Hon. Virginia M. Kendall, District Judge for the Northern



District of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3094

JULIE STEPHENS LONG,

Plaintiff-Appellant,

v.

TEACHERS’ RETIREMENT SYSTEM OF

THE STATE OF ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 06-3194—Richard Mills, Judge.

ARGUED JANUARY 20, 2009—DECIDED OCTOBER 23, 2009

Before EASTERBROOK, Chief Judge, SYKES, Circuit Judge,

and KENDALL, District Judge.

KENDALL, District Judge. Julie Stephens Long’s employment with the Teachers’ Retirement System of the State

of Illinois (“TRS”) came to an end on February 3, 2006.
2 No. 08-3094

While TRS maintains that it fired her for poor performance, Long believes that she was fired in retaliation for

taking leave under the Family and Medical Leave Act

(“FMLA”). The district court granted summary judgment

in favor of TRS, which Long now appeals. For the following reasons, we affirm.

I. Background

TRS administers the pension plan that provides

monthly retirement benefits to approximately 82,000

retired teachers throughout Illinois.

Jon Bauman served as the Executive Director of TRS.

He held ultimate responsibility for the organization’s dayto-day activities and he possessed final decisionmaking authority for all disciplinary actions including the

suspension and termination of employees. Human Resources Director, Gina Larkin, reported directly to

Bauman and oversaw all personnel activities at TRS.

Before disciplining an employee, Larkin worked in conjunction with the appropriate department manager in

order to determine a recommended course of action

that she would present to Bauman.

At TRS, the Member Services Division facilitates all

retirement, disability and survivor benefit claims. Terry

Viar, Director of Member Services, reported directly to

Bauman and oversaw the payment of benefits to TRS

members. The Benefits Department, a subsection of

Member Services, processes all retirement benefits. Deputy

Director of the Benefits Department Sally Sherman man-
 No. 08-3094 3

aged the Benefits Department and reported directly

to Viar.

To expedite the payment of benefits, TRS allows its

members to receive their benefits through an electronic

fund transfer (“EFT”), whereby TRS deposits benefit

payments directly into a member’s bank account.

Within the Benefits Department, the Payroll and

Insurance Department (“Payroll”) processes direct deposit

forms for members opting to receive their payments via

EFT. Payroll Insurance Manager Marshall Branham

oversaw the daily administration of benefits for TRS

members, including the timely processing of EFT payments. Branham reported to Sherman.

Long began working at TRS in September, 1985. Starting

in 2000, Long worked in Payroll in the position of Payroll

Clerk IV. Her primary responsibilities included enrolling

members in the EFT program, entering EFT information

into a database, verifying bank routing and account

numbers and responding to change of address requests

from beneficiaries. Branham was Long’s direct supervisor.

When she initially started in Payroll, Long received

favorable performance reviews. Over time, though, errors

in her work and increasing absences led to lower reviews. In June 2005, she missed 25% of her scheduled

working days. In July 2005, her absences rose to 40% of

her scheduled days. Additionally, although Branham

asked Long in 2004 to train employees from other departments on the EFT process, she had not done so as of

June 2005. On July 26, 2005, Branham met with Long to

inform her that because of her absenteeism, he planned
4 No. 08-3094

on withdrawing his recommendation that she receive a

promotion. Long agreed with his assessment regarding

her absenteeism. At the meeting, Branham also instructed

her to train employees within the Data Services Department on the EFT process by September 2005.

In September 2005, TRS traced several errors within

the EFT system to Long. For example, she improperly

recorded a bank account number which resulted in TRS

sending a member’s benefit payment to the wrong location. She also improperly documented an address

which resulted in a member’s estranged ex-wife receiving sensitive financial information about the member.

On September 14, 2005, the members called TRS to complaint about the difficulty they had receiving their

benefit payments. Although Long had responsibility for

responding to member communications regarding EFT

transactions, she was absent from work that day, so other

TRS employees fielded the calls. The next day, Branham

met with Long to discuss her EFT errors and the impact

that her absences had on other TRS employees. Branham

also informed Long that she had not processed payroll

deduction plan applications in a timely manner which

resulted in TRS moving responsibility for processing the

applications to another department. Once again, Branham

urged Long to train other TRS employees on the EFT

process. He summarized the meeting in a memorandum

dated September 20, 2005.

In the fall of 2005, Larkin held two meetings with

Branham and Sherman to discuss Long’s performance.

