In the

United States Court of Appeals

For the Seventh Circuit

No. 20-1731

DEBRA EATON,

Plaintiff-Appellant,

v.

J. H. FINDORFF & SON, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the 

Western District of Wisconsin.

No. 3:19-cv-00282-bbc — Barbara B. Crabb, Judge.

ARGUED OCTOBER 26, 2020 — DECIDED JUNE 16, 2021

Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge. Debra Eaton brought a Title VII

claim against J.H. Findorff & Son, Inc. (“Findorff”), asserting

that the company twice refused to hire her in retaliation for an

earlier sex discrimination charge that she had leveled against

the company. See 42 U.S.C. § 2000e-3(a). The district court

granted summary judgment in favor of Findorff and we affirm. 
2 No. 20-1731

I.

Eaton is an operating engineer and a member of the

International Union of Operating Engineers Local 139 (“Local

139"). Findorff is a construction company that contracts with

unions in order to staff its job sites. Eaton was an apprentice

when she first interacted with Findorff in March 2011. On that

occasion, Local 139 dispatched her to Findorff to work as a

telehandler operator at a job site in Milwaukee known as the

Moderne Project.1

 At the end of Eaton’s first day on the

Moderne Project, Findorff’s Project Superintendent, Mark

Szymkowski, terminated Eaton after concluding that her

operation of the telehandler was unsafe and that she was

inadequately trained. Local 139 filed a grievance on her behalf.

To resolve the grievance, Szymkowski and Mark Schneider,

Findorff’s General Superintendent, agreed that Findorff would

hire Eaton as a skip hoist operator when that position became

available.2

The skip hoist position became available on the Moderne

Project in August 2011, and Findorff hired Eaton as promised.

In addition to running the skip hoist, Eaton was tasked with

picking up trash that accumulated throughout the day on the

various floors of the building. Because Eaton was an apprentice

and was trying to attain journeyman status, she was required

to submit on-the-job-training reports (“Reports”) to Local 139.

1

 A telehandler is a large, telescopic forklift. 

2

 A skip hoist is an elevator that is erected on the outside of a building

under construction. The skip hoist transports personnel and materials

from floor to floor until an internal elevator system is completed. 
No. 20-1731 3

Szymkowski filled out the Reports for her, rating her on a scale

from 1 to 5 on her skills as an apprentice skip hoist operator,

with 1 indicating “unacceptable” skills, 3 marking “average”

competence, and 5 identifying ”excellent” performance.

Szymkowski privately told Eaton that she was slow and

inefficient in her operation of the skip hoist, complained that

she passed up workers waiting to be picked up, and also

criticized her for failing to pick up trash consistently. Nevertheless, he rated her an average apprentice when filling out the

Reports, which addressed only her technical skills in operating

the skip hoist. 

In late 2011, Findorff eliminated the night shift on the

Moderne Project and found itself overstaffed with operators.

Instead of permanently laying off operators, the company

implemented a rotating layoff schedule, where different

operators were laid off each week in turn. Eaton was told that

her turn for layoff would be January 2 to January 6, 2012. The

other two skip hoist operators, both men, were allowed to

work that week. On January 27, 2012, Eaton filed a charge with

the EEOC alleging that her layoff amounted to discrimination

on the basis of sex. Sonny Femal, Findorff’s safety and compliance officer, told Szymkowski that Eaton had filed a grievance

related to her temporary layoff, but Femal never told

Szymkowski that Eaton’s complaint was based on sex discrimination. Eaton never discussed the complaint with Szymkowski,

and after she failed to pursue her complaint, it was dismissed.

Eaton continued to work as a skip hoist operator at the

Moderne Project through the end of August 2012. At that point,

Findorff no longer needed a skip hoist operator and her

employment was terminated.
4 No. 20-1731

Five years later, in the summer of 2017, Eaton heard from

Louis Rupert, a Findorff laborer, that the company had an open

position for an operating engineer. At Rupert’s suggestion,

Eaton spoke to Jeff Tramel, the superintendent at Rupert’s job

site, and he directed her to Schneider. Schneider told Eaton that

there were no open operating engineer positions. Eaton

nevertheless decided to drop off her resume at Findorff, and

filled out an application in case a position opened up.

Findorff’s receptionist, Samantha Garni, received the application. Garni was not aware of any open positions, but on seeing

from Eaton’s application that she had previously worked for

Findorff, Garni asked Szymkowski if he would be interested in

rehiring her in the future. He replied that he would not rehire

her or that he would not recommend her. 

In April 2018, a position did open up at a Findorff job site.

Guy Yuker, a business associate for Local 139, told Garni that

he was dispatching Eaton for the job of elevator operator.

Recalling her conversation with Szymkowski, Garni contacted

Kim Norton, Findorff’s operations specialist, and said that she

did not believe that Findorff would hire Eaton for the operator

position. Norton then asked Yuker to send an alternate

operator, and Yuker requested that Findorff send Local 139 a

letter explaining why it did not wish to hire Eaton. Norton

consulted with Schneider and Szymkowski before sending the

letter. Szymkowski reported that Eaton was a “subpar” skip

hoist operator and that Findorff should probably look for

someone else. Norton then prepared and sent a letter to Local

139, declining to hire Eaton due to past performance issues.

Yuker conveyed this information to Eaton, and Local 139 no

longer referred Eaton to Findorff for work.
No. 20-1731 5

Eaton then filed a charge of discrimination with the EEOC

in April 2018. After receiving a right-to-sue letter from the

EEOC, Eaton filed this suit, claiming both sex-based discrimination and retaliation for having previously complained of sexbased discrimination at Findorff. The district court granted

summary judgment in favor of Findorff, finding that Eaton had

waived her sex discrimination charge, and that she failed to

produce sufficient evidence in support of her retaliation claim.

