                           NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                     Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                  Argued October 27, 2008
                                  Decided August 18, 2009

                                            Before

                            MICHAEL S. KANNE, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

                            DIANE S. SYKES, Circuit Judge



No. 08-2191                                          Appeal from the
                                                     United States District Court for the
VICTOR R. GUINTO,                                    Northern District of Illinois,
                          Plaintiff-Appellant,       Eastern Division.

       v.                                            No. 06 C 4816

EXELON GENERATION COMPANY, LLC,                      Charles R. Norgle, Sr.,
                 Defendant-Appellee.                 Judge.




                                          ORDER

        Victor Guinto is a longtime employee at Exelon Generation and its affiliated entities
(together, “Exelon”). Guinto twice applied for a Senior Reactor Operator (“SRO”) position
at Exelon’s Braidwood Nuclear Power Station, but both times Exelon denied his admission
into a certification class that was a prerequisite for the position. When Exelon rejected him
the first time, the members of Exelon’s selection committee stated that they were concerned
that Guinto lacked the willingness and ability to criticize his fellow workers and that
Guinto appeared ready to use the SRO position only as a stepping stone to higher-paying
No. 08-2191                                                                            Page 2

jobs. When Exelon denied Guinto’s application a second time, they relied on findings from
an independent assessment agency, which had determined that Guinto “ha[d] significant
skill deficiencies” and was “unlikely to succeed in [his] role” as an SRO. In Guinto’s view
Exelon refused to promote him because of his age, and he sued Exelon for age
discrimination and retaliation in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. The district court granted Exelon summary
judgment on both claims, holding that Guinto failed to rebut Exelon’s legitimate,
nondiscriminatory proffered reasons for the denials and that Guinto could not establish a
causal connection between his statutorily protected complaints and Exelon’s denial of
Guinto’s second application for the SRO position.

        We affirm. Exelon offered nondiscriminatory reasons for denying Guinto’s
applications, and Guinto has failed to rebut these reasons. Regarding the denial of his first
application, Guinto has essentially admitted that Exelon’s decision-makers acted for the
legitimate reasons that they proffered. As such, Exelon did not discriminate against Guinto
because of his age. Guinto also cannot establish a genuine issue of pretext in the second
denial: Exelon subjected all of its employees to the independent assessment center, and
Guinto was the only one to receive a “red rating” that ostensibly barred promotion. Given
these and other uncontested facts, no rational jury could believe that Exelon lied in
explaining why it did not promote Guinto the second time around. Finally, although the
district court erred by failing to consider whether Guinto’s retaliation claim could reach the
jury under the indirect method of proof, the error was harmless; Guinto has failed to rebut
Exelon’s nondiscriminatory proffer.




                                       I. Background

        Exelon owns and runs the Braidwood Nuclear Power Station. Inside of Braidwood’s
nuclear control room, Reactor Operators (“ROs”) operate the station’s two nuclear reactors,
and they are directly supervised by Senior Reactor Operators (“SROs”), which is a “level 3”
position. To become an SRO, a candidate must complete an 18-month class to become
certified by the Nuclear Regulatory Commission and then complete an additional 6-month
onsite training program. During this two-year period, Exelon pays the candidate’s salary
even though the applicant is not serving as an SRO. Accordingly, Exelon desires its SROs
to serve for a substantial period of time; its written policy expects its employees to remain
as SROs for four to seven years before being promoted to another position, although Exelon
has promoted some employees in as early as three years.

      In 2004 Exelon did not have enough SROs at Braidwood to satisfy its internal
standards, and it budgeted for eight individuals to take a 2004 SRO-certification class.
No. 08-2191                                                                                         Page 3

Exelon created a selection board to screen and then interview the applicants. Around the
same time, Exelon also offered employees the opportunity to become a Work Week
Manager (“WWM”). The WWM position is designated as a “level 4” job, which is
technically more senior than the SRO position and should command a higher salary.
However, not all WWMs receive level-4 pay; to receive level-4 pay, a WWM must have
served as a WWM for three years or previously served as a supervisor (which includes
SROs).

