Mary A. O’Regan v. Arbitration Forums, Inc., a New York not-for-profit corporation, and Yvonne Weaver

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-4044 & 00-1306
Mary A. O’Regan,
Plaintiff-Appellant,
v.
Arbitration Forums, Inc.,
a New York not-for-profit
corporation, and Yvonne Weaver,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 6464--Harry D. Leinenweber, Judge.
Argued September 6, 2000--Decided April 9, 2001
Before Manion, Kanne, and Diane P. Wood, Circuit
Judges.
Manion, Circuit Judge. Mary Ann O’Regan sued her
former employer, Arbitration Forums (AF),
alleging that AF terminated her because of her
sex and age in violation of Title VII and the Age
Discrimination in Employment Act (ADEA). The
parties filed cross-motions for summary judgment,
and the district court granted AF’s motion,
concluding that O’Regan failed to demonstrate
that AF’s legitimate, non-discriminatory reason
for her termination (her failure to sign an
employment agreement) was a pretext for
discrimination, and that the employment agreement
did not have a disparate impact on women. O’Regan
appeals, arguing that the district court judge
erroneously granted AF’s summary judgment motion,
erroneously refused to recuse himself from the
case, and abused his discretion in granting AF’s
amended bill of costs. We affirm.
I.
Arbitration Forums (AF) is a non-profit
corporation that provides arbitration services to
insurance companies. AF hired Mary Ann O’Regan to
the position of Illinois Administrator in April
1989, and promoted her to the Branch Manager
position in August 1989. O’Regan resigned from AF

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in June 1990 to complete her Master’s Degree in
Management and to fulfill family
responsibilities. AF rehired O’Regan in January
1991 to the position of Central Regional Manager
on an at-will basis.
In 1992, AF was involved in a dispute with
Resolute Systems, a competing company in the
arbitration services market. AF claimed that
Resolute had obtained confidential information
from former AF employees. AF and Resolute
resolved their dispute after Resolute agreed to
modify its materials in 1993 to distinguish them
from AF’s documents.
After the dispute with Resolute arose, AF
decided to require all of its 85 managers to sign
an employment agreement that included a covenant
not to compete. AF reviewed an initial draft of
an employment agreement prepared by attorney John
Cacciatore. But after consulting with another
attorney, Thomas Steele, AF rejected Cacciatore’s
draft and adopted Steele’s more comprehensive
employment agreement, which contained a non-
compete provision prohibiting AF employees from
working for AF’s competitors in the insurance
arbitration industry for a two-year period
anywhere throughout the United States. Steele
also recommended that AF: require all managers to
sign the employment agreement, refuse to
negotiate the terms of the Agreement, and
terminate employees who refused to sign the
Agreement for cause. AF’s President, Yvonne
Weaver, followed Steele’s advice. She distributed
the employment agreement to all of AF’s
management and professional level employees,
along with a memorandum stating that all
employees were required to execute the Agreement
within ten business days. She asserted that AF
would not negotiate any modifications, and that
employees who failed to sign the Agreement would
be terminated for cause.
After receiving the memo and employment
agreement, O’Regan consulted an employment law
attorney. The attorney advised her that the
Agreement violated Illinois public policy, was
overly broad, draconian in scope, and lacked
adequate consideration. Based on her attorney’s
opinion, O’Regan notified AF that she would not
sign the employment agreement, but would be
willing to negotiate a new one. Weaver consulted
Steele about O’Regan’s position, and Steele
advised her to terminate O’Regan. AF terminated
O’Regan on October 8, 1993. She was 47 years old
at the time of her termination. Weaver replaced
O’Regan with Terance Bryant, a 32-year-old male.
Out of the 85 management level and professional
employees who received and were required to sign

