In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3754

HOWARD FLEISHMAN,

Plaintiff-Appellant,

v.

CONTINENTAL CASUALTY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09-cv-00414—Edmond E. Chang, Judge.

ARGUED SEPTEMBER 18, 2012—DECIDED OCTOBER 18, 2012

Before FLAUM, SYKES, and TINDER, Circuit Judges.

FLAUM, Circuit Judge. After working for Continental

Casualty Company (“Continental”) for nearly twenty

years, Howard Fleishman suffered a brain aneurism

that required him to intermittently miss work from 2003

to 2005. Following his medical problems, he continued

to work on workers’ compensation claims as a staff attorney and was assigned to a new group that handled

high-value cases. Unfortunately for Fleishman, his supervisor began receiving a series of performance-related
2 No. 11-3754

complaints that ultimately led to his termination in 2007

at the age of fifty-four. Fleishman filed suit under

the Age Discrimination in Employment Act (“ADEA”)

and the Americans with Disabilities Act (“ADA”),

alleging that Continental discriminated against him

because of his age and a disability stemming from the

aneurism. The district court granted Continental’s

motion for summary judgment, and we affirm. Fleishman

offers no evidence of age discrimination and does not

meet the definition of disabled under the ADA.

I. Background

Howard Fleishman began working for Continental

Casualty Company in 1984 as a trial attorney defending

workers’ compensation claims. David Izzo oversaw the

attorneys in Continental’s Chicago staff counsel office,

including Fleishman. Izzo reported to Jacqueline

Johnson, who oversaw all of Continental’s staff counsel

offices. Beginning in 2003, Fleishman suffered a series of

medical problems related to a brain aneurism. As a

result, he took intermittent medical leaves between

July 2003 and June 2005. In the midst of these treatments, Izzo mentioned to Fleishman that his numbers

“were off” because he was out on leave. Izzo inquired

whether Fleishman thought about retirement and, if so,

that Izzo would make sure he received severance.

Fleishman declined and did not request another

leave or accommodation after his June 2005 return, although he now had a noticeable dent on the side of

his head and could no longer drive.
No. 11-3754 3

In early 2005, Continental created the Major Case Unit

(“MCU”) to handle high-exposure claims and assigned

Fleishman to the new group. He remained in the staff

counsel office overseen by Izzo, but Fleishman prepared

reports for adjusters in the MCU aimed at minimizing

Continental’s costs and exposure. Early in the assignment, Nanette Husnik, a claims manager in the MCU,

received complaints from adjusters about Fleishman’s

work. In mid-2005 and, upon receiving additional complaints, again in 2006, Husnik relayed these complaints

to Izzo and Johnson, both of whom confirmed the legitimacy of the concerns regarding Fleishman. Fleishman’s

critics were not limited to the MCU either, as claims

specialist Rina Patel requested that Izzo transfer all of

her work from Fleishman to another staff attorney in

the office in March 2006. Izzo informed him of these

concerns, and on one occasion Johnson expressed

similar dissatisfaction to Fleishman.

These issues represented a change of course for

Fleishman, who had performed his job duties adequately until 2005. He received a performance award

in 2003 and a raise based on his 2004 performance review. However, Fleishman received a “3” on his 2005

performance review, meaning he only met “most” expectations. This score also made him ineligible for a raise.

Izzo discussed the review with Fleishman in the spring

of 2006. According to Fleishman, Izzo informed him

that Johnson made the ineligibility decision, and when

Fleishman got upset, Izzo said “hey, she’s out to get me

too,” referring to Johnson. Fleishman further testified

that Izzo said he would talk to Mark Stevens, head of
4 No. 11-3754

legal services, about getting him a raise since he

missed time in 2005, but Izzo informed him the next

day that Stevens said time off did not mitigate the

issues in the evaluation unless Fleishman took shortterm disability.

Fleishman’s issues persisted. Izzo continued receiving

complaints from claims adjusters and, after reviewing

a number of Fleishman’s files, Izzo e-mailed Johnson

informing her that he saw why the adjusters were dissatisfied. In September 2006, after consulting with

Johnson and a human resources consultant, Izzo placed

Fleishman on a performance improvement plan. The

plan provided that if Fleishman did not improve in the

next sixty days, Continental could take disciplinary

action including termination. Despite these measures,

Todd Lewis, Husnik’s supervisor, complained that

Fleishman “basically did nothing for [the MCU].” In

response, Izzo met with Husnik who reiterated her dissatisfaction with Fleishman. In early 2007, Husnik

and Lewis informed Izzo that they would not permit

Fleishman to work on any more MCU cases. Izzo believed

termination was the appropriate resolution to these

issues, and after Izzo consulted with Johnson and Continental’s assistant vice president of human resources,

Fleishman’s employment was terminated in January 2007. Izzo was forty-eight at the time, while

Fleishman was fifty-four. Four months later, Continental hired forty-eight-year-old Patrick Cremin and

transferred some of Fleishman’s cases to him.

