The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1061
EVELYN J.D. SZYMANSKI,
Plaintiff-Appellant,
v.
COUNTY OF COOK,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 7573—Rebecca R. Pallmeyer, Judge.
____________
ARGUED OCTOBER 20, 2006—DECIDED NOVEMBER 20, 2006
____________
Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
EVANS, Circuit Judge. No stranger to litigation, Evelyn
Szymanski filed the present action alleging that Cook
County, through its employee Dr. John Raba, retaliated
against her in violation of Title VII of the Civil Rights Act of
1964. She claims she was “blackballed” after her employ-
ment with the County ended. The district court granted
summary judgment for the County and Szymanski appeals.
Szymanski is a registered nurse and a nurse practitioner.
She was hired by Cook County Hospital in January 1983. In
1999 she began filing, with the Equal Employment Oppor-
tunity Commission, charges of employment discrimination
against the County. By our count, the present claim is her
tenth. At least three have found their way to federal court.
2 No. 06-1061
In January 2000, she filed a charge alleging that the
County discriminated against her on the basis of race and
national origin (she is a Caucasian of Polish descent) by
denying her overtime hours, overly scrutinizing her work,
and failing to provide her with business cards. The case was
tried in 2002, and a jury rejected Szymanski’s claims.
Szymanski v. County of Cook, No. 00 C 4737, 2002 WL
171977 (N.D. Ill. Feb. 1, 2002).
In April 2002, approximately 3 weeks after the verdict
was returned in the case we just mentioned, Szymanski’s
employment was terminated. At that time, Dr. Raba was
the medical director of Fantus Health Center, the County-
run facility where Szymanski had been working. He was
in charge of nurse practitioners. Raba claimed that
Szymanski was terminated because she did not meet the
requirement that, as a nurse practitioner, she was required
to have a “collaborative agreement” with a licensed physi-
cian. Dr. Raba says Szymanski did not have an agreement;
she says she did and that he interfered with her attempts
to obtain another one.
Szymanski filed a charge of discrimination alleging that
her termination was in retaliation for engaging in protected
activity under Title VII. This time a jury agreed with
Szymanski, and United States District Judge David Coar
entered a judgment for back pay and front pay, the latter in
lieu of reinstatement which the judge determined was not
appropriate given the history of distrust and strained
relations between Szymanski and the County. The judge
also directed the County to expunge, from her personnel
file, any reference to Szymanski’s termination. Szymanski
v. County of Cook, No. 01 C 9588, 2003 WL 259141 (N.D. Ill.
Jan. 29, 2003).
Szymanski went about applying for other employment.
She obtained a position working as a staff nurse at Little
Company of Mary Hospital. At the same time, however, she
No. 06-1061 3
continued to apply for many other nursing positions. She
contends that she failed to obtain those positions because
she was blackballed by Dr. Raba.
Although Szymanski applied at a number of hospitals, she
concentrates her claim on recommendations Dr. Raba sent
or discussed with four entities: the University of Chicago
Hospitals; Interim Healthcare and Integrated Health
Solutions, both agencies which provide nurses to hospitals
or clinics in the Chicago area; and Hunter Enterprises, a
firm in the business of confirming employment references.
Szymanski claims that Dr. Raba said she was going to
pay for “this” for the rest of her life. The “this” referred,
says Szymanski, to her complaints against the hospital. She
claims Raba blackballed her by giving negative references
to prospective employers. She also says he ignored the
district court order to expunge reference to her having no
collaborative agreement and discussed her lack of an
agreement and subsequent termination with prospective
employers. For instance, she says he told Interim that she
no longer met the County’s job requirements as a nurse
practitioner. With Hunter, she says Dr. Raba discussed her
lack of a collaborative agreement and her termination.
Szymanski says Cindy St. Aubin, the “nurse recruiter” at
the University of Chicago Hospitals, told her that Dr. Raba
said Szymanski was terminated for misconduct. Szymanski
also makes much of the fact that, at her deposition, St.
Aubin was instructed by her employer’s counsel not to
answer when asked why she failed to forward Szymanski’s
application for various vacancies that were open at the
University of Chicago Hospitals.
Finding the evidence less than convincing support for
a claim of retaliation, the district judge—the Honorable
Rebecca R. Pallmeyer—granted summary judgment for the
County. Szymanski appeals, and we review, de novo, the
district court’s decision. Tanner v. Jupiter Realty Corp., 433
F.3d 913 (7th Cir. 2006).
