UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DALE DIAMOND, 

 Plaintiff - Appellant, 

v. 

W.R. BERKLEY CORPORATION, a 

Delaware corporation; BERKLEY 

INSURANCE COMPANY, 

 Defendants - Appellees. 

No. 21-1331 

(D.C. No. 1:20-CV-02097-RMR-SKC) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, MORITZ, and EID, Circuit Judges. 

_________________________________ 

Dale Diamond appeals the district court’s order granting summary judgment to 

his former employer on his claims of age discrimination and retaliation. For the 

reasons explained below, we affirm. 

Background 

Diamond was a vice president of underwriting and a product-line leader for 

professional liability insurance at Verus Underwriting Managers, an operating unit of 

defendants Berkley Insurance Company and W.R. Berkley Corporation.1

 Diamond 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. But it may be cited for its 

persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

1

 For simplicity, we refer to Diamond’s former employer as “Berkley.” 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 13, 2023

Christopher M. Wolpert 

Clerk of Court

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had decades of experience in the insurance industry, and he began working for 

Berkley in August 2011. 

In June 2019, Marlo Edwards became Diamond’s new immediate supervisor. 

In October 2019, Edwards provided Diamond with a list of tasks to complete and 

quickly became dissatisfied with his lack of progress. Diamond, for his part, 

described the task list as “impossible” to complete. App. vol. 1, 139. 

Late on November 12, 2019, Diamond emailed Donna Highfill, the vice 

president of human resources, and asked to speak with her. Highfill replied the next 

day, and the two spoke by phone. During that November 13 call, according to 

Highfill’s deposition testimony, Diamond expressed his belief that Edwards was 

attempting to replace him with someone “younger and less expensive.” Id. at 247. 

Diamond specifically named Jeff Austin as his potential replacement; he also 

complained that although he believed he was doing good work, Edwards was not 

satisfied. According to Highfill’s notes from this call, Diamond further suggested that 

if he was going to be separated from the company, he did not want to “end on a bad 

note.” App. vol. 2, 197. With Diamond’s permission, Highfill discussed this 

conversation with Edwards, and Edwards denied having plans to terminate 

Diamond’s employment. Highfill relayed to Diamond that Edwards “had every 

intention of helping [Diamond] succeed in his role.”2 Id. 

2

 Highfill also testified that despite Diamond’s brief invocation of age-related 

motivation during the November 13 conversation, she viewed the conversation 

overall as being more about Diamond “feel[ing] insecure in his job” and feeling that 

“he was being pushed out.” App. vol. 1, 238, 247. Edwards likewise testified that her 

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On November 25, Edwards asked Diamond (who was based in Denver, 

Colorado) to travel to her office in Richmond, Virginia for an in-person meeting with 

her and Highfill to discuss his role and performance. The same day, Diamond 

received two emails criticizing his performance—one from Edwards about his 

handling of a broker referral and another from a senior vice president of marketing 

about his recommendation of a wholesale broker for an appointment. 

Later that day, Diamond made a second complaint, stating that he believed he 

was being retaliated against for making his first complaint. Specifically, Diamond 

emailed Edwards, copying Highfill, and expressed “surprise [at] the constant written 

criticism that [he was] receiving.” Id. at 199. He wrote that he interpreted this 

criticism as “a pretext for making a record for [his] termination due to [his] age and 

high salary” and that he would “consider any adverse action taken against [him] to be 

in retaliation for” his age-discrimination complaint. Id. In the same email, Diamond 

declined Edwards’s proposed meeting dates of December 3, 4, 5, or 6, stating that he 

had oral surgery scheduled for December 3. But according to Diamond’s deposition 

testimony, he was actually in Miami until December 5; and according to the 

scheduling records of his oral surgeon, Diamond’s only appointment that month was 

“understanding was that [Diamond] wanted to talk with [Highfill] about . . . increased 

frustration with working with [Edwards]” because they “weren’t necessarily seeing 

eye to eye or communicating well.” App. vol. 2, 108. Because it is not material to our 

decision, we accept Diamond’s characterization of his November 13 conversation 

with Highfill as his first complaint of age discrimination. 

