Steven Lauth v. Covance, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 16-2939

STEVEN A. LAUTH,

Plaintiff-Appellant,

v.

COVANCE, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14-cv-00136-WTL-TAB — William T. Lawrence, Judge.

ARGUED FEBRUARY 7, 2017 — DECIDED JULY 13, 2017

Before BAUER, POSNER, and SYKES, Circuit Judges.

BAUER, Circuit Judge. Steven Lauth was terminated from his

position at Covance Central Laboratories, Inc. on October 25,

2012. He sued Covance, raising claims of age discrimination

and retaliation. The district court granted summary judgment

in favor of Covance. The court also awarded certain costs to

Covance. Lauth appeals from both orders.

2 No. 16-2939

I. BACKGROUND

The facts that follow are those established by the summary

judgment record in the district court, as viewed in the light

most favorable to Lauth. See Whitaker v. Wis. Dep’t of Health

Servs., 849 F.3d 681, 682 (7th Cir. 2017).

Lauth began working at Covance in 2006 at the age of 54.

He started as a second shift supervisor in the kit production

department. From the time Lauth started in 2006 through April

2012, Donald Snyder was his direct supervisor.

After the end of each year, and sometimes at mid-year,

Lauth received a performance review called a Performance

Management Document (PMD). Snyder, as Lauth’s supervisor,

wrote his first review in 2006 and issued Lauth an overall

rating of “Meets Expectations.” He praised Lauth for maximiz-

ing his department’s output and for his “diligence in getting

his staff cross trained as much as possible.” Snyder also

commented on Lauth’s communication style, noting that he

“need[s] to tailor or soften somewhat his approach, to that of

his workforce.” He stated that Lauth could do this by “using a

little more compassion and maybe even incorporating ways to

relax the 2nd shift.” Finally, Snyder noted that Lauth needed

“to realize and make any necessary adjustments in his style, in

order to match the environment of the 2nd shift workforce,

without comprimising [sic] his beliefs and standards.”

In Lauth’s 2007 PMD, Snyder again gave him a “Meets

Expectations” overall rating. Snyder praised Lauth’s diligence,

work ethic, and “all business approach” to his job. However,

the PMD also noted improvements that Lauth needed to make

in his communication style. Snyder noted that several staff

No. 16-2939 3

members had expressed their discontent with Lauth’s supervi-

sion and communication style; Snyder stated that Lauth “will

need, and has begun, to tailor or soften somewhat his approach

to that of his workforce.” Snyder also commented that Lauth

“is at times unreceptive to take help and/or suggestions from

others, choosing to do it his way. This is often not received well

with his peers.”

Lauth received an overall rating of “Meets Expectations”

again in 2008. Snyder commented that Lauth was able to

accomplish his department’s output with the least experienced

and fewest number of employees. He also noted that morale

“no longer seems to be an issue within [Lauth’s] shift, regard-

ing his supervision and communication style.” However,

Snyder also reiterated his concerns that Lauth “appears

unreceptive to take help and/or suggestions from others” and

stated that Lauth “must improve … [his] working relationship

with his fellow shift supervisors.” Because Lauth’s style was

often not well-received by his peers, Snyder stated that “I

actually wonder whether or not if [Lauth] is the right fit for our

team.” In this PMD, Snyder warned that if Lauth’s “tempera-

ment and communication practices” did not change, “this may

impact his rating for next year, or potentially run the risk of

[Snyder] needing to replace him with someone who works

better with the others in the room, across all facets.”

In 2009, Lauth again received a rating of “Meets Expecta-

tions.” In 2010, however, he received a rating of “Exceeds

Expectations.” Snyder praised Lauth for leading all shift’s in

total output, noting that he played a “huge role in [kit produc-

tion]’s overall departmental success in 2010.” He also noted

that Lauth had done a good job avoiding conflict with other

4 No. 16-2939

staff. Finally, however, Snyder commented that Lauth is “very

strong willed and an independent thinker,” which “[a]t times

… can be confused or perceived to be detrimental to the

cause.”

