Case Information
*1 Before F LAUM , E ASTERBROOK , T INDER , Circuit Judges . T INDER Circuit Judge
. Plaintiff Appellant Julia ap peals court’s grant De fendant Appellee Solvay Pharmaceuticals Age Dis 1481 crimination in Employment Act (“ADEA”) retaliation and claims, her state law asserting a violation of the Indiana Wage Payment Statute. We affirm the judgment of the district court.
I joined Solvay Pharmaceuticals as sales representa tive in January She worked until supervi sor who had recruited her from different compa ny. Despite earning satisfactory ratings most categories, the supervisor repeatedly informed needed improve punctuality consistency submitting ternal reports. For example, performance evalua several types new software internal accounting ex pense reports and time off introduced, Hutt requested training assistance the software, but did not receive re sponse from Lozen. She did not complete those reports. On March 2008—three months into Lozen’s tenure—John, Plaintiff Appellant’s husband, called human re sources department voice his concerns about Plaintiff Appellant’s stress and depression. He stated part problem was way Lozen and Westfall treated her. Two days after John’s HR call, Lozen phoned Hutt at her home spoke some length—38 minutes—to strongly express his displeasure with her complaint HR. A week after call HR, Lozen Westfall placed Hutt Informal Warning Status issued Performance Im provement Plan (“PIP”). PIP required Hutt finish her uncompleted administrative tasks within next five days, by March when company’s national sales meeting scheduled start. Lozen approved computer trainer help Hutt new software same day Hutt placed status. completed some, but all, incomplete tasks time national sales meet ing began.
B. National Sales Meeting Formal Warn ing
By all accounts, national meeting eventful. At least twice, forcibly grabbed arm stop leaving room. states five seven drunken male harassed groped her, including one man who touched face leg, burned skirt his cigarette, though did report incident. counters behaved inappropri ately at national sales meeting. At some point, Hutt locked a colleague out on a hotel patio as a practical joke. Two sales representatives informed Lozen Hutt had stated Lozen and Westfall had engaged a homosexual relationship, Hutt planned to get Lozen fired and sue to make money, and soliciting collabora ‐ tion her colleagues assist her efforts. Unrelated to national meeting, several other employees complained Westfall Lozen about unprofessional and inap propriate behavior. Lozen received emails which sister company’s sales representatives alleged Hutt providing too many samples doctors, arriving late lunches can celling appointments, scheduling appointments physi cians names company’s repre sentatives, making unprofessional statements cus tomers.
On April Westfall placed Hutt on Formal Record Warning another PIP. They stated still complied all requirements March PIP several reports still uncomplet ed, highlighted her administrative deficiencies. They cited unprofessional conduct, her disruptive behavior Orlando conference, inappropriate behavior towards sister company’s reasons formal warning. PIP required submit expenses out territory time on set schedule. Sales representatives formal final written are ineli gible bonus compensation, according incen tive compensation general handbook. took medical leave one week after being placed
formal warning; leave seven weeks, through July In response, Solvay extended expiration date of Hutt’s warning to September 18, 2008, to ensure served full term formal warning.
C. Final Warning Discipline Craig King When Hutt returned from leave, further trouble ensued: Solvay claims Hutt cancelled numerous “field contacts,” during which was be evaluated for perfor mance. Hutt claims cancellations were medical reasons, also cancelled on her. Ultimately, Hutt was placed on Final Warning Status in October, sched uled last until December 2008, failing comply with requirements April PIP. The Final Warning required Hutt complete a series field contacts with Lozen, Westfall, another manager.
Craig King, fifty eight year old employee, was also placed on formal warning June, about month after Hutt been placed on formal warning. He only representative, out ten representatives Indi anapolis, placed warning status. On day placed final warning, King placed final warning. written final warnings were substantially simi lar, portions King’s cut pasted into Hutt’s final warning. And both King received overall ratings “Does Not Meet Expectations” every category their performance evaluations.
In February filed complaint EEOC alleging age retaliation. In March, both King’s ratings revised “Partially Meets Expectations” result an instruction HR cor rect administrative error ratings calculation. At May sales meeting, Westfall angrily confronted Hutt about February EEOC charges and demanded that she and attorney fly Atlanta discuss charges with him. In June 2009, King was terminated from Solvay, but Hutt’s continued.