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the employment agreement, four female middle
managers (including O’Regan) refused to sign. AF
terminated all four of them for the proffered
reason that they refused to sign the employment
agreement. All 15 of AF’s male managers and
management trainees signed the employment
agreement.
After she was fired, O’Regan sued AF, alleging
claims of breach of oral promise, promissory
estoppel, breach of implied contract, retaliatory
discharge, sex and age discrimination, tortious
interference, Sherman Act violations, Illinois
Antitrust Act violations, and conspiracy. Upon
AF’s motion to dismiss, the district court
dismissed all of O’Regan’s claims, and O’Regan
appealed to this court. We affirmed the dismissal
of all of O’Regan’s claims except for her sex and
age discrimination claims, stating that "[t]hese
claims might fail on summary judgment, but at
this point they should not be dismissed." O’Regan
v. Arbitration Forums, Inc., 121 F.3d 1060, 1065
(7th Cir. 1997). The case was remanded to the
district court before Judge Harry D. Leinenweber.
While the case was pending with Judge
Leinenweber, O’Regan learned from a newspaper
article that Judge Leinenweber’s wife, former
U.S. Labor Secretary Lynn Martin, accepted a
position with Mitsubishi as a consultant to
review the adequacy of Mitsubishi’s policies
governing sex discrimination at its Normal,
Illinois plant. According to the consulting
contracts, Mitsubishi agreed to pay Martin over
$2 million from 1996 through 1998. O’Regan also
learned that Mitsubishi was a major client of the
law firm of Keck, Mahin & Cate (KMC), which was
the same law firm that represented AF in this
case.
Based on these facts, O’Regan filed a motion to
disqualify Judge Leinenweber, alleging that he
made favorable rulings for AF (KMC’s client) and
against O’Regan to repay KMC for the firm’s
assistance in securing Martin’s consulting
contracts with Mitsubishi. The district court
denied O’Regan’s motion. O’Regan filed a mandamus
petition with this court, which was denied
without opinion on December 8, 1997. O’Regan next
filed an amended mandamus petition and requested
a rehearing en banc, which this court denied on
January 20, 1998.
O’Regan then filed a motion for default against
Weaver, AF’s former president (who was terminated
in 1995 but was named as a defendant in her
corporate capacity) for failing to file her
answer to O’Regan’s Second Amended Complaint. The
district court denied the motion. O’Regan

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subsequently filed a motion for reconsideration,
which was denied as well. O’Regan then filed
another mandamus petition, arguing that Judge
Leinenweber’s denial of the default motion, and
his conduct at the motion hearing, further
demonstrated the judge’s bias. Another panel of
this court denied O’Regan’s second mandamus
petition without opinion on May 11, 1998.
Back with the district court, AF and O’Regan
filed cross-motions for summary judgment on
O’Regan’s remaining sex and age discrimination
claims. Both parties also filed motions to strike
in response to Local Rule 12(M) and (N)
submissions. On August 30, 1999, the district
court granted AF’s summary judgment motion,
concluding that O’Regan failed to establish that
AF’s reason for her termination (her failure to
sign the employment agreement) was a pretext for
discrimination, or that the employment agreement
had an illegal disparate impact on women. O’Regan
v. Arbitration Forums, Inc., No. 95 C 6464, 1999
WL 731775 (N.D. Ill., Aug. 30, 1999). The
district court also granted in part AF’s motion
to strike portions of affidavits by O’Regan and
Nancy Trussel (AF’s Director of Human Resources),
and denied O’Regan’s motion to strike AF’s reply
to O’Regan’s 12(N) statement of additional facts
in support of her motion for summary judgment.
O’Regan appeals, arguing that Judge Leinenweber
erroneously granted AF’s motion for summary
judgment, granted in part AF’s motion to strike,
and denied O’Regan’s motion to strike. O’Regan
also contends that because of KMC’s alleged
assistance in securing Martin’s contract with
Mitsubishi, Judge Leinenweber erred in failing to
recuse himself from the case as required by the
spousal financial interest provision of 28 U.S.C.
sec. 455 (b)(4), and other disqualification
provisions. On February 2, 2000, O’Regan filed a
subsequent appeal of the district court’s
decision to grant AF’s amended bill of costs,
arguing that the district court abused its
discretion in granting the bill of costs because
it was untimely and misleading. We consolidate
the appeals.
II.
A. Summary Judgment
O’Regan argues on appeal that the district court
erred in granting summary judgment for AF on
O’Regan’s sex and age discrimination claims. "We
conduct de novo review of a district court’s
decision involving cross-motions for summary
judgment," viewing all of the facts, and drawing
all reasonable inferences from those facts, in
favor of the nonmoving party. Ozlowski v.
Henderson, 237 F.3d 837, 839 (7th Cir. 2001)