       Victor Guinto has been an employee at Exelon since 1981. For over 15 years, he
served as an RO at Braidwood. In 2001 Exelon promoted him to Senior Training Specialist,
a “level 3” job outside the control room. In 2004, when he was 55 years old, Guinto applied
both to become a WWM and to enter the 2004 SRO class. Exelon’s selection board
interviewed Guinto for the WWM position and offered it to him at the level-3 pay rate.
Guinto demanded to be paid at the level-4 rate, and when that tactic failed, he rejected
Exelon’s WWM offer and reiterated his desire to enter the 2004 SRO-certification class.

        The selection board did not reinterview Guinto for the SRO position. Instead,
Guinto met with one of the board’s members, Cheryl Gayheart, who asked him a few
supplemental questions. According to Guinto, Gayheart asked what were his career goals,
and he responded, “To get to the next promotional levels. What are yours?” She then
stated that “we don’t want to put you in the control room if you’re not going to be happy.”
Guinto answered, “I probably won’t be happy if I see that you’re not doing enough to
properly staff the main control room,” by which he meant that he wanted Exelon to
continue increasing the number of SROs “[t]o allow [for] advancements.”

        Exelon did not select Guinto to enter the 2004 class. Explaining why,1 Gayheart
testified at her deposition that she told the selection committee that Guinto did not
sufficiently challenge those he worked with, which is expected of an SRO. Gayheart also
worried that Guinto only wanted “his ticket punched,” meaning that Guinto desired the
SRO position only because it allowed advancement to a level-4 paying job. Carl Dunn,
another committee member, told the committee that based on his experiences with Guinto,
Guinto had failed to “demonstrate any significant leadership skills or initiative in dealing
with plant problems.” Gary Dudek, another member, testified that at the board meeting he
questioned whether Guinto wanted to stay as an SRO for a period of years or instead
wanted the position just to leap to a higher-paying job. Karen Grieg, a committee member
who had not met Guinto, testified that she had concluded that Guinto lacked the “desires
and passion” to become an SRO. The committee as a whole therefore determined that



1
  The information in this paragraph is from Exelon’s Local Rule 56.1 Statement of Uncontested Facts
and Guinto’s response thereto, both of which were filed in the district court. See generally L OCAL R. 56.1.
No. 08-2191                                                                           Page 4

Guinto did not have the requisite “motivational fit” to enter the 2004 class. Most
importantly for our purposes, Guinto does “not dispute” any of these facts.

        The eight who initially entered the 2004 class were at least 11 years younger than
Guinto. One of those eight later dropped out. Instead of selecting the next-highest-ranked
candidate from its list, Exelon filled the vacated spot with a 31-year-old employee, Ronald
Stopka. Stopka originally did not express interest in the class, and Exelon did not interview
him for the position once he later expressed interest. Exelon explains that it placed Stopka
in the 2004 class because Stopka was an RO in the control room, it had too many ROs and
not enough SROs, and it cost Exelon nothing to place Stopka in the class because it already
budgeted for his salary. In October 2004 Guinto complained through Exelon’s internal
review system that Exelon had discriminated against him based on his age. In March 2005
he filed an age-discrimination charge with the EEOC.

        In September 2004 Exelon changed its corporate policies regarding promotions.
Under the new policy, all employees “who are considered for permanent promotion to a
supervisor position” must enter a “Supervisor Assessment Selection Process.” That process
required an independent agency to evaluate the applicant for leadership potential based on
group exercises and problem-solving simulations. The independent agency must then
assign the applicant a color rating. A “red rating” symbolizes that the employee “has
significant skills deficiencies” and is “unlikely to succeed in [the applied-for] role.”
Applicants who are rated red “will not be hired or promoted. [Employees] rated red may
be re-assessed after their developmental needs have been met.” Finally, the policy notes
that “[a]ll participants who have been through the assessment [process] must wait at least
six months before being re-assessed.”

        In late 2005 Exelon accepted applications for a 2006 SRO-training class, and Guinto
again expressed interest. Guinto and all other applicants entered the Supervisor
Assessment Selection Process, but only Guinto received a “red rating” from the agency.
Guinto admits that the assessment agency did not discriminate against him on the basis of
his age. Nevertheless, he notes that Exelon did not provide him with any material to study
or advise him about the expectations at the assessment center. Moreover, he claims that the
policy on its face did not apply because he was not seeking to be “hired or promoted”;
instead, he sought a lateral transfer from one level-3 position to another level-3 position.
All of the 11 candidates who entered the 2006 class were younger than Guinto; one was
seven years younger, and the rest were at least ten years younger.

