Culver, Melody J. v. Gorman & Company

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3442

MELODY J. CULVER,

Plaintiff-Appellant,

v.

GORMAN & COMPANY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 C 7620—Barbara B. Crabb, Chief Judge.

____________

ARGUED JUNE 3, 2005—DECIDED JULY 20, 2005

____________

Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge. If, as Martin Luther King, Jr.,

once stated, discrimination is a “hellhound,” then a retali-

ation lawsuit is a plaintiff’s opportunity to bite back.1

Melody Culver was terminated by her employer, Gorman &

Company, on January 10, 2002, three days after she spoke

of filing a discrimination charge or seeing a lawyer. She

then brought suit, claiming retaliation in violation of Title

VII and the Equal Pay Act. Gorman filed a motion for

1

Dr. Martin Luther King, Jr., Address at the Southern Christian

Leadership Conference, Atlanta, Georgia (August 16, 1967).

2 No. 04-3442

summary judgment, and the district court granted it,

stating that the suspicious timing of Culver’s termination

by itself did not create a triable issue and that Gorman had

advanced lawful reasons for terminating her for insub-

ordination between January 7 and 10. Culver appeals.

Because Culver has shown that discrimination may have

been a substantial or motivating factor in her termination,

and because a reasonable fact finder could determine that

Gorman did not honestly believe that it terminated Culver

for insubordination, we REVERSE summary judgment as to

Culver’s Title VII claim. However, we AFFIRM the dismissal

of Culver’s Equal Pay Act claim since it has been waived.

I.

Melody Culver was employed by Gorman as an assistant

property manager from May 22, 2000 through January 10,

2002, and was responsible for leasing apartments, respond-

ing to resident concerns, completing accounts payable and

receivable, processing rent applications and other adminis-

trative tasks. In July of 2001, Ron Schroeder became her

supervisor. Schroeder increased Culver’s work respon-

sibilities, asking her to handle accounts payable and bank

deposits for two commercial properties and to help him to

learn federal regulations applying to a low-income housing

unit they managed. In the fall of 2001, Culver asked

Schroeder for a raise because of her increased respon-

sibilities; Schroeder said he would talk to the company

controller, but the request was denied. Culver later spoke

to Schroeder’s supervisor, Peter Jorde, about this issue;

Jorde stated that he would talk to Schroeder and get back

to her, but she never received a further response. About

that time, Schroeder discovered that Culver had saved her

resume on her computer at work. When he confronted her

about this, Culver explained that she was considering

relocating to Pennsylvania to care for her ailing father and

No. 04-3442 3

was investigating job possibilities there. Culver also stated,

however, that she was uncertain whether her child custody

arrangements with her ex-husband would permit such a

move. She also assured Schroeder that she liked working

for Gorman. Schroeder told Culver to remove the resume

from the company computer but did not take any other dis-

ciplinary action against her. Schroeder states that he learned

in December of 2001, after his budget was complete, that

Culver was not leaving. This prevented him from allocating

to her a raise comparable to one granted certain other

employees.

On January 7, 2002, Schroeder gave Culver her annual

performance review, rating her performance as meeting or

exceeding expectations in all areas of her job. He told her

that she was good with residents and customer service and

that he was pleased she had improved relations with an-

other employee, Brad Harrison, with whom she had had a

tense relationship in the past. However, Schroeder stated

that he was unhappy that Culver had kept her resume on

her work computer and had looked for other jobs and

further noted that she needed to take credit for both team

accomplishments and mistakes, not treat other staff in a

degrading manner and stop blaming and complaining about

others (although she was improving in this area). Schroeder

then gave Culver a 50-cent per hour raise. When Culver

asked why it was so small, Schroeder replied that she might

be leaving the company. Culver allegedly reiterated that

she was not leaving and that it was not fair to give her such

a small raise, but Schroeder replied that it was too late to

make adjustments since the following year’s budget was set.

