Culver, Melody J. v. Gorman & Company ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3442
MELODY J. CULVER,
Plaintiff-Appellant,
v.
GORMAN & COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 7620—Barbara B. Crabb, Chief Judge.
____________
ARGUED JUNE 3, 2005—DECIDED JULY 20, 2005
____________
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. If, as Martin Luther King, Jr.,
once stated, discrimination is a “hellhound,” then a retali-
ation lawsuit is a plaintiff’s opportunity to bite back.1
Melody Culver was terminated by her employer, Gorman &
Company, on January 10, 2002, three days after she spoke
of filing a discrimination charge or seeing a lawyer. She
then brought suit, claiming retaliation in violation of Title
VII and the Equal Pay Act. Gorman filed a motion for
1
Dr. Martin Luther King, Jr., Address at the Southern Christian
Leadership Conference, Atlanta, Georgia (August 16, 1967).
2 No. 04-3442
summary judgment, and the district court granted it,
stating that the suspicious timing of Culver’s termination
by itself did not create a triable issue and that Gorman had
advanced lawful reasons for terminating her for insub-
ordination between January 7 and 10. Culver appeals.
Because Culver has shown that discrimination may have
been a substantial or motivating factor in her termination,
and because a reasonable fact finder could determine that
Gorman did not honestly believe that it terminated Culver
for insubordination, we REVERSE summary judgment as to
Culver’s Title VII claim. However, we AFFIRM the dismissal
of Culver’s Equal Pay Act claim since it has been waived.
I.
Melody Culver was employed by Gorman as an assistant
property manager from May 22, 2000 through January 10,
2002, and was responsible for leasing apartments, respond-
ing to resident concerns, completing accounts payable and
receivable, processing rent applications and other adminis-
trative tasks. In July of 2001, Ron Schroeder became her
supervisor. Schroeder increased Culver’s work respon-
sibilities, asking her to handle accounts payable and bank
deposits for two commercial properties and to help him to
learn federal regulations applying to a low-income housing
unit they managed. In the fall of 2001, Culver asked
Schroeder for a raise because of her increased respon-
sibilities; Schroeder said he would talk to the company
controller, but the request was denied. Culver later spoke
to Schroeder’s supervisor, Peter Jorde, about this issue;
Jorde stated that he would talk to Schroeder and get back
to her, but she never received a further response. About
that time, Schroeder discovered that Culver had saved her
resume on her computer at work. When he confronted her
about this, Culver explained that she was considering
relocating to Pennsylvania to care for her ailing father and
No. 04-3442 3
was investigating job possibilities there. Culver also stated,
however, that she was uncertain whether her child custody
arrangements with her ex-husband would permit such a
move. She also assured Schroeder that she liked working
for Gorman. Schroeder told Culver to remove the resume
from the company computer but did not take any other dis-
ciplinary action against her. Schroeder states that he learned
in December of 2001, after his budget was complete, that
Culver was not leaving. This prevented him from allocating
to her a raise comparable to one granted certain other
employees.
On January 7, 2002, Schroeder gave Culver her annual
performance review, rating her performance as meeting or
exceeding expectations in all areas of her job. He told her
that she was good with residents and customer service and
that he was pleased she had improved relations with an-
other employee, Brad Harrison, with whom she had had a
tense relationship in the past. However, Schroeder stated
that he was unhappy that Culver had kept her resume on
her work computer and had looked for other jobs and
further noted that she needed to take credit for both team
accomplishments and mistakes, not treat other staff in a
degrading manner and stop blaming and complaining about
others (although she was improving in this area). Schroeder
then gave Culver a 50-cent per hour raise. When Culver
asked why it was so small, Schroeder replied that she might
be leaving the company. Culver allegedly reiterated that
she was not leaving and that it was not fair to give her such
a small raise, but Schroeder replied that it was too late to
make adjustments since the following year’s budget was set.
