Fleishman v. Continental Casualty Co. ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3754
H OWARD F LEISHMAN,
Plaintiff-Appellant,
v.
C ONTINENTAL C ASUALTY C OMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09-cv-00414—Edmond E. Chang, Judge.
A RGUED S EPTEMBER 18, 2012—D ECIDED O CTOBER 18, 2012
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
2 No. 11-3754
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 Izzo 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 about 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.
No. 11-3754 3
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
performance 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
4 No. 11-3754
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
issues 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
No. 11-3754 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 evidence, taken in the light most
favorable to it, to return a jury verdict in its fa-
vor.1 Id. at 691. We review the district court’s decision
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...)
6 No. 11-3754
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.,
359 F.3d 498, 504 (7th Cir. 2004).
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.
No. 11-3754 7
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 factor” 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. 557 U.S. 167, 176
(2009). We followed the Supreme Court’s lead in
Serwatka v. Rockwell Automation, Inc. by noting the ADA’s
analogous language likewise requires plaintiffs bear the
ultimate burden of persuasion to show but-for causa-
tion. 591 F.3d 957, 962 (7th Cir. 2010).
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., 477 U.S. 242, 248 (1986), our post-Gross
cases now require plaintiffs in ADEA cases to show
evidence that could support a jury verdict that age was
a but-for cause of the employment action at the sum-
mary judgment stage. See, e.g., Barton v. Zimmer, Inc., 662
F.3d 448, 455-56 (7th Cir. 2011). Our sister circuits
have done the same. See, e.g., Tusing v. Des Moines
Indep. Cmty. Sch. Dist., 639 F.3d 504, 514-15 (8th Cir. 2011);
Mora v. Jackson Mem’l Fund, 597 F.3d 1201, 1203-04 (10th
Cir. 2010); Schuler v. Price Waterhouse Coopers, LLP, 595
F.3d 370, 376 (D.C. Cir. 2010); Kelly v. Moser, Patterson
and Sheridan, LLP, 348 F. App’x 746, 749-50 (3d Cir. 2009).
8 No. 11-3754
Accordingly, we similarly extend Serwatka’s ADA causa-
tion requirement at trial to the summary judgment
stage, meaning Fleishman must produce evidence per-
mitting a jury to infer his age was a but-for cause of
his termination.
We pause to note that this holding accords with
other recent 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,
660 F.3d 975, 977 (7th Cir. 2011) (citing Mt. Healthy Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977)); see also Gross,
557 U.S. at 179 n.6 (noting the decision does not alter
constitutional cases that proceed under Mt. Healthy).
Second, we have continued to apply the McDonnell
Douglas burden-shifting framework in summary judg-
ment cases that proceed under the indirect method of
proof, a question Gross explicitly left open. See, e.g., Senske
v. Sybase, 588 F.3d 501, 506-07 (7th Cir. 2009) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973))
(applying Gross’s but-for causation standard through
the McDonnell Douglas framework); see also Gross, 557
U.S. at 175 n.2 (leaving question open); Shelley v. Geren,
666 F.3d 599, 607-08 (9th Cir. 2012) (“nothing in Gross
overruled our cases utilizing [the McDonnell Douglas]
framework to decide summary judgment motions in
ADEA cases”).
No. 11-3754 9
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 displeasure 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 plaintiff
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
10 No. 11-3754
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, 519 F.3d 677, 682 (7th Cir.
2008); Davis, 368 F.3d at 789. With respect to the last
point, Fleishman argues under the cat’s paw theory
that Johnson’s animus as a nondecisionmaker proxi-
mately caused Izzo’s termination. See generally Martino
v. MCI Commc’ns Servs., Inc., 574 F.3d 447, 452 (7th Cir.
2009) (explaining the cat’s paw theory). Fleishman
limits this argument to one conclusory sentence, and
he presents no facts supporting his theory that Johnson
influenced the termination.
No. 11-3754 11
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.2 Izzo promised
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
severance 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-
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.
12 No. 11-3754
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
No. 11-3754 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
3
We decide this case under the ADA standards 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., 581 F.3d 516,
521 n.1 (7th Cir. 2009). We note, however, the ADAAA broad-
ened the ADA’s protection by superseding portions of Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor
Manufacturing v. Williams, 534 U.S. 184 (2002) to, inter alia,
include a wider range of impairments that substantially limit a
(continued...)
14 No. 11-3754
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, 534 U.S. 184, 198 (2002) (holding “[i]t is insuf-
ficient for individuals . . . to merely submit evidence of
a medical diagnosis of an impairment. . . . [T]he ADA
requires . . . evidence that the extent of the limitation
caused by their impairment in terms of their own ex-
perience is substantial” (alterations omitted)), superseded
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., 563 F.3d 598, 604 (7th Cir. 2009).
And in any event, Fleishman did not raise this argument in
the district court.
No. 11-3754 15
in part by Pub. L. 110-325, 122 Stat. 3553 (2008); Burnett
v. LFW Inc., 472 F.3d 471, 483 (7th Cir. 2006) (citing Tice v.
Ctr. Area Transp. Auth., 247 F.3d 506, 513 (3d Cir. 2001)
(“It is well-established that a particular diagnosis, no
matter how severe (or severe-sounding to the lay-
person), standing alone, is not sufficient to establish
‘disability.’ Rather, the inquiry as to disability is to be
made on a case-by-case basis.”) (alterations omitted)).
Fleishman cannot rely on “the name or diagnosis of
the impairment”; rather, he must show “the effect of that
impairment on” him. Burnett, 472 F.3d at 483. Under
this standard, Fleishman’s bare assertion that his
aneurism constitutes a disability is insufficient.
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
16 No. 11-3754
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
continued 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 because, 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
No. 11-3754 17
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.
18 No. 11-3754
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
No. 11-3754 19
motions in the district court, and avoid unnecessary
costs to the courts and parties by avoiding appeals that
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 cases).
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 the 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
20 No. 11-3754
cannot skip that step. Moreover, there is no evidence
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 decision.
10-18-12