and ADA claims. The ADEA makes it unlawful for an em- ployer to “discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1); see also 29 U.S.C. § 631(a) (limiting protections to individuals over forty). Similarly, the ADA prohibits an employer from discharging “a qualified individual on the basis of dis- ability.” 42 U.S.C. § 12112(a). Summary judgment is ap- propriate when there is no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Berry v. Chi. Transit Auth. , 618 F.3d 688, 690-91 (2010). To sur- vive summary judgment, the nonmovant must produce sufficient admissible evidencе, taken in the light most favorable to it, to return a jury verdict in its fa- vor. Id. at 691. We review the district court’s decision [1]
*6 6
de novo.
In discrimination cases, the plaintiff can survive sum-
mary judgment under either the direct or indirect
method. For reasons discussed in more detail below,
Fleishman proceeds under the direct-evidence method.
Taken literally, direct evidence would require an admis-
sion by the employer, but we also permit circumstantial
evidence that “points directly to a discriminatory
reason for the employer’s action.”
Davis v. Con-Way
Transp. Cent. Express, Inc.
, 368 F.3d 776, 783 (7th Cir.
2004) (alterations omitted). We have also called this a
“convincing mosaic” of circumstantial evidence, but
fundamentally the plaintiff must connect the circum-
stantial evidence to the employment action such that
a reasonable juror could infer the employer acted for
discriminatory reasons.
See Rhodes v. Ill. Dep’t of Transp
.,
A. Summary Judgment Burdens
As an initial matter, the parties dispute what a
plaintiff’s summary judgment burden is in ADEA and
ADA cases. Fleishman argues that he must produce facts
that permit a jury to infer that discrimination was a
“motivating faсtor” in his termination. However,
Gross v.
FBL Financial Services
held that the ADEA’s language
proscribing discrimination “because of” age requires
the plaintiff to prove at trial that age was the but-for
cause of the adverse employment action.
Because summary judgment is designed to determine
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party,”
Anderson v.
Liberty Lobby, Inc.
,
We pause to note that this holding accords with
other reсent discrimination and employment cases that
proceed differently at the summary judgment stage.
First, constitutional claims, such as First Amendment
retaliation cases, continue to proceed under the
Mt.
Healthy
burden-shifting framework.
Greene v. Doruff
,
B. ADEA Claim
Having established Fleishman’s burden, we turn to his claims. With respect to the ADEA claim, Fleishman points to a few pieces of evidence he argues satisfy his burden: Izzo’s comment that Johnson wanted to “get him too,” Izzo’s offer of retirement and severance at the onset of Fleishman’s medical problems, and older lawyers’ departure from Continental.
In 2006, Izzo reviewed Fleishman’s 2005 performance
review in which Johnson gave Fleishman a score that
made him ineligible for a raise. Izzo responded to
Fleishman’s displeasurе by stating “hey, she’s out to
get me too,” referring to Johnson. This comment falls
considerably short of evidencing discrimination. First,
this comment is ambiguous; it is devoid of any indica-
tion that Johnson’s alleged motivations were age re-
lated. We reached a nearly identical conclusion in a
previous case.
See Mills v. First Fed. Sav. & Loan Ass’n of
Belvidere
, 83 F.3d 833, 841 (7th Cir. 1996) (absent
age-related context, statement that management was
“out to get [the two oldest employees]” alone was not
direct evidence of discrimination even if the рlaintiff
interpreted it as age motivated). The ambiguity alone
obviates this comment’s relevance, but moreover,
isolated comments are not probative of discrimination
unless they are “contemporaneous with the discharge
or causally related to the discharge decision-making
process.”
Gleason v. Mesirow Fin., Inc.
, 118 F.3d 1134,
1140 (7th Cir. 1997). This comment is not con-
temporaneous because it came ten months before
Fleishman’s termination.
See Markel v. Bd. of Regents
of Univ. of Wis. Sys.
, 276 F.3d 906, 910-11 (2001) (two
months before termination not contemporaneous);
Kennedy v. Schoenberg, Fisher & Newman, Ltd.