Upset about her raise, Culver spoke to two male mainte-
nance workers, Brad Harrison and James Crim, and found
that Harrison had received a 75-cent raise in addition to a
raise he had received in the fall, and that Crim had received
a dollar an hour raise. Culver told her coworkers that she
was happy for them, but that she thought she was being
4 No. 04-3442
treated unfairly. She also mentioned that she was thinking
about getting an attorney or filing a complaint with the
EEOC. Shortly after she had spoken to the maintenance
workers, Culver returned to speak with Schroeder, and
inquired whether she would still get her annual bonus if
she were to leave the company. Schroeder confirmed that
she would indeed receive her bonus, and at Culver’s request
typed a note confirming this. Culver told Schroeder that she
was going to speak to Jorde about her raise, and set up a
meeting with Jorde for January 10. Culver alleges that,
after he learned of the meeting, Schroeder warned that his
budget was set, that speaking with Jorde would not change
anything and in fact stated that she “was making a mistake
talking with Peter.”
Meanwhile, at some point between January 7 and 10,
Harrison informed Schroeder that Culver had discussed
hiring a lawyer or contacting the EEOC, and Schroeder
passed this information along to Jorde. Schroeder also in-
formed Jorde at this time that Culver was unhappy about
her raise, and that Harrison had told him that Culver was
going to file a discrimination claim with the EEOC.
Schroeder states that, from January 7 to 10, Culver’s atti-
tude became “totally unacceptable” and that she was “very
short” with coworkers and would refuse to perform work
tasks at Schroeder’s request. Schroeder details one incident
in which he asked Culver questions on work issues, and she
handed him a manual and told him to look up the answers
himself since she was no longer there to train him if he was
going to continue treating her in the same manner.
Schroeder also asserts that Culver on another occasion
stated sarcastically that she wished Gorman would fire her.
Because of this purported attitude change, Schroeder
allegedly told Jorde at some point before the January 10
meeting that he was ready to fire Culver because of her
behavior. Gorman thus contends that the purpose of the
January 10 meeting was to work out the difficulties be-
tween Culver and Schroeder.
No. 04-3442 5
At the January 10 meeting, Culver voiced a number of
complaints to Jorde, stating that Schroeder treated male
coworkers better, gave her too small a raise either because
she was a woman or was a single mother, and increased her
job responsibilities without fair compensation. Schroeder
assertedly failed to include her in decision making, treating
her as a stupid female who just answered phones, barred
her from speaking with Harrison about maintenance issues
to resolve them and failed to resolve them himself. He also
allegedly did not put in enough time at the office and failed
to address problems at two company properties, including
a leaky roof severe enough to merit a call from the city
health department. Jorde then asked Schroeder to join the
meeting, and directed her to repeat her complaints. Culver
then addressed Schroeder, stating that it wasn’t fair that
her male coworkers received higher raises, that she should
be able to speak with Harrison, that Schroeder had handled
some situations such as the leaky roof incorrectly and that
he did not listen to resident concerns. At this point,
Schroeder said he had heard enough and fired Culver,
stating, “That’s enough. We have tried this for six months,
and it hasn’t worked out.” When Culver asked why she had
been terminated, Schroeder said, “There are issues,” that he
would cite in an exit interview. But no interview was ever
held. Schroeder now claims that he concluded Culver was
not willing to improve her conduct and fired her because
she had repeatedly criticized his performance and work
ethic and he therefore concluded that she could no longer be
a team player.
Culver then brought suit seeking monetary and injunctive
relief under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e to 2000e-17, and the Equal Pay Act, 29
U.S.C. § 206(d), stating that Gorman had violated both
when it terminated her for threatening to bring a sex dis-
crimination complaint. Thereafter, Gorman sought sum-
mary judgment on both claims.
6 No. 04-3442
The district court first stated that Culver had to rely on
the circumstantial evidence of suspicious timing since
Gorman had not admitted that it fired her in retaliation for
having complained about perceived sex discrimination.