On July 11, 2011, Lauth received a mid-year PMD from

Snyder, which again complimented Lauth for meeting his

unit’s output goals. However, Snyder also provided detailed

comments regarding issues with Lauth’s communication

methods and his unwillingness to be a “team player.” Specifi-

cally, Snyder mentioned emails that Lauth had sent during the

first half of 2011, in which Lauth addressed noise issues in his

department. Snyder noted that “[a]lthough I know [Lauth’s]

intent was fine, the manner [in] which the emails were written

and perceived, [was] counterproductive.” Snyder also noted a

specific instance in which Lauth challenged one of Snyder’s

directives and expressed an inability to complete an assigned

task. In the “Team Player” category, Snyder stated that

“[Lauth’s] ‘my way’ approach is no longer acceptable to me.

This needs to change and improve this year. I want to see an

obvious change in [Lauth] relating to how he works with all

[kit production] leadership, otherwise, [Lauth] risks being

given a Needs Improvement rating at year end.” Shortly after

Snyder issued the mid-year PMD, he and Lauth met in person

to discuss it. During that meeting, Snyder asked Lauth when

he planned to retire.

Covance had a system called AlertLine, through which

employees could submit workplace complaints. On August 28,

2011, Lauth submitted a complaint through AlertLine regard-

ing Aaron Ellsworth, another employee in the kit production

department. Between 2006 and 2011, Lauth had various verbal

No. 16-2939 5

complaints to Snyder about Ellsworth, alleging that he bullied

and intimidated Lauth and other employees.

In his AlertLine complaint, Lauth complained of Ells-

worth’s harassment, but specifically noted that it did not relate

“to unlawful harassment … because of race, color, religion,

national origin, gender, age, disability, veteran’s status or any

other characteristic protected by law[.]” Lauth cited examples

of “behavior that could be labeled ‘bullying’ and ‘intimidation’

contrary to Covance’s Principle of ‘Respect for the individual.’”

Additionally, Lauth stated the following in reference to his

2011 mid-year PMD:

Due to the statements made by my manager in

my review, I responded in an email specifically

to my manager’s comments in a much more

timid manner where I would normally have felt

comfortable challenging some of his assertions,

because I felt that I was being threatened—not

truly because of my work performance being

inadequate, but more due to the environment

that exists in our department as a result of [Ells-

worth]’s continued exhibits of control, intimida-

tion and bullying. It was very clear that

[Snyder]’s comments of being a team player

were meant to communicate that I needed to

‘get along better’ with [Ellsworth]. … Although

this abusive environment that [Ellsworth] has

created exists and has been brought to

[Snyder]’s attention on many occasions by

myself and others, he has allowed the situation

to continue.

6 No. 16-2939

Covance referred this complaint to Human Resources

Generalist Gary Grubb for investigation. Grubb completed

the investigation in late November or early December 2011. He

found that Ellsworth had behaved inappropriately on several

occasions, raising his voice and making inappropriate com-

ments. Grubb also found that Snyder had not mistreated

Lauth, and identified several areas in which Lauth could

improve his workplace communications. He recommended to

Snyder that Ellsworth be placed on a Performance Improve-

ment Plan (PIP).

On December 2, 2011, Grubb met with Lauth to discuss the

findings of his investigation and inform him that Ellsworth

would be counseled on his behavior. On December 5, 2011,

Lauth sent Grubb an email stating that the proposed discipline

was “totally unacceptable” and expressing his belief that the

investigation had not gone far enough. On January 10, 2012,

Grubb’s findings and proposed corrective actions were posted

as follow-up comments to Lauth’s AlertLine complaint. On

January 11, 2012, Snyder placed Ellsworth on a PIP, which he

satisfactorily completed on May 18, 2012.

On January 25, 2012, Lauth filed a charge of discrimination

with the Equal Employment Opportunity Commission. He

claimed that Covance discriminated against him on the basis of

his age, citing Snyder’s inquiry as to when he planned to retire.

Lauth also alleged that Covance retaliated against him for

making complaints about Ellsworth.

The same day Lauth filed the EEOC charge, Snyder met

with him to discuss the outcome of his AlertLine complaint.