Upset about her raise, Culver spoke to two male mainte-

nance workers, Brad Harrison and James Crim, and found

that Harrison had received a 75-cent raise in addition to a

raise he had received in the fall, and that Crim had received

a dollar an hour raise. Culver told her coworkers that she

was happy for them, but that she thought she was being

4 No. 04-3442

treated unfairly. She also mentioned that she was thinking

about getting an attorney or filing a complaint with the

EEOC. Shortly after she had spoken to the maintenance

workers, Culver returned to speak with Schroeder, and

inquired whether she would still get her annual bonus if

she were to leave the company. Schroeder confirmed that

she would indeed receive her bonus, and at Culver’s request

typed a note confirming this. Culver told Schroeder that she

was going to speak to Jorde about her raise, and set up a

meeting with Jorde for January 10. Culver alleges that,

after he learned of the meeting, Schroeder warned that his

budget was set, that speaking with Jorde would not change

anything and in fact stated that she “was making a mistake

talking with Peter.”

Meanwhile, at some point between January 7 and 10,

Harrison informed Schroeder that Culver had discussed

hiring a lawyer or contacting the EEOC, and Schroeder

passed this information along to Jorde. Schroeder also in-

formed Jorde at this time that Culver was unhappy about

her raise, and that Harrison had told him that Culver was

going to file a discrimination claim with the EEOC.

Schroeder states that, from January 7 to 10, Culver’s atti-

tude became “totally unacceptable” and that she was “very

short” with coworkers and would refuse to perform work

tasks at Schroeder’s request. Schroeder details one incident

in which he asked Culver questions on work issues, and she

handed him a manual and told him to look up the answers

himself since she was no longer there to train him if he was

going to continue treating her in the same manner.

Schroeder also asserts that Culver on another occasion

stated sarcastically that she wished Gorman would fire her.

Because of this purported attitude change, Schroeder

allegedly told Jorde at some point before the January 10

meeting that he was ready to fire Culver because of her

behavior. Gorman thus contends that the purpose of the

January 10 meeting was to work out the difficulties be-

tween Culver and Schroeder.

No. 04-3442 5

At the January 10 meeting, Culver voiced a number of

complaints to Jorde, stating that Schroeder treated male

coworkers better, gave her too small a raise either because

she was a woman or was a single mother, and increased her

job responsibilities without fair compensation. Schroeder

assertedly failed to include her in decision making, treating

her as a stupid female who just answered phones, barred

her from speaking with Harrison about maintenance issues

to resolve them and failed to resolve them himself. He also

allegedly did not put in enough time at the office and failed

to address problems at two company properties, including

a leaky roof severe enough to merit a call from the city

health department. Jorde then asked Schroeder to join the

meeting, and directed her to repeat her complaints. Culver

then addressed Schroeder, stating that it wasn’t fair that

her male coworkers received higher raises, that she should

be able to speak with Harrison, that Schroeder had handled

some situations such as the leaky roof incorrectly and that

he did not listen to resident concerns. At this point,

Schroeder said he had heard enough and fired Culver,

stating, “That’s enough. We have tried this for six months,

and it hasn’t worked out.” When Culver asked why she had

been terminated, Schroeder said, “There are issues,” that he

would cite in an exit interview. But no interview was ever

held. Schroeder now claims that he concluded Culver was

not willing to improve her conduct and fired her because

she had repeatedly criticized his performance and work

ethic and he therefore concluded that she could no longer be

a team player.

Culver then brought suit seeking monetary and injunctive

relief under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e to 2000e-17, and the Equal Pay Act, 29

U.S.C. § 206(d), stating that Gorman had violated both

when it terminated her for threatening to bring a sex dis-

crimination complaint. Thereafter, Gorman sought sum-

mary judgment on both claims.

6 No. 04-3442

The district court first stated that Culver had to rely on

the circumstantial evidence of suspicious timing since

Gorman had not admitted that it fired her in retaliation for

having complained about perceived sex discrimination.