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(quoting Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 692 (7th Cir. 1998)). Summary judgment
is proper if the record demonstrates that "there
is no genuine issue as to any material fact and
that [a] moving party is entitled to judgment as
a matter of law." Id. (quoting Fed. R. Civ. P.
56(c)). "With cross-motions, our review of the
record requires that we construe all inferences
in favor of the party against whom the motion
under consideration is made." Hendricks-Robinson,
154 F.3d at 692.
1. Disparate treatment claim.
On appeal, O’Regan argues that AF’s President,
Yvonne Weaver, favored AF’s younger, male,
management trainees over AF’s older female
managers, and that Weaver used the employment
agreement as a pretext to terminate O’Regan
because she is an older woman, in violation of
Title VII and the ADEA.
Title VII makes it unlawful for an employer to
terminate an employee because of her sex, 42
U.S.C. sec. 2000e-2(a)(1), and the ADEA makes it
unlawful for an employer to terminate an employee
because of her age. 29 U.S.C. sec. 623(a).
Because O’Regan has presented no direct evidence
of discrimination,/1 her Title VII and ADEA
claims proceed under the burden-shifting analysis
of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Jackson v. E.J. Brach Corp., 176 F.3d
971, 982 (7th Cir. 1999). First, O’Regan must
make a prima facie case of discrimination by
showing that: (1) she was a member of a protected
class; (2) she was qualified for her position;
(3) she was discharged; and (4) other, similarly
situated employees who were not members of the
protected class were treated more favorably. See
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012
(7th Cir. 2000); Morrow v. Wal-Mart Stores, Inc.,
152 F.3d 559, 561 (7th Cir. 1998). If O’Regan
establishes a prima facie case, AF must then
produce a legitimate, nondiscriminatory reason
for her termination. Paluck, 221 F.3d at 1009.
Then, in order for O’Regan to prevail, she must
rebut AF’s legitimate reason by presenting
evidence that could enable the trier of fact to
find that AF’s reason is merely a pretext for
discrimination. See id. Pretext "means a
dishonest explanation, a lie rather than an
oddity or an error." Kulumani v. Blue Cross Blue
Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000).
In this appeal, AF does not challenge the
district court’s conclusion that O’Regan
established a prima facie case of sex and age
discrimination, which placed the burden on AF to
produce a legitimate, nondiscriminatory reason

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for O’Regan’s termination. AF claims that because
O’Regan refused to sign the employment agreement
she was terminated. The burden thus remained with
O’Regan to present evidence that AF used the
employment agreement as a pretext for
discrimination. In other words, she had to
present evidence that would raise a genuine issue
of material fact that would question the truth of
AF’s claim that she was fired because she refused
to sign the employment agreement. See Paluck, 221
F.3d at 1013.
O’Regan argues that she presented sufficient
evidence of pretext to avoid summary judgment.
She first contends that the employment agreement
was a pretext for discrimination because it was
illegal, unconscionable, served to perpetuate
AF’s alleged monopoly, and served no legitimate
business purpose. According to O’Regan, AF had no
business interests that warranted protection.
Also, the company already had confidentiality
agreements in effect to protect any business
interests. Finally, she claims the Agreement was
an unreasonable restraint of trade that violated
Illinois public policy.
O’Regan’s attacks on the employment agreement
itself do not create a triable issue of pretext.
The fact that the Agreement may have been
unnecessary, ineffective or unenforceable would,
at most, indicate that AF made a bad business
decision. But it does not demonstrate that Weaver
implemented the Agreement to justify the firing
of older women. As we have often said, we "do not
sit as a kind of ’super-personnel department’
weighing the prudence of employment decisions
made by firms charged with employment
discrimination." Wollenburg v. Comtech Mfg. Co.,
201 F.3d 973, 976 (7th Cir. 2000) (quoting
Giannopoulos v. Brach & Brock Confections, Inc.,
109 F.3d 406, 410 (7th Cir. 1997)). "On the issue
of pretext, our only concern is the honesty of
the employer’s explanation." O’Connor v. DePaul
University, 123 F.3d 665, 671 (7th Cir. 1997).
And there is no indication in the record that
Weaver did not honestly believe that the
Agreement would help to protect AF’s confidential
information. It is undisputed that AF was
embroiled in a controversy with Resolute over
AF’s confidential information. The record clearly
shows that after the Resolute controversy, Weaver
and other AF personnel reviewed AF’s policies and
practices for ways to preserve and protect its
proprietary interests. Thomas Steele represented
AF in the Resolute dispute. In order to avoid
such a dispute in the future, AF requested that
Steele draft an employment agreement that
provided comprehensive protection of AF’s trade
secrets and confidential business information.
The record demonstrates that AF not only

