In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3094

JULIE S TEPHENS L ONG,
                                              Plaintiff-Appellant,
                                v.

T EACHERS’ R ETIREMENT S YSTEM OF
THE S TATE OF ILLINOIS,
                                             Defendant-Appellee.


           Appeal from the United States District Court
               for the Central District of Illinois.
              No. 06-3194—Richard Mills, Judge.



    A RGUED JANUARY 20, 2009—D ECIDED O CTOBER 23, 2009




  Before E ASTERBROOK, Chief Judge, SYKES, Circuit Judge,
and K ENDALL, District Judge. Œ
  K ENDALL, District Judge. Julie Stephens Long’s employ-
ment with the Teachers’ Retirement System of the State
of Illinois (“TRS”) came to an end on February 3, 2006.


Œ
  Hon. Virginia M. Kendall, District Judge for the Northern
District of Illinois, is sitting by designation.
2                                              No. 08-3094

While TRS maintains that it fired her for poor perform-
ance, Long believes that she was fired in retaliation for
taking leave under the Family and Medical Leave Act
(“FMLA”). The district court granted summary judgment
in favor of TRS, which Long now appeals. For the follow-
ing reasons, we affirm.


                      I. Background
  TRS administers the pension plan that provides
monthly retirement benefits to approximately 82,000
retired teachers throughout Illinois.
  Jon Bauman served as the Executive Director of TRS.
He held ultimate responsibility for the organization’s day-
to-day activities and he possessed final decision-
making authority for all disciplinary actions including the
suspension and termination of employees. Human Re-
sources Director, Gina Larkin, reported directly to
Bauman and oversaw all personnel activities at TRS.
Before disciplining an employee, Larkin worked in con-
junction with the appropriate department manager in
order to determine a recommended course of action
that she would present to Bauman.
  At TRS, the Member Services Division facilitates all
retirement, disability and survivor benefit claims. Terry
Viar, Director of Member Services, reported directly to
Bauman and oversaw the payment of benefits to TRS
members. The Benefits Department, a subsection of
Member Services, processes all retirement benefits. Deputy
Director of the Benefits Department Sally Sherman man-
No. 08-3094                                             3

aged the Benefits Department and reported directly
to Viar.
  To expedite the payment of benefits, TRS allows its
members to receive their benefits through an electronic
fund transfer (“EFT”), whereby TRS deposits benefit
payments directly into a member’s bank account.
Within the Benefits Department, the Payroll and
Insurance Department (“Payroll”) processes direct deposit
forms for members opting to receive their payments via
EFT. Payroll Insurance Manager Marshall Branham
oversaw the daily administration of benefits for TRS
members, including the timely processing of EFT pay-
ments. Branham reported to Sherman.
  Long began working at TRS in September, 1985. Starting
in 2000, Long worked in Payroll in the position of Payroll
Clerk IV. Her primary responsibilities included enrolling
members in the EFT program, entering EFT information
into a database, verifying bank routing and account
numbers and responding to change of address requests
from beneficiaries. Branham was Long’s direct supervisor.
  When she initially started in Payroll, Long received
favorable performance reviews. Over time, though, errors
in her work and increasing absences led to lower re-
views. In June 2005, she missed 25% of her scheduled
working days. In July 2005, her absences rose to 40% of
her scheduled days. Additionally, although Branham
asked Long in 2004 to train employees from other depart-
ments on the EFT process, she had not done so as of
June 2005. On July 26, 2005, Branham met with Long to
inform her that because of her absenteeism, he planned
4                                            No. 08-3094

on withdrawing his recommendation that she receive a
promotion. Long agreed with his assessment regarding
her absenteeism. At the meeting, Branham also instructed
her to train employees within the Data Services Depart-
ment on the EFT process by September 2005.
  In September 2005, TRS traced several errors within
the EFT system to Long. For example, she improperly
recorded a bank account number which resulted in TRS
sending a member’s benefit payment to the wrong loca-
tion. She also improperly documented an address
which resulted in a member’s estranged ex-wife re-
ceiving sensitive financial information about the member.
On September 14, 2005, the members called TRS to com-
plaint about the difficulty they had receiving their
benefit payments. Although Long had responsibility for
responding to member communications regarding EFT
transactions, she was absent from work that day, so other
TRS employees fielded the calls. The next day, Branham
met with Long to discuss her EFT errors and the impact
that her absences had on other TRS employees. Branham
also informed Long that she had not processed payroll
deduction plan applications in a timely manner which
resulted in TRS moving responsibility for processing the
applications to another department. Once again, Branham
urged Long to train other TRS employees on the EFT
process. He summarized the meeting in a memorandum
dated September 20, 2005.
  In the fall of 2005, Larkin held two meetings with
Branham and Sherman to discuss Long’s performance.
Through the meetings, Larkin learned that Long entered
No. 08-3094                                               5

