Serial EEOC Filer
Flunks Retaliation Test
by Employer; Retaliation
need not rise to level of
…”It must, however,
be clearly adverse, not trivial.”
From 1999 to 2006 Evelyn Szymanski filed no less than ten EEOC charges while employed by Cook County Hospital. In 2000 she accused the hospital of race and national origin discrimination, and took this charge to court, and lost in front of a federal jury. About three weeks after this adverse verdict, she was fired from her position as a nurse practitioner at the Fantus Health Center. She filed another charge, and then a lawsuit, claiming that her boss, Dr. Raba, fired her in retaliation for her 2000 charge and litigation.
She won this time, and the jury awarded back pay and front pay. Judge Coar did not order reinstatement given the fractured relations between the parties. The judge also ordered Cook County to expunge the dismissal from its personnel records. Thereafter Szymanski went shopping for a job at various hospitals, including University of Chicago, two nurse staffing agencies, Interim Health Care and Integrated Health Solutions, and Hunter Enterprises. According to her Raba had warned her at the time of her dismissal that she was going to pay for “this” for the “rest of [her] life.”
According to a retaliation claim filed again after she won, Raba told Interim that she no longer met the county’s criteria for nurse practitioner; he told Integrated that she lacked a “collaborative agreement” (which she claims he unjustly denied her), and that she was fired; told University of Chicago that she was fired for “misconduct”. In short, she could not get work because Raba was “blackballing” her.
The Seventh Circuit upheld summary judgment against Szymanski. The action taken by Raba must have been “adverse,” i.e., disseminating false reference information that a prospective employer would view as material. The court noted that giving critical information to an employment agency is not the same as disclosure of such information to an actual employer. To the extent Hunter received negative input from Raba, Hunter (and its customer Szymanski) should have refrained from using him as a reference; “That seems to be the purpose of hiring Hunter in the first place,” the court added.
The court was mystified at the allegation that U of C received negative input from Raba; neither the U of C person claimed in the lawsuit to have heard this, nor Raba, stated that there was any communication between them. Apparently to avoid this gaping hole in her case the plaintiff declared that at her deposition the U of C recruiter was instructed by her attorney not to testify about why U of C declined to hire Szymanski. She attempted to identify a nefarious reason for this instruction. “There are explanations for this instruction which have nothing to do with retaliation. Primarily self-interest,” the court observed.
Finally, the court noted, the plaintiff was her own worst enemy in her dialogue with U of C, to which she sent 287 e-mails seeking a job. The U of C application contained the usual request for references, and Szymanski wrote: “you have not received my written permission for [sic] reference check. upon submitting the application somehow my application is electronically signed. This is illegal.”