While it agreed that the timing was “suspicious,” the dis-
trict court stated that suspicious timing alone was rarely
sufficient to create a triable issue, and that the timing was
not probative since Gorman “honestly believed” that it was
terminating Culver for her insubordinate attitude and re-
fusal to perform work tasks since January 7 and her be-
havior during the January 10 meeting. The district court
then determined that Schroeder reasonably concluded that
Culver would no longer respect his authority since, as she
conceded, she had refused to answer work-related questions
for Schroeder, and because she had criticized his profes-
sional competency in the January 10 meeting. The district
court further found that Schroeder’s comment that Culver
had been fired for the vague reason of “issues” did not
support a finding of pretext since he gave no specific reason
which conflicted with other proffered reasons for his
termination decision. Finally, the district court granted
Gorman summary judgment on Culver’s Equal Pay Act
claims, concluding that she could not prove causation.
II.
We have jurisdiction over this appeal under 28 U.S.C.
§ 1291. We review the district court’s grant of summary
judgment de novo. Mannie v. Potter, 394 F.3d 977, 982 (7th
Cir. 2005). Summary judgment is only appropriate when
“there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
312, 322 (1986). The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
No. 04-3442 7
A. Culver’s Ability to Establish Causation
Culver contends that the district court improperly
granted summary judgment on her Title VII and Equal Pay
Act retaliation claims. To establish a prima facie case for
unlawful retaliation, a plaintiff must prove three elements:
(1) she engaged in statutorily-protected expression; (2) she
suffered an adverse employment action; and (3) there was
a causal link between the protected expression and the
adverse action. Krause v. City of La Crosse, 246 F.3d 995,
1000 (7th Cir. 2001). For purposes of summary judgment
only, Gorman concedes that Culver engaged in protected
activity and that she suffered an adverse employment
action. A causal link between the protected expression and
an adverse employment action may be established by
showing that the protected conduct was a substantial or
motivating factor in the employer’s decision. Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977). “A motivating factor does not amount to a but-for
factor or to the only factor, but is rather a factor that
motivated the defendant’s actions.” Spiegla v. Hull, 371
F.3d 928, 942 (7th Cir. 2004).2
In her appellate brief, Culver relies on the direct method
to establish a causal link between her allegations of sex
discrimination and her termination. The direct method can
be supported either with direct or with circumstantial evi-
dence; direct evidence “essentially requires an admission by
the decision maker that his actions were based on the
prohibited animus” and so is rarely present. Rogers v. City
2
Both Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977), and Spiegla v. Hull, 371 F.3d 928,
942 (7th Cir. 2004), address retaliation in the context of the First
Amendment, but the causation analysis for retaliation cases is the
same under the First Amendment and Title VII. Spiegla, 371 F.3d
at 943 n. 10.
8 No. 04-3442
of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) (internal quo-
tation omitted). Culver presents no evidence that Gorman
admitted a retaliatory termination. But circumstantial
evidence can establish a causal link if the trier of fact can
infer intentional discrimination. Id.Once the plaintiff has succeeded in making a prima facie
case, the burden of production shifts to the defendant to
prove by a preponderance of the evidence that the same
action would have occurred in the absence of the protected
conduct. Spiegla, 371 F.3d at 943. The persuasiveness of the
defendant’s explanation is normally “for the finder of fact to
assess, unless the court can say without reservation that a
reasonable finder of fact would be compelled to credit the
employer’s case on this point.” Venters v. City of Delphi, 123
F.3d 956, 973 (7th Cir. 1997). Summary judgment should be
granted only if the defendant “presents unrebutted evidence
that he would have taken the adverse employment action
against the plaintiff even if he had no retaliatory motive.”
Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,
644 (7th Cir. 2002).
