In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1010

JAMES REYNOLDS,

Plaintiff-Appellant,

v.

DANIEL M. TANGHERLINI,

*

Administrator, United States

General Services Administration,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 5837 — William T. Hart, Judge.

ARGUED SEPTEMBER 18, 2012 — DECIDED DECEMBER 12, 2013

Before FLAUM, SYKES, and TINDER, Circuit Judges.

Pursuant to Federal Rule of Appellate Procedure 43(c), we have substi-

*

tuted Daniel M. Tangherlini for Martha N. Johnson as the named

defendant-appellee.
2 No. 12-1010

SYKES, Circuit Judge. JamesReynolds was 62 years old when

his employer, the U.S. General Services Administration

(“GSA”), passed him over for a promotion in favor of a

32-year-old employee. Reynolds sued the GSA Administrator

alleging that the agency discriminated against him on the basis

of age in violation of the “federal sector” provision of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 633a. He also brought claims under Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, alleging

discrimination on the basis of race and sex, and claims for

retaliation in violation of both the ADEA and Title VII.

The district court disposed of the retaliation claims on

summary judgment for failure to exhaust administrative

remedies, and Reynolds dropped his claims of racial and sex

discrimination. Then after a three-day bench trial, the district

court rejected the age-discrimination claim for lack of evidentiary support and refused to allow Reynolds to amend his

complaint to add new claims. Reynolds appeals.

The most important issue in this case is one of first impression in this circuit: Does the ADEA’s federal-sector provision,

29 U.S.C. § 633a(a), require the plaintiff to prove that age was

the but-for cause of the challenged personnel action? Reynolds

argues that it does not, and his reading of § 633a(a) has support

from a decision of the D.C. Circuit that interprets the statute as

authorizing “mixed motives” claims. See Ford v. Mabus,

629 F.3d 198 (D.C. Cir. 2010). The Supreme Court’s decisions in

University of Texas Southwestern Medical Center v. Nassar, 133 S.

Ct. 2517 (2013), and Gross v. FBL Financial Services, Inc., 557 U.S.

167 (2009), give us reason to question that holding. The GSA
No. 12-1010 3

Administrator has sidestepped the issue, arguing instead that

the district court’s findings defeat the age-discrimination claim

regardless of whether a but-for requirement or a more lenient

“mixed motives” standard applies. We agree, and so we leave

the causation question for another case when the legal standard makes a difference and has been more completely briefed.

The judgment is affirmed.

I. Background

Reynolds, a 62-year-old white male with more than

30 years’ experience with GSA, was passed over for a promotion in May 2005. Then a Building Management Specialist,

Reynolds applied for a position as a Building Manager. But

Antoine Bell, a 32-year-old black employee, got the nod over

Reynolds and three other candidates, all of whom were older

than 40. Kenneth Kipnis, the Supervisory Property Manager,

made the decision. Kipnis did not interview any of the candidates before deciding who would get the promotion. Instead,

he relied on his knowledge of and experience with the five

candidates, together with a review of their résumés, education,

and specialized experience and abilities.

Afterlosing the promotion, Reynolds met with a counselor 1

in the GSA’s equal employment opportunity (“EEO”) office

Two months later, in July 2005, Reynolds unsuccessfully sought another

1

promotion—to a Contract Specialist position—and his lawsuit initially

encompassed this decision as well. The district court granted summary

judgment for the GSA Administrator on this claim, and Reynolds has not

challenged that determination on appeal.
4 No. 12-1010

and thereafter filed a handwritten administrative complaint

asserting multiple claims of employment discrimination. One

of his claims was that he had been harassed for unspecified

“whistleblowing” activities. He also generally alleged that an

“environment [of] harassment” existed at the agency. The EEO

office informed Reynolds that it would only investigate claims

that the GSA had discriminated or retaliated against him on

the basis of race, color, sex, or age.

In responseReynoldsurged Laveda Jarrett, GSA’s Regional

EEO Manager, to review his claim of “harassment.” He noted

that his initial complaint had incorporated by reference an

arbitration hearing and his EEO counselor’s notes, evidence

that he believed would provide Jarrett with the factual basis for

his claims. But he did not give her anything more specific

about the arbitration—such as a transcript of the hearing—and

Jarrett informed Reynolds that his reliance on the EEO counselor’s notes was insufficient because they lacked the factual

detail necessary to permit the EEO office to investigate.