, 140 F.3d
716, 724 (7th Cir. 1998) (five months not contemporane-
ous). More importantly, there is no connection between
it and the termination decision. Fleishman fails to
explain how this comment relates to Continental’s deci-
sions, when the record reflects a clear, causally con-
nected chain of events beginning with Husnik’s and
others’ complaints about Fleishman’s work, leading to
Izzo’s investigations into these concerns, and ending
with Izzo’s decision to
terminate Fleishman for
inadequate performance.
See Marshall v. Am. Hosp. Ass’n
,
157 F.3d 520, 526 (7th Cir. 1998) (requiring plaintiff
to connect noncontemporaneous comments to the em-
ployer’s decision). Finally, even if Johnson’s com-
ment indicates she harbors age-related animus, she
did not decide to fire Fleishman; Izzo did. And a
nondecisionmaker’s animus is not evidence that the
employer’s actions were on account of the plaintiff’s
age.
Metzger v. Ill. State Police
,
Next, Fleishman argues Izzo attempted to “coerce” him to retire. Fleishman grounds this argument in his 2004 conversation with Izzo where, in the middle of Fleishman’s medical treatments, Izzo spoke to Fleishman about his declining numbers and asked Flieshman if he considered retirement. Izzo promised [2] he would receive severance if he decided to do so. Like the previous comment, however, this conversation is unconnected to a desire to remove Fleishman because of his age. A far more likely explanation is Fleishman’s formerly adequate work fell off considerably at the time of his medical treatments, and Izzo, concerned Fleishman could no longer handle the workload, informed him that retirement would come with sеverance pay. Notwithstanding, over two years passed between this single comment and Fleishman’s termination. This lapse in time obviates any connection between the comment and discharge when there is an intervening, legal reason for the termination — the external complaints to Izzo and Fleishman’s inade- quate performance. See Geier v. Medtronic, Inc. , 99 F.3d 238, 242 (7th Cir. 1996) (comments urging employee to “have all the kids you would like[ ]between spring, summer, and fall” lacked “causal nexus” to the termina- tion because it was made a full year before the termina- tion in a setting unrelated to the ultimate gravamen of the termination). Moreover, “suggestion[s] of retirement do[] not rise to the level of direct evidence of age dis- crimination” when there is an alternative explanation for the employment action. Kaniff v. Allstate Ins. Co. , 121 F.3d 258, 263 (7th Cir. 1997) (retirement offered as alternative to termination for improper conduct); see also Pitasi v. Gartner Grp. , 184 F.3d 709, 714-15 (7th Cir. 1999) (“What would you think if we gave you early retirement, with some extra compensation because of your age?” offered as an alternative to laying plaintiff off was not discriminatory). Here, Izzo offered Fleishman sever- ance, he declined, Fleishman continued to work, other employees began complaining about his perfor- mance, and then Izzo terminated him because of his performance. Like the other comment, this does not create any inference that Continental fired Fleishman because of his age.
Finally, Fleishman cursorily mentions a pattern of age discrimination. This argument is ostensibly related to a page in his statement of facts that notes ten lawyers between forty and sixty-five are “now gone from the Chicago office.” Fleishman waived this argument because he “fail[ed] to develop the factual basis of [the] claim on appeal and, instead, merely draws and relies 13 upon bare conclusions.” Muhich v. Commissioner , 238 F.3d 860, 864 n.10 (7th Cir. 2001). Notwithstanding, it lacks merit, as nothing connects these employees’ departures to prohibited conduct (or even evidence Continental played a role in the decision). One would expect older employees to naturally leave their employers. Without more, this occurrence is not evidence of discrimination.
C. ADA Claim
Next, we turn to the ADA claim. The ADA prohibits employers from taking adverse employment actions against their employees because of a disability. 42 U.S.C. § 12112(a). To succeed, Fleishman must be disabled under the ADA, which defines disability as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). [3] *14 14
Fleishman argues that his aneurism constitutes a disability and, additionally, Continental regarded him as having a disability.
1. Substantially Limits a Major Life Activity
Fleishman has not produced evidence that his
aneurism limits a major life activity. In his motion
before the district court, Fleishman merely cited the
Wikipedia article on aneurisms and concluded that the
“ability to function and live is certainly a major life func-
tion.” As both the district court and Fleishman’s appel-
late brief recognize, however, determining whether a
plaintiff has a disability is made on an individualized
basis. Thus, the existence of a medical condition alone
is insufficient to satisfy the ADA.