4 No. 06-1061
The anti-retaliation provision of Title VII of the 1964 Civil
Rights Act, 42 U.S.C. § 2000e-3(a), prohibits employer
actions that “discriminate against” an employee because she
has “opposed” practices that Title VII forbids or because she
has “made a charge, testified, assisted, or participated in”
a Title VII “investigation, proceeding, or hearing.” The
provision is not restricted to discriminatory employer
actions that affect the terms and conditions of employment
encompassed by Title VII’s substantive discrimination ban,
42 U.S.C. § 2000e-2(a). In fact, retaliation claims can be
pursued based on actions that go beyond workplace-related
or employment-related retaliatory acts and harm. In short,
the provision extends to materially adverse
nonemployment-related discriminatory actions that might
dissuade a reasonable employee from lodging a discrimina-
tion charge. Burlington Northern & Santa Fe Ry. Co. v.
White, 126 S. Ct. 2405 (2006). And it is well-established
that a former employee, such as Szymanski, can assert a
claim that she was given negative references in retaliation
for engaging in protected activity. Robinson v. Shell Oil Co.,
519 U.S. 337 (1997).
As everyone knows by now, a plaintiff alleging retaliation
can prove her case either by the direct or indirect method of
proof. To prevail, though, under either a direct or indirect
method of proof, Szymanski had to show that the action
taken by Raba—the nature of his responses to inquiries
about her from possible future employers—can reasonably
be branded as “adverse.” And “adverse” in this setting has
to mean, employing an objective standard, the dissemina-
tion of false reference information that a prospective
employer would view as material to its hiring decision.
What Raba said would have to be the sort of thing that is
“likely to dissuade [present] employees from complain-
ing . . . about discrimination.” Burlington Northern, 126 S.
Ct. at 2416. Although Szymanski talks in terms of blacklist-
ing or blackballing, they are not legal terms, and we are not
No. 06-1061 5
convinced that retaliation must rise to the level of blackball-
ing to qualify as an adverse action. It must, however, be
clearly adverse, not trivial.
Szymanski’s claim rests entirely on what Dr. Raba did
or said. When asked at her deposition whether anyone else
was involved in blackballing her, she repeatedly said only
Dr. Raba: “All that I’m aware of is Dr. Raba.” Ironically,
despite her feeling that he was blackballing her, she
consistently listed him as a reference.
So the question is, what did Dr. Raba say to the Univer-
sity of Chicago Hospitals, Interim, Integrated, and Hunter,
and does it amount to an “adverse” action against
Szymanski?
In the first instance, Hunter has limited relevance
because it is not an employer or an employment agency. It
is in the business of confirming references so that an
applicant will know beforehand what a reference will say
about her. When Szymanski hired Hunter to check her
references, she told the company that she was terminated
from Cook County because of protected EEOC activity. The
company’s records regarding a telephone conversation
with Dr. Raba indicate that he referred to Szymanski’s
dismissal from employment and her inability to get a
collaborative provider as Illinois law required. When
asked why doctors would refuse to be collaborative pro-
viders, he said that Szymanski might do well to keep the
doors of communication open with the staff, but he also said
that most of the physicians are foreign-born and had
concerns regarding liability issues. He mentioned that
two or three nurse practitioners had legal action pending as
a consequence. He also alluded to litigation regarding
Szymanski’s loss of employment. But he added that
there was no issue regarding her clinical skills or knowl-
edge and no negative assessments regarding her duties or
the quality of her work. We think it would be quite a stretch
6 No. 06-1061
to say that Dr. Raba was blackballing Szymanski in this
conversation or, in fact, even that he was giving her a
negative reference. In her deposition, when asked if it was
a negative reference, Szymanski said, “It could be. It’s yes
and no.” To the extent that she did not like what he said,
she could have attempted to refrain from using him as a
reference. That seems to be the purpose of hiring Hunter in
the first place. And, of course, as Hunter is not an employer
and did not forward this information to prospective future
employers, whatever Dr. Raba said would have had no
effect on her employment prospects.
Szymanski points out that Dr. Raba’s mentioning of her
termination at all was a violation of Judge Coar’s order.
That may be true, but Dr. Raba said he did not know what
was required by the order. Furthermore, as Judge
Pallmeyer correctly pointed out, if anything, this is a matter
to be taken up with Judge Coar.