Jarrett specifically invited Reynolds to provide her with

factual support for the alleged harassment, but the record does

not indicate that Reynolds ever did so. Instead, he vaguely

claimed that at an unspecified time in the past, GSA officials

who were serving as officers at a Chicago credit union

“undermin[ed]” the labor union for which Reynolds served as

an officer. He also claimed that other GSA officials were

responsible for creating a “culture fostering harassment,” but

again he provided no factual specifics other than the name of

one of the officials. Based on the lack of factual detail and the

apparent absence of any connection to cognizable employment
No. 12-1010 5

discrimination, the EEO office did not investigate Reynolds’s

generalized claim of “harassment.”

The rest of Reynolds’s administrative complaint concerned

his allegations of discrimination based on age and race. The

EEO office disposed of these claims summarily, and on

administrative appeal the Equal Employment Opportunity

Commission (“EEOC”) affirmed.

Reynolds then sued the GSA Administrator alleging

(1) discrimination and hostile work environment based on his

age in violation of the ADEA, 29 U.S.C. § 633a; (2) discrimination and hostile work environment based on his race and sex

in violation of Title VII, 42 U.S.C. § 2000e-16; and (3) retaliation

for engaging in activity protected by the ADEA and Title VII.

The GSA Administrator moved for summary judgment,

arguing that Reynolds had not exhausted administrative

remedies with respect to his retaliation claims and that the

remaining claims failed for lack of evidentiary support.

Reynolds responded that what he presently was calling his

“retaliation” claims he had referred to as “harassment” during

the administrative process. The district court agreed with the

GSA Administrator that Reynolds failed to exhaust his

retaliation claims and declined to consider them further, and

denied the balance of the motion.

Reynolds then abandoned all but his age-discrimination

claim, which was tried to the court. Prior to closing argument,

Reynolds moved to amend his complaint under Rule 15(b)(2)

of the Federal Rules of Civil Procedure to add a new retaliation

claim under the Rehabilitation Act, see 29 U.S.C. § 794, which

incorporates certain provisions of the Americans with Disabili-
6 No. 12-1010

ties Act (“ADA”), 42 U.S.C. §§ 12101 et seq. The motion was

premised on Kipnis’s testimony during the bench trial.

Kipnis testified that one of the factors that contributed to

his decision not to promote Reynolds was a negative experience he had with him over an issue of ADA compliance. At the

time of the incident, Reynolds worked for a GSA office that

was responsible for inspecting leased locations. The office

conducted two types of inspections: initial-acceptance inspections, which ensured that buildings complied with the government’s specifications before a lease was accepted; and periodic

inspections, which ensured ongoing compliance withthe terms

of existing leases. Reynolds had conducted a periodic inspection on a building that the government was leasing in Chicago

and for which Kipnis was responsible. Reynolds had identified

what he thought were ADA accessibility deficiencies in the

restrooms, and he thought the landlord should be ordered to

correct the deficiencies immediately. Kipnis disagreed. The

deficiencies were minor (“tolerance deficiencies,” he called

them), and the cost to correct them ultimately would be borne

by the government under the terms of the existing lease.

Because no disabled employees worked at that location at the

time and the tenant agency was not complaining, Kipnis

decided to simply notify the landlord about the deficiencies

and the need to remedy them in the future. Reynolds was

uncooperative and seemed unwilling to accept the decision,

which was Kipnis’s to make. Kipnis testified that he took

Reynolds’s resistence into account when evaluating his

interpersonal skills in connection with the promotion decision.
No. 12-1010 7

Reynolds argued that Kipnis’s testimony supported a new

claim that he was denied the promotion because he engaged in

activity protected by the ADA. He also sought to add a claim

pursuant to Rule 15(b)(1) for violation of the Whistleblower

Protection Act, 5 U.S.C. § 1221, based on (as far as we can tell)

unspecified complaints he made in October 2000 attempting to

draw attention to what he perceived as waste and mismanagement at the GSA in connection with a purchase of property.

The district court denied both motions to amend.

Following trial, the district court entered written findings

of fact and conclusions of law rejecting the age-discrimination

claim for lack of evidentiary support. Reynolds then renewed

his motion to add a Rehabilitation Act retaliation claim to his

complaint and moved for a new trial on that claim. The district

court denied the motion and entered final judgment. This

appeal followed.