While it agreed that the timing was “suspicious,” the dis-

trict court stated that suspicious timing alone was rarely

sufficient to create a triable issue, and that the timing was

not probative since Gorman “honestly believed” that it was

terminating Culver for her insubordinate attitude and re-

fusal to perform work tasks since January 7 and her be-

havior during the January 10 meeting. The district court

then determined that Schroeder reasonably concluded that

Culver would no longer respect his authority since, as she

conceded, she had refused to answer work-related questions

for Schroeder, and because she had criticized his profes-

sional competency in the January 10 meeting. The district

court further found that Schroeder’s comment that Culver

had been fired for the vague reason of “issues” did not

support a finding of pretext since he gave no specific reason

which conflicted with other proffered reasons for his

termination decision. Finally, the district court granted

Gorman summary judgment on Culver’s Equal Pay Act

claims, concluding that she could not prove causation.

II.

We have jurisdiction over this appeal under 28 U.S.C.

§ 1291. We review the district court’s grant of summary

judgment de novo. Mannie v. Potter, 394 F.3d 977, 982 (7th

Cir. 2005). Summary judgment is only appropriate when

“there is no genuine issue as to any material fact and . . .

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

312, 322 (1986). The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in

her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986).

No. 04-3442 7

A. Culver’s Ability to Establish Causation

Culver contends that the district court improperly

granted summary judgment on her Title VII and Equal Pay

Act retaliation claims. To establish a prima facie case for

unlawful retaliation, a plaintiff must prove three elements:

(1) she engaged in statutorily-protected expression; (2) she

suffered an adverse employment action; and (3) there was

a causal link between the protected expression and the

adverse action. Krause v. City of La Crosse, 246 F.3d 995,

1000 (7th Cir. 2001). For purposes of summary judgment

only, Gorman concedes that Culver engaged in protected

activity and that she suffered an adverse employment

action. A causal link between the protected expression and

an adverse employment action may be established by

showing that the protected conduct was a substantial or

motivating factor in the employer’s decision. Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977). “A motivating factor does not amount to a but-for

factor or to the only factor, but is rather a factor that

motivated the defendant’s actions.” Spiegla v. Hull, 371

F.3d 928, 942 (7th Cir. 2004).2

In her appellate brief, Culver relies on the direct method

to establish a causal link between her allegations of sex

discrimination and her termination. The direct method can

be supported either with direct or with circumstantial evi-

dence; direct evidence “essentially requires an admission by

the decision maker that his actions were based on the

prohibited animus” and so is rarely present. Rogers v. City

2

Both Mt. Healthy City School District Board of Education v.

Doyle, 429 U.S. 274, 287 (1977), and Spiegla v. Hull, 371 F.3d 928,

942 (7th Cir. 2004), address retaliation in the context of the First

Amendment, but the causation analysis for retaliation cases is the

same under the First Amendment and Title VII. Spiegla, 371 F.3d

at 943 n. 10.

8 No. 04-3442

of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) (internal quo-

tation omitted). Culver presents no evidence that Gorman

admitted a retaliatory termination. But circumstantial

evidence can establish a causal link if the trier of fact can

infer intentional discrimination. Id.

Once the plaintiff has succeeded in making a prima facie

case, the burden of production shifts to the defendant to

prove by a preponderance of the evidence that the same

action would have occurred in the absence of the protected

conduct. Spiegla, 371 F.3d at 943. The persuasiveness of the

defendant’s explanation is normally “for the finder of fact to

assess, unless the court can say without reservation that a

reasonable finder of fact would be compelled to credit the

employer’s case on this point.” Venters v. City of Delphi, 123

F.3d 956, 973 (7th Cir. 1997). Summary judgment should be

granted only if the defendant “presents unrebutted evidence

that he would have taken the adverse employment action

against the plaintiff even if he had no retaliatory motive.”

Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,

644 (7th Cir. 2002).

