Silk v. Board of Trustees, Moraine Valley Community College, District No. 524 , 795 F.3d 698 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2405
WILLIAM H. SILK,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES, MORAINE VALLEY COMMUNITY COLLEGE,
DISTRICT NO. 524,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 01425 — John J. Tharp, Jr., Judge.
____________________
ARGUED FEBRUARY 12, 2015 — DECIDED JULY 30, 2015
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
KANNE, Circuit Judge. William H. Silk was an adjunct pro-
fessor at Moraine Valley Community College. Silk under-
went heart surgery in April of 2010. During the following
semesters, Silk’s teaching course load was reduced, and his
employment was ultimately terminated. Silk filed suit
against the College alleging violations of the Americans with
2 No. 14-2405
Disabilities Act (“ADA”) and the Age Discrimination in Em-
ployment Act (“ADEA”). The district court granted sum-
mary judgment for the College on all claims. For the reasons
below, we affirm in part and reverse in part.
I. BACKGROUND
A. Factual History
Silk began working in 1986 at Moraine Valley Communi-
ty College in Illinois as an adjunct professor. Adjunct profes-
sors are part-time, non-tenure track, at-will employees. They
are represented by the Cook County Teachers Union and
covered by a collective bargaining agreement. Silk’s typical
teaching load included four courses during the fall and
spring semesters and two or three classes during the sum-
mer.
Walter Fronczek was the dean of the Department of Lib-
eral Arts during the relevant period. The dean had ultimate
supervisory authority over the faculty in the Department of
Liberal Arts. Fronczek was on medical leave for much of the
spring 2010 semester. Lisa Kelsay, who was the assistant
dean of the Department of Liberal Arts, served as the acting
dean during that time. Aileen Donnersberger was a full-time
faculty member and the chair of the Social Sciences Depart-
ment (a branch of Liberal Arts) through the spring of 2010.
Ricky Cobb temporarily replaced Donnersberger as chair in
the fall of 2010, when she took sabbatical leave.
Donnersberger testified that, as department chair, she
was responsible for organizing the course assignments for
adjunct professors. Typically, mid-way (or so) through the
semester, she would send a form asking the adjuncts to state
which courses they would be interested in teaching during
No. 14-2405 3
the following semester. She would collect their responses
and develop a tentative schedule.
Donnersberger did not have final approval over the pro-
posed staffing—she would send her suggestions to the dean
of Liberal Arts. Kelsay testified that the dean would typically
defer to the department chair’s recommendations. After the
dean’s approval, the schedule would remain open to any
changes (necessitated by staffing issues or student enroll-
ment) until shortly before the start of the semester. Donners-
berger testified that the typical protocol of the College was to
finalize written contracts with the adjuncts one or two weeks
prior to the start of the semester.
In March 2010, Donnersberger sent Silk an offer to teach
two sociology courses during the upcoming summer term,
which Silk accepted. Beginning on April 19, 2010, however,
Silk took a medical leave of absence to undergo heart sur-
gery. He needed a triple bypass. This surgery was completed
on April 21, and Silk was discharged from the hospital on
April 26. Silk was on medical leave through the remainder of
the spring semester, and the record evidence suggests that
Silk did not inform the College of any anticipated return
date.
Because the remainder of Silk’s spring 2010 courses
would need to be covered by other faculty during his ab-
sence, Fronczek and Donnersberger visited those classes to
inform students of the change and to collect information for
the incoming instructors. During those visits, they discov-
ered several issues that they considered troubling. The stu-
dents in at least one class expressed concerns that they had
been given only one graded assignment (a quiz) during the
semester. In addition, the classes suffered from low student
4 No. 14-2405
attendance. Moreover, Fronczek and Donnersberger became
aware of problems with the syllabi for the courses: Fronczek
characterized the syllabi as “inadequate,” and Donners-
berger noted that in at least one class, the textbook refer-
enced in the syllabus was not the book actually being used in
the course.
By late April, Silk had not yet returned from leave and
had not notified the College of a possible return date. Don-
nersberger testified that she became concerned about cover-
age for Silk’s assigned summer school courses, because the
summer session typically began in mid-May. Donnersberger
testified that “by the time of April, I had to then—when he
was not back yet, I had to find someone to cover his summer
classes because it was already the end of April, and we were
starting in two weeks for the summer … I then looked for
someone else to teach those classes that were scheduled.”