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consulted with Steele about the wording of the
employment agreement, but also that Steele
advised Weaver to terminate any employee who
refused to sign it. There is no indication that
Weaver used the employment agreement that Steele
drafted for any reason other than to protect AF’s
business interests. Nothing points to any use of
the Agreement or the signing requirement as a way
to eliminate AF’s older female employees. The
employment agreement may have been unnecessary,
ineffective and unenforceable, but Title VII and
the ADEA do not prohibit AF from foolishly
requiring it. See O’Connor, 123 F.3d at 670
(quoting Kralman v. Illinois Dep’t of Veterans’
Affairs, 23 F.3d 150, 156 (7th Cir. 1994)) ("[n]o
matter how medieval a firm’s practices, no matter
how high-handed its decisional process, no matter
how mistaken the firm’s managers, [the ADEA does]
not interfere."); see also Jordan v. Summers, 205
F.3d 337, 343 (7th Cir. 2000) (even if the
employer’s reasons for not selecting the
plaintiff "were mistaken, ill considered or
foolish," as long as the employer honestly
believed those reasons, pretext has not been
shown [in a Title VII case]).
O’Regan’s next pretext argument is that AF
selectively enforced the employment agreement by
allowing Weaver to keep her job as president even
though she did not sign the Agreement. O’Regan
points to nothing in the record that indicates
whether or not Weaver signed the Agreement. But
even if Weaver did not sign the Agreement,
O’Regan’s argument is unavailing because as AF’s
president, Weaver was one of a kind. She was
superior to and thus not similarly situated to
the other managers and professional level staff
who were required to sign the Agreement. See
Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559,
561 (7th Cir. 1998) (to show pretext (as well as
the fourth element of a prima facie case) the
inquiry remains the same: the plaintiff must show
that similarly situated employees were treated
more favorably than the plaintiff). Here, all
similarly situated employees who refused to sign
the Agreement were terminated./2 Although we are
unable to determine, from the arguments
presented, the ages and the gender of the 85
people required to sign the Agreement, it is
clear that O’Regan has not identified anyone,
male or female, regardless of age, who refused to
sign the Agreement but was not fired.
Next, O’Regan contends that Weaver used the
Agreement as a pretext to discriminate against
older women because Weaver knew (from Nancy
Trussel’s warnings) that the Agreement would have
a disparate impact on AF’s older female
managers./3 According to O’Regan, Weaver learned
from Trussel that the Agreement would fall more