Viewing Culver’s evidence in the light most favorable to
her, as the summary judgment standard requires, Culver
has satisfactorily demonstrated a causal link between her
protected expression—complaints concerning gender discri-
mination—and an adverse employment action—her termi-
nation. Of major significance is the fact that only three days
had elapsed between Culver’s initial complaint of discrimi-
nation and her termination. This short 72-hour period
clearly gives rise to an inference of suspicious timing. But
this is not the only evidence of retaliation. “We have never
said that [temporal proximity] is dispositive in providing or
disproving a causal link.” Sitar v. Ind. Dep’t of Transp., 344
F.3d 720, 728 (7th Cir. 2003). We have, however, noted that
it will “rarely be sufficient in and of itself to create a triable
issue.” Stone, 281 F.3d at 644.
No. 04-3442 9
This case is not one of the rare occasions envisioned by
Stone where suspicious timing alone is enough to establish
causation. For suspicious timing may permit a plaintiff to
survive summary judgment if there is other evidence that
supports the inference of a causal link. Lang v. Ill. Dep’t of
Children and Family Servs., 361 F.3d 416, 419 (7th Cir.
2004). Suspicious timing is thus “often an important
evidentiary ally of the plaintiff.” Lalvani v. Cook Country,
Ill., 269 F.3d 785, 790 (7th Cir. 2001). “When an adverse
employment action follows on the close heels of protected
expression and the plaintiff can show the person who de-
cided to impose the adverse action knew of the protected
conduct, the causation element of the prima facie case is
typically satisfied.” Id. Here, there is no question that
Schroeder knew of Culver’s complaints, and a mere 72 hours
elapsed between the time Culver first complained to him of
discrimination and his abrupt decision to terminate her,
rendering close temporal proximity utterly transparent.
But the evidence also suggests more than closeness in
time between Culver’s allegations of discrimination and her
termination. Culver’s termination followed closely on the
heels of her annual performance evaluation completed by
Schroeder, in which he stated that she had met or exceeded
all expectations. Contrary to Gorman’s argument to the
contrary, an employer’s sudden dissatisfaction with an
employee’s performance after that employee engaged in a
protected activity may constitute circumstantial evidence of
causation. Lang, 361 F.3d at 419-21 (considering plaintiff’s
previous five-year flawless employment record as circum-
stantial evidence giving rise to an inference of causation
when combined with other circumstantial evidence).
Culver’s satisfactory performance review, together with
Schroeder’s insistence that he harbored no desire to fire her
at the time of her annual review, establish that she was in
no danger of losing her job until after she made her allega-
tions of gender discrimination. Viewing this evidence in the
10 No. 04-3442
light most favorable to Culver, a reasonable fact finder
could conclude that the radical reversal of Gorman’s
perception of Culver’s fitness as an employee was closely
associated with her protected activity, and thus contributes
to an inference of causation.
The final piece of circumstantial evidence that supports
an inference of causation is Schroeder’s alleged warning to
Culver that her meeting with Jorde was ill-advised.
Schroeder ostensibly advised Culver several times that her
meeting with Jorde would not alter anything since
Gorman’s budget was already set, and apparently also
warned her that she “was making a mistake talking with
Peter.” Schroeder ultimately fulfilled his own prophecy by
firing Culver immediately after she repeated, at Jorde’s
direction, the very same allegations of discrimination that
she had previously made to Jorde. When viewed in the light
most favorable to Culver, Schroeder’s warning, together
with the highly probative timing and the rapid reversal of
Gorman’s evaluation of her work performance, creates a
triable inference that her complaints of discrimination were
a substantial and motivating factor in her termination.
B. Whether Gorman Honestly Believed that It Fired
Culver For Insubordination
Having found that Culver has established a prima facie
case of retaliation, the ball is now in Gorman’s court to
show by a preponderance of the evidence that Culver would
have been fired even absent her allegations of discrimina-
tion. Gorman asserts in effect that Culver would have been
fired irrespective of her allegations of discrimination since
she developed an insubordinate attitude in the three days
following her annual review. Gorman refers to two incidents
of insubordination: (1) Culver’s refusal to answer a work-
related question asked by Schroeder (when she handed him
a manual and told him to look up the answer himself); and
No. 04-3442 11
(2) Culver’s “insubordinate” attitude during the January 10
meeting before Jorde and Schroeder. Gorman contends that
each incident of alleged insubordination is uncontested by
other evidence in the record, and that each was sufficient to
support Culver’s termination. For her part, Culver concedes
that she did tell Schroeder to look up the answer to his own
question, but denies that she was insubordinate to
Schroeder in the presence of Jorde.
