### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 1920
G ARY W ROLSTAD , Plaintiff

- Appellant ,

v.
CUNA M UTUAL I NSURANCE S OCIETY , Defendant

- Appellee

.

____________________ Appeal from the Unite d States District Court for the Western District of Wisconsin

. No. 1 5

- cv

- 798

- jdp

— James D

. Peterson , Chief Judge

.

____________________
A RGUED J ANUARY 8, 2018

— D ECIDED D ECEMBER 18, 2018

____________________

Before E ASTERBROOK and S YKES , Circuit Judges , and B UCKLO , District Judge

. *
S YKES , Circuit Judge

. For 25 years Gary Wrolstad w orked
at C UNA Mutual Life Insurance Society in Madison, Wisconsin , 1 eventually becoming a financial reporting

* Of the Northern District of Illinois, sitting by designation.

1 CUNA Mutual is now known as CMFG Life Insurance Company . We use the insurer’s name a s it was a t the time of the events in this suit.2 No. 17

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manager. In 2009 h is position was eliminated in a corporate restructuring

. He was then 52 years old. At h is supervisor ’s suggestion , Wrolstad appl ied for several vacant positions at the company , including a job as a pension participant support specialist

. C UNA Mutual ultima tely hired a 23

- year

- old for th at position

. Wrolstad was at the end of the road with CUNA Mutual , s o he signed a severance agreement waiving all claims against the company in exchange for 50 weeks of severance pay

. He left CUNA Mutual on December 30, 2009.
Months later Wrolstad filed a complaint with the Madison Equal Opportunities Commission a ccusing his former employer of age discrimination . C UNA Mutual denied the c harge and argued that the waiver in the severance agreement barred the claim. A Commission investigator dismissed the complaint and Wrolstad appealed. On December 22, 2010, C UNA Mutual sent Wrolstad a letter explaining in no uncertain terms that it would sue to enforce the waiver if he did not drop his appeal by January 10. Wrolstad refused, an d on January 28, 2011 , C UNA Mutual filed a breach

- of

- contract suit in Wisconsin state court

. On November 21 , 2011, Wrolstad filed a second complaint with the Commission a ccusing CUNA Mutual of

r etalia t ing against him for filing his first complaint

. In 2015 he transferred both claims to the Equal Employment Opportunity Commission (“EEOC”) , and the EEO C issued a right

to

- sue notice

. Wrolstad then sued CUNA Mutual in federal
court alleging claims for age discrimination and retaliation in violation of the Age D iscrimination in Employment Act (“ADEA” or “the Act” ) , 29 U.S.C. § § 621 , et seq. A district judge entered summary judgment for CUNA Mutual , r ulingNo. 17

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t hat the age

- discrimination claim lack ed evidentiary support and t h e retaliation claim wa s time

- barred

. We affirm. Wrolstad’s effort t o revive his age

discrimination claim rests primarily on new arguments and evidence that he did not bring to the district judge’s attention

. That ’s a forfeiture , but t h e arguments also fail on the merits

. And t he judge correct ly held that the retaliation claim is barred because Wrolstad’s retaliation charge was untimely . Th e retaliation claim accrued when C UNA Mutual
sent the letter to Wrolstad announcing its unequivocal decision to sue to enforce the waiver in his severance agreement . Wrolstad waited more than 300 days to file his retaliation charge with the Commission

. I. Background

C UNA Mutual sells insurance products to credit unions and their members. Wrolstad began working for the company in 1984 and in the ensuing years held a number of jobs

. In 2006 he was promoted to the position of financial reporti ng manager . T hree years later the company eliminated his position in a corporate restructuring. Wrolstad’s supervisor notified him of the decision in the fall of 2009 and encourag ed him to apply for other positions with in the company before the restructuring took effect at the end of the year

. Wrolstad , then age 52, did just that

. H e applied for five
vacant positions , including (as relevant here) a n op en spot as a pensio n participant support specialist

