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 cour t’s order granting summary judgment to his former employer on his claims of ag e discrimination and re taliation. For the reasons explained be low, we affirm. Background Diamond was a vice president of underw riting and a product-line leader for professional liability insura nce at Verus Underwriting Ma nagers, an operating unit of defendants Berkley Insurance Compa ny and W.R. Berkley Corporation. 1 Diamond

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judi cata, 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 refe r to Diamond’s former employer as “Berkley.” FILED United States Court of Appeals Tenth Circuit 

### February 13, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 12 had decades of experience in the insura nce industry, and he began working for Berkley in August 2011. In June 2019, Marlo Edwards became Diamond’s new imme diate supervisor. In October 2019, Edwards provided Diamon d with a list of task s to complete and quickly became dissatisfied with his la ck of progress. Diamond, for his part, described the task list as “impossible” to complete. App. vol. 1, 139. Late on November 12, 2019, Diamon d 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 Novemb er 13 call, according to Highfill’s deposition testimony, Diamond expressed his belief that Edwards was attempting to replace him with so meone “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 Highf ill’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 Edward s denied having plans to terminate Diamond’s employment. Highfill relayed to Diamond that Edwards “had every intention of helping [Dia mond] succeed in his role.” 2 Id.

2 Highfill also testified that despite Di amond’s brief invoca tion of age-related motivation during the November 13 conver sation, she viewed the conversation overall as being more about Di amond “feel[ing] insecure in his job” and feeling that “he was being pushed out.” App. vol. 1, 238, 247. Edwards likewise testified that her Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 23 On November 25, Edwards asked Di amond (who was based in Denver, Colorado) to travel to her o ffice in Richmond, Virginia fo r an in-person meeting with her and Highfill to discuss his role a nd 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 whol esale broker for an appointment. Later that day, Diamond ma de a second complaint, sta ting that he believed he was being retaliated against for making hi s first complaint. Specifically, Diamond emailed Edwards, copying Highfill, and expres sed “surprise [at] th e 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 woul d “consider any adverse action taken against [him] to be in retaliation for” his ag e-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 or al 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 characteri zation of his November 13 conversation with Highfill as his fi rst complaint of age discrimination. Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 34 a consultation scheduled for December 12. In any event, Diamond proposed an alternative date of December 10. Edwards forwarded Diamond’s Novemb er 25 email to Highfill and to Rob Stone, an executive vice president, stating th at 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 testifie d that she “elevated” Diamond’s complaints to LaPunzina after receiving his Novemb er 25 complaint. App. vol. 2, 147. Diamond made a third complaint on December2, 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] complaini ng about the age discriminati on to . . . Highfill.” App. vol. 1, 261. In this email, he also repeat ed his alleged unavailability to meet from December 3–6 due to a scheduled oral surg ery, 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 w ith Stone. Highfill testified th at during her meeting with LaPunzina, Diamond’s complaints were elev ated to LaPunzina, who said that she would take over. But LaPunzina testifie d 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 se parate issue, in October 2019, an independent insurance broker, Stephen Sylv ester, contacted Diamond to request a Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 45 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 wo rked with difficult clients and was overly cautious in submitting more cl aims 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 potentia l 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 w ould be effective when issued or a more expensive policy with retroactive coverage. Ne arly a month later, Sylvester replied in a somewhat ambiguous manner but apparen tly meant to accep t the retroactive coverage. Even though Diamond’s collea gue 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 th e traditional policy’s effective date. Less than an hour later on December 4 (t he same day that LaPunzina met with Edwards and Highfill about Diamond’s disc rimination and retali ation complaints), Sylvester contacted Diamond about this de nial, stating that (1) the “policy was Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 56 supposed to include the retr o[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 is sue the requested retroactive coverage. Diamond responded less than 20 minutes later, noted that this “w as [his] mistake,” and concluded that he needed to amend the policy. Id. at 22. He made the change within the same hour, issuing an endorsementthat provided retroactive coverage back to October 5, 2016. Diamond took this action independently, without contacting Edwards or anyone in the claims departme nt, knowing that the law firm had a claim pending. And he did so despite knowing Berkley’s underwriting guidelines provide that “[c]overage should ne ver be put in place retr oactively without a no-loss statement or other evidence of past loss history.” Id. at 37. Berkley’s claims departme nt learned of the retroactive amendment the next day, when the insured resubmitted its claim and attachedthe endorsement. 