       Guinto brought this two-count suit alleging violations of the ADEA. In Count 1
Guinto claimed that Exelon unlawfully discriminated against him on the basis of his age by
denying him admission into the 2004 class and then again discriminated on the basis of his
age by denying him admission into the 2006 class. In Count 2 he claimed that Exelon
No. 08-2191                                                                             Page 5

unlawfully retaliated against his protected conduct—complaining through Exelon’s
internal channels and filing a charge with the EEOC—by denying him a spot in the 2006
class.

        Exelon moved for summary judgment on both counts, which the court granted. For
Count 1 the court reasoned that although Guinto satisfied his prima facie showing under
the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), he could not create a genuine issue that Exelon’s legitimate, nondiscriminatory
proffers were pretextual. For Count 2 the district court examined Guinto’s claim only
under the direct method and held that Guinto could not establish a causal connection
between his protected conduct and Exelon’s rejection of his application for the 2006
certification class. Guinto timely appealed.




                                         II. Analysis

        We review the district court’s grants of summary judgment de novo, examining the
record in the light most favorable to Guinto. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640
(7th Cir. 2008). Summary judgment is proper only if the record shows that there is no
genuine issue of material fact and that Exelon is entitled to judgment as a matter of law.
FED. R. C IV. P. 56(c). To raise a genuine issue of material fact, Guinto must do more than
“simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A genuine issue of material
fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury
to return a verdict for that party.” Faas, 532 F.3d at 640-41 (internal quotation marks
omitted).

A. Age-Discrimination Claims

        The ADEA prohibits an employer from discriminating against any person over 40
years of age because of the individual’s age. 29 U.S.C. §§ 623(a), 631(a). To prevail on an
ADEA claim, a plaintiff “must prove that age was the ‘but-for’ cause of the employer’s
adverse decision.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009). At the
summary-judgment stage, however, the plaintiff only needs to create a genuine issue as to
whether the employer discriminated against him on the basis of his age. We have
traditionally allowed an ADEA plaintiff two ways to avoid summary judgment: the so-
No. 08-2191                                                                                         Page 6

called direct and indirect methods of proof.2 In this case, Guinto has eschewed the direct
method, so we consider it waived. See Faas, 532 F.3d at 641.

        Under the indirect method, an ADEA plaintiff must establish his prima facie case,
which requires him to show (1) that he is over 40; (2) that he was meeting his employer’s
legitimate job expectations; (3) that he suffered an adverse employment action; and (4) that
similarly situated employees not in the protected class were treated more favorably. Olson
v. N. FS, Inc., 387 F.3d 632, 635 (7th Cir. 2004). If the plaintiff succeeds, then the defendant
may rebut the prima facie showing by proffering a legitimate, nondiscriminatory reason for
the adverse employment action. Atanus v. Perry, 520 F.3d 662, 672 (7th Cir. 2008). If the
defendant bears this burden of production, then the plaintiff must prove that the
defendant’s proffered reason is “‘false and only a pretext for discrimination.’” Id. (quoting
Bahl v. Royal Indem. Co., 115 F.3d 1283, 1290 (7th Cir. 1997)). “The main inquiry in
determining pretext is whether the employer honestly acted on the stated reason rather
than whether the reason for the [adverse employment action] was a correct business
judgment.” Id. at 674 (internal quotation marks omitted). If the plaintiff fails to rebut the
“noninvidious reason for the adverse action, [then the defendant] is entitled to summary
judgment. Otherwise there must be a trial.” Stone v. City of Indianapolis Pub. Utils. Div.,
281 F.3d 640, 644 (7th Cir. 2002); accord Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th
Cir. 2006) (“If [the employer’s proffered reason] is the true ground and not a pretext, the
case is over.”).