. Support specialists

answer inquiries from credit

- union members concerning their investment vehicles, so strong communication skills and k nowledge of the intricacies of the relevant investment instruments a re a must

. S upport s pecialists a re also expected4 No. 17

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to identify sales opportunities and refer them to other employees who sell investment products. The salary range for the position was $32,390

– $52,665.
One hundred candidates applied for the job

. On December 14 Wrolstad’s online application was forwarded to Jeffrey Zimmer, the hiring manager. Wrolstad had an initial screening interview with CUNA Mutual’s external recruiter the next day , but t he screener gave him mixed revie ws. The interview notes stat e that Wrolstad was “very overqualified” for the job but wanted to stay with the company

. Wrolstad told the screener that he was willing to work for $55,000 , which was $20,000 less than h is salary as a financial reporting manager but above the range for th e support

- specialist position

. Wrolstad didn’t get a second interview

. Zimmer later explained that the $55,000 salary demand was disqualifying

. Zimmer also declined to interview the three other internal candidates whose applications were forwarded with Wrolstad’s

. Instead Zimmer offered the job to Joshua Logemann, a 23

- year

- old external candidate

. Logemann had experience in financial institutions and one

- on

- one customer service , and Zimmer believed he was the best fit for the job

. Zimmer also believed that Logemann was well

- spoken and personable

— both essential traits for a support specialist

. And unlike Wrolstad, Logemann ’s salary goal

— $35,000

— was with in the range for the position

. Wrolstad did not find another job at C UNA Mutual

. On December 30, 2009, he signed a severance agreement accepting a bout $70,000 in severance pay in exchange for a release of all claims against the company arising on or before the date of the agreement

. He left CUNA Mutual that same day

.No. 17

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In March 2010 Wrolstad filed a charge with the Madison Equal Opportunities Commission alleg ing that C UNA Mutual discriminated against him on the basis of his age when it eliminated his position and refused to hire him for another job

. The company denied the allegations and argued that Wrolstad waived this claim in his severance agreement. The Commission dismissed the charge, finding no probable

cause. Wrolstad filed an administrative appeal of that decision

. Under the Commission’s procedures, the appeal entit led him to conduct discovery and take depositions. C UNA Mutual responded with a letter dated December 22, 2010 , announcing that it would sue to enforce the w aiver if Wrolstad did not drop his appeal : If Mr. Wrolstad pursues this appeal, C UNA Mutual will fi le a breach of contract action against him in state court. C UNA Mutual will either seek the rescission of the agreement andthe return of the more than $70,000 in severance payments that it paid to Mr. Wrolstad, with interest, or the enforcement of the agr eement and damages against Mr. Wrolstad in the amount of the costs and fees C UNA Mutual incurred ...

. If Mr. Wrolstad’s appeal ... is still active on January 10, 2011, C UNA Mutual will understand that he intends to move forward despite his clear and binding waiver, and C UNA Mutual will take every action necessary to make itself whole.6 No. 17

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Wrolstad did not wi thdraw his appeal . O n January 28, 2011, C UNA Mutual sued him for breach of cont ract in Wisconsin
state court

. On November 2 1 , 2011, Wrolstad f il ed a second charge with the Commission accusing CUNA M utual of retaliat in g against him for pursuing his age

- discrimination claim by seeking to enforce the waiver

. In 2012 the state court dism issed C UNA Mutual ’s contract suit, reasoning that the Commission should determine the waiver’s enforc eability. In 2015 a h earing e xaminer suggested that Wrolstad transfer his claims to the EEOC and he obliged. The EEOC dismissed the claim for age discrimin ation and declined to pursue the retaliation claim, issu ing a right

- to

- sue n otice on February 29, 2016.
Wrolstad then filed this action in federal court alleg ing that C UNA Mutual discriminated against him on the basis of age when it eliminated his position and declined to hire him for any of the five other jobs for which he applied