3 The claims department th en notified Edwards. On December 6, Edwards and a Berkle y claims executive met with Diamond to discuss his decisions rela ted to the law-firm policy. In an email following up on this meeting, Diamond “apol ogize[d] for the error of being a bit too accommodating with this broker who was looking for help w ith a difficult risk” a nd stated that “the best course of action would have been to s tick 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 fi rm’s claim on other grounds later that month. Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 67 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 Di amond’s December 6 email to Stone, Highfill, and LaPunzina. Edwa rds detailed the problems w ith 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 “cert ainly 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 termin ate Diamond’s employment, with the support of Stone, LaP unzina, 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, bri nging claims of age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634. The district court granted Be rkley’s motion for summary judgment on both claims. Diamond appeals. Analysis “We review the district court’s order granting su mmary 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 judgm ent is proper so long as Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 78 “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 c ould 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 (1 0th Cir. 2000)). We view the evidence presented at summary judgment in the light most favorable to the nonmoving party; we also dr aw reasonable inferences in favor of the nonmoving party. Id. But for a nonmoving party to de feat summary judgment, it must produce competing evidence that is “b ased 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-di scrimination claim survives summary judgment. The ADEA prohibits age di scrimination in employment, making it “unlawful for an employer . . . to discharg e any individual or ot herwise discriminate against any individual with re spect to his [or her] compensa tion, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). “A plaintiff can show intentional disc rimination 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 ag ree that this case involves only indirect evidence, placing it within the “the three-part burden-shifting framework Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 89 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, th e plaintiff must establish a prima facie case of wrongful termination. Id. At the second step, the em ployer “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 eviden ce “‘that the employer’s jus tification is pretextual,’” meaning that the justificati on 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 distri ct court assumed that Diamond had established a prima facie cas e. It then concluded thatBerkley had advanced a legitimate, nondiscriminatory reason fo r terminating Diamond’s employment: his mishandling of the law-firm policy. In partic ular, the district cour t noted that it was undisputed that Diamond apologized for ch anging his mind and i ssuing the policy in the first place, admitted hi s mistake in issuing the po licy without the requested retroactive coverage, and fa iled to comply with Berkley’s guidelines on retroactive coverage when he issued the policy amendmen t to correct the issuing mistake. And at the third step, the district court determ ined that Diamond failed to present any admissible evidence that Berkley’s proffere d justification of Di amond’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 con ceded for purposes of summary judgment” that Diamond Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 910 has met his prima facie burden at the first step. 4 Aplee. Br. 19. And Berkley has met its “exceedingly light” burden of pro ffering a facially legitimate and nondiscriminatory reason for terminati ng 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 (10t h Cir. 2017)). We theref ore focus our analysis on pretext. “A plaintiff may show pretext by de monstrating the ‘proffered reason is factually false,’ or that ‘d iscrimination 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 rev ealing weaknesses, implausibilities, inconsistencies, incoherences , or contradictions in the employer’s proffered reason, such that a reasonable fact finder coul d 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 fact s 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 othe r words, “[w]hen reviewing for pretext,

4 For this reason, we do not address th e 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 subs tantial to show replacement by younger employees as part of plaintiffs’ prim a facie case of age discrimination). Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1011 ‘[w]e are mindful we must notsit as a superpersonnel depa rtment that second-guesses the company’s business decisions, with th e 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 (1 0th Cir. 2000)). Diamond first argues that he can show pretext because Berkley’s proffered reason for terminating his employment is fals e: He insists that he did not mishandle the law-firm policy. Yet in hi s opening brief, he admits that he initially issued the wrong policy to the law firm. And this is co nsistent with the re cord evidence, which includes emails from Diamond acknowledging that issuing the wrong policy “was [his] mistake,” App. vol. 4, 22, and thathe 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 mist ake does not establish a genuine issue of material fact as to whether he misha ndled the law-firm policy. See DePaula , 859 F.3d at 971 (explaining that we look at facts from pers pective 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 termin ating 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 Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1112 guideline that Diamond violated in his hand ling 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 j udgment. And Diamon d 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 compe lled to issue the retroactive coverage to correct his initia l 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 co rrection was legally required. See Trinity Evangelical Lutheran Church & Sch.