Gary Wrolstad v. CUNA Mutual Insurance Society , 911 F.3d 450 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1920
GARY WROLSTAD,
Plaintiff-Appellant,
v.
CUNA MUTUAL INSURANCE SOCIETY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 15-cv-798-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED JANUARY 8, 2018 — DECIDED DECEMBER 18, 2018
____________________
Before EASTERBROOK and SYKES, Circuit Judges, and
BUCKLO, District Judge. *
SYKES, Circuit Judge. For 25 years Gary Wrolstad worked
at CUNA Mutual Life Insurance Society in Madison,
Wisconsin, 1 eventually becoming a financial reporting
* Of the Northern District of Illinois, sitting by designation.
1CUNA Mutual is now known as CMFG Life Insurance Company. We
use the insurer’s name as it was at the time of the events in this suit.
2 No. 17-1920
manager. In 2009 his position was eliminated in a corporate
restructuring. He was then 52 years old. At his supervisor’s
suggestion, Wrolstad applied for several vacant positions at
the company, including a job as a pension participant sup-
port specialist. CUNA Mutual ultimately hired a 23-year-old
for that position. Wrolstad was at the end of the road with
CUNA Mutual, so he signed a severance agreement waiving
all claims against the company in exchange for 50 weeks of
severance pay. He left CUNA Mutual on December 30, 2009.
Months later Wrolstad filed a complaint with the
Madison Equal Opportunities Commission accusing his
former employer of age discrimination. CUNA Mutual
denied the charge and argued that the waiver in the sever-
ance agreement barred the claim. A Commission investiga-
tor dismissed the complaint and Wrolstad appealed. On
December 22, 2010, CUNA Mutual sent Wrolstad a letter
explaining in no uncertain terms that it would sue to enforce
the waiver if he did not drop his appeal by January 10.
Wrolstad refused, and on January 28, 2011, CUNA Mutual
filed a breach-of-contract suit in Wisconsin state court.
On November 21, 2011, Wrolstad filed a second com-
plaint with the Commission accusing CUNA Mutual of
retaliating against him for filing his first complaint. In 2015
he transferred both claims to the Equal Employment Oppor-
tunity Commission (“EEOC”), and the EEOC issued a right-
to-sue notice. Wrolstad then sued CUNA Mutual in federal
court alleging claims for age discrimination and retaliation
in violation of the Age Discrimination in Employment Act
(“ADEA” or “the Act”), 29 U.S.C. §§ 621, et seq. A district
judge entered summary judgment for CUNA Mutual, ruling
No. 17-1920 3
that the age-discrimination claim lacked evidentiary support
and the retaliation claim was time-barred.
We affirm. Wrolstad’s effort to revive his age-
discrimination claim rests primarily on new arguments and
evidence that he did not bring to the district judge’s atten-
tion. That’s a forfeiture, but the arguments also fail on the
merits. And the judge correctly held that the retaliation
claim is barred because Wrolstad’s retaliation charge was
untimely. The retaliation claim accrued when CUNA Mutual
sent the letter to Wrolstad announcing its unequivocal
decision to sue to enforce the waiver in his severance agree-
ment. Wrolstad waited more than 300 days to file his retalia-
tion charge with the Commission.
I. Background
CUNA Mutual sells insurance products to credit unions
and their members. Wrolstad began working for the compa-
ny in 1984 and in the ensuing years held a number of jobs. In
2006 he was promoted to the position of financial reporting
manager. Three years later the company eliminated his
position in a corporate restructuring. Wrolstad’s supervisor
notified him of the decision in the fall of 2009 and encour-
aged him to apply for other positions within the company
before the restructuring took effect at the end of the year.
Wrolstad, then age 52, did just that. He applied for five
vacant positions, including (as relevant here) an open spot as
a pension participant support specialist. Support specialists
answer inquiries from credit-union members concerning
their investment vehicles, so strong communication skills
and knowledge of the intricacies of the relevant investment
instruments are a must. Support specialists are also expected
4 No. 17-1920
to identify sales opportunities and refer them to other em-
ployees who sell investment products. The salary range for
the position was $32,390–$52,665.
