In the

    United States Court of Appeals
                For the Seventh Circuit

No. 07-2911

JEROME M AHER,
                                                Plaintiff-Appellant,
                                 v.

C ITY OF C HICAGO,
                                               Defendant-Appellee.


            A ppeal from the U nited States District Court
       for the Northern District of Illinois, Eastern Division.
         N o. 03 C 3421— Jeffrey N. Cole, M agistrate Judge.



     A RGUED S EPTEMBER 17, 2008—D ECIDED O CTOBER 31, 2008




    Before M ANION, W OOD , and W ILLIAMS, Circuit Judges.
  M ANION, Circuit Judge. Jerome Maher sued the City of
Chicago (“the City”), alleging, as pertinent here, that the
City wrongfully demoted him in 1991, 1993, and 1998 1 for


1
  Maher also claimed that he was not properly reinstated to his
former position in 1997 when he returned from active duty
in Bosnia and that the City failed to promote him from 1991
                                                 (continued...)
2                                                  No. 07-2911

being absent from work while on active duty in the Naval
Reserves, in violation of the Veterans’ Reemployment
Rights Act and its successor legislation, the Uniformed
Services Employment and Reemployment Rights Act
(“USERRA”). The district court granted summary judg-
ment to the City on the 1991 and 1993 claims, and a jury
decided the 1998 claim in favor of the City. On appeal,
Maher contends that: (1) the district court wrongfully
granted summary judgment to the City on his 1991 claim;
(2) the district court abused its discretion by excluding
evidence regarding the alleged demotions in 1991 and
1993; and (3) the evidence was insufficient to support
the jury’s verdict in favor of the City on the 1998 claim.
We affirm the district court in all respects.


                               I.
  Maher entered the Naval Reserves in 1987. In August
1990, Maher was hired by the City in its Aviation De-
partment (“Aviation”). At the time of his hiring, Maher
had a degree in accounting and was a practicing Certified
Public Accountant. Maher contends that, during a pre-
employment interview, the City told him that he would


1
  (...continued)
onwards while promoting other, less qualified individuals.
Although the magistrate judge denied summary judgment to
the City on those claims, only the failure to promote claim was
submitted to the jury, which found in favor of the City. Because
Maher has not raised either of these two claims in this
appeal, they will not be discussed further.
No. 07-2911                                             3

be hired as an “assistant commissioner”; however, for
budgetary reasons Maher’s salaried position as it
appeared in Aviation’s records would be “Director of
Development Finance,” apparently a lower position than
an assistant commissioner. Maher’s initial yearly salary
was $43,128, and his initial duties were to manage
accounts receivable for Aviation and to develop a com-
puter system for determining rates for billing airlines
and concessionaires. In February 1991, Maher was called
to active duty in the first Gulf War. Maher alleges that
his supervisor, Jerome Smith, expressed displeasure
with Maher’s upcoming absence from work during his
deployment. When Maher returned to work in Septem-
ber 1991, he was appointed “Director of Revenue” with a
salary of $49,440. Smith allegedly continued to criticize
Maher based on his military service and threatened to
have him fired. Maher was also required to report to one
of his former subordinates. On August 12, 1992, Maher
filed a formal complaint with the Department of Labor
(“DOL”), in which he alleged that he had been denied
advancement and subjected to public humiliation be-
cause of his military service. However, after some nego-
tiations, Maher withdrew the complaint in December 1992.
  In 1993, Aviation was reorganized, and Maher was
given a new title: “Manager of Finance.” His salary in-
creased to $54,840 per year, and he was given a larger
staff to supervise. Following the reorganization, Maher’s
duties involved supervising revenue and billing activities
for O’Hare and Midway airports. Also in 1993, the City
moved Aviation to O’Hare. Furniture from other offices
was placed in Maher’s office, making his office unusable
4                                               No. 07-2911

for about a week. Maher alleged that, after the reorganiza-
tion, another supervisor, Dwayne Hawthorne, harassed
him by disparaging the military and stating that Maher
was too old to serve in the military. Maher also claimed
that another supervisor, Michael Cummings, stated that
Maher’s military commitments prevented him from
“getting anywhere in this department.”
  In 1996, the Naval Reserves beckoned again; Maher
was called into active duty to serve in Bosnia from
August 1996 to May 1997. During Maher’s absence, his
sister, Maureen, who held his power of attorney, alleged
that she was unable to secure Maher’s paycheck for
eleven weeks. Maureen also testified that she met with a
city alderman and Commissioner Mary Rose Loney to
discuss the paycheck problems, and that the alderman
stated that Maher would never be considered for a promo-
tion “as long as he’s in the military.” Upon Maher’s return,
Hawthorne initially refused to reassign Maher to his
former duties. In 1997, Maher met with Robert Repel, a
deputy commissioner who dealt with governmental
affairs and legal issues, and complained about his treat-
ment following his Bosnia deployment and the 1991 events.
After this meeting, Maher was generally restored to his
former responsibilities in July 1997, although two
former members of his staff were assigned to work for
Hawthorne.
  Maher was subsequently transferred to the City’s
Landside Operations (“Landside”) in January 1998.
Landside is a division of Aviation that handles ground
transportation operations at the City’s airports. The
No. 07-2911                                              5