Snyder explained that Ellsworth had begun counseling, that

No. 16-2939 7

they had given Ellsworth action items to work on, and that

they were monitoring him. Snyder also reiterated his concerns

with Lauth’s communication style and reminded him that the

issues discussed at the mid-year review still applied. Specifi-

cally, Snyder told Lauth that he was expected to be cordial to

everyone, including Ellsworth. A few hours later, Lauth

responded to Snyder in an email, stating that he was always

cordial to everyone and that it was Ellsworth who needed to

correct his behavior. Snyder replied by email, again explaining

that Ellsworth was being counseled. Snyder also stated that

Lauth would be subject to “Progressive Corrective Action” if

he initiated any “further non-professional, non-cordial con-

duct, [or] non-cooperative interactions” with Ellsworth.

On January 20, 2012, Snyder completed Lauth’s 2011 year-

end PMD. Snyder gave Lauth an overall rating of “Meets

Expectations,” but again noted communication problems and

stated that Lauth had not done enough to change Snyder’s

assessment of these issues. He wrote that he “expect[s] to see

an obvious change in [Lauth] regarding how he works with

and communicates with all [kit production department]

employees.”

On April 30, 2012, the EEOC issued Lauth a Dismissal and

Notice of Rights letter regarding his January 25, 2012, charge

of discrimination. The deadline to file suit with respect to that

charge was July 30, 2012, which passed without Lauth taking

action.

Imelda Marsh assisted Snyder in the supervision of the kit

production department from April 2012 to July 2012, at which

time Snyder transitioned out of his role and was replaced by

8 No. 16-2939

Christine Walters. On July 10, 2012, Marsh sent Grubb an email

regarding an interaction she witnessed between Lauth and

Walters. Marsh stated that Lauth “was argumentative and

insubordinate in his approach with [Walters].” She explained

that she planned to meet with Lauth and give him a PIP, but

also stated that she wanted approval to terminate his employ-

ment.

Instead of terminating Lauth or giving him a PIP, Marsh

issued him a written warning on July 20, 2012. The warning

stated that it was “due to repeated inappropriate and unprofes-

sional communication.” It cited Lauth’s inability to receive

constructive feedback and “establish stable, manageable

working relationships with peers.” The warning concluded

that “[a]ny further incidents involving inappropriate and

unprofessional behavior/communication in maintaining a

positive non-confrontational relationship with others will

result in additional progressive corrective action, including

termination.”

Marsh gave Lauth the written warning during a face-to-face

meeting, which Lauth audio-recorded. At one point during the

meeting, Lauth asked if he could prepare a written response to

the warning. Marsh responded by saying, “… this is not going

to work for me. … If I have to feel like I’m on trial with you

every time I have a conversation with you, if I feel like you’re

putting together a case, this is not the right place for you.”

Walters replaced Snyder as the supervising manager of the

kit production department in July 2012. Before he left the

position, Snyder completed a mid-year PMD and a PIP for

Lauth. Walters delivered these documents to Lauth on

No. 16-2939 9

August 8, 2012. The PMD indicated that Lauth was “tracking

towards a ‘Needs Improvement’ year end rating.” It stated

that Lauth “refused to change his communication practices,

despite being informed via PMD meetings numerous times.”

The PIP stated that it had been issued “due to on-going

concerns regarding [Lauth]’s performance and/or behavior.” It

cited examples of Lauth’s problematic behavior that had

occurred since his 2011 mid-year PMD. The PIP contained

“action steps” that Lauth was expected to complete within

ninety days, including providing appropriate and timely

communications, participating in leadership meetings, and

engaging in a more “proactive, outreaching approach” to

work-related concerns.

Lauth audio-recorded the meeting in which Walters

provided these documents. When Walters asked him what he

thought of the documents, Lauth responded, “[w]ell, to me, it’s

all retaliatory. … There was no input, so this PIP, to me, is

frivolous, it’s a mistake.”

Lauth went on vacation from September 1, 2012, through

September 17, 2012. Lauth filed a second charge of discrimina-

tion with the EEOC on September 17, 2012. Again, he alleged

age discrimination, based on Snyder’s retirement question,

and retaliation, based on the various reviews and warnings

he received since his first charge was filed and dismissed.

