United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 20, 2016

Decided March 14, 2016

Before

 DIANE P. WOOD, Chief Judge

 DANIEL A. MANION, Circuit Judge

 ILANA D. ROVNER, Circuit Judge

No. 14-2953

CHRISTINE KUHN,

Plaintiff-Appellant,

v.

UNITED AIRLINES, INC.,

Defendant-Appellee.

Appeal from the United States District 

Court for the Northern District of 

Illinois, Eastern Division.

No. 1:10-cv-07171

Sara L. Ellis,

Judge.

O R D E R

Christine Kuhn, a longtime employee of United Airlines, sued United in 2010 for 

retaliation under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in 

Employment Act (“ADEA”). The district court denied Kuhn’s motion for leave to file a 

third amended complaint, and later granted summary judgment to United on Kuhn’s 

retaliation claims. Kuhn appeals both rulings. For the reasons that follow, we affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 14-2953 Page 2

I. Background

Christine Kuhn has worked for United since 1974 and is currently employed as a 

flight attendant based out of Chicago’s O’Hare International Airport. She first filed an 

EEOC charge against United in April 2007, alleging that United retaliated against her 

for complaining about race, age, and sex discrimination. Kuhn received her right-to-sue 

letter from the EEOC in January 2008, but she did not bring suit based on her 2007 

charge.

Kuhn lodged several more internal complaints with United in 2008 and 2009. The 

first complaint stemmed from a verbal altercation with a coworker named William 

Rosenbalm during a flight in February 2008. Kuhn claims that Rosenbalm told her to 

“shut the [expletive] up” when she asked him to bring a passenger a glass of water. 

Rosenbalm apologized to Kuhn shortly afterwards, but Kuhn still reported the incident 

to her supervisor, Joe Mallia, indicating that she thought Rosenbalm had mistreated her 

because of her race. In response, Mallia spoke with Rosenbalm (who denied using 

profanity) and Rosenbalm’s supervisor, Linda Pellico. Mallia or Pellico then notified 

United’s Professional Standards department, which followed up with Rosenbalm on 

several occasions. Kuhn has not flown with Rosenbalm since the February 2008 

incident.

Kuhn had another altercation with a coworker named Michael Kimbel during an 

international flight in July 2009. According to Kuhn, Kimbel forcefully pushed her while 

the two were standing in the galley by the aircraft’s oven. Although Kimbel apologized, 

Kuhn complained about the encounter to supervisor Ron Clarke. Clarke completed an 

official incident report, interviewed Kuhn and Kimbel separately, and then asked each 

of them to provide a written statement. Clarke also obtained statements from several 

other flight attendants who were on the flight in question. At the conclusion of his 

investigation, Clarke determined that the contact between Kuhn and Kimbel was 

accidental. Kuhn has not worked with Kimbel since making her complaint.

In September 2009, Kuhn had a third incident with two other flight attendants, 

Wai Le Bailey Tung and Tsz Kin Desmond Lam, while on a flight from Chicago to Hong 

Kong. Kuhn maintains that Tung and Lam were causing a “work slowdown and 

stoppage,” which required Kuhn to perform extra work. Kuhn complained about the 

incident to Clarke (her Chicago supervisor) and Josephine Lau, a supervisor based in 

Hong Kong. Lau investigated Kuhn’s complaint and obtained statements from Tung 

and Lam, who both indicated that they did not know the basis for Kuhn’s allegations. 
No. 14-2953 Page 3

After conducting her investigation, Lau was ultimately unable to reach a conclusion 

regarding Kuhn’s complaint. 

There is no evidence that the three supervisors to whom Kuhn submitted her 

complaints––Mallia, Clarke, and Lau––were aware of Kuhn’s 2007 EEOC charge when 

they received her complaints or were investigating them. 

On July 19, 2010, Kuhn filed a second charge with the EEOC, this time asserting 

that United retaliated against her after her 2007 charge by failing to fully and 

impartially investigate her complaints of coworker mistreatment. After receiving her 

right-to-sue letter, Kuhn brought this lawsuit against United in November 2010. 

Eventually she filed a second amended complaint, alleging claims of retaliation under 

Title VII and the ADEA. In particular, Kuhn claimed that United retaliated against her 

following her 2007 EEOC charge by failing to adequately investigate her complaints 

about the incidents with Rosenbalm, Kimbel, Tung, and Lam in 2008 and 2009. In 

February 2012, Kuhn filed a motion for leave to file a third amended complaint, in 

which she sought to assert new claims of racial discrimination and harassment in 

violation of Title VII. The district court denied the motion, and ultimately granted 

summary judgment for United in August 2014. On appeal, Kuhn argues that the district 

court should have allowed her to file a third amended complaint, and that genuine 

disputes of material fact made summary judgment improper. We consider each 

argument in turn.

II. Analysis

A. Motion for Leave to Amend

While leave to amend a complaint should be freely granted when justice so 

requires, Fed. R. Civ. P. 15(a)(2), a district court may properly deny leave for a variety of 

reasons, including undue prejudice or futility. Hukic v. Aurora Loan Servs., 588 F.3d 420, 

432 (7th Cir. 2009); Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860–61 (7th Cir. 

