Matthews, Bernadine v. WI Energy Corp Inc ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1780, 07-2824
BERNADINE E. MATTHEWS,
Plaintiff-Appellant,
v.
WISCONSIN ENERGY CORPORATION INCORPORATED,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
Nos. 05-CV-00537—J.P. Stadtmueller, Judge.
____________
ARGUED FEBRUARY 21, 2008—DECIDED JULY 7, 2008
____________
Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. The issues in this case concern
the post-employment relationship between plaintiff-
appellant Bernadine Matthews and Wisconsin Energy
Corporation Inc. Matthews alleged below that Wisconsin
Energy breached a settlement agreement and retaliated
against her for filing a discrimination lawsuit by giving
several prejudicial job references following her departure
from the company. The district court held otherwise,
granting Wisconsin Energy’s motions for summary judg-
ment as to all of Matthews’s claims. We affirm in part and
2 Nos. 07-1780, 07-2824
reverse in part. Because we are reversing in part, we
also vacate the district court’s award of attorney fees to
Wisconsin Energy as the “prevailing party.”
I. Background
Bernadine Matthews began working for Wisconsin
Energy, then known as Wisconsin Gas Company,1 in 1980.
Matthews soon became a “commercial service representa-
tive,” a customer-service position that required in-person
dealings with Wisconsin Energy’s customers. After an
unfortunate workplace injury in 1996—a disgruntled
customer attacked her—Matthews took a leave of absence.
A number of things then happened while Matthews was
on leave that put her at odds with Wisconsin Energy. The
first was that she was a member of a class action alleging
that Wisconsin Energy had redlined the customers in the
Wisconsin metro area, where she lived. Then she disputed
a claimed shortage in her pension fund. And lastly, in
1998, Matthews filed a discrimination claim against
Wisconsin Energy, a dispute the parties eventually
settled.Matthews never ended up returning to Wisconsin
Energy, and in April 1999, she and the company exe-
cuted their first Separation Agreement. Matthews didn’t
immediately seek another job, instead earning a four-year
degree from the University of Wisconsin-Milwaukee.
Shortly before earning her degree in 2003, Matthews
plotted her return to the market, applying to local compa-
1
Wisconsin Gas officially became Wisconsin Energy Corpora-
tion, Incorporated in 2000. For ease of reference, however,
we refer to Matthews’ employer as Wisconsin Energy through-
out.
Nos. 07-1780, 07-2824 3
nies that in turn sought employment references from
Wisconsin Energy.
That’s when the troubles, and this case, began. As part
of the 1999 Separation Agreement, Wisconsin Energy
agreed to provide employment references for Matthews as
the need arose. Dissatisfied with the responses that Wis-
consin Energy was providing—she says Wisconsin Energy
denied she had ever worked there—Matthews filed suit
in 2003. In her complaint, she alleged both violations of
the 1999 separation agreement and intentional interference
with prospective contractual relations. The parties soon
settled the dispute, and a new settlement agreement
was forthcoming in December 2003. The Agreement
required Wisconsin Energy to provide an employment
reference for Matthews and also contained an attorney-fees
provision in the event of a future lawsuit. In relevant part,
these sections provided
Wisconsin [Energy] agrees to respond to any request
for a reference regarding Matthews in a manner that
is consistent with the Wisconsin [Energy] policy in
place regarding reference checks at the time. Wisconsin
[Energy] will not respond to any request for a refer-
ence regarding Matthews by indicating that Matthews
was terminated or fired. . . .
***
[I]n the event that one of the Parties hereto commences
a lawsuit or other legal proceeding alleging that the
other Party breached the Agreement, the prevailing
Party in that action shall be entitled to recover her or its
reasonable attorneys fees and expenses incurred in
4 Nos. 07-1780, 07-2824
such lawsuit or legal proceeding from the non-prevail-
ing Party.
An integration clause stated that the written document
“set[ ] forth the entire agreement” and “fully and com-
pletely superseded” any representations made elsewhere.