Kelsay likewise testified that she, Donnersberger, or both de-
termined that Silk should not be assigned summer classes,
since they did not know when he would return. His courses
were reassigned to other instructors.
In early May, Silk attempted to contact Donnersberger
regarding his summer assignments, but he mistakenly sent
the email to another College employee with the same last
name. On May 5, 2010, Kelsay instructed Silk that before re-
turning for work, he needed to provide the College with a
doctor’s medical release. She also testified that she informed
Silk that his summer classes had been reassigned to another
instructor because the College did not know how long his
medical leave would last.
Silk received his medical release on May 10, and he pro-
vided it to the College on May 12. Silk testified that he want-
No. 14-2405 5
ed to maintain his summer school course assignment, alt-
hough the record is unclear as to whether (and if so, when)
Silk communicated that desire to the College. Donnersberger
testified that by the time she received Silk’s medical release,
she had already reassigned the summer school courses.
Fronczek testified that he had nothing to do with the deci-
sion to reassign the summer courses, as he was on medical
leave. On May 17, Silk sent Donnersberger an email stating
that he was ready to resume teaching and would be able to
take on a full course schedule for the fall 2010 semester.
Fronczek, after returning from his medical leave, sched-
uled a July 15 meeting with Silk to discuss the issues that
Donnersberger and Fronczek had discovered with Silk’s syl-
labi. Silk, Fronczek, Donnersberger, and Cobb participated in
the meeting, and Silk’s union steward Donald Stewart at-
tended to observe. Fronczek informed Silk that his syllabi
contained inaccurate course objectives, no contact infor-
mation, and no group exercises; in short, none of the ele-
ments that Fronczek considered the makings of “a solid
class.” In addition, Fronczek noted that Silk was not using
the correct textbook. Fronczek testified that he perceived Silk
to be argumentative and uncooperative during this meeting.
Fronczek testified that he decided on July 15 that Silk
should be assigned no more than two courses for the fall
2010 semester, because Fronczek was concerned about Silk’s
teaching performance. Silk, however, had a different under-
standing of why Fronczek wanted to assign him fewer
courses than normal. Silk testified that at the July 15 meet-
ing, Donnersberger stated that “we” assigned Silk only two
classes in the fall because “we didn’t think [he was] physical-
ly capable of handling them.” Donnersberger testified that
6 No. 14-2405
there was no discussion of Silk’s course assignments at that
meeting.
Silk was assigned two courses for the fall 2010 semester.
At the beginning of the semester, Fronczek and Cobb deter-
mined that they would each observe one of Silk’s classes.
Fronczek did so on October 15, 2010. Silk testified that
Fronczek entered the classroom late and interrupted Silk
during an exchange with a student. Fronczek noted that only
seven out of twenty-eight enrolled students were in attend-
ance, and that few were paying attention, taking notes, or
participating. He witnessed several students talking on their
cellphones, playing video games, and talking amongst them-
selves.
Fronczek had many criticisms of Silk’s performance, in-
cluding Silk’s over-relying on his notes; providing misinfor-
mation; improperly citing sourceless statistics; not asking
questions of the students; and appearing to base his lecture
largely on personal experiences. Fronczek testified that after
he left the class, several students approached him in the
hallway to discuss the poor quality of Silk’s instruction. After
speaking with them, Fronczek gave the students his business
card and told them to contact him if they had any further
concerns.
Cobb also attended one of Silk’s classes and reported
findings similar to Fronczek’s. He stated that “Silk’s class-
room performance was below-average and not to the stand-
ards of the Social Sciences Department. Sadly, I consider it
one of the poorest exhibitions of instruction I have witnessed
at the collegiate level. I do not believe learning was taking
place in that classroom.” Neither Fronczek nor Cobb made a
No. 14-2405 7
written report of their evaluations at that time, and they did
not share this feedback with Silk.
Fronczek testified that, at that point, he decided to fire
Silk. On November 17, Fronczek instructed the College’s
human resources director to place Silk on the “do-not-hire
list.” Various College personnel testified that this list is
maintained by the College and includes the names of prior
instructors who the College had determined should not be
rehired. On November 18, Fronczek informed Silk that there
would be no classes “available” for him in subsequent se-
mesters.