Toyota Motor Mfg.
v. Williams
,
For the first time on appeal, Fleishman now contends that the aneurism limited his ability to work. He cites his 2005 performance review downgrading his score because he missed time. Fleishman waived this claim because he only argued the aneurism affected his ability to “function and live” in the district court. Not- withstanding, Fleishman testified at his deposition that his aneurism only prevented him from working for por- tions of 2003, 2004, and early 2005, but his condition did not prevent him from working from June 2005 until his termination in January 2007. And although he could not drive during that period, Fleishman stated in his deposition that he “went to all the status calls, [he] did [his] regular job, [and he] didn’t ask for any accom- modations” in 2005 or 2006. Although Fleishman’s medical problems formerly affected his ability to work, they did not, by his own admission, limit his ability to work nearly eighteen months leading up to his ter- mination. Thus, Fleishman did not have a disability at the time of his termination. See Patterson v. Chi. Ass’n for Retarded Citizens , 150 F.3d 719, 726 (7th Cir. 1998) (“Patterson cannot argue that she is substantially restricted in her ability to work as a teacher, . . . because the undisputed evidence establishes that immediately upon her termination . . . Patterson was and has сontinued to be regularly employed as a teacher within the Chicago Public School system.”).
2. Regarded as Disabled Fleishman also contends Continental regarded him as having a disability. To succeed on this claim, he must establish that either (1) “the employer mistakenly believe[d] that [he] ha[d] an impairment that sub- stantially limits a major life activity,” or (2) “the em- ployer mistakenly believe[d] that an existing impair- ment, which is not actually limiting, does substantially limit a major life activity.” Brunker v. Schwan’s Home Serv., Inc ., 583 F.3d 1004, 1008 (7th Cir. 2009). Fleishman suggests that Continental did not believe he could work bеcause, after twenty years of successful employ- ment, its employees began criticizing his work and Izzo asked him if he considered retirement. As the district court explained, the evidence overwhelmingly suggests otherwise — at all times during and after his medical leave Continental continued to employ Fleishman as a workers’ compensation attorney and, in fact, transferred him to the newly created Major Claims Unit designed to handle high-value cases. Fleishman is correct that the evidence suggests Izzo and others knew Fleishman had medical problems related to his aneurism. But nothing suggests that anyone at Continental thought this condition substantially affected his ability to earn a living. Even amidst the performance complaints, Izzo placed Fleishman on a performance improvement plan. This measure indicates that, although Fleishman’s work was suffering, Izzo believed he was capable of performing adequately.
3. Accommodation Claim On appeal, Fleishman begins weaving arguments into his brief that Continental failed to accommodate his disability. 42 U.S.C. § 12112(b)(5)(A) (“the term discrimi- nated against a qualified individual on the basis of dis- ability includes — not making reasonable accommoda- tions to the known physical or mental limitations of an otherwise qualified individual with a disability” (internal quotations omitted)). Again, because Fleishman is not disabled, this claim fails. But more importantly, he failed to raise it in his complaint, let alone his brief in the district court. And further, “the standard rule is that a plaintiff must normally request an accommoda- tion before liability under the ADA attaches,” Jovanovic v. Emerson Elec. Co. , 201 F.3d 894, 899 (7th Cir. 2000), and Fleishman never did so.
D. Indirect Evidence of Discrimination In the district court, Fleishman acknowledged that he could survive summary judgment under either the direct or indirect methods before asserting “[w]e seek to establish intentional discrimination under the direct method of proof.” On appeal, he now asserts a theory of indirect discrimination (at least under the ADEA), which is waived. In responding to Continental’s waiver argu- ments, Fleishman misunderstands the waiver doctrine.
Fleishman first asserts he presented everything on which his appellate brief relies in his Northern District of Illinois Local Rule 56.1 statement of facts. But the waiver doctrine charges litigants with raising the argu- ments they present on appeal in the district court, not just the facts on which their appellate arguments will rely. See Bus. Sys. Eng’g, Inc. v. Int’l Bus. Mach. Corp. , 547 F.3d 882, 889 n.3 (7th Cir. 2008). Fleishman’s positions are legal arguments urging us to deny summary judg- ment, and thus, wavier applies. See also Weber v. Univs. Research Ass’n, Inc. , 621 F.3d 589, 592-93 (7th Cir. 2010) (Weber waived proof by the direct method by failing to develop the argument in the district court).