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harshly "upon numerous AF female employees over
40 years old with limited professional skills
other than those learned as AF claims
administrators and claims processors." O’Regan
further asserts that AF’s older female managers
"had more at risk by losing their jobs in both
seniority at AF and difficulty in being rehired,
than did the young, male management trainees,
with minimal seniority and a business degree." To
start with, these concerns for these potential
non-signers who were less educated would likely
not even apply to O’Regan. In addition to a
college degree, she has a graduate degree in
Management. Moreover, this argument defeats
itself: If older women at AF would be more
vulnerable than their younger male colleagues if
they lost their present job, then it follows that
the older women would be more inclined to sign
the employment agreement to preserve their jobs
than the younger men who had less at stake at AF
and were better positioned to compete for work
outside of AF. If other job opportunities were
limited, signing the Agreement would be less
punitive since they wouldn’t want to leave
anyway.
Finally, O’Regan claims that she creates a
triable issue of pretext with evidence indicating
that Weaver made other hiring and promotion
decisions that favored younger men over older
women. But this evidence characterizing other
decisions by Weaver as discriminatory has very
little to do with Weaver’s decision to implement
an employment agreement that applied to all
employees equally, and thus it is not sufficient
to support an inference of pretext. Moreover, the
record amply demonstrates that Weaver honestly
(and perhaps naively) believed that the Agreement
was necessary to protect AF’s confidential
information. We conclude, therefore, that because
O’Regan has not presented sufficient evidence to
establish a genuine issue of pretext, her
disparate treatment claim fails.
2. Disparate impact claim.
Alternatively, O’Regan argues that her
termination violated the ADEA and Title VII
because the employment agreement had a disparate
impact on older women who were less inclined to
sign it because they "had more at risk by losing
their jobs in both seniority at AF and difficulty
in being rehired" than their younger male
counterparts. While the ADEA does not permit
disparate impact claims, Salvato v. Illinois
Dep’t. of Human Rights, 155 F.3d 922, 926 (7th
Cir. 1998), such claims are valid under Title
VII. Specifically, Title VII prohibits
"employment practices that are facially neutral

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in their treatment of different groups but that
in fact fall more harshly on one group than
another and cannot be justified by business
necessity." Beard v. Whitley County REMC, 840
F.2d 405, 408-09 (7th Cir. 1988) (quoting
International Broth. of Teamsters v. United
States, 431 U.S. 324, 335 n. 15 (1977)).
Therefore, pursuant to Title VII, O’Regan can at
least assert that the employment agreement had a
disparate impact on women (regardless of age).
Contrary to O’Regan’s position, AF’s decision to
require managers to sign the employment agreement
did not have a disparate impact on women. Rather,
the policy had the same impact on male and female
professionals. If they did not sign the
Agreement, they would be terminated, whether they
were men or women. Other than the fact that
O’Regan and three other women did not sign,
O’Regan does not present any evidence to show
that the employment agreement fell more harshly
on women. While the parties do not point to any
record evidence that shows how many women signed
the Agreement, the record implies that a
significant number did./4 The fact that four
women did not accept the terms of the Agreement
is not disparate impact.
3. Motions to strike.
O’Regan’s next argument on appeal is that the
district court erroneously granted in part AF’s
motion to strike statements made in affidavits by
O’Regan and Trussel that purport to characterize
Weaver’s general hiring, employment and
termination practices as discriminatory. "We
review a trial judge’s decision to strike parts
of an affidavit in opposition to a motion for
summary judgment for abuse of discretion,"
Adusumilli v. City of Chicago, 164 F.3d 353, 359
(7th Cir. 1998), which means that decisions "that
are reasonable, i.e., not arbitrary, will not be
questioned." Id. (quoting Whitted v. General
Motors Corp., 58 F.3d 1200, 1203 (7th Cir.
1995)). And even if the district court "parsed
the affidavits too aggressively," Abioye v.
Sundstrand Corp., 164 F.3d 364, 368 (7th Cir.
1998), that error is harmless if the stricken
evidence was insufficient to support a genuine
issue of material fact for trial. See id.
Affidavits must be based on personal knowledge,
Fed. R. Civ. P. 56(e), and "[s]tatements by a
non-decision-maker that amount to mere
speculation as to the thoughts of the decision-
maker are irrelevant" to an inquiry of
discrimination. Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 397 (7th Cir. 1997).
In this case, the district court struck