-Freis tadt v. Tower Ins. Co. , 661 N.W.2d 789 (Wis. 2003) (holding that insured was entitled to summ ary judgment on its bad-faith claim against insurer where insurer in itially issued wrong type of po licy and later denied coverage despite knowing of its initial mistake and that coverage would exist had correct policy been issued). As ide from its lack of pr ecedential 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 argum ent. In response, Berkley highlighted the lack of record support and contended that a no-loss statem ent required for retroactive coverage would be more extensive than the boilerplate language included in the standard application form. We need not wa de into this issue: Given that Diamond raised this argument fo r the first time at oral argument, we decline to consider it. See Murphy v. City of Tulsa , 950 F.3d 641, 645 n.4 (10t h Cir. 2019) (declining to consider new argument because “arguments ma de for the first time at oral argument are waived” (quoting Ross v. Univ. of Tulsa , 859 F.3d 1280, 1294 (10th Cir. 2017))). Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1213 is unpersuasive for a more ba sic reason—it involved an insu red’s bad-faith claim, not an employment termination based on an empl oyee’s issuance of a policy in violation of an employer’s internal guideline. Relatedly, Diamond suggests he didn’t violate Berkel ey’s internal guidelines because he issued th e retroactive coverage simply to correct his initial error. In support, he highlights portions of Sylves ter’s testimony in which Sylvester agreed that “promptly correct[ing] th e error” was “the right th ing to do” and that Diamond “did a fine job underwriting the account.” App. vol. 1, 21 9, 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 guidelin es, stating that he “ha[d] no idea if [Diamond] did something more wrong,” othe r than initially issui ng the wrong policy. Id. at 226. Sylvester also d eclined to “speak to” Berk ley’s decision to terminate Diamond’s employment based on his handling of the law-firm policy, explaining that he was “not privy to” rele vant “internal Berkley gui delines and directives.” Id. at 227. Sylvester’s testimony therefore fails to create a genuine disput e of material fact as to whether Berkley’s legitimate, nondiscriminatory reason for terminating Diamond’s employment—that Diamond misha ndled the law-firm policy, including Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1314 issuing retroactive coverage in direct violation of Berk ley guidelines—was factually false. 6 Diamond next attempts to show pretex t by alleging various inconsistencies and irregularities in Berkley’s actions. He first c ontends that Berkley’s failure to investigate his age-discrimination and re taliation complaints was contrary to Berkley’s own guidelines a nd 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-ma ker’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 th at “[e]very reported complaint will be promptly investigated,” App. vol. 2, 172, a nd asserts that “Berkleynever 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 establ ish that Berkley violated this general policy. Specifically, the r ecord shows that Highfill both discussed Diamond’s complaints with him and appropriately el evated his complaints. In particular, Highfill’s notes reflect that she discussed Diamond’s firs t 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 r each Diamond’s arguments about whether the district court erred by failing to credit Sy lvester’s testimony orby making improper credibility determinations at summary judgment. Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1415 employment and wanted him to succeed. Additionally, Edwards passed Diamond’s second complaint on to LaPunzina, and Hi ghfill likewise testified that she “handed the entire . . . matter over” to LaPunzin a on December 4—the same day that Diamond violated Berkley’s guideline on issuing retr oactive 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 comp laint, 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 disturbi ng 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 di scriminatory purpose—Highfill adequately elevated Diamond’s concerns, but before th e investigation could proceed, Diamond’s own unrelated conduct intervened. Cf. Fassbender , 890 F.3d at 889–90 (finding procedural irregularity could indicate pretext where decisi on-maker failed to attach narrative to termination paperwork, whic h allowed her to change her reasons for termination over time). Next, Diamond argues thatBerkley’s decision to terminate his employment despite his prior good performance shows pr etext, 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 Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1516 employees” can show pretext (quoting Trujillo v. PacifiCorp , 524 F.3d 1149, 1158 (10th Cir. 2008))). But we agree with th e district court thatDiamond’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 thatthe law-firm policy eventually resulted in a profit for Berkley, wh ereas another policy written by Austin resulted in Berkley paying a large claim. But as Berkley poi nts out, the comparison is inapt because Berkley’s ultimate profit or loss is not the re levant point of comparison: The relevant point is Diamond’s conduct as compared to Austin’s. And although Diamond undisputedly violated Berkle y’s guidelines in connection w ith the law-firm policy, he does not allege that Austin violated any Be rkley 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 employme nt 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 disparat e treatment that could support pretext. 7 Diamond next argues that Edwards’s pr ior treatment of him shows pretext. See