While Lauth was on vacation, Ellsworth had an argument

on the production floor with Roger Carter, another kit produc-

tion employee. Ellsworth reported the incident to Walters, who

reported it to Human Resources and spoke with Ellsworth’s

shift supervisor about the incident. When he returned to work

10 No. 16-2939

on September 18, 2012, Lauth had a meeting with Walters to

discuss his progress on his PIP. Lauth had learned about

the incident between Ellsworth and Carter and mentioned it

to Walters at their meeting. Walters assured Lauth that she

knew of the incident, had reported it to Human Resources, and

was handling its resolution. Despite this response, Lauth

proceeded to investigate the incident himself. Then, on

September 21, 2012, Lauth sent an email to Grubb reporting

the incident. Grubb responded on September 24, 2012, indicat-

ing that he was aware of the incident and that it was being

handled by Walters and the first-shift supervisor.

On October 2, 2012, Walters held another PIP progress

meeting with Lauth. In that meeting, she told Lauth that she

would have liked him to trust her when she said that she was

handling the Ellsworth incident and that she would have liked

it if he had not investigated it himself. Lauth indicated that he

had been trying to get Ellsworth’s behavior corrected for six

years and stated that he had to make a record of the incident

for his own benefit. Walters said that she thought this behavior

was inconsistent with his PIP. Lauth disagreed, saying that he

did not think what he did was wrong or unprofessional. He

also reiterated his belief that he should not have been placed

on a PIP at all.

Between October 8 and October 17, 2012, Walters received

complaints from four of Lauth’s second-shift kit production

employees. On October 8, 2012, Kathleen Kiemeyer told

Walters that Lauth had been harassing her, and that he was

unapproachable and intimidating. On October 9, 2012, Rhonda

Taylor, a new employee at the time, described Lauth as

intimidating and requested that she be transferred out of his

No. 16-2939 11

department. On October 12, 2012, Cassandra Wilson told

Walters that Lauth had written her up for an error she made

while on her third day of training, which she believed was

unfair. She also described Lauth as intimidating and said that

he made her uncomfortable because he would stand near her

and watch her work. Finally, on October 17, 2012, Tammy

Wright, another kit production employee, complained that

she was not receiving adequate training.

On October 18, 2012, Walters and Heidi Sturgeon, a Human

Resources employee, met with Lauth to discuss these com-

plaints. Lauth stated that he was unhappy with how these

complaints were addressed because he could not investigate

them himself. He also requested that Walters interview other

employees on his shift to see whether they agreed with these

assessments of his demeanor.

On October 22 and 23, 2012, Walters interviewed six such

employees. Five of them reported similar types of behavior

from Lauth. They described him as unprofessional, conde-

scending, and non-communicative. The sixth employee said

she did not have any problems with Lauth, but knew that

others did.

After speaking with these employees, Walters met with

Sturgeon and recommended that Covance terminate Lauth’s

employment, based on continued performance deficiencies

in violation of the obligations of his PIP. Sturgeon and Cov-

ance’s legal department agreed with the recommendation. On

October 25, 2012, Walters and Sturgeon met with Lauth and

terminated his employment.

12 No. 16-2939

Based on his September 2012 EEOC charge, Lauth filed this

suit against Covance, alleging age discrimination and retalia-

tion under the Age Discrimination in Employment Act, 29

U.S.C. § 621 et seq. Covance moved for summary judgment,

arguing that Lauth had failed to establish a dispute of material

fact as to Covance’s motives for his termination. On June 14,

2016, the district court granted summary judgment on both

claims in favor of Covance. Lauth timely appealed.

II. DISCUSSION

We review a grant of summary judgment de novo. Whitaker,

849 F.3d at 684 (citation omitted). “Summary judgment is

appropriate and the moving party is entitled to judgment as a

matter of law ‘where there is no genuine dispute as to any

material fact.’” Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 891 (7th

Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).

