In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1920

GARY WROLSTAD,

Plaintiff-Appellant,

v.

CUNA MUTUAL INSURANCE SOCIETY,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 15-cv-798-jdp — James D. Peterson, Chief Judge.

____________________

ARGUED JANUARY 8, 2018 — DECIDED DECEMBER 18, 2018

____________________

Before EASTERBROOK and SYKES, Circuit Judges, and 

BUCKLO, District Judge.*

SYKES, Circuit Judge. For 25 years Gary Wrolstad worked 

at CUNA 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 as it was at the time of the events in this suit.
2 No. 17-1920

manager. In 2009 his position was eliminated in a corporate 

restructuring. He was then 52 years old. At his supervisor’s 

suggestion, Wrolstad applied for several vacant positions at 

the company, including a job as a pension participant support specialist. CUNA Mutual ultimately hired a 23-year-old 

for that position. Wrolstad was at the end of the road with

CUNA Mutual, so 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 accusing his 

former employer of age discrimination. CUNA Mutual

denied the charge 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, CUNA 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, and on January 28, 2011, CUNA Mutual

filed a breach-of-contract suit in Wisconsin state court.

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

retaliating against him for filing his first complaint. In 2015

he transferred both claims to the Equal Employment Opportunity Commission (“EEOC”), and the EEOC issued a rightto-sue notice. Wrolstad then sued CUNA Mutual in federal 

court alleging claims for age discrimination and retaliation 

in violation of the Age Discrimination in Employment Act

(“ADEA” or “the Act”), 29 U.S.C. §§ 621, et seq. A district 

judge entered summary judgment for CUNA Mutual, ruling 
No. 17-1920 3

that the age-discrimination claim lacked evidentiary support 

and the retaliation claim was time-barred.

We affirm. Wrolstad’s effort to revive his agediscrimination claim rests primarily on new arguments and 

evidence that he did not bring to the district judge’s attention. That’s a forfeiture, but the arguments also fail on the 

merits. And the judge correctly held that the retaliation 

claim is barred because Wrolstad’s retaliation charge was 

untimely. The retaliation claim accrued when CUNA 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

CUNA 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 reporting 

manager. Three 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 encouraged him to apply for other positions within the company 

before the restructuring took effect at the end of the year. 

Wrolstad, then age 52, did just that. He applied for five 

vacant positions, including (as relevant here) an open spot as 

a pension participant support specialist. Support specialists 

answer inquiries from credit-union members concerning

their investment vehicles, so strong communication skills 

and knowledge of the intricacies of the relevant investment 

instruments are a must. Support specialists are also expected 
4 No. 17-1920

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 the screener gave him mixed 

reviews. The interview notes state 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 his salary as a 

financial reporting manager but above the range for the 

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 within the range for the position.

Wrolstad did not find another job at CUNA Mutual. On 

December 30, 2009, he signed a severance agreement accepting about $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. 17-1920 5

In March 2010 Wrolstad filed a charge with the Madison 

Equal Opportunities Commission alleging that CUNA 

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 entitled him

to conduct discovery and take depositions. CUNA Mutual

responded with a letter dated December 22, 2010, announcing that it would sue to enforce the waiver if Wrolstad did 

not drop his appeal:

If Mr. Wrolstad pursues this appeal, CUNA 

Mutual will file a breach of contract action 

against him in state court. CUNA Mutual will 

either seek the rescission of the agreement and 

the return of the more than $70,000 in severance payments that it paid to Mr. Wrolstad, 

with interest, or the enforcement of the agreement and damages against Mr. Wrolstad in the 

amount of the costs and fees CUNA Mutual incurred ... .

If Mr. Wrolstad’s appeal ... is still active on 

January 10, 2011, CUNA Mutual will understand that he intends to move forward despite 

his clear and binding waiver, and CUNA 

Mutual will take every action necessary to 

make itself whole.
6 No. 17-1920

Wrolstad did not withdraw his appeal. On January 28, 2011,

CUNA Mutual sued him for breach of contract in Wisconsin 

state court.

On November 21, 2011, Wrolstad filed a second charge 

with the Commission accusing CUNA Mutual of retaliating 

against him for pursuing his age-discrimination claim by 

seeking to enforce the waiver. In 2012 the state court dismissed CUNA Mutual’s contract suit, reasoning that the 

Commission should determine the waiver’s enforceability. 

In 2015 a hearing examiner suggested that Wrolstad transfer 

his claims to the EEOC and he obliged. The EEOC dismissed 

the claim for age discrimination and declined to pursue the 

retaliation claim, issuing a right-to-sue notice on 

February 29, 2016. 

Wrolstad then filed this action in federal court alleging

that CUNA 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 agreement and following 

through on that threat when he refused to drop his administrative appeal.

After discovery CUNA 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 next, its refusal to hire him for five other positions. 