Before the parties inked this agreement, Wisconsin
Energy’s in-house attorney, Lynne English, recited the
terms into the record in open court. In so doing, she
characterized the company’s “policy” to be “what you
call name, rank, and serial number.” That is, the company
would “confirm people worked there, the dates of em-
ployment, and their position or at least their last position.”
Here on appeal, the company describes a similar refer-
ence policy. The company only confirms dates of employ-
ment, final salary, and the last position that the employee
held. Reliance on this objective data prevents the dis-
closure of “subjective information” regarding the former
employee. Although the reference itself is fairly basic,
getting to the relevant information may require an in-
volved search. Former employees come in a number of
categories, and Wisconsin Energy stores information for
these kinds of former employee in a number of different
databases. The information for those who, like Matthews,
left before the 2000 merger of Wisconsin Energy and
Wisconsin Gas has its own database. And searching
this database comes last in the process for providing
references.
Wisconsin Energy claims that this last fact caused
some problems when companies came calling to get a
reference for Matthews, several of which followed from
late 2004 to the end of 2005. Financial Management Services
Nos. 07-1780, 07-2824 5
conducted one such check in October 2004.2 This check
initially resulted in Wisconsin Energy saying that
Matthews had never worked there, although the com-
pany eventually confirmed she had. Wisconsin Energy
blamed the initial error on the tortuous process of search-
ing through several databases to confirm employment
information. In addition, following the request, Wiscon-
sin Energy said that Matthews had worked as a “credit
specialist” and not as a “commercial service representa-
tive.” As part of a reorganization during Matthews’s
leave of absence, the company had, unbeknownst to her,
changed her old position to this new name. So, when
queried, the database provided this job title as the last
position held. FMS then relayed this information to
Matthews.
Also in May 2005, Matthews enrolled in a program
through the Social Security Administration called the
“Ticket to Work Program.” This program allows those
individuals receiving social-security benefits to work
while continuing to receive their benefits. See generally
The Ticket Program: What is the Ticket Program?,
http://www.yourtickettowork.com/program_info (last
visited June 19, 2008). To find available jobs, Matthews
hired Howard Schwartz, a consultant who specializes in
helping disabled individuals seek employment through
2
It’s unclear exactly why Matthews hired FMS; that is, whether
the company was verifying her employment for Matthews’s
own edification (i.e., to test the waters) or whether she had
hired the firm to find her a new job. Because it is not necessary
to resolve this factual issue to decide the case, we assume
that FMS called in order to place Matthews in a job, as she
alleges. We make no finding as to whether this was actually true.
6 Nos. 07-1780, 07-2824
the program. After performing a review of his client’s
capabilities, he would then put them into contact with
prospective employers. As part of his assessment,
Schwartz mailed a letter to the Wisconsin Energy’s Vice
President of human resources on October 15, 2005. The
letter explained Schwartz’s role and the program and
asked Wisconsin Energy to “confirm [Matthews’s] work
history . . . and provide comments regarding work perfor-
mance.” No response was forthcoming and a follow-up
phone call to Wisconsin Energy’s human-resources de-
partment went nowhere.
But Wisconsin Energy had received the letter. Given
that the VP of human resources did not typically handle
reference requests, Schwartz’s letter eventually landed
on the desk of Lynne English, the in-house attorney
who had handled the 2003 settlement agreement with
Matthews. On October 19, 2005, English called Schwartz on
the phone to discuss the reference. English and Schwartz
provided slightly conflicting versions of the phone
call during their respective depositions. Schwartz de-
scribed an “uncomfortable” phone call in which English
asked, with an “obvious sense of distrust,” why he had
sent the letter to the VP of human resources. She then
characterized his requested reference as a “sensitive issue
to discuss,” informing him that Matthews “had been
involved in at least one, if not more legal actions against
the company.” English then asked questions regarding
Matthews’s social-security benefits, which Schwartz
interpreted as being a question whether Matthews “was
really entitled to them or [whether she was] cheating
the system.” English then told him that she would only
provide a basic verification of employment, and she would
only provide that if she had a written release from
Matthews.