        Both in the district court and in its brief in our court, Exelon did not contest Guinto’s
prima facie showings. Before oral argument, Exelon filed a letter under Rule 28(j) of the
Federal Rules of Appellate Procedure that appears to contend that Guinto had not established a
prima facie case of discrimination, but this argument comes far too late for us to consider it.
See United States v. Shorter, 54 F.3d 1248, 1256 n.19 (7th Cir. 1995). As such, we assume that
Guinto satisfied his prima facie showing. Exelon thus has the burden of proffering
legitimate, nondiscriminatory reasons for its decisions to deny Guinto entry into the 2004
and 2006 classes. Exelon has met this burden: It maintains that it initially denied Guinto
the spot because of its concern that he did not want to stay as an SRO and because he
lacked the leadership qualities necessary for the position; it denied his entry a second time
because the independent assessment agency gave Guinto a red rating.



2
  The Supreme Court has recently reminded lower courts that it “has not definitively decided whether
the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), utilized in Title VII
cases is appropriate in the ADEA context.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349 n.2 (2009).
Nevertheless, we have long applied the burden-shifting framework to ADEA cases. See, e.g.,
La Montagne v. Am. Convenience Prods., Inc., 750 F.2d 1405, 1409 n.1 (7th Cir. 1984). The parties assume
that the indirect method is appropriate in this case, and we shall oblige this assumption.
No. 08-2191                                                                                 Page 7

        This case thus turns on whether these explanations are mere pretext, masking the
real reason for the adverse employment actions—Guinto’s age. If Guinto can create a
genuine issue that Exelon is lying, which is to say that it did not act for the reasons it
proffered, then the case should go to a jury; if not, then Exelon properly has been awarded
summary judgment. For the following reasons, we conclude that Guinto has not created a
genuine issue suggesting that Exelon’s proffered reasons are pretextual.

        We begin with Exelon’s denial of Guinto’s application to the 2004 class. Guinto
clearly viewed the SRO position as a stepping stone to higher-paying jobs at Exelon.
Whether or not this is a factually accurate characterization, it is indisputably legitimate for
Exelon to search for candidates who want to become SROs and who appear willing to put
in a multiyear commitment to the position. If a candidate lacks the motivation to be an
SRO—indeed, when the candidate specifically states that he would be unhappy remaining
as an SRO for a period of years—then, all else equal, he is less worthy than those with a
greater motivation. This is essentially the justification for the adverse employment action
that each committee member gave at their depositions. Exelon offered these reasons in its
Local Rule 56.1 Statement of Uncontested Facts in the district court. Responding to these
statements, Guinto did “not dispute” that the committee members acted for the reasons
they proffered. In its response brief before us, Exelon highlighted that Guinto has not
contested the veracity of its reasons, and Guinto’s reply brief again failed to dispute that
Exelon’s committee members acted based on these legitimate, nondiscriminatory reasons.
Guinto’s continued failure to rebut these reasons is fatal to his discrimination claim. See
Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (failure to deny is deemed an
admission); Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1108 (7th Cir. 2004) (similar).

        To be sure, Guinto makes a series of arguments that have colorable support in our
caselaw. He contends, for example, that Exelon failed to follow its protocols when it
decided not to interview him for the SRO position and when it inserted Stopka into the
class without an interview, see Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir.
2005) (“[A]n employer’s failure to follow its own internal employment procedures can
constitute evidence of pretext.”); that Exelon faulted Guinto based on subjective criteria, see
Giacoletto v. Amax Zinc Co., 954 F.2d 424, 427-28 (7th Cir. 1992) (“[T]he jury may, under
some circumstances, reasonably consider subjective reasons as pretexts for
discrimination.”); and that he was a qualified applicant, see Bell v. E.P.A., 232 F.3d 546,
551-52 (7th Cir. 2000) (plaintiff’s superior credentials might evidence pretext). In the
ordinary case, each of these arguments might suggest that the defendant’s proffer is
pretextual, but all of our cases so holding rest on the assumption that the plaintiff is
challenging the veracity of the employer’s proffered reasons. Here, in contrast, Guinto
explicitly does not challenge the decision-makers’ stated reasons. Thus, it is immaterial
whether Exelon failed to follow internal protocols or rejected him based on subjective
criteria; as long as it did not reject him on account of its age, it did not violate the ADEA.
No. 08-2191                                                                             Page 8

Because the decision-makers’ stated reasons have gone unrebutted, Exelon was properly
awarded summary judgment on Guinto’s age-discrimination claim with respect to the
denial of his application to the 2004 SRO class.