Shortly after his termination, Fleishman filed suit

against Continental alleging violations of the ADEA
No. 11-3754 5

Fleishman continually asserts that the district court relied

1

exclusively on Continental’s Northern District of Illinois Local

Rule 56.1 statement of facts and incorrectly took the evidence

in the light most favorable to the defendant. We do not see a

(continued...)

and ADA. The district court granted Continental’s

motion for summary judgment, finding that Fleishman

failed to provide direct evidence of age discrimination

and was not disabled under the ADA. Fleishman

timely appealed.

II. Discussion

Fleishman challenges the district court’s entry of summary judgment against him on both his ADEA and

ADA claims. The ADEA makes it unlawful for an employer to “discharge any individual . . . because of such

individual’s age.” 29 U.S.C. § 623(a)(1); see also 29 U.S.C.

§ 631(a) (limiting protections to individuals over

forty). Similarly, the ADA prohibits an employer from

discharging “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Summary judgment is appropriate when there is no genuine issue of material

fact such that the movant is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56; Berry v. Chi.

Transit Auth., 618 F.3d 688, 690-91 (2010). To survive summary judgment, the nonmovant must produce

sufficient admissible evidence, taken in the light most

favorable to it, to return a jury verdict in its favor. Id. at 691. We review the district court’s decision 1
6 No. 11-3754

(...continued) 1

basis for these assertions. Pursuant to the local rule, Continental submitted a list of proposed undisputed facts that

Fleishman answered paragraph by paragraph. The district

court is not required to disregard a fact supported by

deposition testimony based solely on Fleishman answering

the paragraph “denied.” Additionally, taking inferences in

favor of Fleishman does not require accepting Fleishman’s

conclusion on what a piece of evidence indicates. Rather,

the court independently reviews the evidence and, if it creates

an inference, we take that inference in the light most favorable

to the nonmoving party. 

de novo.

In discrimination cases, the plaintiff can survive summary judgment under either the direct or indirect

method. For reasons discussed in more detail below,

Fleishman proceeds under the direct-evidence method.

Taken literally, direct evidence would require an admission by the employer, but we also permit circumstantial

evidence that “points directly to a discriminatory

reason for the employer’s action.” Davis v. Con-Way

Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.

2004) (alterations omitted). We have also called this a

“convincing mosaic” of circumstantial evidence, but

fundamentally the plaintiff must connect the circumstantial evidence to the employment action such that

a reasonable juror could infer the employer acted for

discriminatory reasons. See Rhodes v. Ill. Dep’t of Transp.,

359 F.3d 498, 504 (7th Cir. 2004).
No. 11-3754 7

A. Summary Judgment Burdens

As an initial matter, the parties dispute what a

plaintiff’s summary judgment burden is in ADEA and

ADA cases. Fleishman argues that he must produce facts

that permit a jury to infer that discrimination was a

“motivating factor” in his termination. However, Gross v.

FBL Financial Services held that the ADEA’s language

proscribing discrimination “because of” age requires

the plaintiff to prove at trial that age was the but-for

cause of the adverse employment action. 557 U.S. 167, 176

(2009). We followed the Supreme Court’s lead in

Serwatka v. Rockwell Automation, Inc. by noting the ADA’s

analogous language likewise requires plaintiffs bear the

ultimate burden of persuasion to show but-for causation. 591 F.3d 957, 962 (7th Cir. 2010).

Because summary judgment is designed to determine

if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party,” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), our post-Gross

cases now require plaintiffs in ADEA cases to show

evidence that could support a jury verdict that age was

a but-for cause of the employment action at the summary judgment stage. See, e.g., Barton v. Zimmer, Inc., 662

F.3d 448, 455-56 (7th Cir. 2011). Our sister circuits

have done the same. See, e.g., Tusing v. Des Moines

Indep. Cmty. Sch. Dist., 639 F.3d 504, 514-15 (8th Cir. 2011);

Mora v. Jackson Mem’l Fund, 597 F.3d 1201, 1203-04 (10th

Cir. 2010); Schuler v. Price Waterhouse Coopers, LLP, 595

F.3d 370, 376 (D.C. Cir. 2010); Kelly v. Moser, Patterson

and Sheridan, LLP, 348 F. App’x 746, 749-50 (3d Cir. 2009).
8 No. 11-3754

Accordingly, we similarly extend Serwatka’s ADA causation requirement at trial to the summary judgment

stage, meaning Fleishman must produce evidence permitting a jury to infer his age was a but-for cause of

his termination.