Garrett , 305 F.3d at 1217 (noting that “prior trea tment of plaintiff” can show pretext

7 On a related note, Diamond asserts th at another Berkley employee—someone who apparently worked under Diamond—also attempted to correct the law-firm policy by issuing retroactive coverage but wa s not fired for such conduct. We decline to consider this argument because, as Berkley points out, Di amond did not make it below and does not argue fo r plain error on appeal. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 ( 10th Cir. 2011). Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1617 (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 th at she began compili ng those notes the day after his first complaint. Similarly, he points to Ed wards’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 tempor al proximity, in combination with other evidence of pretext, can support infe rence of pretext). But here, Edwards based her decision to terminate Diamond’s empl oyment on an intervening event—his violation of the company’s internal po licies—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 re asons 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 empl oyer 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 crit eria can show pretext). But we agree with the district court that Berkley has consistently ma intained 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 continue s to assert the same reas on on appeal, contending that it “decided to terminate Diamond’s employme nt for his handling of the [l]aw[-f]irm Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1718 [m]atter in its to tality.” Aplee. Br. 21. Nor wa s Berkley’s decision based on subjective criteria; Diamond admitted he in itially issued the wrong policy, and the guideline Diamond undisputedly violatedobjectively requires a no-loss statement before issuing retroactive coverage. Overall, Diamond’s proffered pretext evid ence, considered together, would not allow a reasonable jury to deem Berkle y’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 fa iled to establish a genuine issue of material fact on pretext, and the district c ourt did not err in awarding su mmary judgment to Berkley on Diamond’s age-disc rimination claim.
II. Retaliation Diamond next asserts that his retalia tion claim survives summary judgment. The ADEA makes it “unlawful for an employe r to discriminate ag ainst any of [its] employees . . . because such [employee] has opposed a ny 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 nondisc riminatory 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 retaliat ion, a plaintiff must “show that (1) he or she engaged in protected opposition to discrimination, (2) a reasonable employee would have considered the challenged em ployment action materially adverse, and (3) a causal connection existed between th e protected activity and the materially Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1819 adverse action.” Id. at 1202. The district court as sumed the first two elements and rejected Diamond’s claim based on the third. “To establish the requisite causal conn ection between . . . protected conduct and termination, [a plaintiff] must show that [the employe r] 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 mo tive 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 wh ere intervening events betw een the employee’s protected conduct and the challenged employment acti on 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 Diam ond 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 pr oximity between the two events. On appeal, Diamond again asserts that th e temporal proximity establishes the requisite causal connection, emphasizing that Edwards decided to terminate his employment only seven days after his thir d ADEA complaint and contending that the law-firm matter is not a le gitimate 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 viol ation of Berkley guidelines—is factually Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 1920 false. As we have explained, this argumen t fails. Diamond’s hand ling of the law-firm policy is therefore a legitimate intervenin g event that weaken s any inference of retaliation based on temporal proximity. See id. at 1002 (finding no inference of retaliatory motive where employee had unr eported 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 le arning 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 em phasizes that those performance notes commingle issues of his performance and his complaints. But critic ally, all of these events occurred before the intervening event—and Diamond’s handling of the lawfirm policy breaks any inference of a caus al connection between Edwards’s reaction to Diamond’s initial complaint and her la ter decision to terminate his employment. We therefore agree with th e district court that Diam ond’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 issu e of material factas to whether Berkley’s decision to term inate his employment based on his handling of the lawAppellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 2021 firm policy was mere pretext fo r age discrimination, so we affirm the district court’s order granting summary judgment to Be rkley on Diamond’s age-discrimination claim. We also affirm th e district court’s ruling on Diamond’s retaliation claim because Diamond fails to create a genuine issue of material fa ct as to whether Berkley’s termination decision was causally connected to Diamond’s complaints of age discrimination. As a final matter, we grant Diam ond’s unopposed motion to seal.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 21-1331 Document: 010110811844 Date Filed: 02/13/2023 Page: 21