One hundred candidates applied for the job. On
December 14 Wrolstad’s online application was forwarded
to Jeffrey Zimmer, the hiring manager. Wrolstad had an
initial screening interview with CUNA Mutual’s external
recruiter the next day, but the screener gave him mixed
reviews. The interview notes state that Wrolstad was “very
overqualified” for the job but wanted to stay with the com-
pany. Wrolstad told the screener that he was willing to work
for $55,000, which was $20,000 less than his salary as a
financial reporting manager but above the range for the
support-specialist position.
Wrolstad didn’t get a second interview. Zimmer later ex-
plained that the $55,000 salary demand was disqualifying.
Zimmer also declined to interview the three other internal
candidates whose applications were forwarded with
Wrolstad’s. Instead Zimmer offered the job to Joshua
Logemann, a 23-year-old external candidate. Logemann had
experience in financial institutions and one-on-one customer
service, and Zimmer believed he was the best fit for the job.
Zimmer also believed that Logemann was well-spoken and
personable—both essential traits for a support specialist.
And unlike Wrolstad, Logemann’s salary goal—$35,000—
was within the range for the position.
Wrolstad did not find another job at CUNA Mutual. On
December 30, 2009, he signed a severance agreement accept-
ing about $70,000 in severance pay in exchange for a release
of all claims against the company arising on or before the
date of the agreement. He left CUNA Mutual that same day.
No. 17-1920 5
In March 2010 Wrolstad filed a charge with the Madison
Equal Opportunities Commission alleging that CUNA
Mutual discriminated against him on the basis of his age
when it eliminated his position and refused to hire him for
another job. The company denied the allegations and argued
that Wrolstad waived this claim in his severance agreement.
The Commission dismissed the charge, finding no probable
cause.
Wrolstad filed an administrative appeal of that decision.
Under the Commission’s procedures, the appeal entitled him
to conduct discovery and take depositions. CUNA Mutual
responded with a letter dated December 22, 2010, announc-
ing that it would sue to enforce the waiver if Wrolstad did
not drop his appeal:
If Mr. Wrolstad pursues this appeal, CUNA
Mutual will file a breach of contract action
against him in state court. CUNA Mutual will
either seek the rescission of the agreement and
the return of the more than $70,000 in sever-
ance payments that it paid to Mr. Wrolstad,
with interest, or the enforcement of the agree-
ment and damages against Mr. Wrolstad in the
amount of the costs and fees CUNA Mutual in-
curred … .
If Mr. Wrolstad’s appeal … is still active on
January 10, 2011, CUNA Mutual will under-
stand that he intends to move forward despite
his clear and binding waiver, and CUNA
Mutual will take every action necessary to
make itself whole.
6 No. 17-1920
Wrolstad did not withdraw his appeal. On January 28, 2011,
CUNA Mutual sued him for breach of contract in Wisconsin
state court.
On November 21, 2011, Wrolstad filed a second charge
with the Commission accusing CUNA Mutual of retaliating
against him for pursuing his age-discrimination claim by
seeking to enforce the waiver. In 2012 the state court dis-
missed CUNA Mutual’s contract suit, reasoning that the
Commission should determine the waiver’s enforceability.
In 2015 a hearing examiner suggested that Wrolstad transfer
his claims to the EEOC and he obliged. The EEOC dismissed
the claim for age discrimination and declined to pursue the
retaliation claim, issuing a right-to-sue notice on
February 29, 2016.
Wrolstad then filed this action in federal court alleging
that CUNA Mutual discriminated against him on the basis of
age when it eliminated his position and declined to hire him
for any of the five other jobs for which he applied. He also
alleged that the company retaliated against him by threaten-
ing suit to enforce the severance agreement and following
through on that threat when he refused to drop his adminis-
trative appeal.