We pause to note that this holding accords with

other recent discrimination and employment cases that

proceed differently at the summary judgment stage.

First, constitutional claims, such as First Amendment

retaliation cases, continue to proceed under the Mt.

Healthy burden-shifting framework. Greene v. Doruff,

660 F.3d 975, 977 (7th Cir. 2011) (citing Mt. Healthy Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977)); see also Gross,

557 U.S. at 179 n.6 (noting the decision does not alter

constitutional cases that proceed under Mt. Healthy).

Second, we have continued to apply the McDonnell

Douglas burden-shifting framework in summary judgment cases that proceed under the indirect method of

proof, a question Gross explicitly left open. See, e.g., Senske

v. Sybase, 588 F.3d 501, 506-07 (7th Cir. 2009) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973))

(applying Gross’s but-for causation standard through

the McDonnell Douglas framework); see also Gross, 557

U.S. at 175 n.2 (leaving question open); Shelley v. Geren,

666 F.3d 599, 607-08 (9th Cir. 2012) (“nothing in Gross

overruled our cases utilizing [the McDonnell Douglas]

framework to decide summary judgment motions in

ADEA cases”).
No. 11-3754 9

B. ADEA Claim

Having established Fleishman’s burden, we turn to his

claims. With respect to the ADEA claim, Fleishman

points to a few pieces of evidence he argues satisfy his

burden: Izzo’s comment that Johnson wanted to “get

him too,” Izzo’s offer of retirement and severance at

the onset of Fleishman’s medical problems, and older

lawyers’ departure from Continental.

In 2006, Izzo reviewed Fleishman’s 2005 performance

review in which Johnson gave Fleishman a score that

made him ineligible for a raise. Izzo responded to

Fleishman’s displeasure by stating “hey, she’s out to

get me too,” referring to Johnson. This comment falls

considerably short of evidencing discrimination. First,

this comment is ambiguous; it is devoid of any indication that Johnson’s alleged motivations were age related. We reached a nearly identical conclusion in a

previous case. See Mills v. First Fed. Sav. & Loan Ass’n of

Belvidere, 83 F.3d 833, 841 (7th Cir. 1996) (absent

age-related context, statement that management was

“out to get [the two oldest employees]” alone was not

direct evidence of discrimination even if the plaintiff

interpreted it as age motivated). The ambiguity alone

obviates this comment’s relevance, but moreover,

isolated comments are not probative of discrimination

unless they are “contemporaneous with the discharge

or causally related to the discharge decision-making

process.” Gleason v. Mesirow Fin., Inc., 118 F.3d 1134,

1140 (7th Cir. 1997). This comment is not contemporaneous because it came ten months before
10 No. 11-3754

Fleishman’s termination. See Markel v. Bd. of Regents

of Univ. of Wis. Sys., 276 F.3d 906, 910-11 (2001) (two

months before termination not contemporaneous);

Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d

716, 724 (7th Cir. 1998) (five months not contemporaneous). More importantly, there is no connection between

it and the termination decision. Fleishman fails to

explain how this comment relates to Continental’s decisions, when the record reflects a clear, causally connected chain of events beginning with Husnik’s and

others’ complaints about Fleishman’s work, leading to

Izzo’s investigations into these concerns, and ending

with Izzo’s decision to terminate Fleishman for

inadequate performance. See Marshall v. Am. Hosp. Ass’n,

157 F.3d 520, 526 (7th Cir. 1998) (requiring plaintiff

to connect noncontemporaneous comments to the employer’s decision). Finally, even if Johnson’s comment indicates she harbors age-related animus, she

did not decide to fire Fleishman; Izzo did. And a

nondecisionmaker’s animus is not evidence that the

employer’s actions were on account of the plaintiff’s

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

2008); Davis, 368 F.3d at 789. With respect to the last

point, Fleishman argues under the cat’s paw theory

that Johnson’s animus as a nondecisionmaker proximately caused Izzo’s termination. See generally Martino

v. MCI Commc’ns Servs., Inc., 574 F.3d 447, 452 (7th Cir.