incorrect addresses in the EFT database, entered incor-
rect routing numbers and did not complete her tasks in
a timely manner. She also discovered that in addition to
the member complaints that TRS received, Long’s
fellow employees complained about her performance.
Branham and Sherman informed Larkin of their belief
that Long’s errors resulted in TRS failing to get its checks
to its members.
  Based on Long’s many absences, on September 26,
2005, Sherman informed Long that she might be eligible
for leave under the FMLA. Long then applied for inter-
mittent FMLA leave for medial epicondylitis (tennis
elbow). TRS approved her request for FMLA leave in
October and instructed Long to notify her supervisors
when she would be absent because of her medical condi-
tion. Long informed TRS that her absences on Septem-
ber 22 and 28, 2005 were related to the condition. In
November 2005, Long modified her FMLA application to
request intermittent leave to treat ovarian cysts. After
TRS approved the revised application on December 2,
2005, Long informed her employer that the following
absences related to FMLA leave: October 13, 14, 20, 21,
24 and 28; November 3, 7, 8, 9, 10, 14, 15 and 18; and
January 5, 2006. She was also absent from work for nine
days in December 2005 and five days in January 2006. The
record indicates that those absences were not FMLA-
related.
  In late December 2005 or early January 2006, Larkin met
with Branham and Sherman again. At the meeting,
Branham and Sherman informed Larkin that Long’s
6                                               No. 08-3094

performance had not improved, and as a result, TRS
failed to get benefits payments to its members. Branham
also told Larkin that he found a large backlog of EFT forms
that Long had not entered into the system on several
occasions. Branham expressed frustration with Long’s
absenteeism and suggested that TRS should fire Long.
  After receiving Branham’s suggestion, Larkin reviewed
Long’s performance evaluations, the member complaints
related to her work and the comments from Branham
and Sherman. Larkin then met with Bauman twice in
January 2006 to discuss Long’s performance. At the
January 31, 2006 meeting, Larkin recommended that
Bauman terminate Long. After reviewing Long’s perfor-
mance evaluations and discussing member complaints
with Branham, Bauman decided to fire Long on
February 3, 2006 based upon the member complaints
and the misdirected checks. When he made the decision
to fire her, Bauman did not have any knowledge of
Long’s FMLA leave.
   On August 31, 2006, Long filed suit, claiming that TRS
fired her in retaliation for taking FMLA leave. The district
court granted summary judgment for TRS, finding that
Long failed to create a genuine issue of fact as to
whether TRS fired her in retaliation for taking FMLA leave.


                      II. Discussion
  We review a district court’s grant of summary judg-
ment de novo, viewing the facts and all reasonable infer-
ences in the light most favorable to the non-moving party.
No. 08-3094                                                  7

See Ridings v. Riverside Med. Ctr., 

, 760 (7th Cir.
2008). Summary judgment is proper when “there is no
genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). To defeat a motion for summary judgment, the non-
moving party must present more than just “bare allega-
tions.” de la Rama v. Ill. Dept. of Human Servs., 

,
685 (7th Cir. 2008). The non-moving party must present
“ ‘evidence on which the jury could reasonably find
for the nonmoving party.’ ” 

v. Vill.
of Arlington Heights, 

, 612 (7th Cir. 2005)).
  As a preliminary matter, Long attempts to question the
district court’s decision to strike portions of her affidavit
that contradicted her previous deposition testimony.
Although she has not formally presented the issue for
review, she implicitly questions the ruling at several
points in her brief and states in a footnote that “the
district court erroneously struck portions of Long’s af-
fidavit.” Long does not develop the argument or cite to
specific portions of the record that would illustrate how
the district court erred.
   To present an argument on appeal, a party must develop
its position by providing citation to the relevant portions
of the record and supporting authority. See Fed. R. App. P.
28(a)(9)(A). “[U]nsupported and underdeveloped argu-
ments are waived.” United States v. Turcotte, 

,
538 (7th Cir. 2005). A party may waive an argument by
disputing a district court’s ruling in a footnote or a one-
sentence assertion that lacks citation to record evidence.
See Beamon v. Marshall & Ilsley Trust Co., 