. He also alleged that the company retaliated against him by threatening suit to enforce the severance agreemen t and following through on that threat when he refused to d r op his administrative appeal

. After discovery C UNA Mutual moved for summary judgment, arguing that Wrolstad lacked evidence that his age was the “ but for” cause of any of the challenged job actions

— first , the company’s decision to eliminate his job , and ne xt , its refusal to hire him for five other positions

. Wrolstad ’s response to the motion focus ed on the elimination of his old job and the company’s refusal to hire him for the support

- specialist position ; he conced ed that he could
not link the company’s other decisions to his age. Ruling onNo. 17

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this narrowed claim, the judge held that Wrolsta d produced

no evidence to support an inference that the company ’s decision to eliminate his job was motivated by his age. Likewise, the judge ruled that Wrolstad lacked e vidence show ing that CUNA Mutual refus ed to hire him for the support

- speciali st position because of his age

. CUNA Mutual also sought summary judgment on the retaliation claim , arguing that it was both untimely and failed on the merits. The judge addressed only the first argument , holding that the retaliation claim was time

- barred because Wrolstad filed his retaliation complaint with the Commission more than 30 0 days after the claim accrued.
II. Discussion
Wrolstad asks us to remand for a trial on both his a ge

discrimination and retaliation claims. H e has narrowed the focus of his age

- discrimination claim further still, dropping his contention that CUNA Mutual eliminated his job because of his age

. Instead, h e concentrates his argument on the company’s refusal to hire him for the support

- specialist position. We review a summary judgment de novo. Boston v. U.S. Steel Corp. , 816 F.3d 455, 462 (7th Cir. 2016).
A. Age

- Discrimination Claim

T he ADEA protects workers 40 years of age a nd older from age

- based employment discrimination . As relevant here, the Act makes it unlawful for an employer “ to fail or refuse to hire or to discharge any individual [in the protected class ]

... because of such individual’s age.” 29 U.S.C. § 623(a)(1). To pr evail on an age

- discrimination claim , the plaintiff must prove that his age was the “but

- for” cause of the challenged job action

. See Gross v. FBL Fin. Serv s ., Inc. ,8 No. 17

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557 U.S. 167, 177

– 78 (2009). In other words , under the ADEA “it’s not enough to show that age was a motivating factor. The plaintiff must prove that, but for his age, the adverse action would not have occurred.” Martino v. MCI Commc ’ ns Servs. , Inc. , 574 F.3d 447, 455 (7th Cir. 2009). “ I n this respe ct, the ADEA is narrower than Title VII ... [because] Title VII protects against mixed

- motive discrimination.” Carson v. Lake County , 865 F.3d 526, 532 (7th Cir. 2017).
Wrolstad may carry his burden by present ing direct or circumstantial evidence that CUNA M utual took the challenged job action against him because of his age. Id

. at 532

– 33. Alternatively, he may proceed under the McDonnell Douglas burden

- shifting approach by producing evidence that a similarly situated person not in the protected class
was tre ated more favorably. Id

. at 533 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If he does so , the burden shifts to CUNA Mutual to articulate a legitimate, nondiscriminatory reason for the challenged action. Id

. Under this alternative method of proof, Wrolstad then has the burden to show that the stated reason was a pretext for discrimination. Id. Regardless of how the plaintiff chooses to proceed , the basic question at the summary

- judgment stage is whether the evidence as a whole would allow a reasonable jury to find that the plaintiff suffered an adverse job action because of his age. Id

. ; see also Ortiz v. Werner Enter s

. , Inc. , 834 F.3d 760, 765 (7th Cir. 2016).
Wrolstad ’s arguments on appeal do not fit neatly into one methodological basket or the other. He first contends that the judge ignored what he deems direct evidence of age

based animus . But the evidence Wrolstad cites either does not suggest discriminatory intent

— for example, purportedNo. 17

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“irregularities” in CUNA Mutual’s hiring process