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a consultation scheduled for December 12. In any event, Diamond proposed an 

alternative date of December 10. 

Edwards forwarded Diamond’s November 25 email to Highfill and to Rob 

Stone, an executive vice president, stating that she planned to call Carol LaPunzina, a 

senior vice president in human resources, to “advise her [about] what’s going on.” 

App. vol. 3, 5. Highfill likewise testified that she “elevated” Diamond’s complaints 

to LaPunzina after receiving his November 25 complaint. App. vol. 2, 147. 

Diamond made a third complaint on December 2, in an attachment to an email 

to Edwards that copied Highfill. This time, Diamond stated his belief that the task list 

was “a pretext for removing [him] from [his] position due to [his] age and in 

retaliation for [his] complaining about the age discrimination to . . . Highfill.” App. 

vol. 1, 261. In this email, he also repeated his alleged unavailability to meet from 

December 3–6 due to a scheduled oral surgery, stated he was also unavailable the 

week of December 15, and offered the week of January 6. 

On December 4, LaPunzina discussed Diamond’s complaints with Edwards 

and Highfill and then later with Stone. Highfill testified that during her meeting with 

LaPunzina, Diamond’s complaints were elevated to LaPunzina, who said that she 

would take over. But LaPunzina testified that any further investigation was 

interrupted by a separate issue related to Diamond’s performance in issuing a policy 

to a solo practitioner’s law firm. 

By way of background about this separate issue, in October 2019, an 

independent insurance broker, Stephen Sylvester, contacted Diamond to request a 

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policy for the law firm. Diamond initially declined, citing the frequency of claims 

filed by the firm, the nature of the firm’s work, and the firm’s location. Sylvester 

asked Diamond to reconsider, explaining that the firm worked with difficult clients 

and was overly cautious in submitting more claims than necessary; he added that the 

firm’s “clientele may not necessarily have all their marbles all the time[,] so they 

tend to say crazy things . . . which [are] interpreted as potential for a claim when 

[they are] really probably not.” App. vol. 4, 23. Sylvester’s explanation apparently 

changed Diamond’s mind, and on October 15, he offered quotes for two different 

types of policies: a traditional policy that would be effective when issued or a more 

expensive policy with retroactive coverage. Nearly a month later, Sylvester replied in 

a somewhat ambiguous manner but apparently meant to accept the retroactive 

coverage. Even though Diamond’s colleague pointed out this ambiguity, Diamond 

simply issued a traditional policy without retroactive coverage, effective November 

21. 

On December 3, the law firm filed a claim with Berkley based on a lawsuit 

filed against the firm on November 22, one day after the policy’s effective date; the 

lawsuit alleged failure to comply with fiduciary duties in August and September 

2019. On December 4, Berkley told the insured it would be denying the claim 

because the alleged breach predated the traditional policy’s effective date. 

Less than an hour later on December 4 (the same day that LaPunzina met with 

Edwards and Highfill about Diamond’s discrimination and retaliation complaints), 

Sylvester contacted Diamond about this denial, stating that (1) the “policy was 

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supposed to include the retro[active] coverage” that the law firm had paid for and 

(2) this claim should have fallen within the retroactive coverage. Id. at 18. Sylvester 

asked Diamond to correct the error and issue the requested retroactive coverage. 

Diamond responded less than 20 minutes later, noted that this “was [his] mistake,” 

and concluded that he needed to amend the policy. Id. at 22. He made the change 

within the same hour, issuing an endorsement that provided retroactive coverage back 

to October 5, 2016. Diamond took this action independently, without contacting 

Edwards or anyone in the claims department, knowing that the law firm had a claim 

pending. And he did so despite knowing Berkley’s underwriting guidelines provide 

that “[c]overage should never be put in place retroactively without a no-loss 

statement or other evidence of past loss history.” Id. at 37. 