After discovery CUNA Mutual moved for summary
judgment, arguing that Wrolstad lacked evidence that his
age was the “but for” cause of any of the challenged job
actions—first, the company’s decision to eliminate his job,
and next, its refusal to hire him for five other positions.
Wrolstad’s response to the motion focused on the elimina-
tion of his old job and the company’s refusal to hire him for
the support-specialist position; he conceded that he could
not link the company’s other decisions to his age. Ruling on
No. 17-1920 7
this narrowed claim, the judge held that Wrolstad produced
no evidence to support an inference that the company’s
decision to eliminate his job was motivated by his age.
Likewise, the judge ruled that Wrolstad lacked evidence
showing that CUNA Mutual refused to hire him for the
support-specialist position because of his age.
CUNA Mutual also sought summary judgment on the
retaliation claim, arguing that it was both untimely and
failed on the merits. The judge addressed only the first
argument, holding that the retaliation claim was time-barred
because Wrolstad filed his retaliation complaint with the
Commission more than 300 days after the claim accrued.
II. Discussion
Wrolstad asks us to remand for a trial on both his age-
discrimination and retaliation claims. He has narrowed the
focus of his age-discrimination claim further still, dropping
his contention that CUNA Mutual eliminated his job because
of his age. Instead, he concentrates his argument on the
company’s refusal to hire him for the support-specialist
position. We review a summary judgment de novo. Boston v.
U.S. Steel Corp., 816 F.3d 455, 462 (7th Cir. 2016).
A. Age-Discrimination Claim
The ADEA protects workers 40 years of age and older
from age-based employment discrimination. As relevant
here, the Act makes it unlawful for an employer “to fail or
refuse to hire or to discharge any individual [in the protect-
ed class] … because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). To prevail on an age-discrimination claim, the
plaintiff must prove that his age was the “but-for” cause of
the challenged job action. See Gross v. FBL Fin. Servs., Inc.,
8 No. 17-1920
557 U.S. 167, 177–78 (2009). In other words, under the ADEA
“it’s not enough to show that age was a motivating factor.
The plaintiff must prove that, but for his age, the adverse
action would not have occurred.” Martino v. MCI Commc’ns
Servs., Inc., 574 F.3d 447, 455 (7th Cir. 2009). “In this respect,
the ADEA is narrower than Title VII … [because] Title VII
protects against mixed-motive discrimination.” Carson v.
Lake County, 865 F.3d 526, 532 (7th Cir. 2017).
Wrolstad may carry his burden by presenting direct or
circumstantial evidence that CUNA Mutual took the chal-
lenged job action against him because of his age. Id. at 532–
33. Alternatively, he may proceed under the McDonnell
Douglas burden-shifting approach by producing evidence
that a similarly situated person not in the protected class
was treated more favorably. Id. at 533 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). If he does so, the
burden shifts to CUNA Mutual to articulate a legitimate,
nondiscriminatory reason for the challenged action. Id.Under this alternative method of proof, Wrolstad then has
the burden to show that the stated reason was a pretext for
discrimination. Id. Regardless of how the plaintiff chooses to
proceed, the basic question at the summary-judgment stage
is whether the evidence as a whole would allow a reasonable
jury to find that the plaintiff suffered an adverse job action
because of his age. Id.; see also Ortiz v. Werner Enters., Inc.,
834 F.3d 760, 765 (7th Cir. 2016).
Wrolstad’s arguments on appeal do not fit neatly into
one methodological basket or the other. He first contends
that the judge ignored what he deems direct evidence of age-
based animus. But the evidence Wrolstad cites either does
not suggest discriminatory intent—for example, purported
No. 17-1920 9
“irregularities” in CUNA Mutual’s hiring process—or was
not brought to the district court’s attention and cannot be
asserted for the first time on appeal. Wrolstad also argues
that the district judge made improper assumptions about his
qualifications for the support-specialist position and wrong-
ly inferred that his salary demand was the reason Zimmer
didn’t hire him. But regardless of whether Wrolstad’s back-
ground and salary requirements led those reviewing his
application to perceive him as over- or underqualified for
the job, there is no dispute that Wrolstad lacked the one-on-
one customer-service experience that was an important job
qualification or that Wrolstad’s salary goal was above the
high end of the position’s pay range.