, 862
8                                                  No. 08-3094

(7th Cir. 2005); see also United States v. White, 

,
1513 (7th Cir. 1989) (argument raised in passing in a
footnote deemed waived).
  In claiming that the district court erred in striking
portions of Long’s affidavit that conflicted with her
deposition testimony, Long does not identify the proper
standard of review or the legal standard for striking self-
serving affidavits as inapposite to deposition testimony.
Her statement contains no citation to the record to
show which portions of the affidavit she believes were
improperly stricken or why they were improperly
stricken. Because Long has failed to properly present the
issue of whether the district court erred in striking
portions of her affidavit, she has waived the argument.
  The FMLA allows eligible employees to take unpaid
leave to tend to a serious health condition. See 29 U.S.C.
§ 2612. Additionally, the FMLA prohibits employers
from discriminating against employees who have taken
FMLA leave. See 29 U.S.C. § 2615; see also King v. Preferred
Technical Group, 

, 891 (7th Cir. 1999). An
employee may proceed under the direct or indirect meth-
ods of proof to establish a prima facie case of retaliation
under the FMLA. See 

. Long at-
tempts to proceed under the direct method only.
  A plaintiff proceeding under the direct method of
proof must produce direct or circumstantial evidence that
“the protected conduct was a substantial or motivating
factor in the employer’s decision.” Lewis v. Sch. Dist. #70,

, 741-42 (7th Cir. 2008). To establish a prima
facie case of retaliation under the direct method of proof,
No. 08-3094                                             9

the plaintiff must present evidence of “(1) a statutorily
protected activity; (2) a materially adverse employment
action taken by the employer; and (3) a causal connection
between the two.” Caskey v. Colgate-Palmolive Co., 

, 593 (7th Cir. 2008). Direct evidence typically
consists of an admission by the decisionmaker that he
acted with retaliatory intent. See 

dence allows the finder of fact to infer that retaliatory
animus motivated the decisionmaker to take an adverse
employment action against the employee. See 

evidence may include suspicious timing, ambigu-
ous oral or written statements, or behavior toward or
comments directed at other employees in the protected
group. See Nichols v. S. Ill. Univ.-Edwardsville, 

, 782 (7th Cir. 2007).
  The parties do not dispute that Long engaged in a
protected activity when she took FMLA leave or that she
suffered an adverse employment action when TRS termi-
nated her. To support her contention TRS fired her
because she took FMLA leave, she offers the following
pieces of circumstantial evidence: Branham’s state-
ments, failure of TRS to follow its internal discipline
procedures when it fired her and the “sudden decline” in
her performance reviews around the time that she took
leave.
  Long claims that Branham recommended to Bauman
and Larkin that TRS should fire Long because he held
animus towards her for taking FMLA leave. To sup-
port that contention, she points to several of Branham’s
statements regarding her absences. For example,
10                                            No. 08-3094

Long points to a memorandum that Branham drafted to
memorialize a meeting that he held with Long. In the
memo, Branham noted that he met with Long to
discuss her absences and the impact that the absences
had on Payroll’s overall workload. Additionally, in his
deposition, Branham stated that absenteeism affected
Long’s performance from June 2005 through Jan-
uary 2006. He attributed some of Payroll’s overall
problems to Long’s absences, such as EFT backlogs and
missed member complaints. He also stated that Long’s
absences had a negative impact on the morale of other
Payroll employees because they had to perform Long’s
duties in addition to their own during her absences.
  Although Long claims that Branham’s memo provides
evidence of his retaliatory animus towards her FMLA
leave, Branham met with Long and drafted the memo
before she even applied for FMLA leave. Branham met
with Long to discuss her absences and EFT errors on
September 15, 2005. On September 20, 2005, he drafted
his memo to summarize the meeting. Sherman did not
inform Long about her potential eligibility for FMLA
leave until September 26, 2005, days after Branham
held the meeting and drafted the memo that discussed
Long’s absences. Because Long had not even applied for
FMLA leave when Branham discussed Long’s absences
and drafted the memo to summarize the meeting, those
statements that he made in the meeting and the memo
cannot provide evidence that he held a retaliatory
animus towards Long’s use of FMLA leave. See Durkin v.
City of Chicago, 

, 614-15 (7th Cir. 2003) (“An
employer cannot retaliate if there is nothing for it to
retaliate against.”).
No. 08-3094                                             11