In April 2010, Hutt was informed that she was retroac tively being removed final warning, effective as De cember 11, 2009. By that time, she had been status for seven consecutive quarters, thus been in eligible incentive pay bonuses for those months.
D. Alleged Favoritism towards Mike Netterville Hutt alleges beginning in Lozen began show favoritism towards Mike Netterville, another sales rep resentative in Hutt’s sales territory. He was provided with email list new physician prospects was pro vided Hutt; he ended with lower sales rank region than Hutt, but received public recognition bo nus Hutt did not, part because Hutt’s performance evaluation Westfall stated performance un acceptable. In company began ranking Netterville as if they were one sales unit, even though other sales representatives ranked individually. duo ended year ranked third region sales, Netterville again earned recognition compensation top representative, but did not. Again, reason she did earn recognition linked poor per formance review: claims he unable rate overall performance she cancelled numerous field contacts management during states participated one field contact Doug Zoeller, forced cancel field contacts health *7 7 No. 13 1481 reasons, the death mother, refused provide samples.
E. District Court Litigation district court granted motion summary judgment the grounds failed identify simi ‐ larly situated comparator the purposes establishing prima facie case discrimination retaliation, ‐ cause ineligible bonus payments while warn ‐ ing status, leaving no cause action under In diana Wage Payment Statute, which provides cause ac tion who earned wages subsequently withheld employer. timely appealed.
II
We review district court’s grant summary judg ment de novo , construing all facts reasonable inferences light most favorable Hutt. Wilson v. Cook Cnty. , F.3d (7th Cir. 2014). We first turn Hutt’s alle gation court erred granting summary age discrimination claim. “A plaintiff may prove discrimination ADEA, Title VII, § 1981[ ] using either direct method or indi rect method.” Andrews , F.3d at (modification orig inal). While it debatable whether two methods are sharply distinguishable, see Bass Joliet Pub. Sch. Dist. 2014), direct method, “the plaintiff must present either direct circumstantial ev idence discrimination opposition judgment.” Id. Whether circumstantial, “evidence [must] permit trier fact find unlaw ful caused adverse job action.” Id . “Direct evidence requires admission discriminatory intent, i.e. ‘smoking gun’ evidence.” Alexander v. Casino Queen, Inc ., F.3d (7th Cir. 2014) (internal quotation marks citations omitted). “Circumstantial evidence,” contrast, “typically includes (1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments di ‐ rected other employees protected group; (2) evi ‐ dence, whether or rigorously statistical, similarly situated outside protected class received sys tematically better treatment; (3) evidence em ployee qualified job question but passed over favor a person outside class employer ʹ s reason a pretext discrimination.” Id. “A party may combine these various types evidence pre sent a convincing mosaic circumstantial evidence from which factfinder can make reasonable inference dis criminatory intent.” Teruggi CIT Grp./Capital Fin., Inc ., 2013) (internal quotation marks omit ted). court correctly concluded ADEA fails direct method,
lacks both circumstantial evidence. She does provide any “smoking gun” evidence wherein Westfall or Lozen, or any Solvay employee, admits discrimina tion against basis age. Nor does point circumstantial evidence which rational juror could infer discriminating against based age. “To be convincing, [Plaintiff’s] evidence must point directly discriminatory reason employer’s action … directly related decision.” Id. (citation internal quotation marks omitted). But there no evidence record Westfall, any Sol vay employee, made any comments relating to, or even ref ‐ erencing, age. evidence invokes for age discrimination claim—Lozen’s request the employees submit their birth dates, the duration and frequency of the warnings against her, Lozen’s and Westfall’s hostile behav ‐ ior towards her, Solvay’s warnings against Craig King— does not “point to discriminatory intent, either individually or collectively.” Id. Rather, assembled evidence amounts to “an amorphous litany complaints about myriad workplace decisions,” which cannot suffice purpose establishing age case direct method. Id. (citations internal quotation marks omitted).