Nos. 07-1780, 07-2824 7
English’s version differs somewhat. She agreed that
she wanted to know why someone would send a refer-
ence request to the VP of human resources. And she also
agreed that she asked about the social-security program
Matthews had enrolled in, although she characterized her
request as being motivated more by curiosity than suspi-
cion. English told Schwartz that she was committed to
Matthews getting a job after which, she says, Schwartz
began pressing his request for a reference. When English
said that she could not respond to the letter over the
phone, Schwartz asked why—at which point Matthews
told him “we are in litigation with Ms. Matthews re-
garding how we respond to reference requests.” English
testified that it was “possible” that she said that Matthews
had sued twice, but she said the exchange was more
lighthearted. In the end, English told Schwartz that he
would need to send in an authorization from Matthews
for the reference, after which Wisconsin Energy would
send the basic reference discussed above. Both sides
agree that a few days later Schwartz received a confirma-
tion that Matthews had worked at Wisconsin Energy and
that she had worked as a “commercial service representa-
tive” before her reclassification as a “credit specialist.”
Matthews claims that the poor treatment continued when
Wisconsin Energy gave her a negative reference in October
2005. She had applied for a management position at
Midwest Airlines. When she received the call telling
her that she had not been selected, Matthews claims that
one of the stated reasons was a poor reference from
Wisconsin Energy. And she suspects that similar poor
references scuttled several later applications for other
jobs in the Washington D.C. area as well.
In the district court, Matthews filed her original com-
plaint in medias res. After receiving a right-to-sue letter
8 Nos. 07-1780, 07-2824
from the EEOC, she brought suit in the Eastern District
of Wisconsin on May 13, 2005—around the same time
she first enrolled in the “Ticket to Work” Program
and before Schwartz’s conversation with English. On
August 22, 2006, Matthews filed her motion for summary
judgment, and on November 13, 2006, Wisconsin
Energy responded with its own. In her motion, Matthews
claimed that Wisconsin Energy had violated their 2003
settlement agreement, retaliated against her for filing
suit against the company during her leave of absence, and
had defamed her. On May 9, 2007, the district court
granted Wisconsin Energy’s motion on all counts, finding
that the evidence gathered during discovery did not
create a genuine issue of material fact as to any of
Matthews’s claims. Wisconsin Energy then sought attor-
ney fees, which the 2003 settlement agreement provided
would go to the “prevailing party.” The court awarded
Wisconsin Energy $173,232.44 in attorney fees, and this
appeal followed, consolidating Matthews’s appeals of
both the summary judgment decision and the fee award.
II. Discussion
On appeal, Matthews argues that the district court erred
in dismissing both her claim that Wisconsin Energy
breached the 2003 settlement agreement and her claim
that it retaliated against her for her previous lawsuits.
We review the district court’s decision de novo. Greeno v.
Daley, 414 F.3d 645, 652 (7th Cir. 2005). In so doing,
we construe all reasonable inferences in favor of the party
who lost below. Id. The following sections apply this
standard to each of Matthews’s claims in turn.
Nos. 07-1780, 07-2824 9
A. Breach of 2003 Settlement Agreement
Matthews first argues that Wisconsin Energy violated
the terms of their 2003 settlement agreement based on the
content of its statements to parties seeking references.
The elements for a breach of contract in Wisconsin are
familiar; the plaintiff must show a valid contract that the
defendant breached and damages flowing from that
breach. Northwestern Motor Car, Inc. v. Pope, 51 Wis. 2d
292, 296 (Wis. 1971). The parties both acknowledge that
the settlement agreement is a valid contract, but they
dispute the import of the section covering post-employ-
ment references. That section provides
Wisconsin [Energy] agrees to respond to any request
for a reference regarding Matthews in a manner that
is consistent with the Wisconsin [Energy] policy in
place regarding reference checks at the time. Wisconsin
[Energy] will not respond to any request for a refer-
ence regarding Matthews by indicating that Matthews
was terminated or fired. . . . .