Viewing Culver’s evidence in the light most favorable to

her, as the summary judgment standard requires, Culver

has satisfactorily demonstrated a causal link between her

protected expression—complaints concerning gender discri-

mination—and an adverse employment action—her termi-

nation. Of major significance is the fact that only three days

had elapsed between Culver’s initial complaint of discrimi-

nation and her termination. This short 72-hour period

clearly gives rise to an inference of suspicious timing. But

this is not the only evidence of retaliation. “We have never

said that [temporal proximity] is dispositive in providing or

disproving a causal link.” Sitar v. Ind. Dep’t of Transp., 344

F.3d 720, 728 (7th Cir. 2003). We have, however, noted that

it will “rarely be sufficient in and of itself to create a triable

issue.” Stone, 281 F.3d at 644.

No. 04-3442 9

This case is not one of the rare occasions envisioned by

Stone where suspicious timing alone is enough to establish

causation. For suspicious timing may permit a plaintiff to

survive summary judgment if there is other evidence that

supports the inference of a causal link. Lang v. Ill. Dep’t of

Children and Family Servs., 361 F.3d 416, 419 (7th Cir.

2004). Suspicious timing is thus “often an important

evidentiary ally of the plaintiff.” Lalvani v. Cook Country,

Ill., 269 F.3d 785, 790 (7th Cir. 2001). “When an adverse

employment action follows on the close heels of protected

expression and the plaintiff can show the person who de-

cided to impose the adverse action knew of the protected

conduct, the causation element of the prima facie case is

typically satisfied.” Id. Here, there is no question that

Schroeder knew of Culver’s complaints, and a mere 72 hours

elapsed between the time Culver first complained to him of

discrimination and his abrupt decision to terminate her,

rendering close temporal proximity utterly transparent.

But the evidence also suggests more than closeness in

time between Culver’s allegations of discrimination and her

termination. Culver’s termination followed closely on the

heels of her annual performance evaluation completed by

Schroeder, in which he stated that she had met or exceeded

all expectations. Contrary to Gorman’s argument to the

contrary, an employer’s sudden dissatisfaction with an

employee’s performance after that employee engaged in a

protected activity may constitute circumstantial evidence of

causation. Lang, 361 F.3d at 419-21 (considering plaintiff’s

previous five-year flawless employment record as circum-

stantial evidence giving rise to an inference of causation

when combined with other circumstantial evidence).

Culver’s satisfactory performance review, together with

Schroeder’s insistence that he harbored no desire to fire her

at the time of her annual review, establish that she was in

no danger of losing her job until after she made her allega-

tions of gender discrimination. Viewing this evidence in the

10 No. 04-3442

light most favorable to Culver, a reasonable fact finder

could conclude that the radical reversal of Gorman’s

perception of Culver’s fitness as an employee was closely

associated with her protected activity, and thus contributes

to an inference of causation.

The final piece of circumstantial evidence that supports

an inference of causation is Schroeder’s alleged warning to

Culver that her meeting with Jorde was ill-advised.

Schroeder ostensibly advised Culver several times that her

meeting with Jorde would not alter anything since

Gorman’s budget was already set, and apparently also

warned her that she “was making a mistake talking with

Peter.” Schroeder ultimately fulfilled his own prophecy by

firing Culver immediately after she repeated, at Jorde’s

direction, the very same allegations of discrimination that

she had previously made to Jorde. When viewed in the light

most favorable to Culver, Schroeder’s warning, together

with the highly probative timing and the rapid reversal of

Gorman’s evaluation of her work performance, creates a

triable inference that her complaints of discrimination were

a substantial and motivating factor in her termination.