In mid-December, a number of students from one of
Silk’s courses filed a complaint with the College (and met
with Fronczek) regarding Silk’s instruction. Among other
complaints, they stated that Silk had given every student
identical comments and the same grade on an essay assign-
ment. Fronczek reviewed the assignments, and he adjusted
all of the students’ grades upward.
Because Silk had been informed that no further courses
would be available for him in Liberal Arts (and presumably
because he was not informed that his name had been added
to the do-not-hire list), he approached the dean of the Career
Programs Department seeking work. He was ultimately as-
signed to teach two criminal justice courses in that depart-
ment during the spring semester of 2011.
Fronczek happened to see Silk on campus in January
2011. Fronczek subsequently contacted the College’s human
resources director to ask how Silk had been rehired, despite
being on the do-not-hire list. He also called Peggy Machon,
dean of the Career Programs Department, to describe his ex-
8 No. 14-2405
periences with Silk. Also in January 2011, Silk filed an EEOC
complaint alleging that his Liberal Arts course load had been
reduced, and ultimately eliminated, because of age and dis-
ability-based discrimination.
Sometime in January, the College’s president, Dr. Vernon
Crawley, also became aware that Silk had been rehired.
Crawley instructed Machon to observe one of Silk’s classes.
After doing so, Machon reported that several students left
immediately after attendance was taken, and others worked
on other coursework during class. She also stated that Silk
read from the textbook for an extended period of time and
used no interactive techniques or instructional aides. She
submitted to Crawley a written report of her evaluation.
Crawley instructed Machon to fire Silk. Machon sent Silk a
letter notifying him that his employment was terminated,
effective February 14, 2011.
B. Procedural History
Silk filed this federal lawsuit against the College on Feb-
ruary 8, 2012, alleging discrimination based on age and dis-
ability in violation of the ADEA and the ADA. Silk alleges
that he suffered four adverse employment actions as a result
of age- and disability-based discrimination: (1) the College
“unlawfully rescinded” his summer 2010 course assign-
ments; (2) the College curtailed his fall 2010 course assign-
ments; (3) the College unlawfully terminated his employ-
ment by putting him on the do-not-hire list (or eliminating
his courses in the Department of Liberal Arts); and (4) the
College unlawfully terminated him from teaching in the Ca-
reer Programs Department. Silk also alleges that the College
unlawfully retaliated against him, in violation of both the
ADA and ADEA, for having filed an EEOC complaint.
No. 14-2405 9
The College moved for summary judgment on all of Silk’s
claims. The district court granted the motion in its entirety,
and Silk appeals.
II. ANALYSIS
We review de novo the grant of summary judgment, “re-
viewing the record and the inferences drawn from it in the
light most favorable to the nonmoving party.” Grayson v. City
of Chicago, 317 F.3d 745, 749 (7th Cir. 2003). Summary judg-
ment is appropriate when “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. The ADA Claims
1. Governing Standard for ADA Claims
We begin with the Supreme Court’s 1989 plurality deci-
sion in the Title VII case, Price Waterhouse v. Hopkins, 490 U.S.
228 (1989). That case involved what has come to be known as
a “mixed-motives” discrimination claim. In a mixed-motives
claim, an employer is alleged to have used both discrimina-
tory and legitimate grounds in taking an adverse employ-
ment action against an employee. The question presented
was whether such a mixed-motive action could violate Title
VII.
The Court concluded that it could. Price Waterhouse, 490
U.S. at 241. In other words, to violate Title VII, a discrimina-
tory motive need not be the sole basis for an employer’s ad-
verse employment action. In 1991, Congress amended Title
VII to add statutory language making clear that the statute
permitted such mixed-motive claims. But, at the same time,
Congress limited the relief available to mixed-motive plain-
tiffs.
10 No. 14-2405
In the wake of Price Waterhouse, we (along with other cir-
cuits) allowed mixed-motive cases to be brought under other
anti-discrimination statutes such as the ADA, for example.
See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 959
(7th Cir. 2010) (collecting cases). But in 2009, the Supreme
Court decided Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009). In that case, the Court held that because the ADEA
lacked the language found in Title VII expressly authorizing
mixed-motive claims (the language added following Price
Waterhouse), mixed-motive claims were not authorized under
the ADEA. Gross, 557 U.S. at 173.