Specifically, three terms are in play: (1) whether the
contractual term “policy . . . regarding reference checks” is
unambiguous so as to preclude the introduction of parol
evidence; (2) whether the term “reference” can encom-
pass employment information given to parties that are
not themselves employers; and (3) whether the contract
plainly allows Wisconsin Energy to give more information
than that provided for in its “policy . . . regarding reference
checks.” The relevant inquiry for each is whether there is
ambiguity in the contract. Clark Oil & Refining Corp. v.
Leistkow, 69 Wis.2d 226, 237-38 (Wis. 1975). If so, it is the
jury’s job to interpret the intent of the parties, meaning
summary judgment was inappropriate here. As it relates
to substance, resolving these issues depends on Wiscon-
10 Nos. 07-1780, 07-2824
sin law, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78
(1938), which the parties incorporated into the settlement
agreement.
1. Parol Evidence as to Wisconsin Energy’s Policy
First, the parties dispute whether or not parol evidence
can come in to explain “Wisconsin [Energy’s] policy in
place regarding reference checks at the time.” Matthews
says that certain statements made in the course of settling
the 2003 case should prove the substance of these policies.
So read, Matthews argues, Wisconsin Energy violated
the terms of the agreement based on English’s conversa-
tion with Schwartz as well as through the substance of
its responses to FMS and Midwest Airlines. In opposition,
Wisconsin Energy argues that the terms of the agreement
and the integration clause are plain, thus precluding
reliance on parol evidence.
We agree with Wisconsin Energy that parol evidence
cannot come in to prove the terms of Wisconsin Energy’s
“policy . . . regarding reference checks.” Before courts
go beyond the written terms of the contract, Wisconsin
law requires there to be some ambiguity. Clark Oil &
Refining Corp., 69 Wis.2d at 237-38. And ambiguity arises
when a term “is fairly susceptible of more than one
construction.” Mgmt Computer Svces, Inc. v. Hawkins, Ash,
Baptie & Co., 206 Wis.2d 158, 177 (Wis. 1996). Here, there
is no ambiguity with respect to Wisconsin Energy’s policy
covering reference checks. The relevant portion provides
Wisconsin [Energy] agrees to respond to any request
for a reference regarding Matthews in a manner that
is consistent with the Wisconsin [Energy] policy in
place regarding reference checks at the time.
Nos. 07-1780, 07-2824 11
With respect to the reference obligations, the parties’
intentions are clear: Wisconsin Energy must provide
Matthews a reference that comports with its “policy in
place regarding reference checks at the time”—what-
ever that may be. This provision clearly and expressly
incorporates Wisconsin Energy’s reference policies.
Schilling by Foy v. Employers Mut. Cas. Co., 212 Wis.2d 878,
888-89 (Wis. App. 1997). And terms incorporated by
reference within the contract (but which the contract
does not go on to define) do not create an ambiguity.
Instead, as long as the extrinsic terms are clearly identifi-
able, the parties agree to abide by those terms just as they
agree to the other terms in the contract. Mack v. Joint School
Dist., No. 3 et al., 92 Wis.2d 476, 492 (Wis. 1979); Barrons
v. J.H. Findorff & Sons, Inc., 89 Wis.2d 444, 452 (Wis. 1979).
Thus, evidence of these extrinsic terms is certainly ad-
missible because the parties expressly agreed to them. But
the contract’s incorporation of Wisconsin Energy’s refer-
ence policy does not create an ambiguity that allows parol
evidence—like English’s statements in open court—
to come in. See generally 11 WILLISTON ON CONTRACTS
§ 30:25 (4th ed. 2008).