II. Discussion

Reynolds challenges the district court’s refusal to consider

his retaliation claimsbasedon failure to exhaust administrative

remedies. He also attacks the court’s findings of fact and

conclusions of law following the benchtrial on his age-discrimination claim, arguing primarily that the court applied the

wrong causation standard. Finally, he contends that the court

should have permitted him to amend his complaint pursuant

to Rule 15(b)(1) and (2) to add a retaliation claim under the

Rehabilitation Act and a claim under the Whistleblower

Protection Act.
8 No. 12-1010

A. Retaliation Claims/Administrative Exhaustion

The district court entered summary judgment for the GSA

Administrator on Reynolds’s retaliation claims based on his

failure to exhaust administrative remedies. Reynolds argues 2

that this was error. Our review is de novo. See Bohac v. West,

85 F.3d 306, 308–09 (7th Cir. 1996); see also Ajayi v. Aramark Bus.

Servs., Inc., 336 F.3d 520, 526–27 (7th Cir. 2003). Because

Reynolds alleged two claims of retaliation, one under Title VII

and another under the ADEA, we consider each statute in

turn.3

In ruling on the Administrator’s motion for summary judgment, the

2

district court held that Reynolds failed to exhaust his Title VII and ADEA

retaliation claims and simply declined to consider them further. We treat

this disposition as the entry of partial summary judgment. See FED. R. CIV.

P. 12(d); Smith v. Potter, 445 F.3d 1000, 1006 n.14 (7th Cir. 2006).

 The Supreme Court has held that the so-called “federal sector” provision

3

of the ADEA “prohibits retaliation against a federal employee who

complains of age discrimination.” Gomez-Perez v. Potter, 553 U.S. 474, 491

(2008). We previously have assumed that the federal-sector provision of

Title VII, 42 U.S.C. § 2000e-16, likewise encompasses a claim for retaliation.

See Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986) (noting that the Ninth

Circuit adopted this interpretation and that the parties didn’t object to it);

see also, e.g., Coleman v. Donahoe, 667 F.3d 835, 859–62 (7th Cir. 2012)

(analyzing a retaliation claim brought against the Postmaster General

without discussing whether retaliation is covered by the federal-sector

provision); Mlynczak v. Bodman, 442 F.3d 1050, 1060–61 (7th Cir. 2006)

(citing the private-sector provision for the proposition that the district court

“correctly acknowledged that Title VII prohibits” retaliation); Rennie v.

Garrett, 896 F.2d 1057 (7th Cir. 1990) (permitting a retaliation claim to go

forward without discussing whether such a claim is available under

(continued...)
No. 12-1010 9

1. Title VII Retaliation

Before filing suit under Title VII, a federal employee must

exhaust his administrative remedies. See Hill v. Potter, 352 F.3d

1142, 1145 (7th Cir. 2003) (“Title VII does not authorize the

filing of suit until the plaintiff has exhausted his administrative

remedies ... .” (citing 42 U.S.C. § 2000e-16(c))). “Exhaust” in

this context means that the claimant must comply with the

relevant preconditions to bringing a lawsuit, including filing a

timely complaint with the agency after contacting an EEO

counselor. See generally 29 C.F.R. § 1614; see also Brown v. Gen.

Servs. Admin., 425 U.S. 820, 832 (1976) (describing a prior

version of § 2000e-16(c) as providing certain “preconditions”

for filing a civil action and summarizing those preconditions);

Hill, 352 F.3d at 1145 (explaining that prior to filing suit, a

Title VII plaintiff must receive a right-to-sue letter indicating

that he will not be afforded administrative relief). These

preconditions do not require a claimant to pursue an administrative appeal of the decision rendered by his employer’s EEO

office, nor do they require that a claimant wait for a lagging

agency—one that keeps the claimant waiting for more than

180 days—to make a decision before filing suit. See 42 U.S.C.

§ 2000e-16(c) (providing that federal employees may file a civil

action in federal court within 90 days of receiving a notice of

final action by either an agency in the first instance or by the

EEOC on administrative appeal, or after 180 days of initiating

(...continued)

3

Title VII’s federal-sector provision). For purposes of this analysis, we also

assume that the federal-sector provision of Title VII prohibits retaliation. See

Gomez-Perez, 553 U.S. at 488 n.4 (declining to address the question).
10 No. 12-1010

either a charge with the agency or an appeal with the EEOC);

29 C.F.R. § 1614.407 (same).

In Title VII cases, the scope of the complaint brought before

the administrative agency limits the scope of subsequent civil

proceedings in federal court; in other words, plaintiffs may

pursue only those claims that could reasonably be expected to

grow out of the administrative charges. See Dear v. Shinseki,

578 F.3d 605, 609 (7th Cir. 2009); Ajayi, 336 F.3d at 527; Rush v.

McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). The scope

of an administrative charge brought against a private-sector

employer is determined by examining the claims that were

“brought to [the EEOC’s] attention,” not by whether the EEOC

actually considered or disposed of a given claim. Rush,

966 F.2d at 1112. This principle also applies to claims brought

under Title VII’s federal-sector provision. Cf. Pacheco v. Mineta,

448 F.3d 783, 788 n.6 (5th Cir. 2006) (“Because the presently

relevant scope of the exhaustion requirement is the same for

both federal and private employees, we freely cite to both

federal and private-sector employment-discrimination cases

here.”).