transfer was ordered by Commissioner Loney, who in
the meantime had fired Hawthorne. At Landside, Maher
developed a high-speed rail system for O’Hare, as well
as an “intermodal facility” that would bring together bus
and rail services. Maher was also in charge of securing
funding for the ground transportation master plan, which
would revamp parking lots, bridges, train platforms, and
other aspects of the ground transportation system. The
entire project was estimated to cost $500 to $600 million.
In addition to these responsibilities, Maher handled
contracts and billing for the airport’s ground transporta-
tion components. Landside handled approximately
$100 to $120 million in parking revenue yearly. Maher, as
well as the other Landside employees, supervised snow
removal from O’Hare parking lots in the winter. After
his move to Landside, Maher no longer had any staff and
had to perform his own clerical work. When Maher
testified in 2007, his annual salary had increased to
$103,000 per year in salary and benefits.
  In 2003, Maher filed suit against the City. The complaint
alleged that Maher suffered adverse employment
actions on three occasions based on his military service:
(1) in 1991, when he was not given the title of assistant
commissioner; (2) in 1993, when he was given the title of
manager of finance and again was not appointed an
assistant commissioner; and (3) in 1998, when he was
transferred to Landside. The parties consented to proceed
before the magistrate judge. After the City moved for
summary judgment on all of Maher’s claims, the
magistrate judge concluded that Maher had not created
a genuine issue of material fact regarding the 1991 and
6                                               No. 07-2911

1993 claims and granted summary judgment in favor of the
City. Specifically, the magistrate judge concluded that
Maher had failed to produce evidence that he had been
hired as an assistant commissioner and failed to produce
sufficient evidence showing that any adverse action was
motivated solely by his military commitments. Moreover,
the magistrate judge concluded that laches would bar
the 1991 claim, as the City had been prejudiced by
Maher’s delay in filing suit. However, the magistrate
judge further held that Maher had created a genuine
issue of material fact regarding whether his transfer to
Landside in 1998 was motivated by his military service.
The magistrate judge also granted a subsequent motion
by the City to exclude evidence of the 1991 and 1993
incidents during trial. The 1998 claim went to trial, but the
first jury was hung. A second jury found in favor of the
City. Maher appeals, challenging: (1) the grant of sum-
mary judgment on the 1991 claim; (2) the exclusion
of evidence at the jury trial regarding the 1991 and 1993
events; and (3) the jury’s verdict on the 1998 claim.


                             II.
                             A.
  Maher first claims that the magistrate judge erred by
concluding that laches barred his 1991 claim. On appeal,
however, Maher does not challenge the magistrate
judge’s alternative holding that Maher failed to create a
genuine issue of material fact regarding whether he had
suffered an adverse employment action in 1991. “ ‘[I]n
situations in which there is one or more alternative hold-
No. 07-2911                                                 7

ings on an issue, we have stated that failure to address
one of the holdings results in a waiver of any claim of error
with respect to the court’s decision on that issue.’ ” United
States v. Hatchett, 

, 644-45 (7th Cir. 2001)
(quoting Kauthar SDN BHD v. Sternberg, 

, 668
(7th Cir. 1998)); see also Coronado v. Valleyview Pub. Sch.
Dist., 

, 797 (7th Cir. 2008) (noting that the
appellant’s claim failed because of his “failure to
confront the district court’s alternative holding”). Accord-
ingly, by not challenging one of the two independent
grounds for the magistrate judge’s holding on the 1991
claim, Maher’s assertion of error on the 1991 claim is
waived.
  Even if we considered Maher’s laches claim on the
merits, he cannot prevail. A district court may grant
summary judgment on the basis of laches where “the
facts necessary for determining whether the defendant
suffered material prejudice are not genuinely disputed.”
Smith v. Caterpillar, Inc., 

, 733 (7th Cir. 2003)
(citing Jeffries v. Chicago Transit Auth., 

, 679
(7th Cir. 1985)). A lower court’s conclusion that laches
applies is reviewed for an abuse of discretion. Roberts &
Schaefer Co. v. Dir., Office of Workers’ Comp. Programs,

