In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2455
G ENE V AN A NTWERP ,
Plaintiff-Appellant,
v.
C ITY OF P EORIA, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-cv-1177—Joe Billy McDade, Judge.
A RGUED O CTOBER 29, 2010—D ECIDED D ECEMBER 6, 2010
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
K ANNE , Circuit Judge. After working as a patrol officer
for the Peoria Police Department for eighteen years,
Gene Van Antwerp applied for a transfer to a technician
position in the Department’s Crime Scene Unit. He was
interviewed and selected, but the Department subse-
quently withdrew his transfer, purportedly because the
position did not become available as planned. Four
months later, the Department conducted additional in-
2 No. 10-2455
terviews and offered the technician opening to another
officer. Believing the Department discriminated against
him on account of his age and national origin when
it rescinded his transfer, Van Antwerp filed a discrim-
ination claim in federal district court. The City of
Peoria, representing the Department, moved for summary
judgment, and the district court ruled in favor of the
City. Van Antwerp appealed only the grant of summary
judgment on his age discrimination claim. Because Van
Antwerp’s evidence does not point directly to a discrim-
inatory reason for the Department’s actions, we affirm
the judgment below.
I. B ACKGROUND
Van Antwerp began his employment with the Peoria
Police Department in 1988 as a patrol officer. After eigh-
teen years in that capacity, Van Antwerp decided a
change was in order. In September 2006, he responded
to an internal vacancy announcement put forth by the
Department. The announcement stated that two tech-
nician openings were expected in the Crime Scene Unit;
one position would start immediately, while the other
had an anticipated January 2007 start date. The posting
provided that three years of seniority, along with
relevant experience and expertise, were required for
each position. Van Antwerp was fifty years old when he
applied for the technician position.
Van Antwerp and a number of other officers were
interviewed for the vacancies by a panel consisting of
Captain Philip Korem, Lieutenant Vince Weiland, and
No. 10-2455 3
Sergeant Randy Pollard. After the interviews were com-
plete, Weiland and Pollard recommended that the
position currently available be given to Officer Paul
Tuttle. For the position scheduled to open in January 2007,
the two believed Officer Tim Wong was the better candi-
date, given his interview performance, qualifications,
and expertise. Because Wong was twenty-six days short
of the seniority requirement, however, they recom-
mended Van Antwerp for that position. A personnel
order was issued on September 27, 2006, advising
Tuttle and Van Antwerp of their transfers. Tuttle was
transferred immediately thereafter.
To Van Antwerp’s disappointment, the Department
subsequently rescinded his transfer order. On Novem-
ber 7, 2006, Korem sent out a memorandum advising
all personnel that Van Antwerp would not be trans-
ferred to the Crime Scene Unit. While Korem offered no
explanation at the time, the Department later asserted
that the transfer did not take place because the vacancy in
the Unit did not arise as anticipated. According to the
Department, the vacancy depended on the promotion of
Officer Kenneth Snow, who was a senior technician in
the Unit. But Snow’s permanent promotion to Sergeant
in turn depended on the retirement of Sergeant Melvin
Little. Little retired earlier than expected, and Snow was
not able to be permanently moved out of the Crime
Scene Unit due to union requirements, thus leaving
the anticipated position temporarily unavailable. When
the Department ascertained that Snow’s position
would be available in mid-2007, it posted another
4 No. 10-2455
vacancy announcement and conducted new interviews
in March 2007. This time, the position went to Wong.
Believing that the Department discriminated against
him when it rescinded his transfer to the technician
post, Van Antwerp brought suit against the City of
Peoria in the United States District Court for the
Central District of Illinois. Van Antwerp claimed that the
Department withdrew his transfer because of his age, in
violation of the Age Discrimination and Employment
Act (ADEA), and because of his Dutch national origin,
in violation of Title VII of the Civil Rights Act. After
striking some of Van Antwerp’s evidence, the district
court granted summary judgment in favor of the City on
all counts. Van Antwerp appealed only his ADEA claim.
II. A NALYSIS
We review a district court’s grant of summary judg-
ment de novo. Tindle v. Pulte Home Corp., 607 F.3d 494,
495 (7th Cir. 2010). Summary judgment is appropriate
where the evidence shows “that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “There is no genuine issue of material fact when
no reasonable jury could find in favor of the nonmoving
party.” Brewer v. Bd. of Trs. of the Univ. of Ill., 479
F.3d 908, 915 (7th Cir. 2007).
The ADEA makes it illegal for an employer “to fail or
refuse to hire or to discharge any individual or other-
wise discriminate against any individual with respect
No. 10-2455 5
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). To establish a violation of the ADEA, an
employee must show that age actually motivated the
adverse employment action. Faas v. Sears, Roebuck & Co.,
532 F.3d 633, 641 (7th Cir. 2008). Put differently, age
must have played a role in the employer’s decision-
making process and had a determinative influence on
the outcome. Schuster v. Lucent Techs., Inc., 327 F.3d 569,
573 (7th Cir. 2003).
An employee may set forth an ADEA claim through
the direct or indirect method of proof. Ptasznik v.