In light of Gross, we revisited our mixed-motive jurispru-
dence in Serwatka. In that case, we determined that because
the ADA, like the ADEA, did not include language compa-
rable to Title VII’s expressly authorizing mixed-motive
claims, those claims were not authorized under the ADA.
Serwatka, 591 F.3d at 962–63. We therefore concluded that in
order to satisfy the “because of” standard expressed by the
statute, a plaintiff would have to prove that his disability
was the but-for cause of his adverse employment action. Id;
see 42 U.S.C. § 12112(a) (“no covered entity shall discriminate
against a qualified individual because of disability”)
(amended 2008).
But, in a final wrinkle, Congress enacted significant
amendments to the ADA in 2008. As relevant here, the lan-
guage prohibiting discrimination “because of” a disability
was amended to prohibit discrimination “on the basis of” a
disability. 42 U.S.C. § 12112(a). Although Serwatka was ar-
gued after the relevant ADA amendment, the pre-
amendment law was in effect at the time of the Serwatka de-
fendant’s alleged violations. So we analyzed that case using
No. 14-2405 11
the “because of” and not the “on the basis of” language that
the statute now provides.
We noted in Serwatka, however, that because the post-
amendment ADA was not at issue, “[w]hether ‘on the basis
of’ means anything different from ‘because of,’ and whether
this or any other revision to the statute matters in terms of
the viability of a mixed-motive claim under the ADA, are not
questions that we need to consider in this appeal.” Serwatka,
591 F.3d at 961 n.1. So it is an open question whether the but-
for standard we announced in Serwatka survived the
amendment to the ADA.
Numerous district courts have noted the same uncertain-
ty we identified in Serwatka. And while the College raises the
question of whether Serwatka’s rule applies post-
amendment—i.e., whether the “on the basis of” language
changes the analysis—it does so in a cursory footnote and
without any briefing. Silk offers no meaningful guidance in
his reply brief. Without the benefit of adequate briefing on
the issue, we will not resolve this important question. Be-
cause Silk argues that his claims succeed even under the but-
for standard announced in Serwatka, we apply that standard
here. We reserve resolution of this question for a case in
which the issue is squarely before us and adequately briefed.
2. Establishing the ADA’s Applicability
The ADA provides that “no covered entity shall discrim-
inate against a qualified individual on the basis of disabil-
ity.” 42 U.S.C. § 12112(a). Disability is defined as (a) a physi-
cal or mental impairment that substantially limits one or
more major life activities of such individual; (b) a record of
such impairment; or (c) being regarded as having such an
12 No. 14-2405
impairment. 42 U.S.C. § 12102(1). In order to succeed on his
claim, Silk must provide sufficient evidence “from which a
reasonable jury could conclude that he was an individual
with a disability within the meaning of the statute.” Miller v.
Ill. Dept. of Transp., 643 F.3d 190, 195 (7th Cir. 2011).
Silk raises his claims under prong (c)—he contends that
the College regarded him as having an impairment. In satis-
fying the “regarded as” prong, Silk must show that the Col-
lege perceived him as having an impairment, “whether or
not the impairment limits or is perceived to limit a major life
activity.” 42 U.S.C. § 12102(3)(A).
The “regarded as” prong does not apply, however, “to
impairments that are transitory and minor. The statute speci-
fies that a transitory impairment is one “with an actual or
expected duration of 6 months or less.” 42 U.S.C.
§ 12102(3)(B). The statute does not define what constitutes a
“minor” impairment.
In an effort to head Silk off at the pass, the College argues
that Silk’s impairment qualifies as both transitory and minor,
and thus that Silk is not covered by the ADA. This would
block Silk’s claims from the outset. In raising this argument,
the College bears the burden of establishing that the im-
pairment was both transitory and minor. In addition, the
College “may not defeat ‘regarded as’ coverage of an indi-
vidual simply by demonstrating that it subjectively believed
the impairment was transitory and minor.” 29 C.F.R.
§ 1630.15(f). Instead, the standard is an objective one: the
College must prove that the perceived impairment actually
was transitory and minor. Id.