In the end, this dispute is of no real moment; Wisconsin
Energy’s description of its reference policy on appeal
parrots that offered by English in 2003. That policy, in
place from at least December 2003, provides first that a
human resources service desk representative handles
the initial reference request. If the request is merely
confirming employment information, no release is
needed. But if the request asks for more involved infor-
mation, the request must include a release. At this point,
the representative accesses the employment databases
and responds to the request. The substance of this re-
12 Nos. 07-1780, 07-2824
sponse would only include the dates of employment,
final salary, and the title of the last position held. This
last part constitutes the sweep of English’s statement before
the court that Matthews seeks to admit as parol evidence.
2. “Reference” Requests
In addition, Wisconsin Energy argues that neither
Schwartz nor FMS could have been seeking a “reference”
because neither were prospective employers. But this
proposed definition of a “reference” is too narrow. Con-
tractual terms are assumed to have their common mean-
ings, and, for courts to determine these meanings, “it is
appropriate to look to definitions in a recognized dictio-
nary.” Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 745
(Wis. 1990). As defined by this common meaning, a
“reference” does not occur only when the recipient is a
potential employer. Even the definition offered by Wis-
consin Energy does not impose such a limitation. Its
dictionary characterizes a “reference” as “a statement of
the qualifications of a person seeking employment or
appointment given by someone familiar with the person.”
MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.
2008) (online at www.m-w.com). Although the definition
identifies the giver—“by someone familiar with the
person,” like Wisconsin Energy—there is no indirect object
limiting a “reference” based on who receives the “state-
ment of the qualifications.” Other dictionaries similarly
omit a specific indirect object. WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1907 (1981) (“a written
statement of the qualifications of a person seeking employ-
ment or appointment given by someone familiar with his
character, ability, experience, or training”); XIII THE
OXFORD ENGLISH DICTIONARY 465 (2d ed. 1989) (“The act
Nos. 07-1780, 07-2824 13
of referring one person to another for information or an
explanation; hence, a person to whom one is . . . referred
for this purpose” and “a report produced by” such a
person.). These definitions show that the common meaning
of a “reference” does not demand that the recipient be a
potential employer. And, as explained above, we assume
that the parties meant to give the term its common mean-
ing when contracting. Thus, even though neither FMS
nor Schwartz was seeking to employ Matthews, Wis-
consin Energy could still have failed to properly “respond
to any request for a reference.”3
3. Wisconsin Energy’s Obligations
Finally, Wisconsin Energy argues that the agreement only
set out its minimum obligations when giving a reference
and, with one exception, does not limit what it can tell
those who call for a reference. To reiterate, the two relevant
3
This does not mean that the recipient’s identity is com-
pletely irrelevant. The party who received the request still
matters when assessing Matthews’s damages. Imagine, for
example, that Matthews hired a third party simply to obtain a
reference from Wisconsin Energy—but not to otherwise
place her in a job. If Wisconsin Energy had breached the
agreement when giving a reference to this party, Matthews’s
damages from the breach would be zero. The collusive nature
of the relationship would mean that the breach did not affect
her at all, and this would doom her breach of contract claim.
Cf. Szymanski v. County of Cook, 468 F.3d 1027, 1030 (7th Cir.
2006) (in retaliation case, because reference-checker “did not
forward this information to prospective future employers,” the
reference “would have had no effect on her employment
prospects”).
14 Nos. 07-1780, 07-2824
sentences setting out Wisconsin Energy’s end of the
bargain state:
Wisconsin [Energy] agrees to respond to any request
for a reference regarding Matthews in a manner that
is consistent with the Wisconsin [Energy] policy in
place regarding reference checks at the time. Wisconsin
[Energy] will not respond to any request for a refer-
ence regarding Matthews by indicating that Matthews
was terminated or fired. . . . .