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Trussel’s "speculations regarding Weaver’s
thoughts" and "O’Regan’s citations to her
complaint to the extent they are not supported by
independent, substantiated facts." These
decisions are based on accurate statements of the
law. And while the district court would have
aided our review by specifically identifying the
stricken statements, that omission was harmless
because O’Regan has not presented any facts in
the affidavits that would have supported her
claim that AF used the employment agreement as a
pretext for discrimination. See Abioye, 164 F.3d
at 368.
O’Regan also argues that the district court
erroneously denied her motion to strike AF’s
Local Rule 12(M)/5 reply to O’Regan’s Local Rule
12(N)/6 statement of additional facts opposing
AF’s motion for summary judgment. "The Local
Rules of the Northern District of Illinois impose
certain requirements for supporting and opposing
motions for summary judgment." Bordelon v.
Chicago School Reform Bd. of Trustees, 233 F.3d
524, 527 (7th Cir. 2000). These provisions of
Rule 12 instruct the parties to support their
summary judgment motions (and their responses to
those motions) with statements of material facts
and specific references to affidavits and parts
of the record that support the statements.
"We review the district court’s rulings on Rule
12(N) statements for an abuse of discretion."
Borderlon, 233 F.3d at 528. And the district
court has the discretion to enforce 12(N)
"strictly or somewhat leniently." Schulz v.
Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir.
1992).
In this effort to comply with the local rules,
the parties were not lost for words. AF filed a
summary judgment motion along with a 67-paragraph
statement of material facts under 12(M). O’Regan
also moved for summary judgment along with a 193-
paragraph 12(M) statement. But she also responded
to AF’s summary judgment motion with a 12(N)
response that contained an additional 220
paragraphs of "facts." In its answer to O’Regan’s
12(N) statement, AF objected to many of O’Regan’s
additional 220 paragraphs. O’Regan then moved to
strike AF’s reply, alleging that AF did not
comply with the rules because its reply lacked
specific references to the record. The district
court denied O’Regan’s motion to strike.
We conclude that the district court did not
abuse its discretion because Rules 12(M) and (N)
apply to statements of material facts, and
O’Regan has not identified for this court any
specific facts contained in her 220-paragraph
response that are material to her case. By not

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identifying any material facts to this court that
would have required the denial of summary
judgment, any claimed error in the denial of the
motion to strike is harmless. And we certainly
have no obligation to double-check this failure
by scouring "the record to unearth material
factual disputes." Carter v. American Oil Co.,
139 F.3d 1158, 1163 (7th Cir. 1998).
B. Disqualification Claims
O’Regan’s next argument on appeal is that Judge
Leinenweber was required to recuse himself from
this case based on 28 U.S.C. sec.sec. 455(b)(4),
455(b)(1), 455(a), and 144. Because appellate
review of a Section 455(a) claim is only possible
by a pretrial mandamus petition, we cannot review
that claim. United States v. Boyd, 208 F.3d 638,
645 (7th Cir. 2000). We review de novo the
district court’s decision to deny the other
disqualification claims under Sections 455(b)(4),
455(b)(1), and 144. Hook v. McDade, 89 F.3d 350,
353-54 (7th Cir. 1996).
O’Regan first contends that Judge Leinenweber
had a financial interest in the lawsuit and
should have recused himself pursuant to 28 U.S.C.
sec. 455(b)(4). Section 455(b)(4) requires a
federal judge to disqualify himself from a case
if "[h]e knows that he . . . or his spouse . . .
has a financial interest in the subject matter in
controversy or in a party to the proceeding, or
any other interest that could be substantially
affected by the outcome of the proceeding." 28
U.S.C. sec. 455(b)(4).
O’Regan’s perceptions of a financial or other
interest are attenuated to say the least. She
claims that Judge Leinenweber issued favorable
rulings for AF in order to repay Keck, Mahin &
Cate (KMC) (the law firm that represented AF
before the firm went bankrupt in September 1997)
for recommending his wife, Lynn Martin, to
Mitsubishi (another KMC client) so that Martin
could secure lucrative consulting contracts with
Mitsubishi from 1996 through 1998. Thus,
according to O’Regan, Section 455(b)(4) mandated
Judge Leinenweber’s recusal because he had a
financial interest in the case: his wife’s
consulting contract with Mitsubishi.
This claim has no foundation in law or in fact.
O’Regan provides no evidence that Judge
Leinenweber or Lynn Martin had a financial
interest in her case against AF. Martin had a
financial interest in Mitsubishi, not in KMC, and
Mitsubishi was not a party to this case.
Additionally, O’Regan has provided no evidence
that KMC recommended Martin to Mitsubishi, or
that Martin, as the former Secretary of Labor,