Hutt focuses briefing on Solvay’s treatment Hutt Craig, so it deserves mention why this circum stantial evidence can be used to make case age dis crimination method. Simply, there are no facts about treatment Hutt Craig suggest company’s employment actions anything do with their ages. wants us extrapolate that, Craig respectively time actions—the two oldest sales representatives be placed warning status, two repre sentatives placed longest terms warning sta tus—Solvay must have acted age based discriminatory intent. But circumstantial evidence case does point directly discriminatory reason employer’s actions. No evidence presented support conten tion younger employees status, deed younger general, are simi larly situated comparators, “directly comparable” “in all material respects,” “other possible explana tory variables” eliminated, whose differential treatment *10 10 13 1481 would allow an inference of age based discrimi nation. See Good v. Univ. of Chi. Med. Ctr. , 673 F.3d 670, 675 (7th Cir. 2012); Coleman v. Donahoe , 667 F.3d 841 (7th Cir. 2012) (“[T]he proposed comparator must similar enough permit a reasonable juror infer, light all the cir cumstances, that an impermissible animus motivated the employer’s decision.”). Instead, the theory and Craig singled out worse treatment based their age only asserted “reliance speculation.” Good , 673 F.3d at 676. “[O]ne might guess speculate perhaps [Hutt’s age] might have made difference the decision, but guesswork speculation are not enough avoid summary judgment.” Id. at 675. For this reason, fails under the method.
We need not analyze record indirect meth od, briefs do not raise indirect method, so this argument has been waived. Jones v. City Elkhart, Ind. , F.3d 1113 2013). Nonetheless, note she could succeed indirect meth od, either. Under indirect method proof, which uses test first set out McDonnell Douglas Corp. Green , U.S. (1973), plaintiff must establish prima facie case discrimination, showing (1) she member protected class; (2) she performing job satisfactorily; (3) suffered adverse employment action; (4) employer treated similarly situated outside protected class (in case, younger employees) more fa vorably. Bass at Here, prongs are contested: it clear Hutt, aged time judgment, part age class, suffered adverse actions being placed formal final warnings, denied recognition *11 11 13 1481 compensation performance. But stat ed in our analysis the direct method, has shown similarly situated younger treated more favorably, failure prove this prong is suffi cient our affirmance the district court’s grant sum mary judgment. See Chaib v. Indiana , F.3d 974, (7th Cir. 2014) (“[W]ithout similarly situated comparators, no in ference arises [Plaintiff’s] disparate treatment claims fail the indirect method.”).
III
Hutt’s retaliation claim does fare any better. A retali ation claim the ADEA may be established either direct or indirect method. Smith v. Lafayette Bank & Trust Co. , F.3d 655, (7th Cir. 2012). “Under direct method proof, plaintiff must show: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; (3) there is causal connection tween two.” Id. claims protected activity filing EEOC charge in February is correct filing EEOC complaint is protected activity. See id. (The court correct is only protected activity record; John Hutt’s phone call March never mentioned Hutt’s age, any attribute would give Plaintiff Appellant member ship class.)
However, main defect retaliation can assert no causal connection between filing EEOC charge adverse actions. Everroad Scott Truck Sys., Inc. 2010) (“To survive retaliation claim, [plaintiff] must present sufficient circumstan tial evidence for trier of fact to infer there was a causal link between protected activity [the adverse job ac ‐ tion].”). already been formal warning for ap ‐ proximately ten months by time her EEOC charge filed February 9, While claims dura ‐ tion of her status extended result of her EEOC complaint, this claim relies conjecture tem poral proximity rather than evidence. “[S]uspicious timing alone is rarely sufficient to create a triable issue … . [I]t is clear mere temporal proximity is enough estab lish a genuine issue of material fact.” Tomanovich v. City of Indianapolis , F.3d (7th Cir. 2006) (citation ternal quotation marks omitted). also Mobley Allstate Ins. Co. 2008) (noting while there may be an exception general rule “[e]vidence temporal proximity … insufficient estab lish causal connection for retaliation,” such exception “would limited matters occurring within days, most, weeks each other”). allegation she angrily confronted by Westfall three months after filing EEOC charge more troubling, but again, she gives no evidence, circumstantial, links West fall’s confrontation any adverse employment action taken Solvay. For reason, accounts grabbing without consent also fail suffice purpose retaliation claim. Her chosen legal theory—retaliation—calls evidence adverse actions linked pro tected activity, just evidence problematic hostility. could have proceeded indirect meth od proof retaliation claim. If proceeding indirect method, plaintiff must show “(1) engaged statutorily activity; (2) met employer’s le gitimate expectations; (3) suffered an adverse employ ment action; (4) treated less favorably than simi larly situated who did engage statutorily activity.” Smith , F.3d at 657–58. However, cause chose proceed exclusively method framework retaliation appellate briefs, any argument indirect method waived. Even if indirect method considered, argument would likely fail as result failure introduce into record similarly situated comparator who had filed EEOC charge who treated more favorably than Hutt. Tomanovich at (requiring comparator who “is similarly situated [to plaintiff] respect performance, qualifications conduct, … en gaged similar conduct without such differentiating or mit igating circumstances would distinguish their conduct or employer ʹ s treatment them”).
