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 employment 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 Opportunity 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 Countyrun 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 physician. 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 discrimination 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 dissemination 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 complaining . . . about discrimination.” Burlington Northern, 126 S.

Ct. at 2416. Although Szymanski talks in terms of blacklisting or blackballing, they are not legal terms, and we are not
No. 06-1061 5

convinced that retaliation must rise to the level of blackballing 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 University 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 providers, 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 knowledge 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 assignment.

Dr. Raba’s recommendation to Integrated was somewhat 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 representative 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—housekeeping. 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