# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 15, 2013 *

Decided August 21, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13

‐ 1740

GLORIA E. SWANSON, Appeal from the United States District

Plaintiff

‐ Appellant, Court for the Northern District of

Illinois, Eastern Division.

v.

No. 12 C 8290

BAKER & McKENZIE, LLP, et al.

Defendants

‐ Appellees. Amy J. St. Eve,

Judge.

O R D E R

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. The appeal is therefore submitted on the briefs and record. See F ED

. R. A PP

. P.

34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 1740 Page 2

Seventeen years ago, Gloria Swanson left her position as a legal secretary with

the law firm of Baker & McKenzie, where she had worked for five years. Her

relationship with the partner to whom she was assigned was not a happy one, and so in

May 1995, she requested a transfer. When Baker denied that request, Swanson decided

to resign. Believing that the firm had allowed comparable white secretaries to transfer,

Swanson (an African

‐ American) refused to sign a release that would have prohibited

her from suing Baker for racial discrimination. Later, however, she negotiated a more

favorable arrangement.

After she left Baker, Swanson obtained comparable employment at other Chicago

law firms, including a 14

‐ year stint with one. She was laid off in March 2011,

unfortunately, and found herself back on the job market. Although she sent out

numerous résumés, her efforts at securing new employment were unsuccessful. She

wondered why this was so, since it seemed that she was often rejected at the final stage,

and so she hired a reference

‐ checking company, Allison & Taylor, to look into the

situation. When A&T contacted Baker around July 18, 2012, Human Resources Manager

Patricia Griffin told them that Baker could not find Gloria Swanson in its system, and

thus it could neither confirm nor deny her employment there. Later, Nancy

Offdenkamp, who worked for Griffin, told Swanson that Baker’s payroll system had

changed, but that she would try to obtain access to the older records. Swanson found

this suspicious, because Baker was able to confirm the employment of the partner for

whom she had worked, even though he had died in 2007 after working for the firm for

50 years. Baker continued searching, and on September 13, 2012, Offdenkamp called

A&T and informed them that Baker had located Swanson’s employment records and

was now in a position to confirm this information upon Swanson’s signing a release.

Swanson did so; Baker told A&T that she had worked there from February 2, 1990,

through May 22, 1995; and it also confirmed Swanson’s employment history to an

attorney who wanted a reference for her.

In the meantime, Swanson filed a charge of racial discrimination with the Equal

Employment Opportunity Commission on July 23, 2012, alleging that Baker had

discriminated against her based on her race and had retaliated against her for engaging

in protected activity. The EEOC issued her a right

‐ to

‐ sue letter on August 2, 2012, and

she filed this action two weeks later. The district court dismissed under Federal Rule ofNo. 13

‐ 1740 Page 3

Civil Procedure 12(b)(6). Swanson challenges that decision on appeal, urging that her

complaint states a plausible claim for relief.

To the extent that Swanson is attempting to resuscitate her allegations of racial

discrimination in connection with her 1995 departure from Baker, it is plain that she

cannot succeed. The complaint itself reveals that any such claim is time

‐ barred. Even

though the statute of limitations is an affirmative defense, district courts may grant

judgment on the pleadings if there is no conceivable way to save the claim. That

describes Swanson’s case.

Swanson has also presented two theories that do not suffer from that flaw: first,

she argues that the firm’s responses to various requests for references in 2011 and 2012

amounted to retaliation against her for her 1995 accusations of racial discrimination;

and second (relying on the district court’s supplemental jurisdiction, 28 U.S.C. § 1367),

she argues that Baker defamed her by giving false, negative information in response to

inquiries from prospective employers. We address these in turn, reviewing the district

court’s decisions de novo.

With respect to her retaliation claim, Swanson urges that the district court erred

by concluding that her complaint failed to allege any adverse employment action. She

believes that Baker must have told prospective employers something adverse. In

particular, she thinks that if she represented on her job application that she had worked

for Baker between 1990 and 1995, yet Baker told the prospective employer that it could

neither confirm nor deny her employment there, then the prospective employer would

conclude that she was lying and would refuse to hire her. But, in the absence of any

additional facts that would support that final inferential leap, this is the type of

speculation that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal

,

556 U.S. 662 (2009), identify as insufficient to pass muster under Rule 12(b)(6). The

statement “we have searched our records and can neither confirm nor deny that X

worked for us” says nothing about X’s credibility. All it says is that Baker’s record

‐

keeping may leave something to be desired. This would be a different case, we can

assume, if Baker had responded to the reference inquiry by saying that its records

showed that Swanson had never worked there, but that is not what it said. Swanson’s

own complaint also shows that after two months of looking, Baker did find her records,

confirmed her employment history to A&T, and then confirmed it to a prospectiveNo. 13

‐ 1740 Page 4

employer. Taking every reasonable inference as favorably to Swanson as one can, this

account does not portray retaliation of any kind. As the district court properly found, it

does not state a claim upon which relief may be granted.

For similar reasons, Swanson’s defamation claim was properly dismissed. Under

Illinois law, which applies here, a plaintiff must show that the defendant made a false

statement concerning her, that the defendant made an unprivileged publication of that

defamatory statement to a third party, and that the plaintiff suffered damages as a

result. Seith v. Chicago Sun

‐ Times, Inc., 861 N.E.2d 1117, 1126 (Ill. App. 2007). Swanson’s

complaint reveals that she cannot satisfy either of the first two requirements. Nothing

but speculation suggests that Baker was lying when it said that it could not find her

employment records. There is no reason to think that the records concerning partners

would have been kept in the same place, in the same way, as records concerning staff.

In addition, the statement that Baker could neither confirm nor deny her employment is

not defamatory, because it is capable of an innocent construction. See Lott v. Levitt, 556

F.3d 564, 568 (7th Cir. 2009). Finally, the statements Swanson attributes to Baker were

made to her own agent, A&T, which does not qualify as a third party for defamation

purposes. See, e.g., Snyder v. Ag Trucking, Inc., 57 F.3d 484, 489 (6th Cir. 1995).

As we said in an earlier case brought by Swanson, “a plaintiff must do better

than putting a few words on paper that, in the hands of an imaginative reader, might

suggest that something has happened to her that might be redressed by the law.”

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). We have no doubt that the

experience Swanson recounts in the current complaint was frustrating, but that does not

automatically mean that some form of legal remedy exists. This time, she has not

presented a set of facts that support a claim for relief.

The judgment of the district court is therefore A FFIRMED

.