No. 14-2405 13
We agree with the district court that the College has not
demonstrated that Silk’s impairment was both transitory and
minor. Absent a more precise definition from Silk, we as-
sume that his impairment (or perceived impairment) was a
heart condition severe enough to require triple bypass sur-
gery. While the College seems to characterize the bypass
surgery itself as the impairment, we agree with the district
court that the surgery was the treatment, not the impair-
ment. The College has therefore not established that such a
heart condition is transitory, because it has provided no evi-
dence as to how long such a condition would last. Likewise,
the College has presented no evidence to establish that such
a condition could be considered “minor.”
Thus, Silk has passed the first hurdle en route to summary
judgment. We consider Silk’s argument that the College re-
garded him as having an impairment in the course of evalu-
ating each of his claims.
3. Summer 2010 Course Reassignment
Silk does not attempt to prove his claim under the “indi-
rect” McDonnell Douglas method of proof. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). So he necessarily
proceeds under the “direct” approach. In doing so, he may
provide either “smoking gun” evidence of discrimination, or
he may put forward circumstantial evidence that would
permit an inference of discrimination. That evidence can in-
clude “(1) suspicious timing; (2) ambiguous statements or
behavior towards other employees in the protected group;
(3) evidence, statistical or otherwise, that similarly situated
employees outside of the protected group systematically re-
ceive better treatment; and (4) evidence that the employer
offered a pretextual reason for an adverse employment ac-
14 No. 14-2405
tion.” Teruggi v. CIT Grp./Capital Fin., Inc., 709 F.3d 654, 659–
60 (7th Cir. 2013). Silk employs the direct method in each of
his discrimination and retaliation claims.
Silk argues that the College impermissibly decided to re-
assign his summer 2010 courses because it regarded him as
having a disability. In order to succeed on his claim, Silk
must prove that (1) the decision-maker regarded him as hav-
ing an impairment; and (2) she made her employment deci-
sion on the basis of that perception. We assume that Don-
nersberger, as department chair, and Kelsay, as acting dean,
were the decision-makers in this employment action. 1 Silk’s
claim fails because he cannot establish that the decision-
makers regarded him as having an impairment.
To demonstrate that the College regarded Silk as having
a disability, he must show that the decision-maker perceived
that Silk suffered (or would suffer from) an impairment at
the time that he would be teaching the summer courses. Silk
needed to be physically present in order to teach those
courses. Silk appears to concede that, at the time that he took
leave, he did not alert the College as to a possible or proba-
ble return date. And Silk does not dispute Donnersberger’s
or Kelsay’s testimony that as of two weeks prior to the start
of the summer session, the College did not know whether he
would return in time to teach the summer classes.
Donnersberger testified that she became concerned in
late April about her staffing needs for the summer. She stat-
ed that, “by the time of April, I had to then—when he was
1 Silk seems to suggest that Fronczek was also a decision-maker. We
cannot draw that conclusion, however, because it is undisputed that
Fronczek was on medical leave at the time that this decision was made.
No. 14-2405 15
not back yet, I had to find someone to cover his summer
classes because it was already the end of April, and we were
starting in two weeks for the summer … I then looked for
someone else to teach those classes that were scheduled.” So,
Donnersberger testified, she had already reassigned Silk’s
courses prior to him informing the College that he could re-
turn in time to teach.
This evidence suggests that Donnersberger, the decision-
maker, regarded Silk as absent during the relevant time peri-
od—not as suffering from a disability. Silk does not provide
any evidence to contradict Donnersberger’s testimony on
this point.
In addition, Kelsay made clear to Silk that he would not
be eligible to teach any courses until he provided the College
with a medical release. Silk does not argue that the medical
release requirement was improper, and he concedes that he
would not have been permitted to return to work without it.
He has provided no evidence to suggest that the course as-
signments were made after May 12, when he submitted his
release.
Because Silk cannot establish that the College regarded
him as an individual with a disability, we affirm the district
court’s grant of summary judgment on this claim.
4. Fall 2010 Course Assignment
Silk next claims that he was assigned only two courses
during the fall semester of 2010, instead of his usual four, as
the result of impermissible discrimination. By the time this
decision was made, Fronczek had returned from medical
leave. So we assume Fronczek and Donnersberger were the
decision-makers in this employment action.