Berkley’s claims department learned of the retroactive amendment the next 

day, when the insured resubmitted its claim and attached the endorsement.3

 The 

claims department then notified Edwards. 

On December 6, Edwards and a Berkley claims executive met with Diamond 

to discuss his decisions related to the law-firm policy. In an email following up on 

this meeting, Diamond “apologize[d] for the error of being a bit too accommodating 

with this broker who was looking for help with a difficult risk” and stated that “the 

best course of action would have been to stick with the decline” or “at most offer[]” 

traditional coverage. Id. at 43. He also conceded that he had initially issued the 

3

 Berkley eventually denied the law firm’s claim on other grounds later that 

month. 

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wrong policy; he attributed that error in part to a “missing comma” in Sylvester’s 

instructions and said that he had been “trying to do too many things at once and 

going too fast.” Id. 

On December 9, Edwards forwarded Diamond’s December 6 email to Stone, 

Highfill, and LaPunzina. Edwards detailed the problems with the law-firm policy and 

expressed serious concerns about Diamond’s judgment, concluding that she had 

“never seen something like this take place,” that she “certainly wouldn’t expect this 

from” someone in Diamond’s position, and that it “raise[d] more questions and 

concerns.” Id. at 41. Edwards decided to terminate Diamond’s employment, with the 

support of Stone, LaPunzina, and Highfill. 

Berkley formally terminated Diamond’s employment on January 3, 2020, 

citing the incident with the law firm’s insurance policy. Diamond was 60 years old. 

Berkley later promoted Austin, who was 52 years old at the time, to fill Diamond’s 

position. 

Diamond then filed this action, bringing claims of age discrimination and 

retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 

§§ 621–634. The district court granted Berkley’s motion for summary judgment on 

both claims. Diamond appeals. 

Analysis 

“We review the district court’s order granting summary judgment de novo, 

applying the same standard as the district court.” Fassbender v. Correct Care Sols., 

LLC, 890 F.3d 875, 882 (10th Cir. 2018). Summary judgment is proper so long as 

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“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 genuine issue of material fact 

exists “if a rational jury could find in favor of the nonmoving party on the evidence 

presented.” Fassbender, 890 F.3d at 882 (quoting EEOC v. Horizon/CMS Healthcare 

Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)). 

We view the evidence presented at summary judgment in the light most 

favorable to the nonmoving party; we also draw reasonable inferences in favor of the 

nonmoving party. Id. But for a nonmoving party to defeat summary judgment, it must 

produce competing evidence that is “based on more than mere speculation, 

conjecture, or surmise.” Pioneer Ctrs. Holding Co. Emp. Stock Ownership Plan & Tr. 

v. Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017) (quoting Bones v. 

Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)). 

I. Age Discrimination 

Diamond first argues that his age-discrimination claim survives summary 

judgment. The ADEA prohibits age discrimination in employment, making it 

“unlawful for an employer . . . to discharge any individual or otherwise discriminate 

against any individual with respect to his [or her] compensation, terms, conditions, or 

privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). 

“A plaintiff can show intentional discrimination either by direct evidence of 

discrimination or by indirect evidence.” DePaula v. Easter Seals El Mirador, 859 

F.3d 957, 969 (10th Cir. 2017). The parties here agree that this case involves only 

indirect evidence, placing it within the “the three-part burden-shifting framework 

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articulated in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)].” DePaula, 

859 F.3d at 969. 

At the first step of this framework, the plaintiff must establish a prima facie 

case of wrongful termination. Id. At the second step, the employer “must articulate a 

legitimate, nondiscriminatory reason for the adverse employment action.” Id. If the 

employer does so, then the plaintiff at the third step must demonstrate by a 

preponderance of the evidence “‘that the employer’s justification is pretextual,’” 

meaning that the justification is “not the true reason for the employment decision.” 