, 997 (7th Cir. 2005) (citing Hot Wax, Inc. v.
Turtle Wax, Inc., 

, 819 (7th Cir. 1999)); see also
Autozone, Inc. v. Strick, __ F.3d __, 

, No. 07-
2136, slip op. at 20 (7th Cir. Sept. 11, 2008) (noting that “a
district court’s decision to apply the doctrine of laches
is discretionary”). “A party who asserts a laches defense
must show ‘an unreasonable lack of diligence by the
party against whom the defense is asserted’ and
8                                             No. 07-2911

‘prejudice arising therefrom.’ ” Roberts & 

(quoting Hot 

). Maher
argues that his delay in filing suit on the 1991 claim
should be excused, based on his pursuit of remedies
through the DOL (a complaint he decided to withdraw
in 1992) and a 1997 meeting with a supervisor
regarding his misgivings. We have previously noted
that “ ‘[a]ttempts to resolve a dispute without resorting
to a court do not constitute unreasonable delay.’ ” Hot

(quoting Leonard v. United Air Lines,
Inc., 

, 158 (7th Cir. 1994)). But that assumes
the attempts to resolve are ongoing. Although any delay
while the DOL complaint was pending was not “unrea-
sonable,” the clock resumed ticking once Maher with-
drew the DOL complaint in 1992. Simply put, the eleven-
year delay between his withdrawing the DOL complaint
in 1992 and filing suit in 2003 provided ample grounds
for the magistrate judge to conclude that the delay was
unreasonable.
  Maher falls back on his 1997 meeting with Repel during
which he complained about the 1991 events and argues
that this pursuit of internal remedies excused his delay.
But that single intervention does not make his delay
reasonable. Primarily, at that meeting he was com-
plaining about his current position and conflicts with his
supervisor. Maher waited five years after withdrawing
the DOL complaint before raising these issues in 1997
with Deputy Commissioner Repel. In Hot Wax, the
plaintiff had written five letters to the defendant over
a three-year period to complain about the products and
advertising of the defendant. We held that the plaintiff’s
No. 07-2911                                                9

“sparse letter writing campaign can hardly be character-
ized as a serious attempt to resolve its concerns re-
garding [the defendant]’s products and advertising.” Hot

. Similarly, Maher’s sole oral com-
plaint, made five years after withdrawing his initial
complaint and six years before filing suit, was not a
reasonably diligent attempt to settle his dispute with
the City through internal remedies.
  Furthermore, the magistrate judge did not abuse his
discretion in concluding that the City would have been
prejudiced by the delay. Only one of the two employees
who hired Maher in 1990—Jerome Smith—was deposed.
Smith testified at his deposition that the details of
Maher’s title at the time of his hiring were “all kind of
cloudy to [him],” and noted that he was unable to
recall certain details because “it was a long time ago.”
Maher admitted that Jerome Smith was unable to recall the
events of 1991 due to the passage of time.”[I]n order to
show prejudice from failed memories, a defendant must
show both that the memories have faded and that the
inability to recall information was caused by the plaintiff’s
delay.” 

(citing EEOC v. Massey-
Ferguson, 

, 275 (7th Cir. 1980)). Here, Jerome
Smith clearly indicated that his memory had faded.
Moreover, given the twelve-year delay between the 1991
events and the filing of suit in 2003, it was not an abuse
of discretion for the magistrate judge to conclude that
the inability to recall was caused, at least in part, by the
length of the delay. See 

(concluding that “the
passage of eight and one-half years” could be deemed “a
contributing factor to . . . failed memories”). Accordingly,
10                                             No. 07-2911

due to Jerome Smith’s lack of memory, the City was
prejudiced by Maher’s delay in filing suit.
   In spite of the extensive lapse of time, Maher relies on
Leonard v. United Air Lines to argue that his 1992 DOL
complaint should have put the City on notice that a suit
was forthcoming. Therefore, he claims the City bore the
burden of maintaining records relevant to Maher’s com-
plaint for the next eleven years. Leonard offers no
support for such a delay. In Leonard, the plaintiff filed
an administrative complaint with United when his
claim 

. When those administra-
tive remedies proved unsatisfactory, the plaintiff
promptly filed a complaint with the DOL. That complaint
ultimately culminated in the Department of Justice
filing suit on behalf of the plaintiff in 1987. 

plaintiff had a live complaint pending against
United from 1981 until suit was filed in 1987. All the
while, United was on notice of a possible lawsuit. In this
case, however, after Maher withdrew his 1992 complaint
with the DOL, he never renewed his earlier complaint
with the City other than with the brief encounter he had
with Deputy Commissioner Repel in 1997. Thus, as time
passed the City had no actual notice that Maher was
contemplating a lawsuit. Accordingly, the magistrate
judge did not abuse its discretion in concluding that the
City had been prejudiced by Maher’s delay.