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needed KMC’s recommendation to convince
Mitsubishi to hire her to review the company’s
policies governing workplace discrimination after
Mitsubishi became embroiled in well-publicized
discrimination litigation. Moreover, Judge
Leinenweber granted AF’s summary judgment motion
on O’Regan’s remaining claims on August 30, 1999,
almost two years after KMC went bankrupt, and
well after Martin’s consulting contract (Judge
Leinenweber’s alleged financial interest)
expired. These facts certainly do not warrant
recusal.
O’Regan also argues that Judge Leinenweber
should have recused himself pursuant to 28 U.S.C.
sec. 455(a). Section 455(a) requires recusal if
the judge’s impartiality might reasonably be
questioned by a "well-informed, thoughtful
observer rather than to a hypersensitive or
unduly suspicious person." Hook, 89 F.3d at 354
(quoting Matter of Mason, 916 F.2d 384, 386 (7th
Cir. 1990)). It is well established in this
circuit that appellate review of a judge’s
refusal to disqualify himself under Section
455(a) "is possible only by petitioning the
appellate court for mandamus before trial." Boyd,
208 F.3d at 645. Because another panel has
already denied this claim in O’Regan’s mandamus
petition, and we have no reason to believe that
the panel applied the incorrect standard, we
cannot revisit the issue. See id. at 646.
O’Regan’s remaining claims of actual bias under
Sections 455(b)(1) and 144 are also unavailing.
Section 455(b)(1) requires recusal only if
"actual bias or prejudice is ’proved by
compelling evidence.’" See Hook, 89 F.3d at 355
(quoting United States v. Balistrieri, 779 F.2d
1191, 1202 (7th Cir. 1985)). And a judge’s bias
against a litigant must "arise from an
extrajudicial source." Hook, 89 F.3d at 355.
Because O’Regan has not demonstrated that Judge
Leinenweber has a financial interest in this
case, she has presented no extrajudicial source
of bias, and this claim comes to naught.
Section 144 does require a judge to recuse
himself if a party files an affidavit that the
judge has "a personal bias or prejudice" against
a party. Balistrieri, 779 F.2d at 1199. But we
will only credit facts in an affidavit that are
"sufficiently definite and particular to convince
a reasonable person that bias exists; simple
conclusions, opinions, or rumors are
insufficient." Boyd, 208 F.3d at 647 (quoting
United States v. Sykes, 7 F.3d 1331, 1339 (7th
Cir. 1993)). Precisely because O’Regan only
asserted simple conclusions (with no facts)
establishing a connection between Martin and KMC
in her affidavit, Section 144 is inapplicable as

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well./7 See Boyd, 208 F.3d at 647.
C. Bill of Costs
In this consolidated appeal, O’Regan also
contends that Judge Leinenweber abused his
discretion when he granted AF’s amended bill of
costs in the amount of $7,362.25./8 We review
the district court’s award of costs for abuse of
discretion. Cengr v. Fusibond Piping Systems,
Inc., 135 F.3d 445, 453 (7th Cir. 1998). The
"award of costs is the type of discretionary
ruling to which we give ’virtually complete’
deference." Manley v. City of Chicago, 236 F.3d
392 (7th Cir. 2001) (quoting Estate of Borst v.
O’Brien, 979 F.2d 511, 517 (7th Cir. 1992)).
O’Regan first contends that the district court
abused its discretion in failing to strike AF’s
entire bill of costs because AF filed it after
the deadline. AF also failed to file a proper
motion to extend the deadline because it didn’t
file a notice of motion as required by the local
rules. However, AF requested an extension of the
filing deadline before it passed, and the
district court had the discretion, pursuant to
Fed. R. Civ. P. 6(b)(1), to grant AF’s request
"with or without motion or notice." Fed. R. Civ.
P. 6(b)(1); see Lujan v. National Wildlife
Federation, 497 U.S. 871, 896 n. 5 (1990).
O’Regan also claims that when AF reaffirmed its
request (in its amended bill of costs) for the
costs of original transcripts of three
depositions after O’Regan had already pointed out
that AF received copies (not originals) of those
transcripts that are billed at a lower rate (than
the originals), AF’s counsel committed
professional misconduct which the district court
should have punished by denying AF’s entire
amended bill of costs. We first note that after
O’Regan identified the billing error during the
hearing on her motion to alter or amend the
district court’s judgment awarding $7885.90 in
costs to AF, the district court reduced AF’s
amended bill of costs in the amount of $523.65 to
accurately reflect the fact that AF received
copies (not originals) of three deposition
transcripts. So O’Regan got the relief that she
initially requested. The district court declined
to make any findings of fact on O’Regan’s
professional misconduct claim after the court
heard AF’s counsel acknowledge the error and
explain that it was simply based on a
misunderstanding about the appropriate charges of
three transcripts out of some twenty-six
transcripts involved in this case. We see no
error in the district court’s decision.
III.