2009) (explaining the cat’s paw theory). Fleishman

limits this argument to one conclusory sentence, and

he presents no facts supporting his theory that Johnson

influenced the termination.
No. 11-3754 11

Fleishman disappointingly makes the disingenuous asser- 2

tion that Continental “badgered” and “continuously” attempted

to get him to retire. To the contrary, Fleishman only testified

to this single conversation in 2004. Fleishman responded

to the question “[is there] anything besides [the 2004 retirement conversation]” that “makes you believe that [Izzo]

discriminated against you” by saying “[t]hat’s all I can recall

right now[;] I’ve had other conversations, but they don’t come

to me right now.” This deposition testimony does not

support counsel’s assertions.

Next, Fleishman argues Izzo attempted to “coerce”

him to retire. Fleishman grounds this argument in

his 2004 conversation with Izzo where, in the middle

of Fleishman’s medical treatments, Izzo spoke to

Fleishman about his declining numbers and asked

Flieshman if he considered retirement. Izzo promised 2

he would receive severance if he decided to do so. Like

the previous comment, however, this conversation is

unconnected to a desire to remove Fleishman because

of his age. A far more likely explanation is Fleishman’s

formerly adequate work fell off considerably at the

time of his medical treatments, and Izzo, concerned

Fleishman could no longer handle the workload,

informed him that retirement would come with

severance pay. Notwithstanding, over two years

passed between this single comment and Fleishman’s

termination. This lapse in time obviates any connection

between the comment and discharge when there is an

intervening, legal reason for the termination—the

external complaints to Izzo and Fleishman’s inade-
12 No. 11-3754

quate performance. See Geier v. Medtronic, Inc., 99 F.3d

238, 242 (7th Cir. 1996) (comments urging employee

to “have all the kids you would like[ ]between spring,

summer, and fall” lacked “causal nexus” to the termination because it was made a full year before the termination in a setting unrelated to the ultimate gravamen of

the termination). Moreover, “suggestion[s] of retirement

do[] not rise to the level of direct evidence of age discrimination” when there is an alternative explanation

for the employment action. Kaniff v. Allstate Ins. Co.,

121 F.3d 258, 263 (7th Cir. 1997) (retirement offered as

alternative to termination for improper conduct); see also

Pitasi v. Gartner Grp., 184 F.3d 709, 714-15 (7th Cir. 1999)

(“What would you think if we gave you early retirement,

with some extra compensation because of your age?”

offered as an alternative to laying plaintiff off was

not discriminatory). Here, Izzo offered Fleishman severance, he declined, Fleishman continued to work,

other employees began complaining about his performance, and then Izzo terminated him because of his

performance. Like the other comment, this does not

create any inference that Continental fired Fleishman

because of his age.

Finally, Fleishman cursorily mentions a pattern of age

discrimination. This argument is ostensibly related to a

page in his statement of facts that notes ten lawyers

between forty and sixty-five are “now gone from the

Chicago office.” Fleishman waived this argument

because he “fail[ed] to develop the factual basis of [the]

claim on appeal and, instead, merely draws and relies
No. 11-3754 13

We decide this case under the ADA standards prior to the 3

Americans with Disabilities Act Amendments Act (“ADAAA”),

Pub. L. 110-325, 122 Stat. 3553 (2008), because Continental

terminated Fleishman’s employment before the ADAAA’s

enactment. See Fredricksen v. United Parcel Serv., Co., 581 F.3d 516,

521 n.1 (7th Cir. 2009). We note, however, the ADAAA broadened the ADA’s protection by superseding portions of Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor

Manufacturing v. Williams, 534 U.S. 184 (2002) to, inter alia,

include a wider range of impairments that substantially limit a

(continued...)

upon bare conclusions.” Muhich v. Commissioner, 238 F.3d

860, 864 n.10 (7th Cir. 2001). Notwithstanding, it lacks

merit, as nothing connects these employees’ departures

to prohibited conduct (or even evidence Continental

played a role in the decision). One would expect older

employees to naturally leave their employers. Without

more, this occurrence is not evidence of discrimination.

C. ADA Claim

Next, we turn to the ADA claim. The ADA prohibits

employers from taking adverse employment actions

against their employees because of a disability. 42 U.S.C.