— or was not brought to the district court’s attention and cannot be asserted for the first time on appeal. Wrolstad also argues that the district judge made improper assumptions about his qualifications for the support

- specialist position and wrongl y inferred that his salary demand was the reason Zimmer didn’t hire him. But regardless of whether Wrolstad’s background and salary requirements led those reviewing his application to perceive him as over

- or underqua lified for the job, there is no dispute that Wrolstad lacked the one

- on

one customer

- service experience that was an important job qualification or that Wrolstad’s salary goal was above the high end of the position’s pay range.
Wrolstad insists that Zimmer “ all but ignored ” the four older , internal candidates and points to evidence suggesting that Logemann’s youth was explicitly taken as a factor in his favor

. But Wrolstad did not rely on this evidence below, so we can hardly fault the judge for not considering it

. As the party opposing sum mary judgment, i t was his responsibility to “inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered.” Milligan v. Bd. of Trs. of S. Ill. Univ. , 686 F.3d 378, 389 (7th Cir. 2012). Because Wrolstad failed to bring this evidence to the district judge’s attention , he has forfeited his right to rely on it o n appeal. Packer v. Trs. o f Ind. Univ. Sch. of Med. , 800 F.3d 843, 849 (7th Cir. 2015)

. Even if we were to consider this new material , however , it ’s not enough to satisfy Wrolstad’s evidentiary burden. CUNA Mutual’s decision to focus on Logemann after screening out other candidates doe s not on this record raise an inference of age discrimination. Wrolstad points to notes10 No. 17

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from Logemann’s screening interview suggestin g that his youth was viewed as a positive factor . The screener wrote : “I think once working for the company that [Logemann] would grow and learn quickly and inevitably stay with the company for many years to come as he has been actively trying to find a fo ot in the door here.” (Emphasis added.) Th is passage doesn’t show that CUNA Mutual declined to hire Wrolstad for this position because of his age. The note highlight s Logemann’s pot ential for longevity , but it tie s that potential
to his enthus iasm and pers istent effort “ to find a foot in the door here.” Indeed, the screener’s notes indicate that Logemann told her that he had applied for another position with the company three months earlier. Wrolstad argues that “potential [for] longevity” is just a proxy f or age, r elying on Sharp v. Aker Plant Services Group , 726 F.3d 789, 800 (6th Cir. 2013). But in Sharp the employer specifically tied longevity to the plaintiff’s age , i d. at 794 , and
t h at explicit reference led the court to conclude that the employer’s “ asserted business concern

— potential longevity with the company

— [was] nothing more than a proxy , ” i d. at 800. In contrast, here the screener ’s note did not d iscuss Logemann’s potential for longevity in reference to age

. Rather, the screener explicitly tied that potential to age

neutral factor s

— that is, his enthusiasm and persistence. Sharp is not analogous

. Wrolstad also argues that the judge gave his qualifications short shrift . H e maintains that a reasonable jury could conclude that he w as more qualified t han Logemann for the support

- specialist job , b ut that’s not the core inquiry here

. Wrolstad needs evidence that his age was the but

- for cause of the company’s decision not to hire him for the position.No. 17

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C UNA Mutual articulated several legitimate nondiscrimi natory reasons for preferring Logemann : (1) he had customer

service experience (Wrolstad did not) ; (2) he showed great enthusiasm for the position; and (3) he was willing to work for a salary within the range established for the job (Wrolstad was not). No evidence suggests that these reasons were pretextual. The judge was right to enter summary judgment fo r CUNA Mutual on the age

- discrimination claim.