Id. (quoting Smothers v. Solvay Chems., Inc., 740 F.3d 530, 540 (10th Cir. 2014)). 

Applying this framework, the district court assumed that Diamond had 

established a prima facie case. It then concluded that Berkley had advanced a 

legitimate, nondiscriminatory reason for terminating Diamond’s employment: his 

mishandling of the law-firm policy. In particular, the district court noted that it was 

undisputed that Diamond apologized for changing his mind and issuing the policy in 

the first place, admitted his mistake in issuing the policy without the requested 

retroactive coverage, and failed to comply with Berkley’s guidelines on retroactive 

coverage when he issued the policy amendment to correct the issuing mistake. And at 

the third step, the district court determined that Diamond failed to present any 

admissible evidence that Berkley’s proffered justification of Diamond’s mishandling 

of the law-firm policy was mere pretext for age discrimination. 

On appeal, Diamond challenges only the district court’s pretext analysis. 

Indeed, Berkley “has conceded for purposes of summary judgment” that Diamond 

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has met his prima facie burden at the first step.4

 Aplee. Br. 19. And Berkley has met 

its “exceedingly light” burden of proffering a facially legitimate and 

nondiscriminatory reason for terminating Diamond’s employment—his handling of 

the law-firm policy. DePaula, 859 F.3d at 970 (quoting Williams v. FedEx Corp. 

Servs., 849 F.3d 889, 899–900 (10th Cir. 2017)). We therefore focus our analysis on 

pretext. 

“A plaintiff may show pretext by demonstrating the ‘proffered reason is 

factually false,’ or that ‘discrimination was a primary factor in the employer’s 

decision.’” Id. (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013)). A 

plaintiff can accomplish this “by revealing weaknesses, implausibilities, 

inconsistencies, incoherences, or contradictions in the employer’s proffered reason, 

such that a reasonable fact finder could deem the employer’s reason unworthy of 

credence.” Id. (quoting Tabor, 703 F.3d at 1218). When “‘determining whether the 

proffered reason for a decision was pretextual, we examine the facts as they appear to 

the person making the decision,’ and [we] ‘do not look to the plaintiff’s subjective 

evaluation of the situation.’” Id. at 971 (quoting EEOC v. C.R. England, Inc., 644 

F.3d 1028, 1044 (10th Cir. 2011)). In other words, “[w]hen reviewing for pretext, 

4

 For this reason, we do not address the parties’ various arguments about the 

precise ages of Diamond, his replacement, and the various decision-makers—such 

considerations are more typically treated as part of a plaintiff’s prima facie case, 

which we assume exists here. See, e.g., Frappied v. Affinity Gaming Black Hawk, 

LLC, 966 F.3d 1038, 1058 (10th Cir. 2020) (finding age difference between new 

hires and plaintiffs sufficiently substantial to show replacement by younger 

employees as part of plaintiffs’ prima facie case of age discrimination). 

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‘[w]e are mindful we must not sit as a superpersonnel department that second-guesses 

the company’s business decisions, with the benefit of twenty-twenty hindsight.’” 

Frappied, 966 F.3d at 1059 (quoting Tyler v. RE/MAX Mountain States, Inc., 232 

F.3d 808, 813–14 (10th Cir. 2000)). 

Diamond first argues that he can show pretext because Berkley’s proffered 

reason for terminating his employment is false: He insists that he did not mishandle 

the law-firm policy. Yet in his opening brief, he admits that he initially issued the 

wrong policy to the law firm. And this is consistent with the record evidence, which 

includes emails from Diamond acknowledging that issuing the wrong policy “was 

[his] mistake,” App. vol. 4, 22, and that he had “misinterpret[ed]” Sylvester’s 

instructions on which policy to issue, id. at 43. Diamond now attempts to minimize 

the importance of this error, contending that it “was the one and only minor mistake 

or ‘human error’” he made. Aplt. Br. 24. But Diamond’s subjective position on the 

relative importance of the mistake does not establish a genuine issue of material fact 

as to whether he mishandled the law-firm policy. See DePaula, 859 F.3d at 971 

(explaining that we look at facts from perspective of decision-maker, not plaintiff’s 

subjective view). 