For these reasons, court correctly granted retaliation claim.
IV
Lastly, turn Indiana Wage Payment Act claim. statute provides: (a) Every person, firm, corporation, limited li ability company, or association, their trus tees, lessees, receivers appointed any court, doing business Indiana, shall pay each employee least semi monthly bi weekly, if requested, amount due employee. No. ‐
(b) Payment shall be made for all wages earned date not more than ten (10) business days prior date of payment.
Ind. Code. § 1.
Hutt asserts that incentive pay bonuses constitute “wages” under statute, argues that was deprived earned wages in violation statute when Solvay placed her on formal final warning status in bad faith— bad faith that may established even if her retaliation discrimination claims fail. She contends summary judgment was not proper on this question because there ex ists genuine question material fact as whether Solvay acted bad faith in placing Hutt on warning status. Solvay contends it is beyond dispute Hutt ineligible bonuses while on formal final warning status, her placement on status did involve any bad faith conduct part Solvay its employees.
A preliminary question whether Hutt’s bad faith con duct argument waived below. It appears at least briefly mentioned concept before court: brief response Solvay’s motion stated “[a] genuine issue material fact exists whether imposition Formal Warning im posed Mrs. bad faith coerce resignation retaliation activities. Mrs. Wage Payment Statute earned compensation valid law, independent age retaliation claims.” Pl.’s Resp. Defs.’ Joint Mot. Summ. J. (N.D. Ind. Jul. 2012), ECF However, Solvay ar gues did elaborate allegations miscellaneous “bad faith” conduct before district court—that is, bad faith conduct separate from Sol vay’s alleged acts retaliation age discrimination—we should consider this argument waived. Frey Corp. City Peoria, Ill. 2013) (“A party waive[s] ability to make specific argument for first time on appeal when party fail[s] present specific argument district court, even though issue may have been before district court in more general terms.”) (modifications in original) (citations internal quotation marks omitted).
Solvay’s point on waiver is compelling. Having scoured opposition brief before court, we cannot discern substantive allegation bad faith inde pendent her age retaliation claims. In supporting her contention Solvay acted in bad faith, argued “Defendants’ actions outlined above were taken due her age in retaliation for complaints Sol vay made” John Julia Hutt. In closing section, she again asserted Solvay’s actions placing on warn ing status “was mere pretext its intent separate Mrs. job based her age retaliation her participation activities.” She did specify develop another theory how acted bad faith.
Because Plaintiff Appellant failed develop bad faith argument below, cannot now raise argument first time appeal. As have found dis trict court’s retaliation dis crimination claims proper, Plaintiff Appellant’s Indi ana Wage Payment Act fails, able present no theory how disciplinary actions against constituted “bad faith” withholding wages. Accordingly, we affirm district court’s grant judgment.
V
For foregoing reasons, A FFIRM court’s judgment.
[1] Solvay Pharmaceuticals, Inc. its successor interest, Abbott Prod ucts, Inc., are now known as AbbVie Products, LLC. Throughout opinion refer Defendant Appellee Pharmaceuticals,
tion notes Hutt’s “lack of organization administra tion problems are becoming major focus [her] perfor mance.” When first supervisor retired, Brian Lozen appointed new Indianapolis district manager Jeff Westfall, himself newly appointed regional manager. lawsuit concerns three years work Westfall—from 2011—so we detail course over those years. Because we are reviewing grant against Hutt, construe facts light most favorable her. Andrews CBOSCS West, Inc. 2014). A. HR Call Informal Warning One Lozen’s first acts district manager ask his employees’ dates birth. It appears early days Lozen’s tenure, he friction. When name predecessor company entity employed Hutt, consistency court’s opinion.