Court Finds Former Supervisor’s Comments Were Not “Adverse”

The federal appellate court with jurisdiction over Illinois recently ruled against a nurse who claimed that her former employer retaliated against her by giving negative references to prospective employers. According to the Seventh Circuit Court of Appeals, the nurse was unable to show that she failed to get hired because she was “blackballed.” Szymanski v. County of Cook, No. 06-1061, Seventh Circuit Court of Appeals (November 20, 2006).

Factual Background

In 1983, Evelyn Szymanski, a registered nurse and nurse practitioner, was hired by Cook County Hospital. In 2003, charges of discrimination brought by Szymanski against Cook County were rejected by a jury. Three weeks after the verdict was returned, Szymanski was terminated. Dr. Raba, the medical director of Fantus Health Center (the facility where Szymanski worked), claimed that she was fired because she did not have a required “collaborative agreement” with a licensed physician.

Szymanski filed another discrimination charge claiming that she was fired in retaliation for engaging in protected activity under Title VII of the Civil Rights Act of 1964. The jury agreed with Szymanski and U.S. District Judge David Coar entered a judgment for back pay and front pay (in lieu of reinstatement). Judge Coar also directed Cook County to expunge any reference to Szymanski’s termination from her personnel file.

Szymanski then found other employment as a nurse at Little Company of Mary Hospital. She continued to apply for other nursing positions, which she failed to obtain. Szymanski claimed that Dr. Raba had blackballed her by giving negative references to prospective employers. As a result, she filed a retaliation suit. The district judge dismissed the suit and Szymanski appealed.

Legal Analysis

To prove her retaliation claim, the court found, Szymanski must show that Dr. Raba’s actions (his responses to inquiries about her from possible future employers) were “adverse.” According to the Seventh Circuit, an adverse action in this setting includes the dissemination of false reference information that a prospective employer would view as material to its hiring decision.

The court found that Dr. Raba’s comments to Hunter Enterprises, a firm that confirms employment references, had only limited relevance since it is not an employer. Hunter’s records showed that Dr. Raba referred to Szymanski’s termination, her inability to get a collaborative provider, and the litigation regarding her loss of employment. He also stated that there were no issues with her clinical skills. Dr. Raba’s comments to Interim Healthcare were very limited, rating Szymanski as either “fair” or “good.” Dr. Raba’s recommendation to Integrated Health Solutions ranked Szymanski as “good” in all categories. Furthermore, both Interim and Integrated hired Szymanski.

Finally, with regard to the University of Chicago Hospital System, the Seventh Circuit found that there was no evidence that the university checked her references. Moreover, the court found that Szymanski actually said and did things that may have hurt her chances of being hired. For example, Szymanski sent the university 287 emails inquiring about employment. Because Szymanski was unable to establish that Cook County took any adverse post-employment action against her, the court dismissed her lawsuit.

Practical Impact

According to Robert Casey, a shareholder in Ogletree Deakins’ Chicago office: “This case reveals just how careful employers must be when providing references, even those that are solicited by a former employee. Consistent with conventional legal wisdom, this case reveals that the safest route is to provide only basic information about the employee (such as start and end dates). To say more and implicate subjective criteria and judgment puts the referring employer at risk. If a recommendation is given, the critique should be consistent with the employee’s documented work performance. Szymanski shows that even a seemingly favorable recommendation can inspire litigation.”

Casey continued: “Illinois has on its books a law, referred to as the Employment Record Disclosure Act, which provides that any employers who, upon inquiry by a prospective employer, provides truthful information, or information that it believes in good faith is truthful, about a current or former employee’s job performance, is presumed to be acting in good faith and is immune from civil liability for the disclosure and the consequences of the disclosure. The presumption of good faith may be rebutted, however, by a preponderance of evidence that the information disclosed was knowingly false or in violation of the current or former employee’s civil rights. The Szymanski court’s opinion illustrates one way that the presumption may be rebutted.” 

Note: This article was published in the Dec/Jan 2007 issue of the Illinois eAuthority.

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