As has been regurgitated ad nauseum, this Court is not
a “super personnel review board” that second-guesses an
employer’s facially legitimate business decisions. Ajayi v.
Aramark Bus. Servs., 336 F.3d 520, 532 (7th Cir. 2003). We
would hardly be so foolish as to suggest that insubordina-
tion is not a legitimate reason for an employer to fire an
employee. Hottenroth v. Village of Slinger, 388 F.3d 1015,
1031-32 (7th Cir. 2004). But the issue before us is not
whether an employer’s evaluation of the employee was
correct but whether it was honestly believed. Olsen v.
Marshall & Ilsley Corp., 267 F.3d 597, 602 (7th Cir. 1994).
An employer’s explanation can be “foolish or trivial or even
baseless” so long as it “honestly believed” the proffered rea-
sons for the adverse employment action. Hartley v. Wisc.
Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997). Summary
judgment is appropriate only if a reasonable fact finder
would be compelled to believe Gorman’s explanation,
Venters, 123 F.3d at 973, and Culver can avoid summary
judgment by pointing to specific facts that place the em-
ployer’s explanation in doubt. Zaccagnini v. Chas. Levy
Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003). We
conclude here that the evidence, taken in the light most
favorable to Culver, creates a triable issue of pretext. We
will consider each alleged incident of insubordination in
turn.
12 No. 04-3442
1. Culver’s Refusal to Answer Schroeder’s Question
Insubordination is defined as “willful disregard of an
employer’s instructions” or “an act of disobedience to proper
authority.” BLACK’S LAW DICTIONARY 814 (8th ed. 2004).
Culver’s undisputed refusal to answer Schroeder’s request
for information appears to qualify as disobedience or defi-
ance even if about a relatively trivial matter.
Gorman, however, did not refer to this incident as an ex-
ample of insubordination until filing its summary judgment
motion. This was only after Culver mentioned the matter in
her deposition. Schroeder failed to mention any specific
instances of insubordination at the time of the firing; he
later at his deposition, when asked to identify all incidents
of Culver’s insubordination, failed to mention this matter.
This failure to earlier mention the incident as a reason for
termination is evidence of pretext. See Emmel v. Coca-Cola
Bottling Co. of Chi., 95 F.3d 627, 634 (7th Cir. 1996)
(affirming a jury’s factual determination that defendant’s
nondiscriminatory reason for its hiring decision was pre-
textual in part because it was not put forth upon the
plaintiff’s initial inquiry). When he terminated Culver,
Schroeder referred only to “issues” which would be dis-
cussed at an exit interview (which never took place).
Gorman’s response to Culver’s application for unemploy-
ment benefits was similarly vague—referring only to “per-
formance issues”.
2. Culver’s Alleged Insubordination During the
January 10 meeting
Gorman further contends that Culver was insubordinate
to Schroeder during the January 10 meeting with Jorde by
telling Jorde that Schroeder pushed his job off on her, did
not perform all required property management tasks,
prevented her from speaking with the maintenance staff to
resolve maintenance issues and had failed to attend to a
leak at one property until the city health department had
No. 04-3442 13
issued a citation. Of course “[w]e have consistently held
that an employee’s insubordination toward supervisors and
coworkers, even when engaged in protected activity is
justification for [adverse employment action].” Love v. City
of Chi. Bd. of Educ., 241 F.3d 564, 570 (7th Cir. 2001)
(quoting Kahn v. United States Sec’y of Labor, 64 F.3d 271,
279 (7th Cir. 1995)). Culver, however, vigorously protests
Gorman’s characterization of her conduct, stating that she
did not raise her voice throughout the January 10 meeting,
and, of course, the stated purpose of the meeting was to air
her discontents. Whether her non-confrontational comments
in the course of such a meeting amounted to “insubordina-
tion” is a jury question bearing on the issue of pretext.