§ 12112(a). To succeed, Fleishman must be disabled

under the ADA, which defines disability as: “(A) a

physical or mental impairment that substantially limits

one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded

as having such an impairment.” 42 U.S.C. § 12102(1).3
14 No. 11-3754

(...continued) 3

major life activity. See Pub. L. 110-325 § II(a)(4)-(6). Accordingly,

although Fleishman notes he was unable to drive during the

period leading up to his termination, driving was not

considered a major life activity prior to the adoption of the

ADAAA. Winsley v. Cook Cnty., 563 F.3d 598, 604 (7th Cir. 2009).

And in any event, Fleishman did not raise this argument in

the district court.

Fleishman argues that his aneurism constitutes a

disability and, additionally, Continental regarded him

as having a disability.

1. Substantially Limits a Major Life Activity

Fleishman has not produced evidence that his

aneurism limits a major life activity. In his motion

before the district court, Fleishman merely cited the

Wikipedia article on aneurisms and concluded that the

“ability to function and live is certainly a major life function.” As both the district court and Fleishman’s appellate brief recognize, however, determining whether a

plaintiff has a disability is made on an individualized

basis. Thus, the existence of a medical condition alone

is insufficient to satisfy the ADA. Toyota Motor Mfg.

v. Williams, 534 U.S. 184, 198 (2002) (holding “[i]t is insufficient for individuals . . . to merely submit evidence of

a medical diagnosis of an impairment. . . . [T]he ADA

requires . . . evidence that the extent of the limitation

caused by their impairment in terms of their own experience is substantial” (alterations omitted)), superseded
No. 11-3754 15

in part by Pub. L. 110-325, 122 Stat. 3553 (2008); Burnett

v. LFW Inc., 472 F.3d 471, 483 (7th Cir. 2006) (citing Tice v.

Ctr. Area Transp. Auth., 247 F.3d 506, 513 (3d Cir. 2001)

(“It is well-established that a particular diagnosis, no

matter how severe (or severe-sounding to the layperson), standing alone, is not sufficient to establish

‘disability.’ Rather, the inquiry as to disability is to be

made on a case-by-case basis.”) (alterations omitted)).

Fleishman cannot rely on “the name or diagnosis of

the impairment”; rather, he must show “the effect of that

impairment on” him. Burnett, 472 F.3d at 483. Under

this standard, Fleishman’s bare assertion that his

aneurism constitutes a disability is insufficient.

For the first time on appeal, Fleishman now

contends that the aneurism limited his ability to work.

He cites his 2005 performance review downgrading his

score because he missed time. Fleishman waived this

claim because he only argued the aneurism affected his

ability to “function and live” in the district court. Notwithstanding, Fleishman testified at his deposition that

his aneurism only prevented him from working for portions of 2003, 2004, and early 2005, but his condition

did not prevent him from working from June 2005 until

his termination in January 2007. And although he could

not drive during that period, Fleishman stated in his

deposition that he “went to all the status calls, [he]

did [his] regular job, [and he] didn’t ask for any accommodations” in 2005 or 2006. Although Fleishman’s

medical problems formerly affected his ability to work,

they did not, by his own admission, limit his ability
16 No. 11-3754

to work nearly eighteen months leading up to his termination. Thus, Fleishman did not have a disability at

the time of his termination. See Patterson v. Chi. Ass’n

for Retarded Citizens, 150 F.3d 719, 726 (7th Cir. 1998)

(“Patterson cannot argue that she is substantially

restricted in her ability to work as a teacher, . . . because

the undisputed evidence establishes that immediately

upon her termination . . . Patterson was and has

continued to be regularly employed as a teacher within

the Chicago Public School system.”).

2. Regarded as Disabled

Fleishman also contends Continental regarded him as

having a disability. To succeed on this claim, he must

establish that either (1) “the employer mistakenly

believe[d] that [he] ha[d] an impairment that substantially limits a major life activity,” or (2) “the employer mistakenly believe[d] that an existing impairment, which is not actually limiting, does substantially

limit a major life activity.” Brunker v. Schwan’s Home

Serv., Inc., 583 F.3d 1004, 1008 (7th Cir. 2009). Fleishman

suggests that Continental did not believe he could

work because, after twenty years of successful employment, its employees began criticizing his work and Izzo

asked him if he considered retirement. As the district

court explained, the evidence overwhelmingly suggests

otherwise—at all times during and after his medical

leave Continental continued to employ Fleishman as a

workers’ compensation attorney and, in fact, transferred
No. 11-3754 17

him to the newly created Major Claims Unit designed

to handle high-value cases. Fleishman is correct that the

evidence suggests Izzo and others knew Fleishman

had medical problems related to his aneurism. But

nothing suggests that anyone at Continental thought

this condition substantially affected his ability to earn

a living. Even amidst the performance complaints, Izzo

placed Fleishman on a performance improvement plan.