Through the meetings, Larkin learned that Long entered
 No. 08-3094 5

incorrect addresses in the EFT database, entered incorrect routing numbers and did not complete her tasks in

a timely manner. She also discovered that in addition to

the member complaints that TRS received, Long’s

fellow employees complained about her performance.

Branham and Sherman informed Larkin of their belief

that Long’s errors resulted in TRS failing to get its checks

to its members.

Based on Long’s many absences, on September 26,

2005, Sherman informed Long that she might be eligible

for leave under the FMLA. Long then applied for intermittent FMLA leave for medial epicondylitis (tennis

elbow). TRS approved her request for FMLA leave in

October and instructed Long to notify her supervisors

when she would be absent because of her medical condition. Long informed TRS that her absences on September 22 and 28, 2005 were related to the condition. In

November 2005, Long modified her FMLA application to

request intermittent leave to treat ovarian cysts. After

TRS approved the revised application on December 2,

2005, Long informed her employer that the following

absences related to FMLA leave: October 13, 14, 20, 21,

24 and 28; November 3, 7, 8, 9, 10, 14, 15 and 18; and

January 5, 2006. She was also absent from work for nine

days in December 2005 and five days in January 2006. The

record indicates that those absences were not FMLArelated.

In late December 2005 or early January 2006, Larkin met

with Branham and Sherman again. At the meeting,

Branham and Sherman informed Larkin that Long’s
6 No. 08-3094

performance had not improved, and as a result, TRS

failed to get benefits payments to its members. Branham

also told Larkin that he found a large backlog of EFT forms

that Long had not entered into the system on several

occasions. Branham expressed frustration with Long’s

absenteeism and suggested that TRS should fire Long.

After receiving Branham’s suggestion, Larkin reviewed

Long’s performance evaluations, the member complaints

related to her work and the comments from Branham

and Sherman. Larkin then met with Bauman twice in

January 2006 to discuss Long’s performance. At the

January 31, 2006 meeting, Larkin recommended that

Bauman terminate Long. After reviewing Long’s performance evaluations and discussing member complaints

with Branham, Bauman decided to fire Long on

February 3, 2006 based upon the member complaints

and the misdirected checks. When he made the decision

to fire her, Bauman did not have any knowledge of

Long’s FMLA leave.

On August 31, 2006, Long filed suit, claiming that TRS

fired her in retaliation for taking FMLA leave. The district

court granted summary judgment for TRS, finding that

Long failed to create a genuine issue of fact as to

whether TRS fired her in retaliation fortaking FMLA leave.

II. Discussion

We review a district court’s grant of summary judgment de novo, viewing the facts and all reasonable inferences in the light most favorable to the non-moving party.
 No. 08-3094 7

See Ridings v. Riverside Med. Ctr., 537 F.3d 755, 760 (7th Cir.

2008). Summary judgment is proper when “there is no

genuine issue of material fact and the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). To defeat a motion for summary judgment, the nonmoving party must present more than just “bare allegations.” de la Rama v. Ill. Dept. of Human Servs., 541 F.3d 681,

685 (7th Cir. 2008). The non-moving party must present

“ ‘evidence on which the jury could reasonably find

for the nonmoving party.’ ” Id. (quoting Rozskowiak v. Vill.

of Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005)).

As a preliminary matter, Long attempts to question the

district court’s decision to strike portions of her affidavit

that contradicted her previous deposition testimony.

Although she has not formally presented the issue for

review, she implicitly questions the ruling at several

points in her brief and states in a footnote that “the

district court erroneously struck portions of Long’s affidavit.” Long does not develop the argument or cite to

specific portions of the record that would illustrate how

the district court erred.

To present an argument on appeal, a party must develop

its position by providing citation to the relevant portions

of the record and supporting authority. See Fed. R. App. P.

28(a)(9)(A). “[U]nsupported and underdeveloped arguments are waived.” United States v. Turcotte, 405 F.3d 515,

538 (7th Cir. 2005). A party may waive an argument by

disputing a district court’s ruling in a footnote or a onesentence assertion that lacks citation to record evidence.

See Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 862
8 No. 08-3094

(7th Cir. 2005); see also United States v. White, 879 F.2d 1509,

1513 (7th Cir. 1989) (argument raised in passing in a

footnote deemed waived).