Here, Reynolds failed to bring his Title VII retaliation claim

to the attention of the GSA’s EEO office in a manner sufficient

to preserve his claim. Although he attempted to include a claim

of “harassment” as part of the complaint he filed with the EEO

office, he did not provide enough details to allow an EEO

officer to investigate. He informed Jarrett, the Regional EEO

Manager, that he thought he had a valid “harassment” claim,

but he never accepted Jarrett’s multiple invitations to provide

factual specifics. The most he said was that when he was an
No. 12-1010 11

officer of a union at some unspecified time, GSA management

had interfered with the union’s financial records. He also told

Jarrett that he would provide her with the transcript of an

arbitration hearing that he said would contain relevant details,

but there is no indication that he ever did so. Reynolds also

claimed that he discussed these “harassment” allegations with

his EEO counselor, but Jarrett’s review of the counselor’s notes

did not reveal factual specifics sufficient to permit the EEO

office to investigate a Title VII retaliation claim.

We have held that “while technicalities are particularly

inappropriate in a statutory scheme like Title VII in which

laymen, unassisted by trained lawyers, initiate the process, the

requirement of some specificity in an EEOC charge is not a

mere technicality.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497,

501 (7th Cir. 1994) (brackets and internal quotation marks

omitted); see also Hill, 352 F.3d at 1146 (holding that a failure to

cooperate with the EEOC constitutes failure to exhaust

administrative remedies). Here, Reynolds failed to provide

minimally adequate factual specificity to allow the EEO office

to conduct an investigation, and what he did provide had

nothing whatsoever to do with protected activity under

Title VII. He cannot haul the GSA into court to defend against

a claim that it didn’t have a sufficient basis to investigate or

address.

Reynolds argues that even if he failed to bring his retaliation claim to the EEO office’s attention, the claim is nonetheless

similar enough to the discrimination claims that the EEO office

did investigate that the district court should not have refused

to address it. It is true that in determining whether federal-
12 No. 12-1010

court allegations fall within the scope of an administrative

charge, “we look to whether the allegations are like or reasonably related to” the charges that were actually brought before

the agency. Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005); see

also Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir.

2003). But to be “like or reasonably related to” an administrative charge, the relevant claim and the administrative charge

must, at minimum, “ ‘describe the same conduct and implicate

the same individuals.’ ” Dear, 578 F.3d at 609 (quoting Ezell,

400 F.3d at 1046).

Our best deciphering ofReynolds’sallegations of retaliation

is that the alleged retaliatory conduct consisted of a hostile

work environment that sprang from his activity as a union

officer and occurred long before the adverse promotion

decision pertaining to the Building Manager position. Again,

these allegations have nothing to do with the discrimination

claims that were actually brought before the EEO office, nor

are they cognizable as retaliation for activity protected by

Title VII. The district court correctly held that the Title VII

retaliation claim could not go forward based on the failure to

exhaust administrative remedies.

2. ADEA Retaliation

The ADEA offers federal employees two independent

routes to court: They may file a complaint with the EEOC and

comply with the EEOC’s complaint procedures (an

administrative-exhaustion route akin to Title VII’s), or they

may go directly to court after providing the EEOC with “not
No. 12-1010 13

less than thirty days’ notice of an intent to file” a claim.4

29 U.S.C. § 633a(d); see also Stevens v. Dep’t of Treasury, 500 U.S.

1, 5 (1991) (describing the two methods by which a federal

employee can reach a district court with an ADEA claim).

Because the applicable regulations governing the

administrative-exhaustion route require the aggrievedparty to

We have held that filing a complaint with the EEO office of the agency that

4

allegedly engaged in the discriminatory conduct is equivalent to filing a

complaint with the EEOC for purposes of 29 U.S.C. § 633a(d). See Bohac v.

West, 85 F.3d 306, 309–10 (7th Cir. 1996). Thus, an employee who files a

complaint with the federal agency’s EEO office and complies with the

relevant regulations thereafter need not file an administrative appeal or a

separate complaint or notice of intent to sue with the EEOC to bring suit in

federal court. To the extent that Rann v. Chao, 346 F.3d 192, 198 (D.C. Cir.