16 No. 14-2405
Silk’s claim rests on one disputed fact. He alleges that
during the July 15 meeting attended by Silk, Donnersberger,
Cobb, Fronczek, and Stewart, Donnersberger stated that
“we” assigned Silk only two classes in the fall because “we
didn’t think [he was] physically capable of handling them.”
Silk alleges that “we” refers to Donnersberger and Fronzcek.
Donnersberger denied having made any such statement, and
she testified that there were no discussions of Silk’s fall 2010
course assignments at that meeting. 2
According to Silk, this statement demonstrates that
Fronczek and Donnersberger both regarded him as having
an impairment and reduced his course assignments on the
basis of that perception. There is a genuine dispute over
whether that statement was actually made: Donnersberger
testified that she didn’t make the statement, and Silk testified
that she did. In addition, that fact is material to Silk’s case: if
a jury credited Silk’s testimony and not Donnersberger’s, it
could reach the conclusion that the statement constituted an
admission on the part of the College that it reduced Silk’s
course load as the result of a perceived impairment.
We therefore conclude that summary judgment was not
appropriate on this claim.
5. Terminations
Silk argues that the College twice terminated his em-
ployment based on the perception that he was an individual
with a disability: first, when he was notified during the fall
2 In his briefs, Silk erroneously claims that “there is no dispute” that this
statement was made. The dispute is clear—Donnersberger attested that
she never made the statement attributed to her.
No. 14-2405 17
2010 semester that he would not be assigned any future
courses in the Department of Liberal Arts (and was placed
on the do-not-hire list); and second, when he was given a no-
tice of termination by the Career Programs Department in
February of 2011. Silk claims that the district court should
have excluded any reference to the do-not-hire list, based on
his contention that the list did not exist prior to his filing of
an EEOC complaint. This claim is without merit.
As for the first termination, the parties agree that
Fronczek was the decision-maker. Silk appears to argue that
Donnersberger’s alleged statement regarding the reduction
in Silk’s fall 2010 schedule constitutes evidence that Fronczek
regarded Silk as an individual with a disability at the time
that he was terminated. This claim is tenuous, at best. But
even assuming that Silk could establish that Fronczek re-
garded him as having an impairment, his claim fails. Silk
does not present any evidence that would permit an infer-
ence of discrimination.
Silk must establish that his perceived impairment was a
but-for cause of his termination. Fronczek, however, testified
that he terminated Silk’s employment solely because he be-
lieved the quality of Silk’s instruction to be poor. The record
evidence amply supports that reason. Recall the problems
with Silk’s syllabi, including the fact that he was using the
wrong textbook in at least one course; poor attendance in
Silk’s courses; a non-participatory classroom environment in
which students played video games, talked amongst them-
selves and on the phone, and did other course work during
class; problems with Silk’s lecture techniques; a variety of
student complaints, including that Silk had given every stu-
dent identical comments and grades on an essay assignment;
18 No. 14-2405
and Cobb’s assessment that “Silk’s classroom performance
was below-average and not to the standards of the Social
Sciences Department, “ and that “it one of the poorest exhi-
bitions of instruction [he had] witnessed at the collegiate
level.” Cobb did not believe students were learning in Silk’s
classroom.
Fronczek’s belief constituted a legitimate, non-
discriminatory reason for terminating Silk’s employment.
While Silk concedes some of those pieces of evidence, he ar-
gues that others were inaccurate. But “although [Silk] disa-
greed with his negative evaluations, that does not mean that
the evaluations were the result of unlawful discrimination.”
Dickerson v. Bd. of Trs. of Comty. Coll. Dist. No. 522, 657 F.3d
595, 603 (7th Cir. 2011) (citing Brill v. Lante Corp., 119 F.3d
1266, 1273 (7th Cir. 1997) (“The question is not whether the
employer’s performance ratings were right but whether the
employer’s description of its reasons is honest.” (emphasis in
original)). Silk argues that many of these negative assess-
ments were wrong, but he puts forward no evidence to sug-
gest that Fronczek did not honestly believe that Silk was a bad
instructor.