B. Retaliation Claim

T he ADEA also prohibits retaliation for activity protected by the Act. More specifically, the Act makes it unlawful for an employer to “ discriminate against any of his employees or applicants for employment

... [ for ] oppos[ing] any practice made unlawful by this section ” or because the employee or applicant “has made a charge ... under this chapter.” 29 U.S.C. § 623(d).
Before initiating a law suit under the Act , a claimant must first file a charge with the EEOC or equivalent state agency

. A s relevant here, the charge must be filed within 300 day s of the unlawful practice. See id. § 626(d)(1)(B). Under the so

called Ricks rule , th e clock for this limitations period commences “ when an employer communicates an adverse employment decision to the employee, not when the full consequences of that action are felt.” Gustovich v. AT&T Comm c ’n s , Inc. , 972 F.2d 845, 847 (7th Cir. 1992) (citing Del. State Coll. v. Ricks , 449 U.S. 250 (1980)).
I n Ricks the Supreme Court held that a professor’s claim for discriminatory denial of tenure a ccrue d on the day the college inform ed him of the adverse te nure decision, not on12 No. 17

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the day the professor’s employment actually ended . 449 U.S.
at 261

– 62. To start the limitations clock, however, the employer’s decision must be “ final, ultimate, [and] non

tentative ,” and the employee must receive “u nequivocal notice ” of it. Draper v. Martin , 664 F.3d 1110, 1113 (7th Cir. 2011) (alteration in original) (quoting Flannery v. Recording Indus. Ass’n of Am. , 3 54 F.3d 632, 637 (7th Cir. 2004) )

. Applying the Ricks rule here, Wrolstad’s retaliation claim accrued on December 2 2, 2010 , when CUNA Mutual sent the letter giving him clear n otice of its decision to sue to enforce the waiver in his severance agreement

— not when the company followed through on that decision one month later o n January 28, 2011

. The letter unequivocally c ommunicated a firm and final decision to enforce the waiver

— in court if necessary

— in response to Wrolstad ’s pursuit of his age

discrimination charge . The letter explained : “If Mr. Wrolstad pursues this appeal, C UNA Mutual will file a breach of contract action against him in state court , ” “ will either seek the recession ... or the enforcement of the agreement , ” and

“ will take every action necessary to make itself whole.” Wrolstad filed his retaliation complaint with the Commi ssion more than 300 days after he received notice of CUNA Mutual ’s decision to sue to enforce the waiver . That was too late

. Wrolstad resists this conclusion by insisting that CUNA Mutual’s decision was not final because it was conditional

. T he Supreme Cou rt rejected a similar argument in Ricks

. See 449 U.S. at 260. There the college informed the professor by letter that his tenure application was denied , but the letter “explicitly held out

... the possibility that he would receive tenure if the Board sustained his grievance.” Id. The EEOCNo. 17

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argued that the letter did not communicate a “final” decision because it was conditioned on the outcome of the grievance process

. Id. T he Court rejected this argument , noting that the college characterized the letter as its “official position.” Id. So too here: CUNA Mutual ’s letter firmly and unequivocally articulated its decision to sue Wrolstad if he pursued his appeal.
Wrolstad relies on the Eleventh Circuit ’s decision in Stewart v. Booker T. Washington Ins urance , which held that the limitations period “ does not run until the plaintiff is told that she is actually being terminated, not that she might be terminated if future contingencies occur.” 232 F.3d 844, 849 (11th Cir. 2000). But the facts i n Stewart are not remotely comparable. There a radio station advised its employees in a meeting that their “jobs may be in danger” if a possible sale of the station occurred but that “ nothing was definite yet.” Id. The tentative state of affairs in Stewart starkly contrasts with C UNA Mutual’s final, unequivocal decision

. Alternatively, Wrolstad argues that CUNA Mutual’s lawsuit was a discrete retaliatory act that started its own limitations clock. This argument rests on Nat iona l R ailroad Passenger Corp. v. Morgan , 536 U.S. 101 (2002) , which explain s that a plaintiff who misses the deadline to file a charge based on one discrete discriminatory act is not barred from filing charges based on other discrete discriminatory acts “so long as the [later] acts are independently discriminatory and charges addressing those acts are themselves timely filed.” Id