                            B.
  The case went to trial regarding the alleged demotion
in 1998 when the City transferred Maher to Landside.
No. 07-2911                                                11

The first trial ended in a hung jury. Maher contends that
during the second trial the magistrate judge erred by
excluding evidence of the alleged demotions in 1991 and
1993. A district court’s decision to exclude evidence is
reviewed for an abuse of discretion. Griffin v. Foley, 

, __ (7th Cir. 2008) (citing Estate of Moreland v.
Dieter, 

, 753 (7th Cir. 2005)). The ruling of the
lower court may be reversed “only if no reasonable
person would agree with the trial court’s ruling.” Id. at __
(citing Snipes v. Illinois Dep’t of Corr., 

, 463
(7th Cir. 2002)).
  The magistrate judge did not abuse his discretion by
excluding the evidence relating to the 1991 and 1993
incidents. First, neither of those claims of diminished
duties five and seven years earlier had any bearing on
whether Maher suffered an adverse employment action
in 1998. Second, Maher contends that the 1991 and 1993
incidents indicate a pattern of hostility toward his
military status, which would be relevant for demon-
strating that his military service was a motivating factor
for the 1998 transfer. The decision-maker responsible for
the 1998 transfer, Mary Rose Loney, became commissioner
of Aviation in 1996 and was not involved in the 1991 or
1993 incidents. Therefore, those prior incidents do not
reflect upon Loney’s motivations in 1998. See Buie v
Quad/Graphics, Inc., 

, 508 (7th Cir. 2004) (noting
that other employment actions undertaken by different
supervisors failed to indicate whether specific adverse
employment action was discriminatory). In fact, she
testified that she wanted Maher in that department
because of his background and expertise. Accordingly, a
12                                                No. 07-2911

reasonable basis existed for the exclusion of the 1991 and
1993 evidence, and the district court did not abuse its
discretion.


                              C.
   Finally, we turn to Maher’s appeal of the adverse jury
decision regarding his 1998 transfer to Landside. Maher
challenges the sufficiency of evidence, claiming that no
reasonable juror could have decided the 1998 claim for
the City, and he asks this court to vacate the verdict and
remand “for further proceedings.” Like Maher’s first
claim on appeal, this claim fails on procedural grounds.
Maher did not move for judgment as a matter of law
under Federal Rules of Civil Procedure 50(a) or (b),
which “sets forth the procedural requirements for chal-
lenging the sufficiency of the evidence in a civil jury trial.”
Unitherm Food Sys. v. Swift-Eckrich, Inc., 

, 399
(2006). A failure to file a pre-judgment motion under
Rule 50(a) prevents this court from reviewing the suffi-
ciency of a jury verdict. Van Bumble v. Wal-Mart Stores,
Inc., 

, 827 (7th Cir. 2005). A party must also
file a post-verdict Rule 50(b) motion to preserve a suffi-
ciency argument. Fuesting v. Zimmer, Inc., 

, 938
(7th Cir. 2006) (citing 

). As the
Court in Unitherm explained, “[a] postverdict motion is
necessary because ‘[d]etermination of whether a new
trial should be granted or a judgment entered under
Rule 50(b) calls for the judgment in the first instance of
the judge who saw and heard the witnesses and has the
feel of the case which no appellate printed transcript can
No. 07-2911                                                 13

impart.’ ” 

(quoting Cone v. W. Va.
Pulp & Paper Co., 

, 216 (1947)). Thus, Maher’s
failure to bring a pre-verdict motion for judgment as a
matter of law under Rule 50(a) or a post-verdict motion
under Rule 50(b) dooms his challenge to the sufficiency
of the evidence, a point which Maher’s attorney con-
ceded at oral argument.
  Nonetheless, even if we were to consider the merits of
Maher’s appeal, he has failed to demonstrate that the
verdict should be vacated. Maher bears a “heavy burden”
in making such a claim: he must demonstrate that “no
legally sufficient evidentiary basis” existed for the jury’s
verdict. Woodward v. Corr. Med. Servs. of Ill., Inc., 

, 926 (7th Cir. 2004). “We are obliged to leave
the judgment undisturbed unless the moving party can
show that ‘no rational jury could have brought in a
verdict against [him].’ ” 

v. G-K-G, Inc., 

, 745 (7th Cir. 1994 )). Under USERRA, Maher
must demonstrate that he suffered an adverse employ-
ment action and that the adverse action was motivated
in part by his military service. 38 U.S.C. §§ 4311(a), (c)(1);
see also Miller v. City of Indianapolis, 