In claiming that the district court erred in striking

portions of Long’s affidavit that conflicted with her

deposition testimony, Long does not identify the proper

standard of review or the legal standard for striking selfserving affidavits as inapposite to deposition testimony.

Her statement contains no citation to the record to

show which portions of the affidavit she believes were

improperly stricken or why they were improperly

stricken. Because Long has failed to properly present the

issue of whether the district court erred in striking

portions of her affidavit, she has waived the argument.

The FMLA allows eligible employees to take unpaid

leave to tend to a serious health condition. See 29 U.S.C.

§ 2612. Additionally, the FMLA prohibits employers

from discriminating against employees who have taken

FMLA leave. See 29 U.S.C. § 2615; see also King v. Preferred

Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). An

employee may proceed under the direct or indirect methods of proof to establish a prima facie case of retaliation

under the FMLA. See Ridings, 537 F.3d at 771. Long attempts to proceed under the direct method only.

A plaintiff proceeding under the direct method of

proof must produce direct or circumstantial evidence that

“the protected conduct was a substantial or motivating

factor in the employer’s decision.” Lewis v. Sch. Dist. #70,

523 F.3d 730, 741-42 (7th Cir. 2008). To establish a prima

facie case of retaliation under the direct method of proof,
 No. 08-3094 9

the plaintiff must present evidence of “(1) a statutorily

protected activity; (2) a materially adverse employment

action taken by the employer; and (3) a causal connection

between the two.” Caskey v. Colgate-Palmolive Co., 535

F.3d 585, 593 (7th Cir. 2008). Direct evidence typically

consists of an admission by the decisionmaker that he

acted with retaliatory intent. See id. Circumstantial evidence allows the finder of fact to infer that retaliatory

animus motivated the decisionmaker to take an adverse

employment action against the employee. See id. Circumstantial evidence may include suspicious timing, ambiguous oral or written statements, or behavior toward or

comments directed at other employees in the protected

group. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d

772, 782 (7th Cir. 2007).

The parties do not dispute that Long engaged in a

protected activity when she took FMLA leave or that she

suffered an adverse employment action when TRS terminated her. To support her contention TRS fired her

because she took FMLA leave, she offers the following

pieces of circumstantial evidence: Branham’s statements, failure of TRS to follow its internal discipline

procedures when it fired her and the “sudden decline” in

her performance reviews around the time that she took

leave.

Long claims that Branham recommended to Bauman

and Larkin that TRS should fire Long because he held

animus towards her for taking FMLA leave. To support that contention, she points to several of Branham’s

statements regarding her absences. For example,
10 No. 08-3094

Long points to a memorandum that Branham drafted to

memorialize a meeting that he held with Long. In the

memo, Branham noted that he met with Long to

discuss her absences and the impact that the absences

had on Payroll’s overall workload. Additionally, in his

deposition, Branham stated that absenteeism affected

Long’s performance from June 2005 through January 2006. He attributed some of Payroll’s overall

problems to Long’s absences, such as EFT backlogs and

missed member complaints. He also stated that Long’s

absences had a negative impact on the morale of other

Payroll employees because they had to perform Long’s

duties in addition to their own during her absences.

Although Long claims that Branham’s memo provides

evidence of his retaliatory animus towards her FMLA

leave, Branham met with Long and drafted the memo

before she even applied for FMLA leave. Branham met

with Long to discuss her absences and EFT errors on

September 15, 2005. On September 20, 2005, he drafted

his memo to summarize the meeting. Sherman did not

inform Long about her potential eligibility for FMLA

leave until September 26, 2005, days after Branham

held the meeting and drafted the memo that discussed

Long’s absences. Because Long had not even applied for

FMLA leave when Branham discussed Long’s absences

and drafted the memo to summarize the meeting, those

statements that he made in the meeting and the memo

cannot provide evidence that he held a retaliatory

animus towards Long’s use of FMLA leave. See Durkin v.