Moreover, Diamond fails to point to any record evidence to support his related 

position that Berkley’s reason for terminating his employment was false because 

issuing retroactive coverage in the absence of a no-loss letter did not violate Berkley 

guidelines. At best, Diamond points to deposition testimony in which one of 

Berkley’s human-resources employees was unable to identify a specific Berkley 

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guideline that Diamond violated in his handling of the law-firm policy. But a single 

employee’s inability to identify the specific guideline at issue does not change the 

fact that such a guideline unequivocally exists. Berkley submitted proof of that 

guideline in its motion for summary judgment. And Diamond admitted knowing 

about and understanding this guideline. Yet he offers no evidence that he obtained 

the required no-loss statement before issuing retroactive coverage.5

 

Nor is it relevant that Diamond apparently felt compelled to issue the 

retroactive coverage to correct his initial and admitted mistake of issuing the wrong 

policy. On this point, Diamond relies on a single case from the Wisconsin Supreme 

Court to argue that this correction was legally required. See Trinity Evangelical 

Lutheran Church & Sch.-Freistadt v. Tower Ins. Co., 661 N.W.2d 789 (Wis. 2003) 

(holding that insured was entitled to summary judgment on its bad-faith claim against 

insurer where insurer initially issued wrong type of policy and later denied coverage 

despite knowing of its initial mistake and that coverage would exist had correct 

policy been issued). Aside from its lack of precedential authority, Trinity Evangelical 

5

 At oral argument, Diamond argued for the first time that Berkley’s standard 

insurance application form includes the required no-loss statement; thus, Diamond 

asserted, he did comply with Berkley’s guideline. But Diamond could not point to 

anything in the record to support this argument. In response, Berkley highlighted the 

lack of record support and contended that a no-loss statement required for retroactive 

coverage would be more extensive than the boilerplate language included in the 

standard application form. We need not wade into this issue: Given that Diamond 

raised this argument for the first time at oral argument, we decline to consider it. See 

Murphy v. City of Tulsa, 950 F.3d 641, 645 n.4 (10th Cir. 2019) (declining to 

consider new argument because “arguments made for the first time at oral argument 

are waived” (quoting Ross v. Univ. of Tulsa, 859 F.3d 1280, 1294 (10th Cir. 2017))). 

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is unpersuasive for a more basic reason—it involved an insured’s bad-faith claim, not 

an employment termination based on an employee’s issuance of a policy in violation 

of an employer’s internal guideline. 

Relatedly, Diamond suggests he didn’t violate Berkeley’s internal guidelines 

because he issued the retroactive coverage simply to correct his initial error. In 

support, he highlights portions of Sylvester’s testimony in which Sylvester agreed 

that “promptly correct[ing] the error” was “the right thing to do” and that Diamond 

“did a fine job underwriting the account.” App. vol. 1, 219, 221, 226. But Sylvester’s 

belief that fixing the error was the correct course of action sheds no light on whether 

Diamond violated Berkley’s guidelines in fixing the error by issuing retroactive 

coverage without a no-loss statement. Indeed, Sylvester himself refused to speculate 

on whether Diamond violated Berkley guidelines, stating that he “ha[d] no idea if 

[Diamond] did something more wrong,” other than initially issuing the wrong policy. 