As for Silk’s second termination, in February of 2011, his
claim cannot get off the ground. Indeed, Silk’s arguments on
this claim are arguably waived for failure to develop. But, as
best we can discern, Silk does not dispute that the College’s
president (Crawley) directed the dean (Machon) to issue the
letter of termination. Silk offers no evidence that Crawley (or
Machon, for that matter) was aware that Silk had undergone
bypass surgery or had a history of a heart condition. So Silk
cannot establish that Crawley regarded him as an individual
with a disability.
No. 14-2405 19
Silk contends that Fronczek wielded influence over
Crawley (based on Fronczek’s own perception that Silk suf-
fered from an impairment), and convinced Crawley to ter-
minate Silk’s employment. We will not belabor the point—
Silk offers no evidence in support of such a contention, and
summary judgment was properly granted on that claim.
B. ADEA Claims
In the district court, Silk raised ADEA claims that mirror
the ADA claims described in Part A. He appeals summary
judgment only on his claims that his employment was
wrongfully terminated, in violation of the ADEA.
Apart from stating his claim for relief, Silk makes no ar-
gument in support of such a claim in his briefs to this court.
As we have repeatedly held, “[t]he absence of any support-
ing authority or development of an argument constitutes a
waiver on appeal.” Kramer v. Banc of Am. Sec., LLC, 355 F.3d
961, 964 n.1 (7th Cir. 2004). Silk has waived his ADEA dis-
crimination arguments.
C. Retaliation Claim
In January 2011, Silk filed an EEOC complaint, alleging
discrimination based on age and disability. The only adverse
employment action he suffered after this date was the termi-
nation of his employment in February 2011. He alleges that
this termination occurred in retaliation for his having filed
the EEOC complaint.
Both the ADA and the ADEA prohibit employers from re-
taliating against employees who exercise their rights under
those statutes. In order to prove a claim of retaliation, the
employee must show “(1) he engaged in a statutorily pro-
tected activity; (2) he suffered an adverse action; and (3) a
20 No. 14-2405
causal connection between the two.” Dickerson, 657 F.3d at
601. The parties agree that Silk engaged in a statutorily pro-
tected activity (his EEOC complaint), and that he suffered an
adverse employment action (his termination). Again, Silk’s
ADEA claim is waived for failure to develop.
As with his discrimination claim, Silk does not identify
who was responsible for his termination. Assuming it was
either Fronczek or Crawley, he provides no evidence that ei-
ther was aware of his EEOC complaint. And even assuming
they were aware, the College offers two legitimate, non-
discriminatory reasons for his termination: (1) that the Ca-
reer Programs Department erred in hiring Silk, given that he
had been added to the do-not-hire list; and (2) that the Ca-
reer Programs Department, like Liberal Arts, made a nega-
tive assessment of the quality of Silk’s instruction.
Silk does not offer any evidence that contradicts these le-
gitimate, non-discriminatory reasons. Silk contends, without
offering any evidence in support, that the do-not-hire list
didn’t exist prior to his EEOC complaint. He likewise offers
no evidence to contradict the College’s evidence of the list’s
existence. Second, while he again disputes the correctness of
the College’s assessment of his teaching abilities (Machon’s
evaluation, in this case), he does not offer any evidence to
suggest that Crawley and Fronczek did not honestly believe
that Silk was a poor instructor.
The only piece of evidence that Silk offers in support of
his claim is the “suspicious timing” between the filing of his
EEOC complaint and his termination. It is true—Silk was
fired within a few weeks of filing his complaint. But suspi-
cious timing alone “will rarely be sufficient ... to create a tri-
able issue.” Argyropoulos v. City of Alton, 539 F.3d 724, 734
No. 14-2405 21
(7th Cir. 2008) (quoting Culver v. Gorman, 416 F.3d 540, 546
(7th Cir. 2005)); see also Burks v. Wisconsin Dept. of Trans., 464
F.3d 744, 758–59 (7th Cir. 2012) (explaining that “suspicious
timing alone ... does not support a reasonable inference of
retaliation” because the “mere fact that one event preceded
another does nothing to prove that the first event caused the
second” (internal citation omitted)).
III. CONCLUSION
For the reasons above, we AFFIRM in part and REVERSE
in part. We REVERSE the district court’s grant of summary
judgment on Silk’s “fall 2010” discrimination claim and
REMAND for further proceedings consistent with this opin-
ion. We AFFIRM the district court’s ruling on all other
claims.