This measure indicates that, although Fleishman’s

work was suffering, Izzo believed he was capable of

performing adequately.

3. Accommodation Claim

On appeal, Fleishman begins weaving arguments into

his brief that Continental failed to accommodate his

disability. 42 U.S.C. § 12112(b)(5)(A) (“the term discriminated against a qualified individual on the basis of disability includes—not making reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability”

(internal quotations omitted)). Again, because Fleishman

is not disabled, this claim fails. But more importantly,

he failed to raise it in his complaint, let alone his brief

in the district court. And further, “the standard rule is

that a plaintiff must normally request an accommodation before liability under the ADA attaches,” Jovanovic

v. Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000),

and Fleishman never did so. 
18 No. 11-3754

D. Indirect Evidence of Discrimination

In the district court, Fleishman acknowledged that he

could survive summary judgment under either the

direct or indirect methods before asserting “[w]e seek to

establish intentional discrimination under the direct

method of proof.” On appeal, he now asserts a theory of

indirect discrimination (at least under the ADEA), which

is waived. In responding to Continental’s waiver arguments, Fleishman misunderstands the waiver doctrine.

Fleishman first asserts he presented everything on

which his appellate brief relies in his Northern District

of Illinois Local Rule 56.1 statement of facts. But the

waiver doctrine charges litigants with raising the arguments they present on appeal in the district court, not just

the facts on which their appellate arguments will rely.

See Bus. Sys. Eng’g, Inc. v. Int’l Bus. Mach. Corp., 547

F.3d 882, 889 n.3 (7th Cir. 2008). Fleishman’s positions

are legal arguments urging us to deny summary judgment, and thus, wavier applies. See also Weber v. Univs.

Research Ass’n, Inc., 621 F.3d 589, 592-93 (7th Cir. 2010)

(Weber waived proof by the direct method by failing

to develop the argument in the district court).

In light of these issues, Fleishman urges us to consider

his arguments. Although Fleishman is correct that the

waiver rule is prudential and not jurisdictional, it

serves important interests. By requiring litigants to

raise their arguments in the district court, we, for

example, prevent parties from getting two bites at the

apple by raising two distinct arguments before each

court, incentivize the presentation of well-reasoned
No. 11-3754 19

motions in the district court, and avoid unnecessary

costs to the courts and parties by avoiding appeals that

could have been decided below. Thus, we enforce the

rule unless the “interests of justice” require otherwise.

Judge v. Quinn, 624 F.3d 352, 360 (7th Cir. 2010). Such

examples include where “failure to consider the

alleged error would result in a miscarriage of justice,”

“the equities heavily preponderate in favor of correcting

it,” or “there was a plain error that seriously affected

the fairness, integrity, or public reputation of the

judicial proceedings.” See 36 C.J.S. Federal Courts § 458

(footnotes omitted) (compiling cases).

In any event, a brief review of Fleishman’s ADEA

indirect evidence claim reveals it lacks merit. The

indirect method of proof proceeds under the McDonnell

Douglas framework, which requires Fleishman to show

that (1) “he was meeting his employer’s legitimate expectations,” (2) “he suffered an adverse employment

action,” and (3) “similarly situated, substantially younger

employees were treated more favorably.” Franzoni v.

Hartmarx Corp., 300 F.3d 767, 771-72 (7th Cir. 2002). If

successful, the defendant must provide a legitimate

nondiscriminatory reason for the action. Id. The

plaintiff then must show that there is an issue of fact

whether this reason is pretextual. Id. Relying on a case

in which we assumed arguendo that the plaintiff had

established a prima facie case because he could not establish pretext, Fleishman remarkably skips this entire

first step—asserting he “may skip over the initial burden-shifting of the indirect method and focus on

the question of pretext.” But his claim fails because he
20 No. 11-3754

cannot skip that step. Moreover, there is no evidence

that younger employees were treated more favorably.

In his statement of facts he relies on his faster

case-closure rate than Marcy Singer-Ruiz and Steve

Trotto, but both these individuals were close to

Fleishman in age (forty-four and forty-eight respectively), and they received higher evaluation scores

during the time in question. Thus, they were neither

similarly situated nor substantially younger. For all of

these reasons, this argument fails.

III. Conclusion

For the foregoing reasons, we AFFIRM the district

court’s decision.

10-18-12