2003), expresses disagreement with our decision, we respectfully suggest

that Rann misreads Bohac. We have never disputed the Rann court’s

statement that a plaintiff who wants to satisfy § 633a(d) by the alternative

method of filing a notice of intent to sue with the EEOC “must transmit his

intent-to-sue notice to the EEOC itself.” Id. Our holding in Bohac was simply

that when a plaintiff chooses instead to satisfy § 633a(d) by pursuing

administrative remedies, filing a complaint with the employing agency’s

EEO office rather than with the EEOC itself satisfies the statutory condition

that the plaintiff “file[] a complaint concerning age discrimination with the

Commission,” 29 U.S.C. § 633a(d), because there is a “significant sharing of

responsibilities between the EEOC and the agencies under the regulatory

scheme,” Bohac, 85 F.3d at 310. This is consistent with Rann, see 346 F.3d at

195 (stating that plaintiffs other than those who provide notice to the EEOC

“must have ‘filed’ an appropriate administrative complaint” in order to

bring suit in federal court and citing the regulation requiring that the

complaint be filed with the complainant’s agency), consistent with the

applicable regulations, see 29 C.F.R. §§ 1614.106(a), .201(c)(2), and also

consistent with the opinions of other courts that have considered the issue,

see, e.g., Shelley v. Geren, 666 F.3d 599, 605 & n.1 (9th Cir. 2012).
14 No. 12-1010

meet with an EEO office counselor prior to filing a complaint,

we have explained that the purpose underlying both alternatives is to allow the EEO office or the EEOC “to attempt

conciliation.” Bohac, 85 F.3d at 310 (internal quotation marks

omitted).

With respect to the administrative-exhaustion route, the

ADEA requires the EEOC to “provide for the acceptance and

processing of complaints of discrimination in Federal employment on account of age.” 29 U.S.C. § 633a(b)(3). The EEOC’s

procedural regulations forADEA charges are, in turn, the same

as those governing Title VII charges. See 29 C.F.R. §§ 1614.103,

.201, .407. The applicable statutory provisions and regulations

do not address the permissible scope of a civil action in federal

court after bringing an administrative charge. But there is no

relevant difference between the ADEA and Title VII in this

regard, so we will apply the same rule: A plaintiff bringing a

civil action under the ADEA against a federal employer may

bring claims actually charged in the administrative proceeding

and also claims that are “like or reasonably related to” the

administrative charges. See Shelley v. Geren, 666 F.3d 599, 606

(9th Cir. 2012) (applying the “like or reasonably related to”

standard to claims brought under the federal-sector provision

of the ADEA).

Reynolds appears to premise his ADEA retaliation claim on

the same allegations that form the basis for his Title VII

retaliation claim. The only difference is the statute invoked. For

the reasons we have already explained, Reynolds cannot

succeed in using the ADEA’s administrative-exhaustion route

to federal court.
No. 12-1010 15

That leaves only the ADEA-specific method of providing

the EEOC with notice of intent to sue at least 30 days in

advance of bringing a lawsuit. Here, although Reynolds

notified Jarrett via email that he wanted the EEO office to

consider his “harassment” claims, and although he said he

would “bring the case to the EEOC” if “harassment” was not

included in the final complaint investigation, he does not claim

to have provided notice to the EEOC of his intent to sue. He

therefore failed to satisfy § 633a(d), and the district court

properly refused to consider the ADEA retaliation claim based

on failure to exhaust administrative remedies.

B. Federal-Sector Age-Discrimination Claim

We turn nowto the substance ofReynolds’s age-discrimination claim. The ADEA provision applicable to employment

within the federal government provides as follows: “All

personnel actions affecting employees or applicants for

employment who are at least 40 years of age ... [in various

federal government posts] shall be made free from any

discrimination based on age.” 29 U.S.C. § 633a(a). This socalled “federal sector” provision applies to many federal

agencies and departments, including the GSA and other

executive agencies. See id. § 633a(a); 5 U.S.C. § 105 (defining

“executive agencies”). Reynolds had the burden of proving

that Kipnis’s decision not to promote him to Building Manager

violated § 633a(a). The district court concluded after a bench

trial that he had failed to carry his burden and entered judgment for the GSA Administrator. Reynolds contends that the

court applied the wrong standard of causation.
16 No. 12-1010

In Gross the Supreme Court held that 29 U.S.C. § 623, the

ADEA section applicable to private-sector employers, requires

proof that age was the but-for cause of the challenged employment action; “mixed motives” claims are not authorized.