B. Whether Gorman Honestly Believed that It Fired

Culver For Insubordination

Having found that Culver has established a prima facie

case of retaliation, the ball is now in Gorman’s court to

show by a preponderance of the evidence that Culver would

have been fired even absent her allegations of discrimina-

tion. Gorman asserts in effect that Culver would have been

fired irrespective of her allegations of discrimination since

she developed an insubordinate attitude in the three days

following her annual review. Gorman refers to two incidents

of insubordination: (1) Culver’s refusal to answer a work-

related question asked by Schroeder (when she handed him

a manual and told him to look up the answer himself); and

No. 04-3442 11

(2) Culver’s “insubordinate” attitude during the January 10

meeting before Jorde and Schroeder. Gorman contends that

each incident of alleged insubordination is uncontested by

other evidence in the record, and that each was sufficient to

support Culver’s termination. For her part, Culver concedes

that she did tell Schroeder to look up the answer to his own

question, but denies that she was insubordinate to

Schroeder in the presence of Jorde.

As has been regurgitated ad nauseum, this Court is not

a “super personnel review board” that second-guesses an

employer’s facially legitimate business decisions. Ajayi v.

Aramark Bus. Servs., 336 F.3d 520, 532 (7th Cir. 2003). We

would hardly be so foolish as to suggest that insubordina-

tion is not a legitimate reason for an employer to fire an

employee. Hottenroth v. Village of Slinger, 388 F.3d 1015,

1031-32 (7th Cir. 2004). But the issue before us is not

whether an employer’s evaluation of the employee was

correct but whether it was honestly believed. Olsen v.

Marshall & Ilsley Corp., 267 F.3d 597, 602 (7th Cir. 1994).

An employer’s explanation can be “foolish or trivial or even

baseless” so long as it “honestly believed” the proffered rea-

sons for the adverse employment action. Hartley v. Wisc.

Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997). Summary

judgment is appropriate only if a reasonable fact finder

would be compelled to believe Gorman’s explanation,

Venters, 123 F.3d at 973, and Culver can avoid summary

judgment by pointing to specific facts that place the em-

ployer’s explanation in doubt. Zaccagnini v. Chas. Levy

Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003). We

conclude here that the evidence, taken in the light most

favorable to Culver, creates a triable issue of pretext. We

will consider each alleged incident of insubordination in

turn.

12 No. 04-3442

1. Culver’s Refusal to Answer Schroeder’s Question

Insubordination is defined as “willful disregard of an

employer’s instructions” or “an act of disobedience to proper

authority.” BLACK’S LAW DICTIONARY 814 (8th ed. 2004).

Culver’s undisputed refusal to answer Schroeder’s request

for information appears to qualify as disobedience or defi-

ance even if about a relatively trivial matter.

Gorman, however, did not refer to this incident as an ex-

ample of insubordination until filing its summary judgment

motion. This was only after Culver mentioned the matter in

her deposition. Schroeder failed to mention any specific

instances of insubordination at the time of the firing; he

later at his deposition, when asked to identify all incidents

of Culver’s insubordination, failed to mention this matter.

This failure to earlier mention the incident as a reason for

termination is evidence of pretext. See Emmel v. Coca-Cola

Bottling Co. of Chi., 95 F.3d 627, 634 (7th Cir. 1996)

(affirming a jury’s factual determination that defendant’s

nondiscriminatory reason for its hiring decision was pre-

textual in part because it was not put forth upon the

plaintiff’s initial inquiry). When he terminated Culver,

Schroeder referred only to “issues” which would be dis-

cussed at an exit interview (which never took place).

Gorman’s response to Culver’s application for unemploy-

ment benefits was similarly vague—referring only to “per-

formance issues”.

2. Culver’s Alleged Insubordination During the

January 10 meeting

Gorman further contends that Culver was insubordinate

to Schroeder during the January 10 meeting with Jorde by

telling Jorde that Schroeder pushed his job off on her, did

not perform all required property management tasks,

prevented her from speaking with the maintenance staff to

resolve maintenance issues and had failed to attend to a

leak at one property until the city health department had

No. 04-3442 13

issued a citation. Of course “[w]e have consistently held

that an employee’s insubordination toward supervisors and

coworkers, even when engaged in protected activity is

justification for [adverse employment action].” Love v. City

of Chi. Bd. of Educ., 241 F.3d 564, 570 (7th Cir. 2001)

(quoting Kahn v. United States Sec’y of Labor, 64 F.3d 271,

279 (7th Cir. 1995)). Culver, however, vigorously protests

Gorman’s characterization of her conduct, stating that she

did not raise her voice throughout the January 10 meeting,

and, of course, the stated purpose of the meeting was to air

her discontents. Whether her non-confrontational comments

in the course of such a meeting amounted to “insubordina-

tion” is a jury question bearing on the issue of pretext.