Under Wisconsin Energy’s reading, the first sentence
sets out the minimum information that must be con-
tained in its response to a reference request, and the sec-
ond sentence sets out the only kind of information that
it cannot disclose. Thus, the disclosure of information
beyond that required by its “policy in place . . . at the time”
does not constitute a breach—so long as Wisconsin
Energy does not “indicate[ ] that Matthews was ter-
minated or fired.” To hold otherwise, Wisconsin En-
ergy contends, would be to impermissibly read a non-
disparagement provision into the contract. The district
court implicitly agreed with this characterization,
stating that Wisconsin Energy ultimately complied with
its policies when responding to a reference check.
This reading is not implausible. Wisconsin courts have
long recognized that the specific mention of an obligation
tends to exclude related others not mentioned. Larson
v. Watzke, 218 Wis. 59, 59 (Wis. 1935) (citing maxim
expressio unius est exclusio alterius in interpreting con-
tractual term). But such a construction is not inevitable. The
first sentence does not affirmatively indicate that Wis-
consin Energy can give any additional information it
wants beyond what’s called for by its “policy.” Wisconsin
Energy agreed to respond “in a manner that is consistent
Nos. 07-1780, 07-2824 15
with [its] policy in place regarding reference checks at the
time.” “Consistent” means “coexisting and showing no
noteworthy opposing, conflicting, inharmonious, or
contradictory qualities.” WEBSTER’S THIRD NEW INTER-
NATIONAL DICTIONARY 484 (1981). It’s possible that Wis-
consin Energy could provide information that is both
beyond that required by its “policy” and “inharmonious”
with the provisions set out there. Further, the second
sentence could just as easily be an explicit exception to
Wisconsin Energy’s “policy in place regarding reference
checks at the time.” That is, if the “policy” called for an
explanation of whether the employee was “terminated or
fired,” this second sentence would modify the dis-
closures as they pertained to Matthews. This provision is
thus “fairly susceptible of more than one construction,”
Mgmt. Computer Svces, Inc., 206 Wis.2d at 177, and this
creates an ambiguity. “When a contract provision is
ambiguous, and therefore must be construed by the use
of extrinsic evidence, the question is one of contract
interpretation for the jury.” Id. Thus, it is for the jury to
decide both what the intent of the parties was with respect
to this section and, as discussed in the next section,
whether Wisconsin Energy breached the contract.
4. Wisconsin Energy’s Compliance with the Settle-
ment Agreement
So if Schwartz, FMS, and Midwest could have received
“references” and if providing more information than
called for under the policy could have been a breach, is
there enough evidence to get to a jury? As to FMS, the
answer is clearly no. Matthews submits that Wisconsin
Energy breached the settlement agreement because it
denied that she had ever worked there when FMS called.
16 Nos. 07-1780, 07-2824
It is true that Wisconsin Energy initially failed to verify
Matthews’s employment. But it quickly resolved its mis-
take and gave a reference that complied with its policy
at the time. Even if the delay fell short of Wisconsin
Energy’s obligations, Matthews has not shown that this
delay damaged her in any way, a prerequisite to stating
a claim for a breach of contract. See Brew City Redevelop-
ment Group, LLC v. The Ferchill Group, 289 Wis.2d 795, 807
(Wis. Ct. App. 2006). In addition, Matthews claims Wis-
consin Energy breached the agreement by listing her
final position as a “credit specialist” rather than a “com-
mercial service representative.” But this was actually
Matthews’s last position when she left Wisconsin Energy’s
employ, even if she never considered herself a “credit
specialist.” Because Wisconsin Energy’s policy at the time
called for this information, this wasn’t a breach of the
settlement agreement either.
Similarly, there is no issue of material fact as to whether
Wisconsin Energy breached the settlement agreement
when corresponding with Midwest. The district court
held that there was no admissible evidence that Midwest
had even sought a reference, and we agree. Matthews
provided the only relevant testimony. She claimed in her
deposition that she had a conversation with a Midwest
human-resources representative, Tricell Brown, who
said she had received a poor reference. But in her deposi-
tion, Brown denied she ever talked with anyone at Wis-
consin Energy. Thus, the only evidence that Brown re-
ceived this reference is Matthews’s statement as to what
Brown told her. Offering a statement by a third party like
Brown to prove a fact contained in that statement is
inadmissible hearsay. FED. R. EVID. 801(c); 802. As a result,
no admissible evidence supports a claim that Brown
Nos. 07-1780, 07-2824 17
received a poor reference or that Wisconsin Energy other-
wise breached the settlement agreement when talking
to her.