City of Chicago, 341 F.3d 606, 614-15 (7th Cir. 2003) (“An

employer cannot retaliate if there is nothing for it to

retaliate against.”).
 No. 08-3094 11

Long also claims that Branham’s statements during

his deposition reveal that he held a retaliatory animus

towards her based on her FMLA leave. Although he

attributed Long’s performance problems to her many

absences, he stated that her absences from June 2005

through January 2006 created problems such as EFT

backlogs and missed member complaints. Long’s string

of absenteeism began in June 2005 when she missed 25%

of her scheduled days, and continued into July 2005

when she missed 40% of her scheduled days. On July 26,

2005, Branham held a meeting with Long to inform her

of the toll that her absenteeism was taking on her performance when he told her that he had to withdraw his

recommendation that she receive a promotion based

solely on her many absences. In September 2005, before

she even applied for FMLA leave, Branham traced

many errors within Payroll to Long and held a meeting

with her on September 15, 2005 to discuss her performance issues. Even when TRS approved her application for FMLA leave in October and she indicated that

some of her previous absences were related to her

medical condition, the earliest date that she indicated was

September 22, 2005, after Branham had already documented that her absences were negatively affecting

her performance. Any comment that Branham made

regarding absences before Long even applied for FMLA

leave could not have been evidence of a retaliatory

intent on his part.

Even assuming that Branham’s deposition testimony

reveals that he held retaliatory animus towards Long, to

demonstrate a causal connection between a protected
12 No. 08-3094

activity and an adverse employment action, “a plaintiff

must provide direct or circumstantial evidence that

the decisionmaker has acted for a prohibited reason. A

decisionmaker is the person ‘responsible for the contested decision.’ ” Rogers v. City of Chicago, 320 F.3d 748,

754 (7th Cir. 2003) (emphasis in original) (quoting

Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th

Cir. 1997)). “Statements by subordinates normally are not

probative of an intent to retaliate by the decisionmaker.”

Willis v. Marion County Auditor’s Office, 118 F.3d 542, 546

(7th Cir. 1997).

At TRS, only Bauman has the authority to make personnel decisions regarding employee discipline, including

whether to suspend or terminate an employee. Branham

only recommended to Larkin that TRS should fire Long;

he did not make the ultimate decision. Bauman made

the decision after consulting with Larkin, Branham and

Sherman. Therefore, even if Branham held retaliatory

animus towards Long, to show a causal connection between her FMLA leave and her termination, she must

show that Bauman acted for a prohibited reason. The

record does not contain any evidence that Bauman fired

Long because she took FMLA leave; in fact, the record

shows that he did not even know that Long took FMLA

leave when he fired her. Because Bauman did not know

that Long took FMLA leave, he could not have possibly

terminated her for that reason.

Although a plaintiff must generally provide evidence

that the decisionmaker acted for a prohibited reason to

establish a prima facie case of retaliation, courts have
 No. 08-3094 13

imputed the retaliatory intent of a subordinate to an

employer in situations where the subordinate exerts

significant influence over the employment decision. See,

e.g., Metzger v. Ill. State Police, 519 F.3d 677, 682 (7th Cir.

2008); Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908,

917-18 (7th Cir. 2007); Rozskowiak, 415 F.3d at 613;

Rogers, 320 F.3d at 754 (noting potential for employer

liability if decisionmaker merely “rubber-stamped” a

biased subordinate’s recommendation). This theory of

liability, known as the “cat’s paw” doctrine, see Willis, 118

F.3d at 547, has received inconsistent treatment in this

Circuit. Some cases hold that a subordinate must have a

“singular influence” over the employment decision, see

Staub v. Proctor Hosp., 560 F.3d 647, 659 (7th Cir. 2009), and

others do not draw such a bright line, see Shager v. Upjohn,

913 F.2d 398, 405 (7th Cir. 1990). In Shager v. Upjohn, for

example, the court found that evidence of “taint” and

“influence” by a non-decisionmaker made the

decisionmaker a “conduit of [his] prejudice.” See id. The

court did not suggest, however, that the subordinate’s

influence must be “singular,” focusing instead on the

lack of independent deliberation by the decision-making

committee. See id. This approach was largely replicated

in Metzger, where the court emphasized the lack of evidence of any “improper influence” by the subordinate

and the independent nature of the decision-making. See

519 F.3d at 682. Other cases, however, suggest that the

cat’s paw doctrine only applies where a “decision maker

is . . . wholly dependent on a single source of information.”

See Brewer, 479 F.3d at 917-18. The court’s decision in

Staub, for instance, held that “to be a cat’s paw requires . . .
14 No. 08-3094

a blind reliance, the stuff of ‘singular influence.’ ” See

Staub, 560 F.3d at 659.