St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir. 2006). Van
Antwerp has chosen the direct method and can meet
his burden of proof by offering direct evidence of ani-
mus—the so-called “smoking gun”—or circumstantial
evidence which establishes a discriminatory motive on
the part of the employer through a longer chain of infer-
ences. Mach v. Will County Sheriff, 580 F.3d 495, 499 (7th
Cir. 2009). Circumstantial evidence can take many
forms, including “suspicious timing, ambiguous oral or
written statements, or behavior toward or comments
directed at other employees in the protected group,”
evidence showing “that similarly situated employees
outside the protected class received systematically
better treatment,” and “evidence that the employee was
qualified for the job in question but was passed over
in favor of a person outside the protected class and the
employer’s reason is a pretext for discrimination.” Sun v.
Bd. of Trs., 473 F.3d 799, 812 (7th Cir. 2007). Whatever
circumstantial evidence is offered, however, must “point
6 No. 10-2455
directly to a discriminatory reason for the employer’s
action.” Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939
(7th Cir. 2003).
Van Antwerp argues that summary judgment was
improper, as he has offered evidence showing that he
was qualified for the technician post and that the em-
ployer’s reason for rescinding his transfer was a lie de-
signed to obfuscate age-based discrimination. The De-
partment claims its reason for not transferring Van
Antwerp was perfectly legitimate: it did not transfer
him because the position did not become available
as anticipated.
We do not believe Van Antwerp has proffered suf-
ficient evidence to allow a jury to find that the Depart-
ment’s legitimate reason for rescinding his transfer was
a pretext for discrimination. To establish pretext, Van
Antwerp must show that the Department’s reason for
cancelling his transfer was a lie—not just an error,
oddity, or oversight. See Stockwell v. City of Harvey, 597
F.3d 895, 901 (7th Cir. 2010); Faas, 532 F.3d at 642. Van
Antwerp’s strongest evidence on this point consisted
of statements made by Little that he did not inform De-
partment management that he was going to retire early;
because the Department allegedly was not aware of
Little’s intentions, Van Antwerp claims that the Depart-
ment could not base its decision to rescind his transfer
on Little’s early departure. But this is not a full picture
of Little’s deposition testimony. Little also stated that
he told a number of officers in the Department that he
was considering early retirement, and he confirmed that
No. 10-2455 7
he did retire earlier than expected. Taken in sum, Little’s
statements would not allow a jury to conclude that the
Department lied about the reason for rescinding Van
Antwerp’s transfer; at best, they might permit a jury to
conclude that the Department made an error in person-
nel planning or was sloppy in not confirming Little’s
retirement. As such, we do not believe a reasonable jury
could infer pretext from Little’s statements, and for that
reason Van Antwerp’s direct claim fails.
We also note that, assuming Van Antwerp marshaled
enough circumstantial evidence to show pretext, his
claim of discrimination under the direct method would
still fail. Evidence offered under the direct method “must
allow a jury to infer more than pretext; it must itself
show that the decisionmaker acted because of the prohib-
ited animus.” Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d
592, 601 (7th Cir. 2003); see also Adams, 324 F.3d at 939
(“[C]ircumstantial evidence . . . must point directly to
a discriminatory reason for the employer’s action. Other-
wise, the plaintiff must proceed by way of the
well-known indirect route.”). Even if Van Antwerp had
shown that the Department lied about the lack of an
opening, he has pointed to no evidence that would raise
an inference that the Department failed to transfer
him because of his age, and we can find none. Without
some minimal showing that the “real reason” for can-
celling his transfer was based on age, Van Antwerp’s
direct claim fails. Cf. Hobbs v. City of Chicago, 573 F.3d
454, 462 (7th Cir. 2009).
For a number of reasons, Van Antwerp cannot seek
refuge in the indirect method of proof. First, Van Antwerp
8 No. 10-2455
did not avail himself of the indirect method of proof
before the district court. While he occasionally re-
sponded to some of the burden-shifting factors discussed
by the City in its brief, he repeatedly asserted that he
was utilizing the direct method of proof to show dis-
crimination. He reiterated that position in his brief to
this court. It was only during his rebuttal at oral argu-
ment, at the last possible moment, that Van Antwerp
claimed he was also utilizing the indirect method of
proof. Unfortunately for Van Antwerp, this assertion
comes too late: “arguments not made before the district
court are waived on appeal.” Burks v. Wis. Dep’t of
Transp., 464 F.3d 744, 750 n.3 (7th Cir. 2006). For that
reason, Van Antwerp cannot proceed under the
indirect method this late in the game. Second, even if
Van Antwerp had not waived his indirect claim, it
would still lack merit. He is unable to show, for the
reasons discussed above, that the City’s legitimate
reason for not transferring him was a pretext for age-
based discrimination. Without a showing of pretext, any
indirect claim would fail. See Schaffner v. Glencoe Park
Dist., 256 F.3d 616, 623 (7th Cir. 2001).
Van Antwerp also argues that the district court erred
when it struck, sua sponte, an overtime report he
prepared for failure to comply with a local district rule.
This evidence was relevant only to the question of
whether the failure to transfer was an adverse employ-
ment action, as is required to establish an ADEA claim.
Since we have assumed that the transfer qualified as an
adverse employment action and found that summary
judgment was proper on another ground, we need not
address this issue.
No. 10-2455 9
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
12-6-10