A. Age Discrimination Claim

Lauth’s first claim is that his termination constituted

discrimination in violation of 29 U.S.C. § 623(a)(1). The parties

agree that Lauth meets the threshold requirements to bring

such a claim, in that he was discharged and was over the age

of forty at the time. See id. §§ 623 and 631. Therefore, the only

remaining question for purposes of summary judgment is

whether there is a triable issue of fact as to whether Covance

terminated Lauth because of his age.

We recently discarded the distinction between direct and

indirect methods of proof in employment discrimination cases,

and clarified that all evidence must be evaluated as a whole.

Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

No. 16-2939 13

Thus, the proper inquiry before us now is whether a reasonable

jury could determine, based on all of the record evidence, that

Lauth’s age was the cause of his termination. See David v. Bd. of

Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017)

(After Ortiz, “the question remains: has the non-moving party

produced sufficient evidence to support a jury verdict of

intentional discrimination?”); see also Ripberger v. Corizon, Inc.,

773 F.3d 871, 880 (7th Cir. 2014) (ADEA claim requires showing

that age was but-for cause of discharge).

Lauth does not cite any specific examples of conduct or

statements by any of his superiors that could raise the infer-

ence of a discriminatory motive, in and of themselves. Instead,

Lauth argues that circumstantial evidence shows that his age,

rather than any issues with his performance, was the cause of

his termination. He contends that he performed his job

satisfactorily throughout his employment, and that Ellsworth

was younger, similarly situated, and treated more favorably.

The record, however, belies both contentions.

First, it is clear that, at the time of his termination, Lauth’s

supervisors did not believe he was performing his job ade-

quately. Lauth’s performance reviews demonstrate that from

the time he started at Covance in 2006, his supervisors found

his demeanor and communication style problematic. Lauth

makes much of the fact that he received a “Meets Expectations”

rating, or better, on all of his year-end PMDs. In each of those

PMDs, however, Lauth’s communication was described as an

issue that he needed to remedy. In Lauth’s 2011 mid-year and

year-end PMDs, Snyder wrote that Lauth’s management

approach was no longer acceptable and that he needed to make

obvious improvements in his interactions with other staff and

14 No. 16-2939

leadership. This was followed by Marsh’s written warning

in July 2012, which was prompted by his “argumentative

and insubordinate” discussion with Walters. Lauth received

another negative mid-year PMD in 2012, in addition to a PIP,

which was due to his “repeated inappropriate and unprofes-

sional feedback.” Despite these indications that his conduct

was unacceptable, Lauth then took it upon himself to investi-

gate the incident between Ellsworth and Carter, even after

Walters told him she was handling it. Walters and Grubb both

told Lauth this was not appropriate behavior. Finally, October

2012 brought the string of complaints from Lauth’s shift

employees. That history clearly demonstrates that Covance

was not satisfied with Lauth’s job performance.

Lauth’s only arguments against that assessment are that his

supervisors’ concerns were misplaced and that those who

complained about him did not have a basis to do so. Aside

from his contentions that he did not have the communication

issues that his supervisors saw as problematic, he offers no

evidence to suggest that Covance’s concerns were pretextual.

However, Lauth’s belief that he was performing his job

adequately is not relevant to the question of whether Covance

believed it had a legitimate, non-discriminatory basis to

terminate him. See Simpson v. Beaver Dam Cmty. Hosp., Inc., 780

F.3d 784, 795 (7th Cir. 2015) (“The question is not whether the

employer’s stated reason was inaccurate or unfair, but whether

the employer honestly believed the reasons it has offered to

explain its decision.”) (citation, quotation marks, and alter-

ations omitted). Lauth does not cite any evidence that would

allow for a reasonable inference that Covance did not have

honest concerns about his communication style and behavior.

No. 16-2939 15

The record also defeats Lauth’s argument that he and

Ellsworth were similarly situated and that Ellsworth was

treated more favorably. “[A]n employee is similarly situated to

a plaintiff if the two employees deal with the same supervisor,

are subject to the same standards, and have engaged in similar

conduct without such differentiating or mitigating circum-

stances as would distinguish their employer’s treatment of

them.” Hanners v. Trent, 674 F.3d 683, 692–93 (7th Cir. 2012)

(citation omitted). The parties agree that Lauth and Ellsworth

had the same supervisor and were subject to the same behavior

standards. The question, then, is whether they engaged in

similar conduct that was treated differently.