Wrolstad’s response to the motion focused on the elimination of his old job and the company’s refusal to hire him for 

the support-specialist position; he conceded that he could 

not link the company’s other decisions to his age. Ruling on 
No. 17-1920 7

this narrowed claim, the judge held that Wrolstad 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 evidence 

showing that CUNA Mutual refused to hire him for the 

support-specialist 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 300 days after the claim accrued.

II. Discussion

Wrolstad asks us to remand for a trial on both his agediscrimination and retaliation claims. He 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, he 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

The ADEA protects workers 40 years of age and 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 prevail 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. Servs., Inc., 
8 No. 17-1920

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). “In this respect, 

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 presenting direct or 

circumstantial evidence that CUNA Mutual 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 treated 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 Enters., 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 agebased animus. But the evidence Wrolstad cites either does 

not suggest discriminatory intent—for example, purported 
No. 17-1920 9

“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 wrongly 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 underqualified for 

the job, there is no dispute that Wrolstad lacked the one-onone 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 summary judgment, it 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 on appeal. 

Packer v. Trs. of 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 does not on this record raise an 

inference of age discrimination. Wrolstad points to notes 
10 No. 17-1920

from Logemann’s screening interview suggesting 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 

foot in the door here.” (Emphasis added.) This passage 

doesn’t show that CUNA Mutual declined to hire Wrolstad

for this position because of his age. The note highlights

Logemann’s potential for longevity, but it ties that potential 

to his enthusiasm and persistent 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 for age, relying 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, id. at 794, and 

that 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,” id. at 

800. In contrast, here the screener’s note did not discuss

Logemann’s potential for longevity in reference to age. 

Rather, the screener explicitly tied that potential to ageneutral factors—that is, his enthusiasm and persistence. 

Sharp is not analogous.

Wrolstad also argues that the judge gave his qualifications short shrift. He maintains that a reasonable jury could 

conclude that he was more qualified than Logemann for the 

support-specialist job, but 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. 17-1920 11

CUNA Mutual articulated several legitimate nondiscriminatory reasons for preferring Logemann: (1) he had customerservice 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 for CUNA Mutual on the age-discrimination

claim.

B. Retaliation Claim

The 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 lawsuit under the Act, a claimant must 

first file a charge with the EEOC or equivalent state agency.

As relevant here, the charge must be filed within 300 days of

the unlawful practice. See id. § 626(d)(1)(B). Under the socalled Ricks rule, the 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 

Commc’ns, Inc., 972 F.2d 845, 847 (7th Cir. 1992) (citing Del. 

State Coll. v. Ricks, 449 U.S. 250 (1980)).

In Ricks the Supreme Court held that a professor’s claim 

for discriminatory denial of tenure accrued on the day the 

college informed him of the adverse tenure decision, not on 
12 No. 17-1920

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] nontentative,” and the employee must receive “unequivocal 

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., 354 F.3d 632, 637 (7th Cir. 2004)). 

Applying the Ricks rule here, Wrolstad’s retaliation claim 

accrued on December 22, 2010, when CUNA Mutual sent the

letter giving him clear notice 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 on

January 28, 2011. The letter unequivocally communicated a 

firm and final decision to enforce the waiver—in court if 

necessary—in response to Wrolstad’s pursuit of his agediscrimination charge. The letter explained: “If Mr. Wrolstad 

pursues this appeal, CUNA 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 Commission 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.

The Supreme Court 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 EEOC 
No. 17-1920 13

argued that the letter did not communicate a “final” decision 

because it was conditioned on the outcome of the grievance 

process. Id. The 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 Insurance, 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 in 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 CUNA 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 National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which explains

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 out 
14 No. 17-1920

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.

AFFIRMED.
No. 17-1920 15

BUCKLO, District Judge, dissenting. While I concur fully in 

my colleagues’ assessment of Wrolstad’s age discrimination 

claim, 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 Passenger 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 discrete discriminatory act occurred. The existence of past 

acts and the employee’s prior knowledge of 

their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently 

discriminatory and charges 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 antidiscrimination 
16 No. 17-1920

statutes, it is clear that CUNA Mutual did two discrete 

things: First, it sent Wrolstad a letter threatening to sue him; 

and second, it actually sued him. Each of these things is 

unquestionably 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 alleged 

discrimination 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 

observed 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 not 

claim to have been “treated differently from other unsuccessful tenure aspirants,” his discrimination claim accrued as 

of 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 of 

CUNA 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 claim outside 

the realm of Ricks and its progeny, including Draper v. Martin, 664 F.3d 1110 (7th Cir. 2011), Flannery v. Recording Industry Association of America, 354 F.3d 632 (7th Cir. 2004), and 

Gustovich v. AT & T Communications, Inc., 972 F.2d 845 (7th 

Cir. 1992), each of which, like Ricks itself, involved allegedly 
No. 17-1920 17

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. 

Fernandez, 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.”