Culver’s criticisms of Schroeder’s ability as a manager do

not appear to have been personal attacks by an irate

employee but objectively supportable concerns voiced at the

invitation of a superior manager. Jorde’s instructions to

Culver to repeat her criticisms of Schroeder to his face

resulted in just that. If anything, Culver was following her

superior’s directive, and so was being subordinate, not

insubordinate. The citing of this encounter as grounds for

termination seems a stretch.

3. Whether Schroeder Honestly Believed that Culver was

Terminated for Insubordination

Of course, the basic question is whether Schroeder hon-

estly believed that Culver’s refusal to answer his question,

her allegedly sudden change in attitude or her insubordi-

nate criticisms of his professional competency justified her

termination. In that respect, his failure to discuss these

incidents when provided with opportunities to do so is

troubling. Various incidents occurring immediately before

she was fired are cited as grounds for termination, but

Schroeder identified none of these incidents either when he

fired Culver or during his deposition. Thus, viewing this

14 No. 04-3442

evidence in the light most favorable to Culver, a reasonable

jury could determine that Schroeder’s silence indicated that

this explanation was pretextual.

Gorman contends that an explanation is not pretextual

merely because an employer provides a reason for an

adverse employment action only after litigation has com-

menced. See Pugh v. City of Attica, Ind., 259 F.3d 619, 629

(7th Cir. 2001). However, in Pugh the employer had not pro-

vided an explanation at the time of the firing, but offered

evidence—board meeting minutes and an investigation

report discussing the reasons for the adverse action—sug-

gesting that the reason for the termination arose contempo-

raneously with it and, in any event, predated the advent of

litigation. Id. Here, Gorman relies only on Schroeder’s

assertion in his affidavit that he conferred with Jorde prior

to the January 10 meeting and told him that he was ready

to fire Culver if her negative attitude persisted. But this

claim comes so late in the day as to permit an inference of

pretext. Further, although the district court correctly noted

that employers may elaborate on the reasons for an adverse

employment action once litigation has commenced, Perfetti

v. First National Bank of Chicago, 950 F.2d 449, 457 (7th

Cir. 1991), here, Gorman had only a vague reference to

“issues” on which to elaborate.

Gorman’s inconsistency in describing the timing of

Culver’s work problems heightens our uncertainty over

whether Gorman honestly believed that Culver was fired for

insubordination. When Schroeder fired Culver, he stated,

“We have tried this for six months and it hasn’t worked

out.” Yet, in its motion for summary judgment, Gorman

confined Culver’s employment “issues” to the three days

from her annual evaluation on January 7 to her termination

on January 10. An inconsistent employer explanation may

help to support a finding of pretext. Zaccagnini, 338 F.3d at

678. If Culver’s attitude did indeed fall off the cliff of

acceptable workplace behavior in the three days prior to her

No. 04-3442 15

termination, we find it surprising that Schroeder did not

specifically refer contemporaneously to this recent period of

substandard behavior. On summary judgment, in the

context of a firing almost immediately following a protected

complaint, we must question as pretextual assertions of

problematic conduct tardily distilled into specific claims.