On this score, Lauth falls woefully short. In each of Lauth’s

PMDs, from 2006 through 2012, his supervisor indicated that

his communication style was problematic. There is no indica-

tion in the record that Ellsworth received similar feedback over

such a long period of time. Moreover, Snyder, Grubb, Walters,

and Marsh all testified that Ellsworth and Lauth responded

differently to concerns about their behavior. Ellsworth demon-

strated a willingness to correct the problems, while Lauth

continuously pushed back on and disagreed with his supervi-

sors’ assessments. When Ellsworth’s behavior did become a

problem in 2011, he was placed on a PIP, which he completed

to Covance’s satisfaction in January 2012. Lauth was placed on

a PIP in August 2012, but continued to exhibit behavior his

supervisors found problematic. Walters also received numer-

ous complaints from other employees regarding Lauth’s

behavior, while he was on the PIP. The record does not contain

any examples of similar complaints regarding Ellsworth, aside

from those Lauth made himself. Based on the discrepancies in

16 No. 16-2939

their problematic behavior, as well as their responses to

requests to remedy that behavior, Lauth is unable to demon-

strate that he and Ellsworth were similarly situated.

Lauth has failed to point to any evidence, other than his

belief that Covance’s assessments of his workplace behavior

were mistaken, from which a jury could infer that Covance

terminated him because of his age. Therefore, his age discrimi-

nation claim fails.

B. Retaliation Claim

Lauth also claims that Covance disciplined and terminated

him as retaliation for making his AlertLine complaint and for

filing charges of discrimination with the EEOC. To survive

summary judgment on his retaliation claim, Lauth must

establish that (1) he engaged in a protected activity; (2) he

suffered an adverse employment action; and (3) there is a

causal link between the protected activity and the adverse

action. Hutt v. AbbVie Prods. LLC, 757 F.3d 687, 693 (7th Cir.

2014) (citation omitted). As with the discrimination claim, we

no longer recognize a distinction between direct or indirect

evidence, and instead consider all of the record evidence to

determine whether a causal link exists. See Ortiz, 834 F.3d at

765–66.

Lauth’s EEOC charges were protected activities for pur-

poses of his retaliation claim. Smith, 674 F.3d at 658. His

AlertLine complaint, however, does not qualify as a protected

activity because it explicitly disclaimed his age as the underly-

ing basis for the harassment of which he complained. Id.

(“General complaints … do not constitute protected activity

under the ADEA because they do not include objections to

No. 16-2939 17

discrimination based on … age.”). Therefore, we will analyze

his retaliation claim only as it relates to the filing of his EEOC

charges.

Lauth’s argument mistakenly assumes that his negative

performance reviews, Marsh’s written warning in 2012, and his

PIP in 2012, all constitute adverse employment actions. These

are not adverse actions, however, because Lauth cannot show

that they resulted in a “quantitative or qualitative change in

the terms or conditions of employment.” Haywood v. Lucent

Techs., Inc., 323 F.3d 524, 532 (7th Cir. 2003), overruled on other

grounds by Ortiz, 834 F.3d at 765; see also Lagenbach v. Wal-Mart

Stores, Inc., 761 F.3d 792, 799 (7th Cir. 2014) (negative perfor-

mance reviews and PIPs are not adverse employment actions)

(citations omitted). Lauth’s discharge, on the other hand,

clearly constitutes an adverse employment action.

Thus, the only question remaining is whether there is a

causal link between Lauth’s filing of the EEOC charges and his

termination. Lauth fails to point to evidence, circumstantial or

otherwise, from which a jury could infer such a link. Instead,

as with his age discrimination claim, his argument is simply

that because, in his view, his supervisors’ concerns were

mistaken or misplaced, the actions they took must have been

retaliatory. He contends, for example, the complaints made

against him in October 2012 all involved the proper exercise

of his supervisory authority, and that Covance accepted the

other employees’ versions of events uncritically and without

investigation. He also takes issue with the reasons he was

given a written warning and placed on the PIP, and attempts

to explain that he was justified in performing his own investi-

gation of the incident between Ellsworth and Carter.