557 U.S. at 177 (“[U]nder § 623(a)(1), the plaintiff retains the

burden of persuasion to establish that age was the ‘but-for’

cause of the employer’s adverse action.”). Section 623 provides

as follows:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s age ... .

29 U.S.C. § 623(a). This section applies to private employers,

employment agencies, and labor organizations, and also to

state and local governments. See id. § 623(a)–(c) (prohibiting

any “employer,” “employment agency,” or “labor organization” from discriminating against employees or applicants

because of age); id. § 630(b) (defining “employer” to include,

among other things, most private businesses and state or local

governments or agencies). 

The Supreme Court’s decision in Gross rests largely on the

statute’s use of the phrase “because of age,” which in ordinary

parlance means that “age was the ‘reason’ that the employer

decided to act.” 557 U.S. at 176. The Court distanced itself from

the judicially implied “mixed motives” theory of employment

discrimination under Title VII announced in Price Waterhouse
No. 12-1010 17

v. Hopkins, 490 U.S. 228, 244–47 (1989). Gross, 557 U.S. at 174.

The burden-shifting, mixed-motives framework of Price

Waterhouse was later codified—but only in part—in the Civil

Rights Act of 1991. Id.; see also Nassar, 133 S. Ct. at 2525–26.

Because Congress did not also amend the ADEA to include a

mixed-motives framework, the Court confined its inquiry to

the text of § 623(a) and concluded that it did not authorize

mixed-motives age-discrimination claims. Gross, 557 U.S. at

175. Instead, a plaintiff proceeding under § 623(a) “must prove

by a preponderance of the evidence ... that age was the ‘butfor’ cause of the challenged employer decision.” Id. at 177–78.

Reynolds argues that because § 633a, the federal-sector

provision of the ADEA, is phrased differently than § 623(a), its

private-sector counterpart, Gross is inapposite and a more

lenient standard of causation applies. This argument finds

support in Ford v. Mabus, in which a divided panel of the

D.C. Circuit held that a plaintiff proceeding under § 633a need

only prove that age was “a factor in the challenged personnel

action,” not the but-for cause of it. 629 F.3d at 206. The panel

majority in Ford focused on the different phrasing of the

federal-sector provision—“[a]ll personnel actions affecting

[federal employees] ... shall be made free from any discrimination based on age”—and concluded that a looser standard of

causation applies. 29 U.S.C. § 633a(a); Ford, 629 F.3d at 205–06.

The court held that the “sweeping language” of the federalsector provision requires that age must not “bleed into particular personnel decisions” at all because “any amount of discrimination tainting a personnel action, even if not substantial,

means that the action was not ‘free from any discrimination
18 No. 12-1010

based on age.’ ” Ford, 629 F.3d at 206 (emphasis added).

“ ‘Any,’ after all, means any.“ Id.

Judge Henderson disagreed and wrote separately, unwilling to endorse the panel majority’s holding that § 633a requires

“a lesser quantum of proof than does section 623.” Id. at 208

(Henderson, J., concurring). She doubted that “Congress

intended, simply by dint of section 633a’s different phrasing,

to set up a legal framework for the federal government so

totally at odds with that for a private employer.” Id. In her

view the majority’s interpretation was all the more doubtful in

light of the Supreme Court’s “flat declaration” in Gross that

“the mixed-motives theory ‘is never proper in an ADEA

case,’ ” as well as the Court’s “criticism [in Gross] of the

burden-shifting framework set forth in Price Waterhouse.” Id.

(quoting Gross, 557 U.S. at 170). 

The D.C. Circuit is the only one of our sister circuits to have

undertaken an in-depth analysis of the causation standard in

§ 633a. The Ninth Circuit has held that but-for causation is

required for federal-sector ADEA claims, but did not engage

directly with the statutory language. See Shelley, 666 F.3d at 607

(holding that a federal-sector plaintiff “must prove at trial that

age was the ‘but-for’ cause of the employer’s adverse action”).

The First and Fifth Circuits have noted the issue but not

resolved it. See Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 74 (1st

Cir. 2011); Leal v. McHugh, 731 F.3d 405, 411–12 (5th Cir. 2013).

We have not had occasion to address the causation standard applicable to federal-sector ADEA claims under § 633a.

Left without clear guidance from this court, the district court

hedged, applying both a but-for causal standard and a more
No. 12-1010 19

lenient “motivating factor” standard and concluding that

Reynolds failed to establish causation under either standard.