Id. at 226. Sylvester also declined to “speak to” Berkley’s decision to terminate 

Diamond’s employment based on his handling of the law-firm policy, explaining that 

he was “not privy to” relevant “internal Berkley guidelines and directives.” Id. at 

227. Sylvester’s testimony therefore fails to create a genuine dispute of material fact 

as to whether Berkley’s legitimate, nondiscriminatory reason for terminating 

Diamond’s employment—that Diamond mishandled the law-firm policy, including 

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issuing retroactive coverage in direct violation of Berkley guidelines—was factually 

false.6

 

Diamond next attempts to show pretext by alleging various inconsistencies and 

irregularities in Berkley’s actions. He first contends that Berkley’s failure to 

investigate his age-discrimination and retaliation complaints was contrary to 

Berkley’s own guidelines and therefore demonstrates a significant procedural 

irregularity indicative of pretext. See Fassbender, 890 F.3d at 889 (noting that 

“‘disturbing procedural irregularities’” can suggest pretext, provided that they are 

“somehow related to the decision-maker’s discriminatory purpose” (quoting Garrett 

v. Hewlett-Packard Co., 305 F.3d 1210, 1220 (10th Cir. 2002))). In support, he points 

to a general Berkley guideline stating that “[e]very reported complaint will be 

promptly investigated,” App. vol. 2, 172, and asserts that “Berkley never investigated 

any of Diamond’s three ADEA complaints,” Aplt. Br. 41. 

But given the timing of the unrelated intervening issue with the law-firm 

policy, Diamond’s evidence fails to establish that Berkley violated this general 

policy. Specifically, the record shows that Highfill both discussed Diamond’s 

complaints with him and appropriately elevated his complaints. In particular, 

Highfill’s notes reflect that she discussed Diamond’s first complaint with Edwards 

and then relayed back to Diamond that Edwards did not intend to terminate his 

6

 Because we conclude that Sylvester’s testimony does not create a genuine 

dispute of material fact, we do not reach Diamond’s arguments about whether the 

district court erred by failing to credit Sylvester’s testimony or by making improper 

credibility determinations at summary judgment. 

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employment and wanted him to succeed. Additionally, Edwards passed Diamond’s 

second complaint on to LaPunzina, and Highfill likewise testified that she “handed 

the entire . . . matter over” to LaPunzina on December 4—the same day that Diamond 

violated Berkley’s guideline on issuing retroactive coverage on the law-firm policy 

(and only about three weeks after Diamond’s initial discrimination complaint, just 

over one week after Diamond’s second complaint, and two days after Diamond’s 

third complaint). App. vol. 2, 148. And that the law-firm matter effectively derailed 

investigation of Diamond’s ADEA complaints is neither disturbingly irregular nor 

indicative of pretext. See Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th 

Cir. 2007) (finding no disturbing procedural irregularity in employer’s decision to 

discharge employee based on customer complaint without first interviewing 

employee “to complete her side of the story”). Indeed, we see no connection between 

this interrupted investigation and any discriminatory purpose—Highfill adequately 

elevated Diamond’s concerns, but before the investigation could proceed, Diamond’s 

own unrelated conduct intervened. Cf. Fassbender, 890 F.3d at 889–90 (finding 

procedural irregularity could indicate pretext where decision-maker failed to attach 

narrative to termination paperwork, which allowed her to change her reasons for 

termination over time). 

Next, Diamond argues that Berkley’s decision to terminate his employment 

despite his prior good performance shows pretext, especially when compared to 

Berkley’s decision to promote Austin. See Orr v. City of Albuquerque, 531 F.3d 

1210, 1215 (10th Cir. 2008) (noting that “differential treatment of similarly situated 

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employees” can show pretext (quoting Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 

(10th Cir. 2008))). But we agree with the district court that Diamond’s “prior 

performance is irrelevant to the question of whether he mishandled the [l]aw[-f]irm 