Finally, Schroeder’s sudden dissatisfaction with Culver’s

performance casts further doubt over whether Schroeder

honestly believed he fired Culver due to her insubordi-

nation. While the relevant time for determining the effec-

tiveness of an employee is the time of discharge, “previous

employment history may be relevant and probative in

assessing performance at the time of termination.” Fortier

v. Ameritech Mobile Communications, 161 F.3d 1106, 1113

(7th Cir. 1998). Cf. Giacoletto v. Amax Zinc Co., 954 F.2d

424, 426-27 (7th Cir. 1992) (holding that jury could consider

earlier evaluations in determining whether the reasons

given for discharge were pretextual when a plaintiff assert-

ing age discrimination received a suspiciously negative

annual review just six days before he was fired). Since it

preceded her termination by only three days, Culver’s

annual performance evaluation is especially relevant in

assessing performance at the time of termination. Viewing

all the evidence in the light most favorable to Culver, a

reasonable jury could determine that Gorman’s reasons for

Culver’s termination are pretextual.

4. Culver’s Termination as a Preemptive Measure

As a secondary explanation for Culver’s termination,

Gorman suggests that this action was a preemptive mea-

sure driven by its honest belief that she was imminently

planning to quit. Gorman states that Culver was likely to

leave her job because she had previously discussed moving

to Pennsylvania to care for her ailing father, had repeatedly

expressed displeasure with her raise and with Schroeder’s

16 No. 04-3442

continued supervision, and because she had sought written

confirmation that she would receive her annual bonus if she

left the company. We have previously held that “it is not

discriminatory for an employer to take a preemptive action

against an employee who has announced her intention to

leave at the first opportunity.” Miller v. Am. Family Mut.

Ins. Co., 203 F.3d 997, 1009 (7th Cir. 2000). In Miller, the

plaintiff-employee (who had threatened to quit on three

prior occasions) delivered an ultimatum that she would quit

if she did not receive the raise that she had requested. Id.

However, viewing the evidence in the light most favorable

to Culver, the record does not compel Gorman’s conclusions.

Culver did not announce her intention to leave Gorman at

the first available opportunity, and in fact asserts that she

never threatened to quit her job. (Culver Aff. ¶ 33).3 With

respect to Culver’s possible move to Pennsylvania, Gorman

acknowledges that Culver informed Schroeder in December

of 2002 that she was not moving to Pennsylvania. (Gorman

Br. at 2). While some of Culver’s actions, such as her re-

quest for a written confirmation that she would receive her

bonus, suggest an intention to leave her job, others such as

her willingness to schedule a meeting with Jorde to attempt

to resolve certain issues suggest the opposite. And she did

state to Schroeder that she could not afford to quit her job.

We are extremely reluctant to extend the holding of Miller

to include situations where an employee does not explicitly

3

Ironically, Culver’s intention to keep her job is shown by a

statement that Gorman repeatedly and erroneously quoted

throughout its brief and during oral argument, to the effect that

Culver had told Schroeder at the January 10 meeting to “take this

job and shove it.” Culver in fact never made such a bald de-

claration; instead, she told Schroeder, “I don’t know why you feel

you can do this to me and I don’t know if you think it’s because I’m

a woman or because I’m a single mom and I can’t tell you to stick

this job.” (R. 19; Culver Dep. p. 52).

No. 04-3442 17

indicate her intention to leave at the first available opportu-

nity. There is thus a genuine issue of material fact as to

whether Schroeder honestly believed Culver was about to

leave Gorman. And, in any event, we need not find an issue

that retaliation was the sole or but-for cause of the firing,

only that it was a motivating factor.

5. Culver’s Equal Pay Act Claims

On appeal, Culver has merely asserted that the district

court incorrectly granted summary judgment to Gorman on

her claims under Title VII and the Equal Pay Act, but she

has adequately discussed only her Title VII claims. We

therefore find that Culver has waived her Equal Pay Act

claim, since it is unsupported and undeveloped. See

United States v. Turcotte, 405 F.3d 515, 536 (7th Cir. 2005)

(“In this circuit, unsupported and undeveloped arguments

are waived.”) (citations omitted).

III.

For the foregoing reasons, we REVERSE the district court’s

grant of Gorman’s motion for summary judgment on her

Title VII claim, and REMAND for proceedings consistent

with this opinion. We AFFIRM summary judgment on the

Equal Pay Act claim.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-20-05