, 650 (7th
Cir. 2002) (stating that USERRA is violated when an
employee is “den[ied] a benefit of employment,” and the
employee’s military service “is a motivating factor” for
that denial).
  Maher first argues that he suffered an adverse employ-
ment action because: (1) he did not have a staff at
Landside; (2) he was not using his CPA qualifications;
(3) he had no opportunity for advancement; (4) one of
14                                                No. 07-2911

his superiors at Landside had less college education than
he; and (5) he was required to manage snow removal.
However, other evidence presented at trial cut against
Maher’s claims and provided a basis for a reasonable
juror to decide in the City’s favor. “A materially adverse
employment action is something more disruptive than
a mere inconvenience or an alteration of job responsibili-
ties.” Nichols v. S. Ill. Univ.-Edwardsville, 

, 780
(7th Cir. 2007) (quotations omitted). An adverse employ-
ment action of the type alleged by Maher should be
“distinguished from cases involving a purely lateral
transfer, that is, a transfer that does not involve a
demotion in form or substance.” 

Here, Maher managed large-scale projects such as a
ground transportation overhaul that involved applying
for and managing hundreds of millions of dollars, and
handled millions of dollars worth of billing while at
Landside. From this evidence, a reasonable juror could
conclude that Maher was using his financial background.
Although the lack of staff may be suggestive of less
responsibility, that fact alone is not dispositive. Further-
more, Loney testified that Maher could have advanced
in Aviation from Landside. Moreover, the fact that one
superior had less college education than Maher does not
indicate that Maher suffered an adverse employment
action; otherwise, a company would have to ensure that
its employees were placed on the company ladder in a
strict educational hierarchy. Finally, the fact that Maher
was managing snow removal—and was not plowing
snow himself—does not demonstrate a lack of responsibil-
ity, especially in light of his other duties. For these
No. 07-2911                                                15

reasons, Maher has failed to prove that the evidence so
favors his position that no reasonable juror could
conclude otherwise.
  Similarly, Maher has failed to show that a reasonable
juror could only have found that hostility toward his
military service, and not some other non-discriminatory
reason, lurked behind the Landside transfer. Maher
makes several arguments about peers being promoted
ahead of him, disparaging remarks, delays in pay while
he was in Bosnia, and furniture stored in his office
during a move. However, these facts do not mandate a
decision for Maher. The salient point here is that Com-
missioner Loney transferred Maher. Maher has not cited
evidence indicating that she was responsible for
promoting the other employees instead of him. “ ‘[W]hen
two different decision-makers are involved’ ” in separate
employment actions, “ ‘it is difficult to say that the dif-
ference [between the actions] was more likely than not
the result of intentional discrimination.’ ” 

(quoting Timms v. Frank, 

, 287 (7th Cir.
1992)). Accordingly, the promotions of other employees
do not provide sufficient evidence to overturn the jury
verdict. Similarly, the disparaging comments made by
Hawthorne (whom Loney fired for unrelated reasons) and
Smith are irrelevant to Maher’s claim. Finally, Maher is
quick to make conspiratorial inferences concerning the
problems receiving his checks and the furniture placed in
his office during the move to O’Hare. However, a reason-
able juror could conclude that these isolated incidences,
totally unconnected with Loney’s decision to transfer
Maher to Landside, simply constituted petty nuisances,
16                                              No. 07-2911

instead of an overarching scheme to punish Maher for
his military service. Simply put, the jury had an opportu-
nity to draw the same inferences Maher does; the jury
did not, and there is no compelling reason to conclude
that the jury erred. Accordingly, Maher’s challenge to
the sufficiency of the evidence fails.


                            III.
  Because Maher only appealed the magistrate judge’s
conclusion on the laches issue and failed to appeal the
alternative conclusion that no genuine issue of fact had
been created regarding the 1991 claim, and because in any
event the decision that laches barred the 1991 claim was
not an abuse of discretion, the grant of summary judg-
ment for the City on the 1991 claim is A FFIRMED. Moreover,
because the decision to exclude evidence of the 1991 and
1993 claims at the trial of the 1998 claims was not an abuse
of discretion, that decision is A FFIRMED. Finally, because
Maher failed to bring pre- or post-verdict motions under
Rule 50(a) or (b), and because in any event the evid-
ence was sufficient to support the jury verdict on the 1998
claim, that verdict is A FFIRMED.




                          10-31-08