[p]olicy” and does not tend to show that Berkley used the law-firm matter as pretext 

for termination. App. vol. 3, 60. Moreover, Diamond fails to show that he and Austin 

were similarly situated. Diamond asserts that the law-firm policy eventually resulted 

in a profit for Berkley, whereas another policy written by Austin resulted in Berkley 

paying a large claim. But as Berkley points out, the comparison is inapt because 

Berkley’s ultimate profit or loss is not the relevant point of comparison: The relevant 

point is Diamond’s conduct as compared to Austin’s. And although Diamond 

undisputedly violated Berkley’s guidelines in connection with the law-firm policy, he 

does not allege that Austin violated any Berkley guidelines in writing the policy that 

resulted in a large claim. Indeed, Diamond doesn’t challenge Edwards’s observation 

(in deciding to terminate Diamond’s employment for his mishandling of the law-firm 

policy) that she had “never seen something like this take place.” App. vol. 4, 41. 

Thus, Diamond fails to show any disparate treatment that could support pretext.7

 

Diamond next argues that Edwards’s prior treatment of him shows pretext. See 

Garrett, 305 F.3d at 1217 (noting that “prior treatment of plaintiff” can show pretext 

7

 On a related note, Diamond asserts that another Berkley employee—someone 

who apparently worked under Diamond—also attempted to correct the law-firm 

policy by issuing retroactive coverage but was not fired for such conduct. We decline 

to consider this argument because, as Berkley points out, Diamond did not make it 

below and does not argue for plain error on appeal. See Richison v. Ernest Grp., Inc., 

634 F.3d 1123, 1131 (10th Cir. 2011). 

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(quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse 

Servs., 165 F.3d 1321, 1328 (10th Cir. 1999))). In support, Diamond points to 

Edwards’s performance notes, highlighting that she began compiling those notes the 

day after his first complaint. Similarly, he points to Edwards’s task list and argues 

she was setting him up to fail. 

 As Diamond suggests, temporal proximity can be some evidence of pretext. 

See DePaula, 859 F.3d at 976 (noting that temporal proximity, in combination with 

other evidence of pretext, can support inference of pretext). But here, Edwards based 

her decision to terminate Diamond’s employment on an intervening event—his 

violation of the company’s internal policies—not on the issues included in her 

performance notes or on Diamond’s failure to adequately complete the task list. 

Diamond also argues that Berkley’s reasons for terminating his employment 

have shifted over time and were based on subjective criteria. See Fassbender, 890 

F.3d at 887 (noting inference of pretext can arise “when an employer is ‘inconsistent 

in the reasons it provide[s] for the termination’” (quoting Whittington v. Nordam 

Grp. Inc., 429 F.3d 986, 994 (10th Cir. 2005)); Garrett, 305 F.3d at 1217 (noting that 

employer’s use of subjective criteria can show pretext). But we agree with the district 

court that Berkley has consistently maintained that it terminated Diamond’s 

employment based on the law-firm matter. Edwards told Diamond as much during his 

termination call. She advanced the same rationale during her deposition in this 

litigation. And Berkley continues to assert the same reason on appeal, contending that 

it “decided to terminate Diamond’s employment for his handling of the [l]aw[-f]irm 

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[m]atter in its totality.” Aplee. Br. 21. Nor was Berkley’s decision based on 

subjective criteria; Diamond admitted he initially issued the wrong policy, and the 

guideline Diamond undisputedly violated objectively requires a no-loss statement 

before issuing retroactive coverage. 

Overall, Diamond’s proffered pretext evidence, considered together, would not 

allow a reasonable jury to deem Berkley’s reason for terminating his employment 

“unworthy of credence.” Tabor, 703 F.3d at 1218 (quoting Garrett, 305 F.3d at 

1217). Diamond has therefore failed to establish a genuine issue of material fact on 

pretext, and the district court did not err in awarding summary judgment to Berkley 

on Diamond’s age-discrimination claim. 

II. Retaliation 

Diamond next asserts that his retaliation claim survives summary judgment. 

