In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3556
JULIE A. S MITH,
Plaintiff-Appellant,
v.
L AFAYETTE B ANK & T RUST C OMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 4:07-cv-00069-JD—Jon E. DeGuilio, Judge.
S UBMITTED M AY 3, 2011—D ECIDED M ARCH 13, 2012
Before R OVNER and W ILLIAMS, Circuit Judges, and
Y OUNG, District Judge.
Y OUNG, District Judge. Julie Smith sued Lafayette
Bank & Trust Company (“Bank”), alleging age discrim-
ination and retaliation in violation of the Age Discrimina-
The Honorable Richard L. Young, Chief Judge of the United
States District Court for the Southern District of Indiana, sitting
by designation.
2 No. 10-3556
tion in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§§ 621 et seq. The Bank thereafter filed a counterclaim
against Smith, alleging breach of the Indiana Trade
Secrets Act, Indiana Code §§ 24-2-3-1 et seq., civil and
criminal conversion regarding the Bank’s records and
documents Smith allegedly had taken, and for replevin.
The Bank moved for summary judgment, and, in re-
sponse, Smith waived her ADEA age discrimination
claim. The district court later granted the Bank’s motion
for summary judgment on Smith’s ADEA retaliation
claim, and remanded the Bank’s counterclaims to the
state court for further proceedings. Smith appeals the
district court’s grant of summary judgment with respect
to her ADEA retaliation claim. For the reasons set forth
below, we affirm.
In October 1980, Smith was hired by the Bank as a
teller, and in 1995, the Bank promoted her to the posi-
tion of branch manager of the Bank’s Lafayette Station
Branch. As the branch manager, Smith was required to
undergo annual performance evaluations conducted by
the Bank’s administrators. Smith received an overall
rating of “improvement needed” on her performance
evaluations for the years 2004 and 2005. Smith’s poor
rating was based on complaints the Bank’s admini-
strators received from customers and employees about
her negative attitude and unprofessional behavior.
The Bank continued to receive complaints about Smith’s
behavior, and on May 31, 2006, the Bank’s Executive
Vice President met with Smith, giving her the option
to either resign or write a letter of commitment prom-
ising to interact better with her employees and improve
No. 10-3556 3
her attitude. Smith chose to write a letter of commit-
ment, which acknowledged that if she failed to meet
the promises contained in the letter, she would be termi-
nated. On June 13, 2006, the Bank received a complaint
about Smith cursing and acting inappropriately toward
an employee. On June 20, 2006, the Bank fired Smith.
She was 44 years old. Following her termination, in
November 2006, Smith filed a charge of discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) against the Bank, alleging a violation of the
ADEA.
On appeal, Smith argues that the district court erred
in granting the Bank’s motion for summary judgment
on her retaliation claim under the ADEA. We review the
grant of summary judgment de novo and view the evi-
dence in the light most favorable to Smith. Wackett v. City
of Beaver Dam, Wis., 642 F.3d 578, 581 (7th Cir. 2011) (citing
Gross v. Town of Cicero, Ill., 619 F.3d 697, 703 (7th Cir.
2010)). Summary judgment is appropriate when the
pleadings and evidence in the record indicate the
absence of any genuine issues of material fact, such that
the moving party is entitled to judgment as a matter of
law. Mercatus Grp., LLC v. Lake Forest Hosp., 641 F.3d
834, 839 (7th Cir. 2011); FED. R. C IV. P. 56(c). There is no
genuine issue of material fact when no reasonable jury
could find in favor of the non-moving party. Brewer v.
Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007)
(citations omitted).
To avoid summary judgment, Smith may establish her
retaliation claim under the ADEA by either the direct or
4 No. 10-3556
indirect method. Szymanski v. Cnty. of Cook, 468 F.3d 1027,
1029 (7th Cir. 2006). Under the direct method of proof, a
plaintiff must show: (1) she engaged in statutorily pro-
tected activity; (2) she suffered an adverse employment
action; and (3) there is a causal connection between
the two. Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 481
(7th Cir. 2010) (citing Haywood v. Lucent Techs., Inc., 323
F.3d 524, 531 (7th Cir. 2003)). Alternatively, under the
indirect method of proof, a plaintiff must show: (1) she
engaged in statutorily protected activity; (2) she met the
employer’s legitimate expectations; (3) she suffered an
adverse employment action; and (4) she was treated
less favorably than similarly situated employees who
did not engage in statutorily protected activity. Kodl v.
Bd. of Educ. Sch. Dist. 45, Villa Park, 490 F.3d 558, 562
(7th Cir. 2007) (citing Tomanovich v. City of Indianapolis,
457 F.3d 656, 663 (7th Cir. 2006)). Under either method,
Smith must prove that she engaged in statutorily pro-
tected activity.
In order for Smith’s complaints to constitute protected
activity, they must include an objection to discrimination
on the basis of age. 29 U.S.C. § 623. Here, Smith bases
her retaliation claim on three instances of correspondence
with Bank administrators: (1) her March 7, 2003 com-
plaint inquiring about the formula used to calculate a
contribution to her pension plan; (2) her September 2005
complaint about cutbacks to her branch staff; and (3) her
March 2006 complaint regarding issues with her 401(k)
contributions. General complaints, such as Smith’s, do
not constitute protected activity under the ADEA
because they do not include objections to discrimination
No. 10-3556 5
based on her age. See Tomanovich, 457 F.3d at 663
(“Merely complaining in general terms of discrimination
or harassment, without indicating a connection to a
protected class or providing facts sufficient to create
that inference, is insufficient.” (citing Gleason v. Mesirow
Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997)).
While the filing of an EEOC charge of discrimination
is statutorily protected activity, here, Smith’s EEOC
charge does not save her claim. See Tomanovich, 457 F.3d
at 663 (noting that the filing of a charge of discrimina-
tion with the EEOC satisfies the requirement that the
plaintiff engage in statutorily protected activity) (citing
Ajayi v. Aramark Bus. Serv., Inc., 336 F.3d 520, 533 (7th
Cir. 2003)). An employer must have actual knowledge
of the employee’s protected activity to state a claim for
retaliation. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1122
(7th Cir. 2009). Here, Smith did not file her charge of
discrimination until November 2006, five months after
she was terminated. Accordingly, Smith is unable to
show that the Bank administrators who terminated her
were aware that she ever filed a charge of discrimination.
“This dooms [her] claim not only under the direct
method, but also under the indirect method.” Id. at 1122
(citing Mattson v. Caterpillar, Inc., 359 F.3d 885, 888 (7th
Cir. 2004); Tomanovich, 457 F.3d at 668-69). For these
reasons, Smith’s retaliation claim under the ADEA must
fail as a matter of law. Therefore, we affirm the district
court’s grant of summary judgment against Smith.
3-13-12