But the same cannot be said of the reference given to
Schwartz. As represented by Wisconsin Energy, its policy
entailed verifying only the dates of employment, final
salary, and the title of the last position held. Neither
participant in the conversation denies that English told
Schwartz of Matthews’s litigation history. This informa-
tion went well beyond the objective information con-
cerning Matthews’s dates of employment, final salary,
and final position held. A jury could believe Schwartz’s
version of the conversation, which included what would
be unfavorable information regarding Matthews. And it
could likewise conclude that the parties agreed that
Wisconsin Energy would provide only the objective
information set out in its “policy.” If so, this would
show that Wisconsin Energy breached the settlement
agreement.
Matthews has also put forth evidence of damages
stemming from this breach that a jury could believe. In
Wisconsin, a party is damaged if she is denied the
benefit of the bargain, and “the award of damages for a
breach of contract should compensate an injured party
for losses that necessarily flow from the breach.” Thorp
Sales Corp. v. Gyuro Grading Co., Inc., 111 Wis.2d 431, 438
(Wis. 1983). Here, Matthews’s expected benefit from the
settlement agreement was to be a more competitive
candidate when seeking future employment based on a
good reference from her long-time employer. Schwartz
testified in his deposition that he took Wisconsin Energy
off of Matthews’s resume after his conversation with
English. Given Matthews’s nearly two-decade employ-
18 Nos. 07-1780, 07-2824
ment there, this gap in her employment history could
have hurt her prospects of landing a future job through
the social-security program. If Schwartz’s version is
believed, a jury could conclude that Matthews was
denied the benefit of this contract when Schwartz so
edited her resume, which in turn followed from the
conversation between Schwartz and English. This is not
to say that a jury must believe Schwartz’s version of
things. But if the jury does, it could find for Matthews.
Accordingly, granting Wisconsin Energy’s summary
judgment motion on this claim was error.
B. Retaliation
Matthews also appeals the district court’s rejection of
her retaliation claim. Below and here on appeal, she claims
that the substance of Wisconsin Energy’s responses to
reference requests was meant as retaliation for her prior
EEOC complaints and discrimination lawsuit. The district
court granted Wisconsin Energy’s motion for summary
judgment, reasoning that Matthews had failed to show
retaliation. We agree.
Title VII prohibits an employer from retaliating against
its employees for “oppos[ing]” discrimination, 42 U.S.C.
§ 2000e-3(a), and this ban extends to acts of retaliation
against former employees, Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997). The logic is that an employee would
be less likely to engage in statutorily protected activ-
ity—like suing for discrimination—if the employer
could exact some sort of revenge outside of the work-
place or when the employee changed jobs. Id. at 346;
Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 63-
64 (2006). Title VII eliminates these disincentives by
Nos. 07-1780, 07-2824 19
giving former employees a cause of action when they’ve
suffered a retaliatory adverse employment action. A
plaintiff can prove retaliation directly by showing that
her (1) statutorily protected activity (2) caused (3) an
“adverse employment action.” Metzger v. Illinois State
Police, 519 F.3d 677, 681 (7th Cir. 2008). Or a plaintiff
can prove retaliation indirectly by first showing that
(1) she engaged in statutorily protected activity and
(2) suffered an adverse employment action (3) even though
she performed her job satisfactorily (4) when others
who were similarly situated did not receive the same
treatment. Id.; Stone v. City of Indianapolis, 281 F.3d 748, 754-
55 (7th Cir. 2003). After this preliminary showing, the
burden of production shifts to the defendant to articulate
a legitimate rationale for its “adverse employment action,”
after which the plaintiff must prove that this reason is
pretextual. Id.An “adverse employment action” is an employment
action that is likely to “dissuade a reasonable worker
from making or supporting a charge of discrimination.”