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The district court properly granted AF’s motion
for summary judgment because O’Regan failed to
present sufficient evidence to support a triable
issue of fact that AF used the employment
agreement as a pretext to discriminate against
O’Regan, or that the Agreement had a disparate
impact on female managers at AF. Additionally,
the district court’s decisions involving the
parties’ motions to strike did not involve an
abuse of discretion, or, alternatively, only
involved harmless error. Furthermore, Judge
Leinenweber properly denied O’Regan’s
disqualification motions because O’Regan failed
to present facts establishing that the judge had
a financial interest in the litigation, or that
the judge’s alleged financial interest created
the appearance of impropriety. And the district
court did not abuse its discretion in granting
AF’s amended bill of costs. Accordingly, we AFFIRM
all of the decisions of the district court.
/1 The district court found that O’Regan presented
no direct evidence of discrimination, and because
O’Regan did not dispute that finding until her
reply brief, her argument is waived. See United
States v. Turner, 203 F.3d 1010, 1019 (7th Cir.
2000).
/2 Although AF has not challenged it, we note that
because O’Regan does not show that any employees
who refused to sign the Agreement were treated
more favorably (i.e. were not terminated),
O’Regan appears not to have made a prima facie
case of discrimination. See Paluck, 221 F.3d at
1012.
/3 As discussed in Part II, A.2 below, in this
circuit at least, the ADEA does not permit
disparate impact claims. Salvato v. Illinois
Dep’t. of Human Rights, 155 F.3d 922, 926 (7th
Cir. 1998).
/4 Out of the 85 management level and professional
employees who received the employment agreement,
four refused to sign it, and all four of them are
women. And according to O’Regan, all 15 male
managers and management trainees signed the
employment agreement. Thus, the record implies
that a substantial number of women (perhaps more
than 60) also signed the employment agreement.
/5 This rule has been reclassified as Local Rule
56.1(a).
/6 This rule has been reclassified as Local Rule
56.1(b).
/7 O’Regan also claims that further evidence of

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Judge Leinenweber’s bias was his denial of
O’Regan’s default judgment motion against Weaver
(who was named as a defendant in her corporate
capacity and failed to file an Answer to
O’Regan’s Second Amended Complaint), and the
judge’s allegedly biased conduct during the
motion hearing. But O’Regan has acknowledged that
whether Weaver could have been named as a
defendant in this case is an open question in
this circuit, see Sattar v. Motorola, Inc., 138
F.3d 1164, 1168 (7th Cir. 1998), and thus there
was no abuse of discretion. Because O’Regan has
not demonstrated an extrajudicial source of bias,
we see no basis for disqualification.
/8 O’Regan also claims that Judge Leinenweber’s
decisions on this issue constitute further
evidence of bias and violations of 28 U.S.C.
sec.sec. 455(a) and 455(b)(1). We cannot address
the 455(a) claim. See Boyd, 208 F.3d at 646.
Moreover, because we see no error in the judge’s
rulings on this issue, and O’Regan has presented
no facts supporting an extrajudicial source of
bias to support her claim, it loses. See Hook, 89
F.3d at 355.

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