Only the retaliation claim is at issue in this appeal.

II.

We review the district court’s grant of summary judgment

de novo, examining the record in the light most favorable to

Eaton and construing all reasonable inferences from the

evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Consolino v. Towne, 872 F.3d 825, 829 (7th Cir.

2017). Summary judgment is appropriate when there are no

genuine disputes of material fact and the movant is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477

U.S. at 256; Consolino, 872 F.3d at 829. In order to make out a

claim for retaliation, a plaintiff must demonstrate (1) that she

engaged in statutorily protected activity; (2) that her employer

took a materially adverse action against her; and (3) that the

protected activity and the adverse action are causally connected. Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018);

Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010, 1019 (7th Cir.

2016); 42 U.S.C. § 2000e-3(a). To prove causation, the plaintiff

must show that “the desire to retaliate was the but-for cause of

the challenged employment action.” Gracia, 842 F.3d at 1019

(quoting University of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.
6 No. 20-1731

338, 352 (2013)). “This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged

wrongful action or actions of the employer.” Nassar, 570 U.S.

at 360.

Construing the evidence in favor of Eaton, the parties agree

that, for the purposes of summary judgment, she has adequately demonstrated that she engaged in statutorily protected

activity when she filed her 2012 discrimination charge, and that

Findorff took a materially adverse action against her in 2018

when it refused to hire her. On appeal, Eaton argues that

Findorff’s failure to hire her in 2017 also constituted a materially adverse action, and she maintains that she has also

demonstrated that her protected activity and Findorff’s adverse

actions are causally connected. 

We can address the 2017 failure-to-hire in short order:

Findorff has produced evidence that there were no operator

positions available in 2017, and Eaton has failed to offer any

evidence to dispute that conclusion.3 On appeal, she claims

only that Garni’s 2017 conversation with Szymkowski caused

her not to be considered for any future job prospects and that

this was, in and of itself, an adverse action. But until any

openings became available, she suffered no harm and there was

3

 Findorff produced sworn statements that there were no operator

positions open when Eaton applied in 2017. Eaton’s testimony that Louis

Rupert told her that there was an opening cannot overcome this sworn

testimony because it is inadmissible hearsay. Rupert was not deposed and

Eaton did not obtain an affidavit from him. Inadmissible hearsay evidence

may not be considered on summary judgment. Fed. R. Civ. P. 56(c)(2);

Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). 
No. 20-1731 7

no adverse action. Without any evidence that she was denied an

open position in 2017, that claim fails.

We turn to whether Eaton has produced any evidence of

causation for Findorff’s 2018 refusal to hire her. Specifically, we

consider whether Eaton has any evidence from which a trier of

fact could conclude that Eaton’s 2012 claim of discrimination

against Findorff was the but-for cause of Findorff’s refusal to

hire her in 2018. We conclude, as did the district court, that she

has no such evidence. Findorff produced undisputed evidence

that Szymkowski and Schneider, the decision-makers who

determined that Eaton would not be hired again, did not know

that her 2012 complaint was based on discrimination. Femal,

the person who handled the complaint for the company, told

Szymkowski only that Eaton had complained about the layoff,

and did not convey the nature or basis of the complaint.

Szymkowski believed that Eaton had filed a union grievance,

as she had done in 2011 when she was terminated from the

telehandler job after one day. Eaton herself never told

Szymkowski about the grounds for her complaint. 

On appeal, Eaton argues that Findorff responded to her

2012 complaint, and that because Szymkowski and Schneider

were the decision-makers, the company must have consulted

them about the complaint, and must have informed them that

it was based on sex discrimination. In order to demonstrate

that a defendant was motivated to retaliate based on the

plaintiff’s protected activity, the plaintiff must first produce

evidence that the defendant had actual knowledge of the

protected activity. Emerson v. Dart, 900 F.3d 469, 472 (7th Cir.

2018); Consolino, 872 F.3d at 830; Nagle v. Village of Calumet Park,

554 F.3d 1106, 1122 (7th Cir. 2009). It is not sufficient that a
8 No. 20-1731

decision-maker could have or even should have known about

the employee’s complaint. Nagle, 554 F.3d at 1122. See also

Tomanovich v. City of Indianapolis, 457 F.3d 656, 668–69 (7th

Cir.2006) (if an employer did not know the plaintiff engaged in

statutorily protected activity, the employer cannot be trying to

penalize the employee for engaging in that activity). At best,

Eaton argues that Szymkowski and Schneider must have

known or should have known that her 2012 complaint was

based on sex discrimination because the company responded

to her complaint. But both Schneider and Szymkowski offered

sworn testimony that they did not know that Eaton’s complaint about the one-week layoff was based on sex discrimination. Imputing the company’s knowledge or Femal’s knowledge to Szymkowski or Schneider is based on speculation and

cannot overcome the undisputed record evidence that:

(1) neither Femal nor Eaton herself told the decision-makers the

basis of Eaton’s complaint; and (2) neither Schneider nor

Szymkowski knew that Eaton’s complaint was based on sex

discrimination. Emerson, 900 F.3d at 473 (a finding of retaliatory

intent must be based on something other than speculation);

Consolino, 872 F.3d at 830 (speculation is not enough to create

a genuine issue of fact for the purposes of summary judgment).

Because Eaton lacks any evidence that the decision-makers

knew that she had engaged in protected activity, she has failed

to raise a genuine issue of material fact in support of causation

for her retaliation claim. The district court correctly granted

summary judgment in favor of Findorff.

AFFIRMED.