Wrolstad insists that Zimmer “all but ignored” the four
older, internal candidates and points to evidence suggesting
that Logemann’s youth was explicitly taken as a factor in his
favor. But Wrolstad did not rely on this evidence below, so
we can hardly fault the judge for not considering it. As the
party opposing summary judgment, it was his responsibility
to “inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered.” Milligan v. Bd. of
Trs. of S. Ill. Univ., 686 F.3d 378, 389 (7th Cir. 2012). Because
Wrolstad failed to bring this evidence to the district judge’s
attention, he has forfeited his right to rely on it on appeal.
Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 849 (7th
Cir. 2015).
Even if we were to consider this new material, however,
it’s not enough to satisfy Wrolstad’s evidentiary burden.
CUNA Mutual’s decision to focus on Logemann after screen-
ing out other candidates does not on this record raise an
inference of age discrimination. Wrolstad points to notes
10 No. 17-1920
from Logemann’s screening interview suggesting that his
youth was viewed as a positive factor. The screener wrote: “I
think once working for the company that [Logemann] would
grow and learn quickly and inevitably stay with the company
for many years to come as he has been actively trying to find a
foot in the door here.” (Emphasis added.) This passage
doesn’t show that CUNA Mutual declined to hire Wrolstad
for this position because of his age. The note highlights
Logemann’s potential for longevity, but it ties that potential
to his enthusiasm and persistent effort “to find a foot in the
door here.” Indeed, the screener’s notes indicate that
Logemann told her that he had applied for another position
with the company three months earlier.
Wrolstad argues that “potential [for] longevity” is just a
proxy for age, relying on Sharp v. Aker Plant Services Group,
726 F.3d 789, 800 (6th Cir. 2013). But in Sharp the employer
specifically tied longevity to the plaintiff’s age, id. at 794, and
that explicit reference led the court to conclude that the
employer’s “asserted business concern—potential longevity
with the company—[was] nothing more than a proxy,” id. at
800. In contrast, here the screener’s note did not discuss
Logemann’s potential for longevity in reference to age.
Rather, the screener explicitly tied that potential to age-
neutral factors—that is, his enthusiasm and persistence.
Sharp is not analogous.
Wrolstad also argues that the judge gave his qualifica-
tions short shrift. He maintains that a reasonable jury could
conclude that he was more qualified than Logemann for the
support-specialist job, but that’s not the core inquiry here.
Wrolstad needs evidence that his age was the but-for cause
of the company’s decision not to hire him for the position.
No. 17-1920 11
CUNA Mutual articulated several legitimate nondiscrimina-
tory reasons for preferring Logemann: (1) he had customer-
service experience (Wrolstad did not); (2) he showed great
enthusiasm for the position; and (3) he was willing to work
for a salary within the range established for the job
(Wrolstad was not). No evidence suggests that these reasons
were pretextual. The judge was right to enter summary
judgment for CUNA Mutual on the age-discrimination
claim.
B. Retaliation Claim
The ADEA also prohibits retaliation for activity protected
by the Act. More specifically, the Act makes it unlawful for
an employer to “discriminate against any of his employees
or applicants for employment … [for] oppos[ing] any prac-
tice made unlawful by this section” or because the employee
or applicant “has made a charge … under this chapter.”
29 U.S.C. § 623(d).
Before initiating a lawsuit under the Act, a claimant must
first file a charge with the EEOC or equivalent state agency.