2001). Amendment is futile if the added claim would not survive a motion to dismiss or 

a motion for summary judgment. Id. at 861; Gen. Elec. Capital Corp. v. Lease Resolution 

Corp., 128 F.3d 1074, 1085 (7th Cir. 1997). Additionally, “[t]o amend a pleading after the 

expiration of the trial court’s scheduling order deadline to amend pleadings, the 

moving party must show ‘good cause.’” CMFG Life Ins. Co. v. RBS Sec., Inc., 799 F.3d 

729, 749 (7th Cir. 2015) (internal marks omitted). We will overturn a denial of a motion 

for leave to amend a complaint “only if the district court ‘abused its discretion by 
No. 14-2953 Page 4

refusing to grant the leave without any justifying reason.’” Aldridge v. Forest River, Inc., 

635 F.3d 870, 875 (7th Cir. 2011).

Here, the district court provided ample justification for denying Kuhn’s motion 

for leave to amend. First, the court properly found that Kuhn failed to establish the 

requisite good cause for missing the scheduling-order deadline to amend the pleadings. 

Indeed, Kuhn did not seek leave to file her third amended complaint until February 

2012, which was nearly nine months after the deadline to amend and just days before 

the close of discovery. Also, her proposed amendment was based on long-known events 

that occurred between 2003 and 2007. And the district court correctly noted that Kuhn’s 

amendment alleged entirely new claims that would unduly prejudice United by 

significantly altering the factual inquiry of the case at a time when discovery was about 

to end. 

The district court also reasonably concluded that the amendment would be futile 

because the allegations of Kuhn’s third amended complaint were untimely and 

exceeded the scope of her underlying EEOC charge. A Title VII plaintiff may bring only 

those claims that were included in her EEOC charge, or that are “‘like or reasonably 

related to’” the allegations of the charge. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 

1118 (7th Cir. 2001). Kuhn’s 2010 EEOC charge alleged only that she was retaliated 

against after her 2007 charge, but her proposed amendment alleged new claims of race 

discrimination and harassment based on qualitatively different events and 

circumstances that occurred prior to the 2007 charge. The new claims alleged in Kuhn’s 

proposed amendment are not reasonably like or related to the 2010 EEOC charge and 

would not survive a dispositive motion. See Peters v. Renaissance Hotel Operating Co., 307

F.3d 535, 550 (7th Cir. 2002) (internal marks omitted) (“[T]he EEOC charge and the 

complaint must, at minimum, describe the same conduct and implicate the same 

individuals.”). The district court also properly found that Kuhn’s added claims would be 

time-barred since Kuhn’s proposed amendment is based on events from 2003 to 2007, 

the last of which occurred long before the 300-day limitations period preceding her 

operative charge of July 2010. See Hentosh v. Herman M. Finch Univ. of Health Scis./The 

Chicago Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999) (citing 42 U.S.C. § 2000e-5(e)) (Title 

VII plaintiff “must have filed a charge with the EEOC detailing the incident(s) forming 

the basis of the plaintiff’s allegations within 300 days of the date of the occurrence of the 

alleged discriminatory conduct or event”).

1

 

1 Although Kuhn attempts to extend the limitations period by invoking the continuing-violation 

doctrine, the doctrine does not apply because her proposed amendment describes a series of discrete acts 
No. 14-2953 Page 5

Accordingly, the district court did not abuse its discretion in denying Kuhn’s 

motion for leave to file a third amended complaint. 

B. Summary Judgment

We review the district court’s grant of summary judgment de novo, construing 

all facts and reasonable inferences in the light most favorable to the nonmoving party. 

Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 861 (7th Cir. 2015). Summary 

judgment is required if the movant shows that “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). 

Title VII and the ADEA prohibit an employer from retaliating against an 

employee for asserting her right to be free from discrimination under those statutes. 42 

U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). Kuhn may establish retaliation under Title VII or 

the ADEA using either the direct or indirect method of proof. Majors v. Gen. Elec. Co., 

714 F.3d 527, 537 (7th Cir. 2013); Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 

(7th Cir. 2012). Under the direct method, Kuhn must show that: (1) she engaged in 

statutorily protected activity; (2) United took a materially adverse action against her; 

and (3) a causal connection existed between the two events. Majors, 714 F.3d at 537; 

Smith, 674 F.3d at 657. It is undisputed that Kuhn engaged in statutorily protected 

activity when she filed her 2007 EEOC charge, but United contends that Kuhn has failed 

to establish a materially adverse action or the requisite causal connection.

An action is materially adverse if it might have “‘dissuaded a reasonable worker 

from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. v. 

White, 548 U.S. 53, 68 (2006). The only materially adverse action alleged by Kuhn in her 

 

of discrimination that are not closely related to the allegations of her 2010 EEOC charge. See Garrison v. 

Burke, 165 F.3d 565, 570 (7th Cir. 1999) (noting that the continuing-violation doctrine does not apply to 

discrete, isolated, and completed acts of discrimination). The district court was not required to accept 

Kuhn’s bare allegation of an ongoing hostile work environment in order to find a continuing violation. 

See Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1995) (mere assertion of a hostile work 

environment did not establish a continuing violation where the alleged incidents of discriminatory 

harassment were not sufficiently related). And in any event, while Kuhn previously had the opportunity 

to sue for discrimination or hostile work environment based on the events preceding her 2007 EEOC 

charge, she chose not to do so within the time allowed. See Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 

849–50 (7th Cir. 2001) (citing 42 U.S.C. § 2000e-5(f)(1)) (“A civil action alleging a Title VII violation must 

be filed within 90 days of receiving a right-to-sue notice from the EEOC.”); 29 U.S.C. § 626(e) (same for 

ADEA).
No. 14-2953 Page 6

second amended complaint is United’s purported failure to adequately investigate her 

internal complaints of coworker misconduct.2 But Kuhn has not presented evidence 

that United’s investigations were inadequate. If anything, the evidence shows that 

United consistently took Kuhn’s complaints seriously and methodically investigated 

them from all angles. In response to Kuhn’s complaints, the relevant supervisors 

interviewed and obtained written statements from those involved and any witnesses, 

completed incident reports, and appropriately contacted additional personnel for 

assistance, including United’s Professional Standards department. Under these 

circumstances, a reasonable employee would not be dissuaded from engaging in 

protected activity, and Kuhn’s subjective belief to the contrary is not sufficient to create 

a genuine issue of material fact. See Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 

784, 794 (7th Cir. 2015). Accordingly, Kuhn has failed to establish that she was subjected 

to a materially adverse action.

Further, Kuhn has failed to demonstrate the requisite causal connection because

she has not shown that her protected activity was a but-for cause of the alleged adverse 

action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013); Barton v. 

Zimmer, Inc., 662 F.3d 448, 455 (7th Cir. 2011). At a minimum, a causal connection 

requires that the relevant decision-makers were aware of the protected activity at the 

time they took the adverse action. Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 

2004). Here, although Kuhn engaged in protected activity when she filed her 2007 

EEOC charge, she presented no evidence that any of the relevant supervisors were 

aware of her charge at any time during their allegedly inadequate investigations. Kuhn 

tries to get around this evidentiary gap by suggesting that it was United’s burden to 

establish causation at summary judgment. As the movant for summary judgment, 

however, United was required only to point to the “absence of evidence” supporting a 

finding of retaliation, which it clearly did. See Modrowski v. Pigatto, 712 F.3d 1166, 1168 

(7th Cir. 2013) (internal marks omitted) (“[T]he movant’s initial burden may be 

discharged by ‘showing’––that is, point[ing] out to the district court––that there is an 

absence of evidence to support the nonmoving party’s case.”). It was Kuhn’s burden to 

present affirmative evidence from which a jury could reasonably infer the essential 

element of causation. See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 709 (7th Cir. 

 

2 For the first time on appeal, Kuhn appears to argue that the instances of perceived coworker 

mistreatment about which she complained were also materially adverse actions. Because Kuhn did not 

raise this argument before the district court, it is waived on appeal. See Ellis v. CCA of Tenn. LLC, 650 F.3d 

640, 650 (7th Cir. 2011); Oates v. Discovery Zone, 116 F.3d 1161, 1168 (7th Cir. 1997) (“[A]rguments not 

raised below are waived on appeal.”).
No. 14-2953 Page 7

2002) (“If the nonmoving party fails to make a sufficient showing on an essential 

element of her case, the moving party is entitled to judgment as a matter of law[.]”). 

Kuhn failed to carry this burden because she presented no evidence that any of the 

relevant decision-makers were aware of her 2007 charge. Kuhn has thus failed to 

establish retaliation under the direct method for the additional reason that she has not 

shown the required causal connection.

Kuhn’s retaliation claims fare no better under the indirect method of proof. 

Under the indirect method, Kuhn must first make a prima facie case by showing

(among other things) that she suffered an adverse employment action and that she was 

treated less favorably than similarly situated employees who did not engage in 

protected activity. Majors, 714 F.3d at 537; Smith, 674 F.3d at 657–58. As discussed above, 

no reasonable jury could conclude that United’s alleged failure to adequately 

investigate Kuhn’s complaints amounted to a materially adverse action. Nor did Kuhn 

present evidence that she was treated less favorably than a similarly situated employee; 

moreover, Kuhn has waived any argument in this regard by failing to raise the issue on 

appeal. See Hutt v. AbbVie Prods. LLC, 757 F.3d 687, 694 (7th Cir. 2014) (retaliation 

plaintiff waived any argument under the indirect method by proceeding exclusively 

under the direct method on appeal); O’Neal v. City of Chicago, 588 F.3d 406, 409 (7th Cir. 

2009) (“[A]rguments not raised on appeal are waived.”). Accordingly, Kuhn has failed 

to establish retaliation under the direct or indirect method of proof, and United was 

entitled to summary judgment as a matter of law. 

III. Conclusion

The district court did not err when it denied Kuhn’s motion for leave to file a 

third amended complaint or when it granted summary judgment to United. The rulings 

of the district court are AFFIRMED.