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Matthews v. Wisconsin Energy Corporation Inc.

July 7, 2008


Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 05-CV-00537-J.P. Stadtmueller, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

The issues in this case concern the post-employment relationship between plaintiff-appellant Bernadine Matthews and Wisconsin Energy Corporation Inc. Matthews alleged below that Wisconsin Energy breached a settlement agreement and retaliated against her for filing a discrimination lawsuit by giving several prejudicial job references following her departure from the company. The district court held otherwise, granting Wisconsin Energy's motions for summary judgment as to all of Matthews's claims. We affirm in part and reverse in part. Because we are reversing in part, we also vacate the district court's award of attorney fees to Wisconsin Energy as the "prevailing party."

I. Background

Bernadine Matthews began working for Wisconsin Energy, then known as Wisconsin Gas Company,*fn1 in 1980. Matthews soon became a "commercial service representative," a customer-service position that required in-person dealings with Wisconsin Energy's customers. After an unfortunate workplace injury in 1996-a disgruntled customer attacked her-Matthews took a leave of absence. A number of things then happened while Matthews was on leave that put her at odds with Wisconsin Energy. The first was that she was a member of a class action alleging that Wisconsin Energy had redlined the customers in the Wisconsin metro area, where she lived. Then she disputed a claimed shortage in her pension fund. And lastly, in 1998, Matthews filed a discrimination claim against Wisconsin Energy, a dispute the parties eventually settled.Matthews never ended up returning to Wisconsin Energy, and in April 1999, she and the company executed their first Separation Agreement. Matthews didn't immediately seek another job, instead earning a four-year degree from the University of Wisconsin-Milwaukee. Shortly before earning her degree in 2003, Matthews plotted her return to the market, applying to local companies that in turn sought employment references from Wisconsin Energy.

That's when the troubles, and this case, began. As part of the 1999 Separation Agreement, Wisconsin Energy agreed to provide employment references for Matthews as the need arose. Dissatisfied with the responses that Wisconsin Energy was providing-she says Wisconsin Energy denied she had ever worked there-Matthews filed suit in 2003. In her complaint, she alleged both violations of the 1999 separation agreement and intentional interference with prospective contractual relations. The parties soon settled the dispute, and a new settlement agreement was forthcoming in December 2003. The Agreement required Wisconsin Energy to provide an employment reference for Matthews and also contained an attorney-fees provision in the event of a future lawsuit. In relevant part, these sections provided Wisconsin [Energy] agrees to respond to any request for a reference regarding Matthews in a manner that is consistent with the Wisconsin [Energy] policy in place regarding reference checks at the time. Wisconsin [Energy] will not respond to any request for a reference regarding Matthews by indicating that Matthews was terminated or fired. . . .

[I]n the event that one of the Parties hereto commences a lawsuit or other legal proceeding alleging that the other Party breached the Agreement, the prevailing Party in that action shall be entitled to recover her or its reasonable attorneys fees and expenses incurred in such lawsuit or legal proceeding from the non-prevailing Party.

An integration clause stated that the written document "set[ ] forth the entire agreement" and "fully and completely superseded" any representations made elsewhere.

Before the parties inked this agreement, Wisconsin Energy's in-house attorney, Lynne English, recited the terms into the record in open court. In so doing, she characterized the company's "policy" to be "what you call name, rank, and serial number." That is, the company would "confirm people worked there, the dates of employment, and their position or at least their last position." Here on appeal, the company describes a similar reference policy. The company only confirms dates of employment, final salary, and the last position that the employee held. Reliance on this objective data prevents the disclosure of "subjective information" regarding the former employee. Although the reference itself is fairly basic, getting to the relevant information may require an involved search. Former employees come in a number of categories, and Wisconsin Energy stores information for these kinds of former employee in a number of different databases. The information for those who, like Matthews, left before the 2000 merger of Wisconsin Energy and Wisconsin Gas has its own database. And searching this database comes last in the process for providing references.

Wisconsin Energy claims that this last fact caused some problems when companies came calling to get a reference for Matthews, several of which followed from late 2004 to the end of 2005. Financial Management Services conducted one such check in October 2004.*fn2 This check initially resulted in Wisconsin Energy saying that Matthews had never worked there, although the company eventually confirmed she had. Wisconsin Energy blamed the initial error on the tortuous process of searching through several databases to confirm employment information. In addition, following the request, Wisconsin Energy said that Matthews had worked as a "credit specialist" and not as a "commercial service representative." As part of a reorganization during Matthews's leave of absence, the company had, unbeknownst to her, changed her old position to this new name. So, when queried, the database provided this job title as the last position held. FMS then relayed this information to Matthews.

Also in May 2005, Matthews enrolled in a program through the Social Security Administration called the "Ticket to Work Program." This program allows those individuals receiving social-security benefits to work while continuing to receive their benefits. See generally The Ticket Program: What is the Ticket Program?, (last visited June 19, 2008). To find available jobs, Matthews hired Howard Schwartz, a consultant who specializes in helping disabled individuals seek employment through the program. After performing a review of his client's capabilities, he would then put them into contact with prospective employers. As part of his assessment, Schwartz mailed a letter to the Wisconsin Energy's Vice President of human resources on October 15, 2005. The letter explained Schwartz's role and the program and asked Wisconsin Energy to "confirm [Matthews's] work history . . . and provide comments regarding work performance." No response was forthcoming and a follow-up phone call to Wisconsin Energy's human-resources department went nowhere.

But Wisconsin Energy had received the letter. Given that the VP of human resources did not typically handle reference requests, Schwartz's letter eventually landed on the desk of Lynne English, the in-house attorney who had handled the 2003 settlement agreement with Matthews. On October 19, 2005, English called Schwartz on the phone to discuss the reference. English and Schwartz provided slightly conflicting versions of the phone call during their respective depositions. Schwartz described an "uncomfortable" phone call in which English asked, with an "obvious sense of distrust," why he had sent the letter to the VP of human resources. She then characterized his requested reference as a "sensitive issue to discuss," informing him that Matthews "had been involved in at least one, if not more legal actions against the company." English then asked questions regarding Matthews's social-security benefits, which Schwartz interpreted as being a question whether Matthews "was really entitled to them or [whether she was] cheating the system." English then told him that she would only provide a basic verification of employment, and she would only provide that if she had a written release from Matthews.

English's version differs somewhat. She agreed that she wanted to know why someone would send a reference request to the VP of human resources. And she also agreed that she asked about the social-security program Matthews had enrolled in, although she characterized her request as being motivated more by curiosity than suspicion. English told Schwartz that she was committed to Matthews getting a job after which, she says, Schwartz began pressing his request for a reference. When English said that she could not respond to the letter over the phone, Schwartz asked why-at which point Matthews told him "we are in litigation with Ms. Matthews regarding how we respond to reference requests." English testified that it was "possible" that she said that Matthews had sued twice, but she said the exchange was more lighthearted. In the end, English told Schwartz that he would need to send in an authorization from Matthews for the reference, after which Wisconsin Energy would send the basic reference ...

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