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Bernadine E. Matthews v. Wisconsinenergycorporation

June 1, 2011


Appeals from the United States District Court for the Eastern District of Wisconsin.No. 05-C-537-J. P. Stadtmueller, Judge.

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


Before EASTERBROOK, Chief Judge, and BAUER and EVANS, Circuit Judges.

We last saw this case just over three years ago when we remanded it for further proceedings on a single issue-breach of contract. A grant of summary judgment against Matthews on retaliation under Title VII was affirmed. Matthews v. Wis. Energy Corp., Inc., 534 F.3d 547 (7th Cir. 2008) (Matthews I).

Bernadine Matthews, a former employee of Wisconsin Energy Corporation, Inc. (WEC), sued WEC, alleging it violated a settlement agreement by breaching a "reference-request provision." On remand, a jury sided with WEC,*fn1 and now Matthews appeals for the second time.

Because a jury has rendered a verdict, we view the evidence in the light most favorable to that verdict. Cruz v. Town of Cicero, Ill., 275 F.3d 579, 583 (7th Cir 2001). Here are the facts.

Matthews was employed by WEC from 1980 to 1999. When she left WEC, the parties entered into an agreement that included provisions regarding how WEC would respond to reference requests about her from prospective employers. In 2003, Matthews sued WEC alleging that it breached those provisions. To resolve that suit, the parties entered into a confidential settlement agreement (the Agreement) which addressed the information WEC would disclose to prospective employers:

Wisconsin Gas agrees to respond to any request for a reference regarding Matthews in a manner that is consistent with the Wisconsin Gas policy in place regarding reference checks at the time. Wisconsin Gas will not respond to any request for a reference regarding Matthews by indicating that Matthews was terminated or fired from Wisconsin Gas.

WEC's policy regarding reference requests was to confirm that the individual had worked there, and to provide the dates of employment, salary, and position. WEC would not release any subjective information about the former employee's performance.

In May 2005, Matthews filed this lawsuit, alleging that WEC breached the Agreement's reference-request provision by failing to properly verify her employment twice in 2004. A few days prior to filing the suit, Matthews, in an effort to find a new job, enrolled in a Social Security Administration (SSA) program called the "Ticket to Work Program" which allows disabled individuals receiving social security benefits to work while continuing to receive their benefits. See generally, The Ticket Program: What is the Ticket Program?, http:// (last visited May 19, 2011).

In accordance with the program, Matthews hired Howard Schwartz, President and CEO of Career Consulting Services of America (CCSA), a consultant who specializes in helping disabled individuals seek employment through the Ticket To Work Program. Matthews signed a SSA Consent and Release of Information form, giving Schwartz permission to talk to third parties about information he determined was relevant to her job search. She also signed a Confidential Information Release Authorization (CIRA), which was specific to Schwartz's company. Under the CIRA, she voluntarily consented to the disclosure to CCSA of information related to her personal background, health, employment, education and other data, and specifically granted Schwartz the right to contact her former employers to elicit personal information that he deemed potentially helpful to the job search.

For several months, Schwartz had no luck finding Matthews a job. He approached her about his difficulties, and she claimed that WEC was blackballing her. When Schwartz asked why, Matthews said she was unable to discuss it because of the confidentiality provision in the Agreement. She directed Schwartz to reach out to her lawyer, Janet Heins. Schwartz called Heins who confirmed that Matthews had filed a lawsuit against WEC.

After his conversation with Heins, Schwartz revised Matthews' resume-removing her WEC employment entirely. He sent the new resume to Heins and Matthews *fn2 for authorization and also called Heins to ask if he could contact WEC for a reference. A few weeks later, Heins called Schwartz authorizing him to contact WEC. Schwartz then faxed a letter to Art Zintek, Vice-President of Human Resources at WEC. The letter indicated *fn3 that CCSA was contracted by the SSA to assist Matthews in her job search and requested that WEC confirm Matthews' work history at WEC and provide comments regarding her work performance. It also said that a release authorizing WEC to provide the information was enclosed, but Schwartz failed to include it.

When Zintek's office received the fax, due to Matthews' pending suit against WEC, it was forwarded to Lynne English in the Legal Department because she had handled the 2003 settlement agreement. In October 2005, English called Schwartz to discuss his letter. During the conversation, she told Schwartz that he had not included a release. Schwartz said he would send the release, but he also pushed English to answer his reference request over the phone. She testified that she told him she could not because "[Matthews] has sued us for how we respond to reference requests," or "we're in litigation with her." English also informed Schwartz that the written response to his reference request would only provide basic information and would not include the comments on Matthews' performance he had requested. After ...

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