Culver’s criticisms of Schroeder’s ability as a manager do
not appear to have been personal attacks by an irate
employee but objectively supportable concerns voiced at the
invitation of a superior manager. Jorde’s instructions to
Culver to repeat her criticisms of Schroeder to his face
resulted in just that. If anything, Culver was following her
superior’s directive, and so was being subordinate, not
insubordinate. The citing of this encounter as grounds for
termination seems a stretch.
3. Whether Schroeder Honestly Believed that Culver was
Terminated for Insubordination
Of course, the basic question is whether Schroeder hon-
estly believed that Culver’s refusal to answer his question,
her allegedly sudden change in attitude or her insubordi-
nate criticisms of his professional competency justified her
termination. In that respect, his failure to discuss these
incidents when provided with opportunities to do so is
troubling. Various incidents occurring immediately before
she was fired are cited as grounds for termination, but
Schroeder identified none of these incidents either when he
fired Culver or during his deposition. Thus, viewing this
14 No. 04-3442
evidence in the light most favorable to Culver, a reasonable
jury could determine that Schroeder’s silence indicated that
this explanation was pretextual.
Gorman contends that an explanation is not pretextual
merely because an employer provides a reason for an
adverse employment action only after litigation has com-
menced. See Pugh v. City of Attica, Ind., 259 F.3d 619, 629
(7th Cir. 2001). However, in Pugh the employer had not pro-
vided an explanation at the time of the firing, but offered
evidence—board meeting minutes and an investigation
report discussing the reasons for the adverse action—sug-
gesting that the reason for the termination arose contempo-
raneously with it and, in any event, predated the advent of
litigation. Id. Here, Gorman relies only on Schroeder’s
assertion in his affidavit that he conferred with Jorde prior
to the January 10 meeting and told him that he was ready
to fire Culver if her negative attitude persisted. But this
claim comes so late in the day as to permit an inference of
pretext. Further, although the district court correctly noted
that employers may elaborate on the reasons for an adverse
employment action once litigation has commenced, Perfetti
v. First National Bank of Chicago, 950 F.2d 449, 457 (7th
Cir. 1991), here, Gorman had only a vague reference to
“issues” on which to elaborate.
Gorman’s inconsistency in describing the timing of
Culver’s work problems heightens our uncertainty over
whether Gorman honestly believed that Culver was fired for
insubordination. When Schroeder fired Culver, he stated,
“We have tried this for six months and it hasn’t worked
out.” Yet, in its motion for summary judgment, Gorman
confined Culver’s employment “issues” to the three days
from her annual evaluation on January 7 to her termination
on January 10. An inconsistent employer explanation may
help to support a finding of pretext. Zaccagnini, 338 F.3d at
678. If Culver’s attitude did indeed fall off the cliff of
acceptable workplace behavior in the three days prior to her
No. 04-3442 15
termination, we find it surprising that Schroeder did not
specifically refer contemporaneously to this recent period of
substandard behavior. On summary judgment, in the
context of a firing almost immediately following a protected
complaint, we must question as pretextual assertions of
problematic conduct tardily distilled into specific claims.