As relevant here, the charge must be filed within 300 days of
the unlawful practice. See id. § 626(d)(1)(B). Under the so-
called Ricks rule, the clock for this limitations period com-
mences “when an employer communicates an adverse
employment decision to the employee, not when the full
consequences of that action are felt.” Gustovich v. AT&T
Commc’ns, Inc., 972 F.2d 845, 847 (7th Cir. 1992) (citing Del.
State Coll. v. Ricks, 449 U.S. 250 (1980)).
In Ricks the Supreme Court held that a professor’s claim
for discriminatory denial of tenure accrued on the day the
college informed him of the adverse tenure decision, not on
12 No. 17-1920
the day the professor’s employment actually ended. 449 U.S.
at 261–62. To start the limitations clock, however, the em-
ployer’s decision must be “final, ultimate, [and] non-
tentative,” and the employee must receive “unequivocal
notice” of it. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.
2011) (alteration in original) (quoting Flannery v. Recording
Indus. Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004)).
Applying the Ricks rule here, Wrolstad’s retaliation claim
accrued on December 22, 2010, when CUNA Mutual sent the
letter giving him clear notice of its decision to sue to enforce
the waiver in his severance agreement—not when the com-
pany followed through on that decision one month later on
January 28, 2011. The letter unequivocally communicated a
firm and final decision to enforce the waiver—in court if
necessary—in response to Wrolstad’s pursuit of his age-
discrimination charge. The letter explained: “If Mr. Wrolstad
pursues this appeal, CUNA Mutual will file a breach of
contract action against him in state court,” “will either seek
the recession … or the enforcement of the agreement,” and
“will take every action necessary to make itself whole.”
Wrolstad filed his retaliation complaint with the Commis-
sion more than 300 days after he received notice of CUNA
Mutual’s decision to sue to enforce the waiver. That was too
late.
Wrolstad resists this conclusion by insisting that CUNA
Mutual’s decision was not final because it was conditional.
The Supreme Court rejected a similar argument in Ricks. See
449 U.S. at 260. There the college informed the professor by
letter that his tenure application was denied, but the letter
“explicitly held out … the possibility that he would receive
tenure if the Board sustained his grievance.” Id. The EEOC
No. 17-1920 13
argued that the letter did not communicate a “final” decision
because it was conditioned on the outcome of the grievance
process. Id. The Court rejected this argument, noting that the
college characterized the letter as its “official position.” Id. So
too here: CUNA Mutual’s letter firmly and unequivocally
articulated its decision to sue Wrolstad if he pursued his
appeal.
Wrolstad relies on the Eleventh Circuit’s decision in
Stewart v. Booker T. Washington Insurance, which held that the
limitations period “does not run until the plaintiff is told
that she is actually being terminated, not that she might be
terminated if future contingencies occur.” 232 F.3d 844, 849
(11th Cir. 2000). But the facts in Stewart are not remotely
comparable. There a radio station advised its employees in a
meeting that their “jobs may be in danger” if a possible sale
of the station occurred but that “nothing was definite yet.”
Id. The tentative state of affairs in Stewart starkly contrasts
with CUNA Mutual’s final, unequivocal decision.
Alternatively, Wrolstad argues that CUNA Mutual’s
lawsuit was a discrete retaliatory act that started its own
limitations clock. This argument rests on National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which explains
that a plaintiff who misses the deadline to file a charge based
on one discrete discriminatory act is not barred from filing
charges based on other discrete discriminatory acts “so long
as the [later] acts are independently discriminatory and
charges addressing those acts are themselves timely filed.”
Id. at 113. But the later act—the one within the limitations
period—must be discrete and independently discriminatory.
Here CUNA Mutual announced its decision to sue to enforce
Wrolstad’s waiver by letter on December 22 and carried out
14 No. 17-1920
that decision one month later on January 28. The letter and
the suit itself are constituent parts of the same action, not
discrete and independently retaliatory acts. The judge
correctly concluded that Wrolstad’s retaliation charge was
untimely.