Dr. Raba’s recommendation to Interim was very limited.
He filled out a half-page chart rating her on six attributes
on a four-level scale: excellent, good, fair, and poor. He
rated her “good” in three and “fair” in three. Additionally,
as the reason for her leaving he wrote “[a]dministrative
change in minimum job pre-requisites.” It is not a great
reference, but neither does it rise to the level of retaliation.
Furthermore, Interim “hired” her, apparently as someone
they would be willing to send to hospitals who needed
nurses. It is not clear why she was never given an assign-
ment.
Dr. Raba’s recommendation to Integrated was some-
what better than the one to Interim. For this evaluation
he apparently spoke to a recruiter on the telephone, and she
filled out the form. Again, he was asked for an evaluation as
to whether in nine qualities she was excellent, good, fair, or
poor. He rated her as “good” in all categories. Then, as to
her strong traits, he said she worked well with others and
was meticulous and reliable. As to her weak traits, he listed
No. 06-1061 7
CPR and crash carts. He said he enjoyed working with her
and that she would succeed as an agency RN. Finally, when
asked whether he would trust her to take care of a family
member of his, he said “yes.” The recruiter for Integrated
said she thought Dr. Raba gave Szymanski a very good
reference. In fact, like Interim, Integrated hired Szymanski,
though once again she never was given an assignment. To
obtain an assignment, a person must call Integrated to
inform the company of her availability. There is a dispute
as to how often Szymanski called. The company says she
notified them of her availability for only 4 days. To support
that claim, Integrated pointed out that calls show up on the
company’s computer records, records which cannot be
altered. Szymanski says she called repeatedly, but she has
no telephone records to support her claim.
Szymanski’s interaction with the University of Chicago
Hospital System is truly bizarre. Szymanski claims that the
recruiter, Ms. St. Aubin, told her that Dr. Raba said that
Szymanski was fired for misconduct. St. Aubin denies
having any conversation with Dr. Raba and says she did not
check Szymanski’s references. Dr. Raba did not recall a
conversation with anyone at the University of Chicago. The
district court properly found that Szymanski’s statement
about what Dr. Raba allegedly said to St. Aubin
was hearsay and was inadmissible when offered for the
truth of the statement. Szymanski also makes much of the
fact that at her deposition St. Aubin was instructed not to
answer questions regarding the university’s failure to hire
her, apparently reading some nefarious motive into the
instruction. However, there are explanations for this
instruction which have nothing to do with retaliation.
Primarily, self-interest. At the deposition, the university’s
legal counsel first learned that Szymanski had filed an
EEOC charge against the university. It is natural that
counsel would not, at that point, want St. Aubin to be giving
reasons why Szymanski had not been hired.
8 No. 06-1061
In addition, Szymanski was her own worst enemy. She
said and did things which hindered her chances of obtaining
employment. First and foremost, she sent 287 e-mails to the
university seeking employment. After about 100, the
university could reasonably get tired of hearing from her.
Secondly, her written application contained a strange
statement. The application form asked for the names of
references. She wrote:
you have not received my written permission for
reference check. upon submitting the application
somehow my application is electronically signed. This
is illegal.
Then, in what she herself describes as a fairly representa-
tive e-mail—this time applying for housekeeping jobs—she
said:
Since I have been barred from attaining employment
based on my education and experience maybe you may
consider employment for me in this field—house-
keeping. I believe you do discriminate national origin
and protected EEOC activity. Have applied to four
housekeeping jobs. I am way beyond HS graduate.
Given that there is no admissible evidence to show that Dr.
Raba ever talked to anyone at the University of Chicago,
and given the statements Szymanski herself made, it is
impossible to conclude that her failure to be hired had
anything at all to do with retaliation on the part of Cook
County.
In short, we find that there is nothing in the record which
establishes an adverse post-employment action taken by
Cook County against Szymanski. It is hard to say in the
abstract, for instance, that rating someone as “good” is
adverse. If she had produced evaluations of her work at
Cook County which showed her being consistently rated as
“superior” or “excellent” by Dr. Raba, that might be some
evidence that his “good” ratings after her termination were
No. 06-1061 9
retaliatory. But nothing of the sort exists in the record.
Cook County is, in countless, obvious ways, not Lake
Wobegon; we cannot assume that all Cook County nurses
are above average. Objectively, some may simply be good,
or even just fair.
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-20-06