. at 113

. But the later act

— the one within the limitations period

— must be discrete and independently discriminatory

. Here CUNA Mutual announced its decision to sue to enforce Wrolstad’s waiver by letter on December 22 and carried out14 No. 17

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that decision one month later on January 28

. The letter and the suit itself are constituent parts of the same action , not discrete and independently retaliatory acts . The judge correctly concluded that Wrolstad’s retaliation charge was untimely

. A FFIRMED

.No. 17

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B UCKLO , District Judge , dissenting. While I concur fully in my colleagues’ assessment of Wrolstad’s age discriminationclaim, I part ways with them on the disposition of his retaliation claim. I agree that Wrolstad alleges a time

- barred retaliation claim that accrued on the date CUNA Mutual threatened to sue him unless he abandoned pursuit of his discrimination claim. But I would hold that CUNA Mutual’s filing of the threatened lawsuit was a distinct, independently retaliatory act that opened a new limitations period under National Railroad P assenger Corp. v. Morgan , 536 U.S. 101 (2002). Because there is no dispute that Wrolstad’s EEOC charge was timely if the statutory clock started ticking on the day CUNA Mutual filed suit, I would reverse the district court’s conclusion that his retaliation claim based on that suit was time

- barred.
In Morgan , the Court explained: Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180

– or 300

– day time period after the disc rete discriminatory act occurred. The existence of past acts and the employee’ s prior knowledge oftheir occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and ch arges addressing those acts are themselves timely filed.
536 U.S. at 113. Setting aside for a moment the arcane rules governing the accrual of claims under the federal antidiscrimination16 No. 17

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statu t es, it is clear that CUNA Mutual did two discrete things: Fir st, it sent Wrolstad a letter threatening to sue him; and second, it actually sued him. Each of these things isunquestionably an “act” under any commonsense understanding of the word. Yet the majority concludes that they are “constituent parts of the same action.” Supra , at 14

. The majority’s view derives from Delaware State College v. Ricks , 449 U.S. 250 (1980). In Ricks

— which involved a discriminatory termination

— the Court held that the allegeddiscrimination occurred on the date the employer unequivocally communicated its final decision to deny Ricks tenure, not on the date Ricks’s employment terminated. The Court obser ved that “termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure” and went on to hold that because Ricks did notclaim to have been “treated differently from other unsuccessful tenure aspirants,” his d iscrimination claim accrued asof the date he learned of the university’s final tenure decision. Id

. at 257

– 58.Unlike the termination of Ricks’s employment, which required only the passage of time to become effective after the employer’s announcement of its tenure decision, the filing ofCUNA Mutual’s lawsuit was not an “inevitable consequence” of its December 22 letter. To the contrary, it required further affirmative action on CUNA Mutual’s part. In my view, this essential feature places Wrolstad’s clai m outside the realm of Ricks and its progeny, including Draper v. Martin , 664 F.3d 1110 (7th Cir. 2011), Fla nnery v. Recording Industry Associatio n of America , 354 F.3d 632 (7th Cir. 2004), and G ustovich v. AT & T Communications , Inc

. , 972 F.2d 845 (7th Cir. 1992), each of which, like Ricks itself, involved allegedlyNo. 17

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discriminatory terminations, and into the realm of Morgan , particularly since the filing of CUNA Mutual’s lawsuit is the specific action Wrolstad claims was unlawful. 2 Cf. Chardon v. Fer nandez , 454 U.S. 6, 8 (1981) (reversing and remanding under Ricks because the allegedly discriminatory termination decision was made outside the limitations period and the complaint alleged no “illegal acts subsequent to the date on which the decisions to terminate were made”). For the foregoing reasons, I respectfully dissent from Part B of the court’s opinion.

2 Paragraph 53 of the complaint, under the caption “Count 2: Retaliation , ” claims: “ It was unlawful for CUNA to file a retaliatory lawsuit against Wrolstad because he opposed CUNA’s discriminatory age practices. ”