        Guinto likewise fails to establish that Exelon lied about why it decided to deny him
admission to the 2006 class. Guinto’s main argument here is that Exelon’s new policy did
not require him to be placed before the assessment center. In particular, he reads the new
policy to apply only to new hires or promotions, not to current employees who seek a
lateral transfer from one level-3 position to another. We think this argument could mean
one of two things: It might mean that Exelon did not really deny him a spot in the 2006
class because of the red rating, but rather it denied him a spot in the class for some unstated
reason. Alternatively, it might also mean that Exelon has truthfully stated why it rejected
his application, but that this explanation violated its own policies. As we have just
explained, the second of these possibilities can be easily dispatched as a basis for
establishing an ADEA violation; we have repeatedly held that the ADEA does not offer
protection against adverse employment actions that are “unwise or even unfair,” Ptasznik v.
St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006), and a failure to follow its own policy,
without more, falls within this line of cases.

       The first possibility would be sufficient as a matter of law to reach the jury,
assuming that it had factual support in the record. However, there is no evidence in the
record that calls into question Exelon’s proffered rationale for the rejection of Guinto’s
second application. It is undisputed that everyone considered for the 2006 class underwent
independent evaluation by the assessment agency. The record does not illuminate whether
any other candidate was similarly situated in a level-3 position and forced to undergo
independent assessment, but Guinto certainly has not pointed to any other employee who
was treated differently. Thus, to the extent that Exelon misread its own policies, the record
suggests that it failed to follow its own internal procedures with all employees. No rational
jury could believe that this consistent “misapplication” of policy (if that’s what it was)
evidences pretext. Cf. Ellis v. United Parcel Serv., 523 F.3d 823, 829-30 (7th Cir. 2008)
(employer’s possibly erroneous interpretation of policy does not evidence pretext when
consistently applied).

        The only question of importance is whether Exelon actually denied him the spot
based on his red rating. See Forrester, 453 F.3d at 417. It is undisputed that Guinto was the
only one to fail the test, and this is understandably a compelling reason to reject his
application. Further, Exelon has consistently maintained that it rejected his application for
this reason, and we see nothing in the record that suggests otherwise. Guinto believes that
Exelon was partially at fault for not allowing him to prepare for the assessment, but he
does not point to anything in the record to suggest that any other employee was allowed to
prepare for the exam. Thus, nothing about this alleged lack of preparation suggests
No. 08-2191                                                                              Page 9

pretext, even if Exelon arguably should have done more to support its employees. Finally,
Guinto contends that Exelon should have provisionally admitted him into the 2006 class
and allowed him to retake the test six months later. He in essence asks us to hold that
Exelon must make a substantial investment as well as a large leap of faith about Guinto’s
abilities to improve, but the ADEA requires neither. We hold that the district court
correctly concluded that Guinto has failed to create a genuine issue as to whether Exelon’s
proffered reason for denying him a spot in the 2006 class was pretextual.

B. Retaliation Claim

        Guinto also argues that Exelon retaliated against him in violation of the ADEA
when it denied him the spot into the 2006 class. The ADEA prohibits employers from
retaliating against an employee for conduct protected under the ADEA. 29 U.S.C. § 623(d).
As with ADEA claims, ADEA-related retaliation claims may be proven under the direct
and indirect method of proof. See Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park, 490 F.3d 558,
562 (7th Cir. 2007). The district court considered whether Guinto could establish his
retaliation claim under the direct method only.3 This was error, as the parties had also
presented arguments under the indirect method, which we have applied to ADEA
retaliation claims. See, e.g., Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678-79 (7th Cir.
2005).

       Nevertheless, the error was harmless. To prevail under the indirect method, Guinto
must create a genuine issue as to whether Exelon’s nondiscriminatory proffer is pretextual.
He fails for the same reason we just mentioned: Guinto cannot show that Exelon denied
him entry into the 2006 class for any reason other than the fact that he received a red rating
from the independent assessment agency. As such, the district court’s grant of summary
judgment to Exelon on the retaliation claim was proper.

                                                                                 AFFIRMED




3
 We note that Guinto has not challenged the district court’s analysis under the direct method.
We therefore consider this argument waived and look only to the indirect method.