  Long also claims that Branham’s statements during
his deposition reveal that he held a retaliatory animus
towards her based on her FMLA leave. Although he
attributed Long’s performance problems to her many
absences, he stated that her absences from June 2005
through January 2006 created problems such as EFT
backlogs and missed member complaints. Long’s string
of absenteeism began in June 2005 when she missed 25%
of her scheduled days, and continued into July 2005
when she missed 40% of her scheduled days. On July 26,
2005, Branham held a meeting with Long to inform her
of the toll that her absenteeism was taking on her perfor-
mance when he told her that he had to withdraw his
recommendation that she receive a promotion based
solely on her many absences. In September 2005, before
she even applied for FMLA leave, Branham traced
many errors within Payroll to Long and held a meeting
with her on September 15, 2005 to discuss her per-
formance issues. Even when TRS approved her applica-
tion for FMLA leave in October and she indicated that
some of her previous absences were related to her
medical condition, the earliest date that she indicated was
September 22, 2005, after Branham had already docu-
mented that her absences were negatively affecting
her performance. Any comment that Branham made
regarding absences before Long even applied for FMLA
leave could not have been evidence of a retaliatory
intent on his part.
  Even assuming that Branham’s deposition testimony
reveals that he held retaliatory animus towards Long, to
demonstrate a causal connection between a protected
12                                               No. 08-3094

activity and an adverse employment action, “a plaintiff
must provide direct or circumstantial evidence that
the decisionmaker has acted for a prohibited reason. A
decisionmaker is the person ‘responsible for the con-
tested decision.’ ” Rogers v. City of Chicago, 

,
754 (7th Cir. 2003) (emphasis in original) (quoting
Chiaramonte v. Fashion Bed Group, Inc., 

, 396 (7th
Cir. 1997)). “Statements by subordinates normally are not
probative of an intent to retaliate by the decisionmaker.”
Willis v. Marion County Auditor’s Office, 

, 546
(7th Cir. 1997).
  At TRS, only Bauman has the authority to make person-
nel decisions regarding employee discipline, including
whether to suspend or terminate an employee. Branham
only recommended to Larkin that TRS should fire Long;
he did not make the ultimate decision. Bauman made
the decision after consulting with Larkin, Branham and
Sherman. Therefore, even if Branham held retaliatory
animus towards Long, to show a causal connection be-
tween her FMLA leave and her termination, she must
show that Bauman acted for a prohibited reason. The
record does not contain any evidence that Bauman fired
Long because she took FMLA leave; in fact, the record
shows that he did not even know that Long took FMLA
leave when he fired her. Because Bauman did not know
that Long took FMLA leave, he could not have possibly
terminated her for that reason.
  Although a plaintiff must generally provide evidence
that the decisionmaker acted for a prohibited reason to
establish a prima facie case of retaliation, courts have
No. 08-3094                                                  13

imputed the retaliatory intent of a subordinate to an
employer in situations where the subordinate exerts
significant influence over the employment decision. See,
e.g., Metzger v. Ill. State Police, 

, 682 (7th Cir.
2008); Brewer v. Bd. of Trs. of the Univ. of Ill., 

,
917-18 (7th Cir. 2007); 

;

(noting potential for employer
liability if decisionmaker merely “rubber-stamped” a
biased subordinate’s recommendation). This theory of
liability, known as the “cat’s paw” doctrine, see 

, has received inconsistent treatment in this
Circuit. Some cases hold that a subordinate must have a
“singular influence” over the employment decision, see
Staub v. Proctor Hosp., 

, 659 (7th Cir. 2009), and
others do not draw such a bright line, see Shager v. Upjohn,

, 405 (7th Cir. 1990). In Shager v. Upjohn, for
example, the court found that evidence of “taint” and
“influence” by a non-decisionmaker made the
decisionmaker a “conduit of [his] prejudice.” See 

did not suggest, however, that the subordinate’s
influence must be “singular,” focusing instead on the
lack of independent deliberation by the decision-making
committee. See 

was largely replicated
in Metzger, where the court emphasized the lack of evi-
dence of any “improper influence” by the subordinate
and the independent nature of the decision-making. 