In light of these issues, Fleishman urges us to consider his arguments. Although Fleishman is correct that the waiver rule is prudential and not jurisdictional, it serves important interests. By requiring litigants to raise their arguments in the district court, we, for example, prevent parties from getting two bites at the apple by raising two distinct arguments before each court, incentivize the presentation of well-reasoned motions in the district court, and avoid unnecessary costs to the courts and parties by avoiding appeals thаt could have been decided below. Thus, we enforce the rule unless the “interests of justice” require otherwise. Judge v. Quinn , 624 F.3d 352, 360 (7th Cir. 2010). Such examples include where “failure to consider the alleged error would result in a miscarriage of justice,” “the equities heavily preponderate in favor of correcting it,” or “there was a plain error that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” See 36 C.J.S. Federal Courts § 458 (footnotes omitted) (compiling сases).
In any event, a brief review of Fleishman’s ADEA indirect evidence claim reveals it lacks merit. The indirect method of proof proceeds under the McDonnell Douglas framework, which requires Fleishman to show that (1) “he was meeting his employer’s legitimate ex- pectations,” (2) “he suffered an adverse employment action,” and (3) “similarly situated, substantially younger employees were treated more favorably.” Franzoni v. Hartmarx Corp. , 300 F.3d 767, 771-72 (7th Cir. 2002). If successful, the defendant must provide a legitimate nondiscriminatory reason for thе action. Id. The plaintiff then must show that there is an issue of fact whether this reason is pretextual. Id. Relying on a case in which we assumed arguendo that the plaintiff had established a prima facie case because he could not estab- lish pretext, Fleishman remarkably skips this entire first step — asserting he “may skip over the initial bur- den-shifting of the indirect method and focus on the question of pretext.” But his claim fails because he cannot skip that step. Moreover, there is no evidenсe that younger employees were treated more favorably. In his statement of facts he relies on his faster case-closure rate than Marcy Singer-Ruiz and Steve Trotto, but both these individuals were close to Fleishman in age (forty-four and forty-eight respec- tively), and they received higher evaluation scores during the time in question. Thus, they were neither similarly situated nor substantially younger. For all of these reasons, this argument fails.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s decisiоn.
10-18-12
Notes
[1] Fleishman continually asserts that the district court relied exclusively on Continental’s Northern District of Illinois Local Rule 56.1 statement of facts and incorrectly took the evidence in the light most favorable to the defendant. We do not see a (continued...)
[1] (...continued) basis for these assertions. Pursuant to the local rule, Con- tinental submitted a list of proposed undisputed facts that Fleishman answered paragraph by paragraph. The district court is not required to disregard a fact supported by deposition testimony based solely on Fleishman answering the paragraph “denied.” Additionally, taking inferences in favor of Fleishman does not require accepting Fleishman’s conclusion on what a piece of evidence indicates. Rather, the court independently reviews the evidence and, if it creates an inference, we take that inference in the light most favorable to the nonmoving party.
[2] Fleishman disappointingly makes the disingenuous asser- tion that Continental “badgered” and “continuously” attempted to get him to retire. To the contrary, Fleishman only testified to this single conversation in 2004. Fleishman responded to the question “[is there] anything besides [the 2004 re- tirement conversation]” that “makes you believe that [Izzo] discriminated against you” by saying “[t]hat’s all I can recall right now[;] I’ve had other conversations, but they don’t come to me right now.” This deposition testimony does not support counsel’s assertions.
[3] We decide this case under the ADA standаrds prior to the
Americans with Disabilities Act Amendments Act (“ADAAA”),
Pub. L. 110-325, 122 Stat. 3553 (2008), because Continental
terminated Fleishman’s employment before the ADAAA’s
enactment.
See Fredricksen v. United Parcel Serv., Co.
,
[3] (...continued)
major life activity.
See
Pub. L. 110-325 § II(a)(4)-(6). Accordingly,
although Fleishman notes he was unable to drive during the
period leading up to his termination, driving was not
considered a major life activity prior to the adoption of the
ADAAA.
Winsley v. Cook Cnty.
,