The GSA Administrator takes no position on the proper

standard of causation and simply urges us to affirm the

judgment based on the district court’s alternative findings.

We acknowledge the need for an authoritative decision on

this issue in our circuit, but we hesitate to weigh in without the

benefit of the government’s views on the matter. There is no

question that § 633a is phrased differently than § 623(a), the

private-sector provision of the ADEA at issue in Gross.

Whether the difference in statutory language is enough to

distinguish Gross is a close and difficult question, as the split

decision in the D.C. Circuit attests. We have previously given

Gross a broad reading, construing it as a turning point for

determining the causation standard in federal antidiscrimination laws in general. See Serwatka v. Rockwell Automation, Inc.,

591 F.3d 957, 961 (7th Cir. 2010).

The Supreme Court’s recent decision in Nassar, 133 S. Ct. at

2525–30, suggests that we have been right to read Gross

broadly. In Nassar the Court held that retaliation claims under

Title VII require traditional but-for causation, not a lesser

“motivating factor” standard of causation. Id. at 2534. The

Court reiterated that “[c]ausation in fact—i.e., proof that the

defendant’s conduct did in fact cause the plaintiff’s injury—is

a standard requirement of any tort claim ... ,” id. at 2524, and

this standard “requires the plaintiff to show that the harm

would not have occurred in the absence of—that is, but

for—the defendant’s conduct,” id. at 2525 (internal quotation

marks omitted). This is the “background against which
20 No. 12-1010

Congress legislated in enacting Title VII,” id., and the same is

certainly true of the ADEA. As it had in Gross, the Court

cautionedagainst displacing the traditional requirement ofbutfor causation unless explicit statutory language specifies a

more lenient standard. Id. at 2528–29. 

Accordingly, there may be good reason to question the D.C.

Circuit’s interpretation of § 633a in Ford. But we need not

decide the matter here. The district court made alternative

findings that Reynolds’s age was neither the but-for cause of

Kipnis’s promotion decision nor “a motivating factor” in the

decision. We agree with the GSA Administrator that these

findings are amply supported by the record.

C. The District Court’s Findings

Findings of fact entered after a bench trial are reviewed for

clear error. Winforge, Inc. v. Coachmen Indus., 691 F.3d 856, 868

(7th Cir. 2012). The same standard applies to the court’s

application of the law to the facts. Id. Under the clear-error

standard, we will not reverse unless, after reviewing all the

evidence, we are left with “ ‘the definite and firm conviction

that a mistake has been committed.’ ” Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As long as

the district court’s conclusions are “plausible in light of the

record viewed in its entirety,” we will not disturb them.

Fyrnetics (Hong Kong) Ltd. v. Quantum Grp., Inc., 293 F.3d 1023,

1028 (7th Cir. 2002).
No. 12-1010 21

The district judge found that Reynolds “did not prove that

he would have been promoted if everything else were the same

except that he was younger than age 40 or that his age was a

motivating factor in denying his promotion.” These findings

are not clearly erroneous. Although Bell was the youngest of

the five candidates and Reynolds thus had more experience,

the district court credited Kipnis’s testimony that experience

was not the sole factor he considered in making the promotion

decision. Specifically, the court credited Kipnis’s testimony that

the new Building Manager needed strong interpersonal skills

because the building in question was undergoing a transition

in occupancy. The new manager needed to work well with the

transition team that had been assembled to effectuate the

transition. Bell was already a member of that team and had a

track record of working well with other team members.

Moreover, the Building Manager would be the first point of

contact for agency personnel in the building and therefore

would need to interact extensively with building tenants and

agency representatives. The Building Manager was responsible

for the basic maintenance, administration, and operation of the

building, but also was tasked with “improving customer and

client agency satisfaction with building services.” Kipnis

testified that Bell had better interpersonal skills than Reynolds

and was the best fit for the Building Manager position. The

district court as finder of fact was entitled to credit that

testimony. 

Reynolds argues that Kipnis’s failure to interview him is

evidence that the promotion decision was motivated by age

discrimination. Reynolds was not treated any differently from
22 No. 12-1010

the other candidates in this regard; in fact no one was interviewed. Kipnis’s decision not to interview any of the candidates was consistent with the relevant provision of the

collective-bargaining agreement governing the selection

process, which provided that if “one candidate is interviewed,

all candidates in that category must be interviewed.” Reynolds

argues that because Kipnis worked closely with Bell, he

effectively conducted “the equivalent of many interviews”

with him and therefore violated the collective-bargaining

agreement by not interviewing Reynolds and the other

candidates. This is a stretch. Even if accepted, this strained

view of the facts would show only that Kipnis violated the

collective-bargaining agreement, not that he committed age

discrimination. There is no evidence to support an inference

that the collective-bargaining agreement was being used as a

pretext to justify age discrimination.5

D. Rule 15(b) Motions

Finally, Reynolds challenges thedistrict court’s denial of his

motion to amend the pleadings during trial and his motion for

a new trial. Our review is for abuse of discretion. Aldridge v.