. Other cases, however, suggest that the
cat’s paw doctrine only applies where a “decision maker
is . . . wholly dependent on a single source of information.”
See 

. The court’s decision in
Staub, for instance, held that “to be a cat’s paw requires . . .
14                                             No. 08-3094

a blind reliance, the stuff of ‘singular influence.’ ” See

.
  The Court merely notes this internal conflict for the
record. It need not reconcile these approaches today for
several reasons. First, Long is only claiming that a single
subordinate (Branham) was the source of the retaliatory
animus that Long seeks to impute to Bauman. Moreover,
regardless of the approach that one adopts, an independent
investigation by the decisionmaker weighs heavily
against a finding of excessive influence. See 

; see also 

; 

. Here, Bauman relied on information from
several different sources before arriving at the decision
to fire Long. After Branham recommended that TRS
should fire Long, Larkin gathered information on her
own by reviewing information from Sherman, member
complaints and Long’s performance evaluations. Larkin
then held two meetings with Bauman to discuss the
situation before she made her own recommendation
that TRS should fire Long. After receiving Larkin’s
input, Bauman reviewed the information relating to
Long independently. While Branham met with Bauman
to discuss the member complaints that Payroll had re-
ceived, Branham did not control all of the information
that Bauman had to evaluate the recommendation to
terminate Long. The set of data available to Bauman
consisted of information provided by Branham, Sherman
and Larkin. Nothing in the record suggests that Branham
exerted singular influence over Bauman’s decision or
that Bauman merely “rubber-stamped” Branham’s recom-
mendation; to the contrary, the undisputed facts show
No. 08-3094                                             15

that Bauman reviewed multiple sources of information
on his own, held at least three meetings and received
Larkin’s independent recommendation before deciding
to fire Long. While Long questions the thoroughness
and independence of Bauman’s investigation, the record
shows that Bauman was not wholly dependent on a
single source of information and reviewed the facts
relevant to the decision on his own, which is all that he
was required to do to absolve TRS of potential liability
under the cat’s paw theory. See 

;

.
  Therefore, even if Branham’s deposition provided some
evidence that he harbored a retaliatory animus towards
Long’s FMLA leave, the record shows that Bauman, who
did not even know that Long took FMLA leave, acted as
the ultimate decisionmaker. Long has not introduced
evidence that would provide a basis for imputing a re-
taliatory animus from Branham to Bauman because
Branham did not exert singular influence over Bauman’s
decision. Accordingly, Branham’s statements regarding
Long’s absenteeism do not provide her with evidence
that TRS fired her because she took FMLA leave.
  Long also offers TRS’s failure to follow its own internal
discipline procedures as evidence of TRS’s retaliatory
intent in firing her. An employer’s departure from its own
employment policies can constitute circumstantial evi-
dence of discrimination. See Rudin v. Lincoln Cmty. Coll.,

, 723 (7th Cir. 2005); Giacoletto v. Amax Zinc
Co., Inc., 

, 427 (7th Cir. 1992). However,
when a progressive discipline policy permits the
16                                               No. 08-3094

employer to exercise discretion in discharging an
employee without exhausting all of the policy’s steps,
failure to follow all of the steps does not suggest a dis-
criminatory motive. See Fane v. Locke Reynolds, LLP, 

, 541 (7th Cir. 2007); Hague v. Thompson Distrib. Co.,

, 828 (7th Cir. 2006).
  TRS’s Employee Discipline Policy utilizes a progressive
discipline plan, where the disciplinary steps typically
follow this pattern: (1) oral warning and informal coun-
seling; (2) written warning and counseling; (3) suspension;
and (4) discharge. However, the policy also states,
“[d]epending on the facts and circumstances involved
in each situation, management may choose to begin
disciplinary action at any step.” Additionally, “[f]or certain
major violations or continued failure to respond to prior
disciplinary action, discharge may be the only recourse.”
When skipping to the discharge step, TRS’s procedures
require the supervisor and division head to make recom-
mendations for discharge to the Director of Human
Resources.
  Here, the record evidence shows that TRS began to
discipline Long for her absenteeism by giving her an
oral warning. On July 26, 2005, Branham informed
Long that he would no longer support her promotion
because of her excessive absenteeism during the months
of June and July 2005. Additionally, Branham met
with Long twice in September 2005 to discuss late pro-
cessing of payroll deduction plan applications, EFT errors,
Long’s failure to train other staff in EFT procedures and
complaints from members and coworkers relating to
No. 08-3094                                              17