The Court merely notes this internal conflict for the

record. It need not reconcile these approaches today for

several reasons. First, Long is only claiming that a single

subordinate (Branham) was the source of the retaliatory

animus that Long seeks to impute to Bauman. Moreover,

regardless of the approach that one adopts, an independent

investigation by the decisionmaker weighs heavily

against a finding of excessive influence. See Staub, 560

F.3d at 659; see also Metzger, 519 F.3d at 682; Willis, 118

F.3d at 547. Here, Bauman relied on information from

several different sources before arriving at the decision

to fire Long. After Branham recommended that TRS

should fire Long, Larkin gathered information on her

own by reviewing information from Sherman, member

complaints and Long’s performance evaluations. Larkin

then held two meetings with Bauman to discuss the

situation before she made her own recommendation

that TRS should fire Long. After receiving Larkin’s

input, Bauman reviewed the information relating to

Long independently. While Branham met with Bauman

to discuss the member complaints that Payroll had received, Branham did not control all of the information

that Bauman had to evaluate the recommendation to

terminate Long. The set of data available to Bauman

consisted of information provided by Branham, Sherman

and Larkin. Nothing in the record suggests that Branham

exerted singular influence over Bauman’s decision or

that Bauman merely “rubber-stamped” Branham’s recommendation; to the contrary, the undisputed facts show
 No. 08-3094 15

that Bauman reviewed multiple sources of information

on his own, held at least three meetings and received

Larkin’s independent recommendation before deciding

to fire Long. While Long questions the thoroughness

and independence of Bauman’s investigation, the record

shows that Bauman was not wholly dependent on a

single source of information and reviewed the facts

relevant to the decision on his own, which is all that he

was required to do to absolve TRS of potential liability

under the cat’s paw theory. See Staub, 560 F.3d at 659;

Brewer, 479 F.3d at 918.

Therefore, even if Branham’s deposition provided some

evidence that he harbored a retaliatory animus towards

Long’s FMLA leave, the record shows that Bauman, who

did not even know that Long took FMLA leave, acted as

the ultimate decisionmaker. Long has not introduced

evidence that would provide a basis for imputing a retaliatory animus from Branham to Bauman because

Branham did not exert singular influence over Bauman’s

decision. Accordingly, Branham’s statements regarding

Long’s absenteeism do not provide her with evidence

that TRS fired her because she took FMLA leave.

Long also offers TRS’s failure to follow its own internal

discipline procedures as evidence of TRS’s retaliatory

intent in firing her. An employer’s departure from its own

employment policies can constitute circumstantial evidence of discrimination. See Rudin v. Lincoln Cmty. Coll.,

420 F.3d 712, 723 (7th Cir. 2005); Giacoletto v. Amax Zinc

Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992). However,

when a progressive discipline policy permits the
16 No. 08-3094

employer to exercise discretion in discharging an

employee without exhausting all of the policy’s steps,

failure to follow all of the steps does not suggest a discriminatory motive. See Fane v. Locke Reynolds, LLP, 480

F.3d 534, 541 (7th Cir. 2007); Hague v. Thompson Distrib. Co.,

436 F.3d 816, 828 (7th Cir. 2006).

TRS’s Employee Discipline Policy utilizes a progressive

discipline plan, where the disciplinary steps typically

follow this pattern: (1) oral warning and informal counseling; (2) written warning and counseling; (3) suspension;

and (4) discharge. However, the policy also states,

“[d]epending on the facts and circumstances involved

in each situation, management may choose to begin

disciplinary action at any step.” Additionally, “[f]or certain

major violations or continued failure to respond to prior

disciplinary action, discharge may be the only recourse.”

When skipping to the discharge step, TRS’s procedures

require the supervisor and division head to make recommendations for discharge to the Director of Human

Resources.

Here, the record evidence shows that TRS began to

discipline Long for her absenteeism by giving her an

oral warning. On July 26, 2005, Branham informed

Long that he would no longer support her promotion

because of her excessive absenteeism during the months

of June and July 2005. Additionally, Branham met

with Long twice in September 2005 to discuss late processing of payroll deduction plan applications, EFT errors,

Long’s failure to train other staff in EFT procedures and

complaints from members and coworkers relating to
 No. 08-3094 17

Long’s EFT work. Despite these warnings, Branham

discovered a large backlog of EFT forms on several occasions in late 2005 and early 2006. On multiple occasions,

Long did not deliver groups of EFT slips to the Data

Services Department for processing until the day before

the cut-off date when TRS’s procedures called for the

slips to be delivered on a daily basis so that Data Services

could spread out its processing of the forms. This delay

forced Data Services to process all of the EFT forms in

a single day to ensure timely payment of member benefits.