Reynolds also argues for the first time on appeal that the failure to

5

interview him is itself a discriminatory personnel action in violation of the

ADEA. In civil cases “[a]rguments not raised in the district court are

considered waived on appeal” unless exceptional circumstances justify

application of the plain-error doctrine. Brown v. Auto. Components Holdings,

LLC, 622 F.3d 685, 691 (7th Cir. 2011); see also Moore ex rel. Estate of Grady v.

Tuleja, 546 F.3d 423, 430 (7th Cir. 2008) (explaining that plain-error review

is rarely applied in civil cases). There are no exceptional circumstances here.
No. 12-1010 23

Forest River, Inc., 635 F.3d 870, 875 (7th Cir. 2011) (citing

Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542,

553 (7th Cir. 2005)) (motion to amend the pleadings); Whitehead

v. Bond, 680 F.3d 919, 927 (7th Cir. 2012) (motion for a new

trial).

Rule 15(b)(2) provides that issues “tried by the parties’

express or implied consent” must be treated in all respects as

if raised in the pleadings, and a party may move “at any time,

even after judgment,” to amend the pleadings to conform to

the evidence. FED.R. CIV.P. 15(b)(2). The standard for a motion

under Rule 15(b)(2) is “ ‘whether the opposing party had a fair

opportunity to defend and whether he could have presented

additional evidence had he known sooner the substance of the

amendment.’ ” Aldridge, 635 F.3d at 875 (quoting In re Rivinius,

Inc., 977 F.2d 1171, 1175 (7th Cir.1992)). A district court is “well

within its discretion” to deny a motion seeking to add a new

theory of liability if the defendant has not consented to it. Id. at

875–76.

Reynolds sought to amend his complaint to add a retaliation claim under the Rehabilitation Act. Nothing in the record

suggests that the GSA Administrator consented to try this

claim. Indeed, before closing argument, Reynolds had never

before mentioned this theory of liability.

Reynolds argues that Kipnis’s testimony about the ADA

restroom-compliance dispute constitutes impliedconsent to try

the new claim. Not so. First, a court will not imply a party’s

consent to try an unpleaded claim “merely because evidence

relevant to a properly pleaded issue incidentally tends to

establish an unpleaded claim.” Ippolito v. WNS, Inc., 864 F.2d
24 No. 12-1010

440, 456 (7th Cir. 1988) (internal quotation marks omitted).

More fundamentally, Kipnis’s testimony cannot remotely be

construed as consent by the GSA Administrator to try a

completely new claim under the Rehabilitation Act or as

evidence tending to establish such a claim. The point of

Kipnis’s testimony about the restroom-compliancedisputewas

to explain his concern about Reynolds’s interpersonal skills,

not to meet a newfangled retaliation claim that everyone

understood was lurking beneath the surface. The district court

properly denied Reynolds’s Rule 15(b)(2) motion to amend.

The motion for a new trial was a retread of that motion and for

the same reason was correctly denied.

Similarly, the trial court was well within its discretion in

denying Reynolds’s Rule 15(b)(1) motion to amend his

complaint to add a claim under the Whistleblower Protection

Act. When a defendant objects that evidence presented by the

plaintiff at trial is not within the scope of an issue raised in the

complaint, Rule 15(b)(1) provides that the court should “freely

permit” the complaint to be amended to conform to the

evidence presented, but only when doing so “will aid in

presenting the merits” of the case and “the objecting party fails

to satisfy the court that the evidence would prejudice that

party’s ... defense on the merits.” FED. R. CIV. P. 15(b)(1).

Here, Reynolds attempted to testify about complaints he

allegedly made about the GSA’s effort to purchase a piece of

property many years before the decision about the Building

Manager promotion, testimony that he apparently thought

would form the basis of a claim under the Whistleblower

Protection Act. The GSA Administrator objected that this
No. 12-1010 25

testimony was outside the scope of the issues raised by the

pleadings. Reynolds later sought to add a claim under the

Whistleblower Protection Act, but the district court was right

to reject this prejudicial attempt to add a wholly unrelated new

cause of action to the suit.

AFFIRMED.