18 No. 16-2939

As we have already said, however, judgments regarding

the fairness of a particular action or the accuracy of an em-

ployer’s belief about an employee’s job performance have no

place in determining whether the employer acted based on an

improper motive. Simpson, 780 F.3d at 795. Whether Lauth

agreed with the basis for the repeated comments regarding his

communication style, the basis for the warning and the PIP, or

the substance of the employees’ complaints is irrelevant to our

inquiry. The only question that matters is whether Covance

actually believed it had a legitimate basis to terminate Lauth.

See id.

Lauth has not cited any evidence, other than his own

speculation, that might indicate Covance used the litany of

complaints and the documented history of his communication

issues as a cover for its retaliatory motive. That speculation is

insufficient to raise a question of fact, particularly in light of the

Covance’s consistent, longstanding, and progressive concerns

about his behavior. See Argyropolous v. City of Alton, 539 F.3d

724, 737 (7th Cir. 2008) (mere speculation that employer lied to

conceal true motives insufficient to withstand summary

judgment).

C. Bill of Costs

Lauth raises one final point, unrelated to the substance of

his claims. On June 21, 2016, upon motion by Covance, the

district court clerk entered a bill of costs, awarding $7,506.87

in costs to Covance. That amount included a $2,000 “deposition

fee” from Dr. Malcolm Cohen, Covance’s expert witness who

was deposed at Lauth’s request. The remainder was made up

No. 16-2939 19

of the cost of deposition transcripts Covance used for its

motion for summary judgment.

Lauth did not challenge the bill of costs in the district court.

On appeal, however, Lauth argues that the inclusion of

the $2,000 was error because certain expert fees are not

recoverable under 28 U.S.C. § 1920, which sets forth the taxable

costs that may be entered in a bill of costs. We review an award

of costs for an abuse of discretion. O’Regan v. Arbitration

Forums, Inc., 246 F.3d 975, 989 (7th Cir. 2001). “The award of

costs is the type of discretionary ruling to which we give

virtually complete deference.” Id. (citation and quotation

marks omitted).

Federal Rule of Civil Procedure 54(d)(1) provides that costs

may be awarded to the prevailing party. The rule also sets

forth the procedure for awarding and challenging such costs:

“The clerk may tax costs on 14 days’ notice. On motion served

within the next 7 days, the court may review the clerk’s

action.” Fed. R. Civ. P. 54(d)(1). We have held that a party who

fails to challenge the imposition of costs within Rule 54's time

limit has waived any objection to those costs. See Cooper v. Eagle

River Mem’l Hosp., Inc., 270 F.3d 456, 464 (7th Cir. 2001) (citing

Rowe v. Maremont Corp., 850 F.2d 1226, 1244 (7th Cir. 1988)).

Covance has not argued on appeal that Lauth waived his

objection to the deposition fee, but we can invoke waiver

sua sponte, see United States v. Gimbel, 782 F.2d 89, 91 n.5 (7th

Cir. 2001), and we elect to do so here. The district court clerk

entered the bill of costs on June 21, 2016. By failing to file a

motion challenging any of those costs on or before June 28,

2016, Lauth waived such a challenge. See Cooper, 270 F.3d at

20 No. 16-2939

464. A finding of waiver is further supported by Lauth’s

undeveloped argument on appeal, the entirety of which

consists of a single paragraph at the end of his opening brief.

See Campania Mgmt. Co. v. Rooks, Pitts, & Poust, 290 F.3d 843,

852 n.6 (7th Cir. 2002) (“Perfunctory and undeveloped argum-

ents are waived … .”). Lauth did not give the district court the

opportunity to address the issue within the time prescribed by

Rule 54, and we are, therefore, barred from reviewing it.

III. CONCLUSION

The district court’s order granting Covance’s motion for

summary judgment and the entry of the bill of costs are

affirmed.