After discovering this backlog of EFT forms several

times, Branham, Sherman and Viar recommended to

Larkin that Long should be fired. This recommendation

complied with TRS’s policy that required the supervisor

and division head to make recommendations for

discharge to the Director of Human Services. Although

TRS’s policy allows for progressive discipline, it also

allows for termination in the event of continued failure

to respond to previous warnings. Long received oral

warnings on at least three occasions beginning in

July 2005 before her termination in February 2006. Therefore, because Long received several warnings before

termination and because TRS had the ability to begin

disciplinary action at any step, TRS did not violate its

disciplinary policy when Long was terminated.

Long points out that under TRS’s policy, in circumstances that could result in immediate termination, a

supervisor must submit a written request detailing the

incident to the division head, the Director of Human

Resources and the Executive Director. Because Branham
18 No. 08-3094

orally informed Larkin of his recommendation that Long

should be fired, Long claims that TRS’s policy was

violated when it fired her. TRS counters that it only has

an obligation to make written recommendations for

termination when an employee commits “a single, severe,

or atrocious policy violation” that constitutes a fireable

offense. Because TRS and Branham provided oral

warnings to Long beginning in late July 2005, approximately six months before the date of her termination,

TRS claims that Long’s termination was not an “immediate termination” under the policy, but rather the result

of repeated instances of substandard performance.

Because the disciplinary policy allowed for TRS to

terminate Long under the circumstances, the actual

decision to terminate Long did not violate the policy. If

the policy was violated at all, it was when Branham

orally recommended Long’s termination to Larkin

instead of providing Larkin with a written report outlining the reasons that he believed that TRS should fire

Long. When TRS has the authority to terminate an employee, the fact that a manager made his recommendation orally instead of in writing does not provide

circumstantial evidence of retaliatory intent. Under the

policy, Branham had the authority to recommend

Long’s discharge based upon her poor job performance.

The fact that he did so orally rather than in writing does

not permit the inference that TRS discharged Long in

retaliation for taking FMLA leave.

Finally, Long claims that the decline in her performance

evaluations provides circumstantial evidence that TRS
 No. 08-3094 19

terminated her in retaliation for taking FMLA leave. “[A]n

employer’s sudden dissatisfaction with an employee’s

performance after that employee engaged in a protected

activity may constitute circumstantial evidence of causation.” Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.

2005).

Here, Long claims that her “exemplary track record

belies any suggestion that her performance suddenly

changed.” She contends that “the fact that an employee

had consistently overperformed expectations for more

than twenty years and then all of a sudden becomes a

bad employee is simply not logical.” Despite these contentions, the record shows that TRS first documented a

decline in Long’s performance in June and July 2005, when

she missed 25% and 40% of the working days in each

month, respectively. On July 26, 2005 and September 15,

2005, Branham met with Long to discuss her declining

performance. In the meetings, Branham discussed her

absenteeism in addition to several EFT errors attributable

to her that caused delayed benefit payments to

members and the disclosure of a member’s personal

information to a third party. During the meetings,

Branham also informed Long that she had not timely

processed several payroll deduction plans.

Branham documented those deficiencies in Long’s

performance before September 22, 2005, the date of her

first FMLA-related absence. While a sudden decline in

performance evaluations after an employee engages in a

protected activity may provide circumstantial evidence

of discriminatory intent, a decline in performance
20 No. 08-3094

before the employee engages in protected activity does not

allow for an inference of retaliation. See Durkin, 341

F.3d at 614-15 (“It is axiomatic that a plaintiff engage in

statutorily protected activity before an employer can

retaliate against her for engaging in statutorily protected

activity . . . . An employer cannot retaliate if there is

nothing for it to retaliate against.”). Because Branham

first documented a decline in Long’s performance in

June 2005, at least three months before Long ever

took FMLA leave, the decline in Long’s performance

evaluations cannot provide circumstantial evidence of

retaliatory intent.

III. Conclusion

Because Long has failed to present evidence that TRS

acted with retaliatory intent when it fired her, a jury could

not infer that TRS fired her because she took FMLA leave.

Therefore, the district court’s grant of summary

judgment is AFFIRMED.

10-23-09