Finally, Schroeder’s sudden dissatisfaction with Culver’s
performance casts further doubt over whether Schroeder
honestly believed he fired Culver due to her insubordi-
nation. While the relevant time for determining the effec-
tiveness of an employee is the time of discharge, “previous
employment history may be relevant and probative in
assessing performance at the time of termination.” Fortier
v. Ameritech Mobile Communications, 161 F.3d 1106, 1113
(7th Cir. 1998). Cf. Giacoletto v. Amax Zinc Co., 954 F.2d
424, 426-27 (7th Cir. 1992) (holding that jury could consider
earlier evaluations in determining whether the reasons
given for discharge were pretextual when a plaintiff assert-
ing age discrimination received a suspiciously negative
annual review just six days before he was fired). Since it
preceded her termination by only three days, Culver’s
annual performance evaluation is especially relevant in
assessing performance at the time of termination. Viewing
all the evidence in the light most favorable to Culver, a
reasonable jury could determine that Gorman’s reasons for
Culver’s termination are pretextual.
4. Culver’s Termination as a Preemptive Measure
As a secondary explanation for Culver’s termination,
Gorman suggests that this action was a preemptive mea-
sure driven by its honest belief that she was imminently
planning to quit. Gorman states that Culver was likely to
leave her job because she had previously discussed moving
to Pennsylvania to care for her ailing father, had repeatedly
expressed displeasure with her raise and with Schroeder’s
16 No. 04-3442
continued supervision, and because she had sought written
confirmation that she would receive her annual bonus if she
left the company. We have previously held that “it is not
discriminatory for an employer to take a preemptive action
against an employee who has announced her intention to
leave at the first opportunity.” Miller v. Am. Family Mut.
Ins. Co., 203 F.3d 997, 1009 (7th Cir. 2000). In Miller, the
plaintiff-employee (who had threatened to quit on three
prior occasions) delivered an ultimatum that she would quit
if she did not receive the raise that she had requested. Id.However, viewing the evidence in the light most favorable
to Culver, the record does not compel Gorman’s conclusions.
Culver did not announce her intention to leave Gorman at
the first available opportunity, and in fact asserts that she
never threatened to quit her job. (Culver Aff. ¶ 33).3 With
respect to Culver’s possible move to Pennsylvania, Gorman
acknowledges that Culver informed Schroeder in December
of 2002 that she was not moving to Pennsylvania. (Gorman
Br. at 2). While some of Culver’s actions, such as her re-
quest for a written confirmation that she would receive her
bonus, suggest an intention to leave her job, others such as
her willingness to schedule a meeting with Jorde to attempt
to resolve certain issues suggest the opposite. And she did
state to Schroeder that she could not afford to quit her job.
We are extremely reluctant to extend the holding of Miller
to include situations where an employee does not explicitly
3
Ironically, Culver’s intention to keep her job is shown by a
statement that Gorman repeatedly and erroneously quoted
throughout its brief and during oral argument, to the effect that
Culver had told Schroeder at the January 10 meeting to “take this
job and shove it.” Culver in fact never made such a bald de-
claration; instead, she told Schroeder, “I don’t know why you feel
you can do this to me and I don’t know if you think it’s because I’m
a woman or because I’m a single mom and I can’t tell you to stick
this job.” (R. 19; Culver Dep. p. 52).
No. 04-3442 17
indicate her intention to leave at the first available opportu-
nity. There is thus a genuine issue of material fact as to
whether Schroeder honestly believed Culver was about to
leave Gorman. And, in any event, we need not find an issue
that retaliation was the sole or but-for cause of the firing,
only that it was a motivating factor.
5. Culver’s Equal Pay Act Claims
On appeal, Culver has merely asserted that the district
court incorrectly granted summary judgment to Gorman on
her claims under Title VII and the Equal Pay Act, but she
has adequately discussed only her Title VII claims. We
therefore find that Culver has waived her Equal Pay Act
claim, since it is unsupported and undeveloped. See
United States v. Turcotte, 405 F.3d 515, 536 (7th Cir. 2005)
(“In this circuit, unsupported and undeveloped arguments
are waived.”) (citations omitted).
III.
For the foregoing reasons, we REVERSE the district court’s
grant of Gorman’s motion for summary judgment on her
Title VII claim, and REMAND for proceedings consistent
with this opinion. We AFFIRM summary judgment on the
Equal Pay Act claim.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-20-05