Burlington Northern, 548 U.S. at 68. In the context of nega-
tive employment references, we have defined this to
mean “the dissemination of false reference information
that a prospective employer would view as material to its
hiring decision.” Szymanski v. County of Cook, 468 F.3d
1027, 1029 (7th Cir. 2006). In Szymanski, the plaintiff alleged
that her former employer, Cook County Hospital, black-
balled her following her termination. Szymanski had
successfully challenged her termination as retaliation for
a previous discrimination lawsuit, although the court did
not order reinstatement. In the course of applying for
new jobs elsewhere, she came to suspect that the hospital
was giving her negative references and once again filed
20 Nos. 07-1780, 07-2824
suit against the hospital. The district court granted sum-
mary judgment for the hospital, and she appealed. After
defining an “adverse employment action” as being the
“dissemination of false reference information,” we af-
firmed. We reasoned that Szymanski had failed to prove
that the hospital ever gave her a negative reference. The
vast majority of the information concerning Szymanski’s
employment was objectively truthful. And those state-
ments that bordered on the subjective were not negative
to the point that they constituted an “adverse” action. Id.
at 1030-32.
Here, a number of Matthews’s purported acts of retalia-
tion similarly fail because they were not “adverse.”
With respect to the statements made to FMS, Wisconsin
Energy did not provide any false information. Her last
position was a “credit specialist.” And even if the com-
pany initially denied the fact of Matthews’s employ-
ment, it corrected its mistake, meaning that FMS would
not have left with any false impression regarding
Matthews’s previous employment. As for Midwest, for
the reasons stated above, there is no admissible evidence
that Midwest ever talked with Wisconsin Energy re-
garding Matthews’s employment. So this theory falls
short as well.
Matthews also fails to prove that the substance of Eng-
lish’s conversation with Schwartz was retaliatory. In the
first place, her prior litigation history was objectively
true, so English’s disclosure of this fact was not adverse.
In addition, she has not shown that English’s questions
regarding her social-security benefits constituted a nega-
tive employment reference. Schwartz left the conversa-
tion with the impression that English thought Matthews
was gaming the system. But English never explicitly
Nos. 07-1780, 07-2824 21
made this claim. Her questions regarding social security
arose based on Schwartz’s job, which is to place workers
receiving social security with employers. Nor did English
ever link this “suspicion”—such as it was—to Matthews’s
previous performance at Wisconsin Energy or to other
incidents of her employment. Notably, after the conversa-
tion between English and Schwartz, Wisconsin Energy
sent along a reference that complied with its policies
and that was objectively neutral.
Schwartz’s impression after responding to English’s
questions about his relationship to Matthews is too unde-
fined to have “dissuaded a reasonable worker from
making or supporting a charge of discrimination.”
Burlington Northern, 548 U.S. at 68. And in context, Eng-
lish’s questions followed naturally from the details sur-
rounding Schwartz’s request. If there was a basis for
Schwartz’s impression, Matthews’s conveying such a
suspicion may have been uncalled for. But such an inter-
personal slight does not constitute an adverse employ-
ment action in the context of this conversation. Id. Because
showing an “adverse employment action” is a necessary
condition under either the direct or indirect methods
and Matthews has failed to show one, her claims here
must fail.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment as to Matthews’s retaliation
claim and her breach-of-contract claims predicated on
employment references given to Midwest Airlines and
FMS. We REVERSE the district court’s grant of summary
judgment for Matthews’s breach-of-contract claim based
22 Nos. 07-1780, 07-2824
on English’s conversation with Schwartz, REMAND for
further proceedings consistent with this opinion, and
VACATE the district court’s award of attorney fees to
Wisconsin Energy.
USCA-02-C-0072—7-7-08