Long’s EFT work. Despite these warnings, Branham
discovered a large backlog of EFT forms on several occa-
sions in late 2005 and early 2006. On multiple occasions,
Long did not deliver groups of EFT slips to the Data
Services Department for processing until the day before
the cut-off date when TRS’s procedures called for the
slips to be delivered on a daily basis so that Data Services
could spread out its processing of the forms. This delay
forced Data Services to process all of the EFT forms in
a single day to ensure timely payment of member benefits.
  After discovering this backlog of EFT forms several
times, Branham, Sherman and Viar recommended to
Larkin that Long should be fired. This recommendation
complied with TRS’s policy that required the supervisor
and division head to make recommendations for
discharge to the Director of Human Services. Although
TRS’s policy allows for progressive discipline, it also
allows for termination in the event of continued failure
to respond to previous warnings. Long received oral
warnings on at least three occasions beginning in
July 2005 before her termination in February 2006. There-
fore, because Long received several warnings before
termination and because TRS had the ability to begin
disciplinary action at any step, TRS did not violate its
disciplinary policy when Long was terminated.
  Long points out that under TRS’s policy, in circum-
stances that could result in immediate termination, a
supervisor must submit a written request detailing the
incident to the division head, the Director of Human
Resources and the Executive Director. Because Branham
18                                            No. 08-3094

orally informed Larkin of his recommendation that Long
should be fired, Long claims that TRS’s policy was
violated when it fired her. TRS counters that it only has
an obligation to make written recommendations for
termination when an employee commits “a single, severe,
or atrocious policy violation” that constitutes a fireable
offense. Because TRS and Branham provided oral
warnings to Long beginning in late July 2005, approxi-
mately six months before the date of her termination,
TRS claims that Long’s termination was not an “immedi-
ate termination” under the policy, but rather the result
of repeated instances of substandard performance.
  Because the disciplinary policy allowed for TRS to
terminate Long under the circumstances, the actual
decision to terminate Long did not violate the policy. If
the policy was violated at all, it was when Branham
orally recommended Long’s termination to Larkin
instead of providing Larkin with a written report out-
lining the reasons that he believed that TRS should fire
Long. When TRS has the authority to terminate an em-
ployee, the fact that a manager made his recom-
mendation orally instead of in writing does not provide
circumstantial evidence of retaliatory intent. Under the
policy, Branham had the authority to recommend
Long’s discharge based upon her poor job performance.
The fact that he did so orally rather than in writing does
not permit the inference that TRS discharged Long in
retaliation for taking FMLA leave.
  Finally, Long claims that the decline in her performance
evaluations provides circumstantial evidence that TRS
No. 08-3094                                            19

terminated her in retaliation for taking FMLA leave. “[A]n
employer’s sudden dissatisfaction with an employee’s
performance after that employee engaged in a protected
activity may constitute circumstantial evidence of causa-
tion.” Culver v. Gorman & Co., 

, 546 (7th Cir.
2005).
  Here, Long claims that her “exemplary track record
belies any suggestion that her performance suddenly
changed.” She contends that “the fact that an employee
had consistently overperformed expectations for more
than twenty years and then all of a sudden becomes a
bad employee is simply not logical.” Despite these con-
tentions, the record shows that TRS first documented a
decline in Long’s performance in June and July 2005, when
she missed 25% and 40% of the working days in each
month, respectively. On July 26, 2005 and September 15,
2005, Branham met with Long to discuss her declining
performance. In the meetings, Branham discussed her
absenteeism in addition to several EFT errors attributable
to her that caused delayed benefit payments to
members and the disclosure of a member’s personal
information to a third party. During the meetings,
Branham also informed Long that she had not timely
processed several payroll deduction plans.
   Branham documented those deficiencies in Long’s
performance before September 22, 2005, the date of her
first FMLA-related absence. While a sudden decline in
performance evaluations after an employee engages in a
protected activity may provide circumstantial evidence
of discriminatory intent, a decline in performance
20                                              No. 08-3094

before the employee engages in protected activity does not
allow for an inference of retaliation. See 

(“It is axiomatic that a plaintiff engage in
statutorily protected activity before an employer can
retaliate against her for engaging in statutorily protected
activity . . . . An employer cannot retaliate if there is
nothing for it to retaliate against.”). Because Branham
first documented a decline in Long’s performance in
June 2005, at least three months before Long ever
took FMLA leave, the decline in Long’s performance
evaluations cannot provide circumstantial evidence of
retaliatory intent.


                      III. Conclusion
  Because Long has failed to present evidence that TRS
acted with retaliatory intent when it fired her, a jury could
not infer that TRS fired her because she took FMLA leave.
Therefore, the district court’s grant of summary
judgment is A FFIRMED.




                           10-23-09