The ADEA makes it “unlawful for an employer to discriminate against any of [its] 

employees . . . because such [employee] has opposed any practice made unlawful by 

this section.” § 623(d). In the absence of direct evidence, as here, a retaliation 

plaintiff may proceed under the three steps of the McDonnell Douglas framework: 

prima facie case, legitimate nondiscriminatory reason, and pretext. See Hinds v. 

Sprint/United Mgmt. Co., 523 F.3d 1187, 1201 (10th Cir. 2008). 

To establish a prima facie case of retaliation, a plaintiff must “show that (1) he 

or she engaged in protected opposition to discrimination, (2) a reasonable employee 

would have considered the challenged employment action materially adverse, and 

(3) a causal connection existed between the protected activity and the materially 

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adverse action.” Id. at 1202. The district court assumed the first two elements and 

rejected Diamond’s claim based on the third. 

“To establish the requisite causal connection between . . . protected conduct 

and termination, [a plaintiff] must show that [the employer] was motivated to 

terminate his [or her] employment by a desire to retaliate for [the] protected activity.” 

Id. at 1203. “[W]e may infer retaliatory motive from a close temporal proximity 

between an employee’s protected conduct and an employer’s adverse employment 

action.” Id. at 1204. But “evidence of temporal proximity has minimal probative 

value in a retaliation case where intervening events between the employee’s protected 

conduct and the challenged employment action provide a legitimate basis for the 

employer’s action.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001–02 (10th 

Cir. 2011). The district court accordingly concluded that Diamond could not show a 

causal connection between his complaints of age discrimination and his employment 

termination because his improper handling of the law-firm policy was an intervening 

event that broke the temporal proximity between the two events. 

On appeal, Diamond again asserts that the temporal proximity establishes the 

requisite causal connection, emphasizing that Edwards decided to terminate his 

employment only seven days after his third ADEA complaint and contending that the 

law-firm matter is not a legitimate intervening event. But his only argument on this 

front is that Berkley’s view of the law-firm matter—that Diamond made a series of 

mistakes in connection with the law-firm policy, including issuing retroactive 

coverage without a no-loss statement in violation of Berkley guidelines—is factually 

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false. As we have explained, this argument fails. Diamond’s handling of the law-firm 

policy is therefore a legitimate intervening event that weakens any inference of 

retaliation based on temporal proximity. See id. at 1002 (finding no inference of 

retaliatory motive where employee had unreported absences after her initial 

discrimination complaint). 

Diamond also argues that he can show a causal connection based on additional 

evidence. See Garrett, 305 F.3d at 1221 (finding causal connection at prima facie 

stage based in part on “documented evidence of a marked shift in the attitudes and 

treatment of [employee] by . . . supervisors”). In support, he asserts that Edwards 

“angrily” confronted him nine days after learning about his first complaint and made 

him feel that going to human resources was a “mistake” and that he “was in trouble.” 

Aplt. Br. 59. Diamond also points out that Edwards began compiling performance 

notes after his first complaint and emphasizes that those performance notes 

commingle issues of his performance and his complaints. But critically, all of these 

events occurred before the intervening event—and Diamond’s handling of the lawfirm policy breaks any inference of a causal connection between Edwards’s reaction 

to Diamond’s initial complaint and her later decision to terminate his employment. 

We therefore agree with the district court that Diamond’s retaliation claim fails 

because he cannot establish a prima facie case for lack of a causal connection. 

Conclusion 

Diamond fails to create a genuine issue of material fact as to whether 

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firm policy was mere pretext for age discrimination, so we affirm the district court’s 

order granting summary judgment to Berkley on Diamond’s age-discrimination 

claim. We also affirm the district court’s ruling on Diamond’s retaliation claim 

because Diamond fails to create a genuine issue of material fact as to whether 

Berkley’s termination decision was causally connected to Diamond’s complaints of 

age discrimination. 

As a final matter, we grant Diamond’s unopposed motion to seal. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

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