AFFIRMED.
No. 17-1920 15
BUCKLO, District Judge, dissenting. While I concur fully in
my colleagues’ assessment of Wrolstad’s age discrimination
claim, I part ways with them on the disposition of his retalia-
tion claim. I agree that Wrolstad alleges a time-barred retali-
ation claim that accrued on the date CUNA Mutual
threatened to sue him unless he abandoned pursuit of his
discrimination claim. But I would hold that CUNA Mutual’s
filing of the threatened lawsuit was a distinct, independently
retaliatory act that opened a new limitations period under
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101(2002). Because there is no dispute that Wrolstad’s EEOC
charge was timely if the statutory clock started ticking on the
day CUNA Mutual filed suit, I would reverse the district
court’s conclusion that his retaliation claim based on that suit
was time-barred.
In Morgan, the Court explained:
Each discrete discriminatory act starts a new
clock for filing charges alleging that act. The
charge, therefore, must be filed within the 180–
or 300–day time period after the discrete dis-
criminatory act occurred. The existence of past
acts and the employee’s prior knowledge of
their occurrence, however, does not bar em-
ployees from filing charges about related dis-
crete acts so long as the acts are independently
discriminatory and charges addressing those
acts are themselves timely filed.
536 U.S. at 113.
Setting aside for a moment the arcane rules governing
the accrual of claims under the federal antidiscrimination
16 No. 17-1920
statutes, it is clear that CUNA Mutual did two discrete
things: First, it sent Wrolstad a letter threatening to sue him;
and second, it actually sued him. Each of these things is
unquestionably an “act” under any commonsense under-
standing of the word. Yet the majority concludes that they
are “constituent parts of the same action.” Supra, at 14.
The majority’s view derives from Delaware State College v.
Ricks, 449 U.S. 250 (1980). In Ricks—which involved a dis-
criminatory termination—the Court held that the alleged
discrimination occurred on the date the employer unequivo-
cally communicated its final decision to deny Ricks tenure,
not on the date Ricks’s employment terminated. The Court
observed that “termination of employment at Delaware State
is a delayed, but inevitable, consequence of the denial of
tenure” and went on to hold that because Ricks did not
claim to have been “treated differently from other unsuc-
cessful tenure aspirants,” his discrimination claim accrued as
of the date he learned of the university’s final tenure deci-
sion. Id. at 257–58.
Unlike the termination of Ricks’s employment, which re-
quired only the passage of time to become effective after the
employer’s announcement of its tenure decision, the filing of
CUNA Mutual’s lawsuit was not an “inevitable conse-
quence” of its December 22 letter. To the contrary, it required
further affirmative action on CUNA Mutual’s part. In my
view, this essential feature places Wrolstad’s claim outside
the realm of Ricks and its progeny, including Draper v. Mar-
tin, 664 F.3d 1110 (7th Cir. 2011), Flannery v. Recording Indus-
try Association of America, 354 F.3d 632 (7th Cir. 2004), and
Gustovich v. AT & T Communications, Inc., 972 F.2d 845 (7th
Cir. 1992), each of which, like Ricks itself, involved allegedly
No. 17-1920 17
discriminatory terminations, and into the realm of Morgan,
particularly since the filing of CUNA Mutual’s lawsuit is the
specific action Wrolstad claims was unlawful. 2 Cf. Chardon v.
Fernandez, 454 U.S. 6, 8 (1981) (reversing and remanding
under Ricks because the allegedly discriminatory termina-
tion decision was made outside the limitations period and
the complaint alleged no “illegal acts subsequent to the date
on which the decisions to terminate were made”).
For the foregoing reasons, I respectfully dissent from
Part B of the court’s opinion.
2 Paragraph 53 of the complaint, under the caption “Count 2: Retalia-
tion,” claims: “It was unlawful for CUNA to file a retaliatory lawsuit
against Wrolstad because he opposed CUNA’s discriminatory age
practices.”