In the
United States Court of Appeals
For the Seventh Circuit
No. 20-1731
DEBRA EATON,
Plaintiff-Appellant,
v.
J. H. FINDORFF & SON, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:19-cv-00282-bbc — Barbara B. Crabb, Judge.
ARGUED OCTOBER 26, 2020 — DECIDED JUNE 16, 2021
Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Debra Eaton brought a Title VII
claim against J.H. Findorff & Son, Inc. (“Findorff”), asserting
that the company twice refused to hire her in retaliation for an
earlier sex discrimination charge that she had leveled against
the company. See 42 U.S.C. § 2000e-3(a). The district court
granted summary judgment in favor of Findorff and we affirm.
2 No. 20-1731
I.
Eaton is an operating engineer and a member of the
International Union of Operating Engineers Local 139 (“Local
139"). Findorff is a construction company that contracts with
unions in order to staff its job sites. Eaton was an apprentice
when she first interacted with Findorff in March 2011. On that
occasion, Local 139 dispatched her to Findorff to work as a
telehandler operator at a job site in Milwaukee known as the
Moderne Project.1 At the end of Eaton’s first day on the
Moderne Project, Findorff’s Project Superintendent, Mark
Szymkowski, terminated Eaton after concluding that her
operation of the telehandler was unsafe and that she was
inadequately trained. Local 139 filed a grievance on her behalf.
To resolve the grievance, Szymkowski and Mark Schneider,
Findorff’s General Superintendent, agreed that Findorff would
hire Eaton as a skip hoist operator when that position became
available.2
The skip hoist position became available on the Moderne
Project in August 2011, and Findorff hired Eaton as promised.
In addition to running the skip hoist, Eaton was tasked with
picking up trash that accumulated throughout the day on the
various floors of the building. Because Eaton was an apprentice
and was trying to attain journeyman status, she was required
to submit on-the-job-training reports (“Reports”) to Local 139.
1
A telehandler is a large, telescopic forklift.
2
A skip hoist is an elevator that is erected on the outside of a building
under construction. The skip hoist transports personnel and materials
from floor to floor until an internal elevator system is completed.
No. 20-1731 3
Szymkowski filled out the Reports for her, rating her on a scale
from 1 to 5 on her skills as an apprentice skip hoist operator,
with 1 indicating “unacceptable” skills, 3 marking “average”
competence, and 5 identifying ”excellent” performance.
Szymkowski privately told Eaton that she was slow and
inefficient in her operation of the skip hoist, complained that
she passed up workers waiting to be picked up, and also
criticized her for failing to pick up trash consistently. Neverthe-
less, he rated her an average apprentice when filling out the
Reports, which addressed only her technical skills in operating
the skip hoist.
In late 2011, Findorff eliminated the night shift on the
Moderne Project and found itself overstaffed with operators.
Instead of permanently laying off operators, the company
implemented a rotating layoff schedule, where different
operators were laid off each week in turn. Eaton was told that
her turn for layoff would be January 2 to January 6, 2012. The
other two skip hoist operators, both men, were allowed to
work that week. On January 27, 2012, Eaton filed a charge with
the EEOC alleging that her layoff amounted to discrimination
on the basis of sex. Sonny Femal, Findorff’s safety and compli-
ance officer, told Szymkowski that Eaton had filed a grievance
related to her temporary layoff, but Femal never told
Szymkowski that Eaton’s complaint was based on sex discrimi-
nation. Eaton never discussed the complaint with Szymkowski,
and after she failed to pursue her complaint, it was dismissed.
Eaton continued to work as a skip hoist operator at the
Moderne Project through the end of August 2012. At that point,
Findorff no longer needed a skip hoist operator and her
employment was terminated.
4 No. 20-1731
Five years later, in the summer of 2017, Eaton heard from
Louis Rupert, a Findorff laborer, that the company had an open
position for an operating engineer. At Rupert’s suggestion,
Eaton spoke to Jeff Tramel, the superintendent at Rupert’s job
site, and he directed her to Schneider. Schneider told Eaton that
there were no open operating engineer positions. Eaton
nevertheless decided to drop off her resume at Findorff, and
filled out an application in case a position opened up.
Findorff’s receptionist, Samantha Garni, received the applica-
tion. Garni was not aware of any open positions, but on seeing
from Eaton’s application that she had previously worked for
Findorff, Garni asked Szymkowski if he would be interested in
rehiring her in the future. He replied that he would not rehire
her or that he would not recommend her.
In April 2018, a position did open up at a Findorff job site.
Guy Yuker, a business associate for Local 139, told Garni that
he was dispatching Eaton for the job of elevator operator.
Recalling her conversation with Szymkowski, Garni contacted
Kim Norton, Findorff’s operations specialist, and said that she
did not believe that Findorff would hire Eaton for the operator
position. Norton then asked Yuker to send an alternate
operator, and Yuker requested that Findorff send Local 139 a
letter explaining why it did not wish to hire Eaton. Norton
consulted with Schneider and Szymkowski before sending the
letter. Szymkowski reported that Eaton was a “subpar” skip
hoist operator and that Findorff should probably look for
someone else. Norton then prepared and sent a letter to Local
139, declining to hire Eaton due to past performance issues.
Yuker conveyed this information to Eaton, and Local 139 no
longer referred Eaton to Findorff for work.
No. 20-1731 5
Eaton then filed a charge of discrimination with the EEOC
in April 2018. After receiving a right-to-sue letter from the
EEOC, Eaton filed this suit, claiming both sex-based discrimi-
nation and retaliation for having previously complained of sex-
based discrimination at Findorff. The district court granted
summary judgment in favor of Findorff, finding that Eaton had
waived her sex discrimination charge, and that she failed to
produce sufficient evidence in support of her retaliation claim.
Only the retaliation claim is at issue in this appeal.
II.
We review the district court’s grant of summary judgment
de novo, examining the record in the light most favorable to
Eaton and construing all reasonable inferences from the
evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Consolino v. Towne, 872 F.3d 825, 829 (7th Cir.
2017). Summary judgment is appropriate when there are no
genuine disputes of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477
U.S. at 256; Consolino, 872 F.3d at 829. In order to make out a
claim for retaliation, a plaintiff must demonstrate (1) that she
engaged in statutorily protected activity; (2) that her employer
took a materially adverse action against her; and (3) that the
protected activity and the adverse action are causally con-
nected. Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018);
Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010, 1019 (7th Cir.
2016); 42 U.S.C. § 2000e-3(a). To prove causation, the plaintiff
must show that “the desire to retaliate was the but-for cause of
the challenged employment action.” Gracia, 842 F.3d at 1019
(quoting University of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.
6 No. 20-1731
338, 352 (2013)). “This requires proof that the unlawful retalia-
tion would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Nassar, 570 U.S.
at 360.
Construing the evidence in favor of Eaton, the parties agree
that, for the purposes of summary judgment, she has ade-
quately demonstrated that she engaged in statutorily protected
activity when she filed her 2012 discrimination charge, and that
Findorff took a materially adverse action against her in 2018
when it refused to hire her. On appeal, Eaton argues that
Findorff’s failure to hire her in 2017 also constituted a materi-
ally adverse action, and she maintains that she has also
demonstrated that her protected activity and Findorff’s adverse
actions are causally connected.
We can address the 2017 failure-to-hire in short order:
Findorff has produced evidence that there were no operator
positions available in 2017, and Eaton has failed to offer any
evidence to dispute that conclusion.3 On appeal, she claims
only that Garni’s 2017 conversation with Szymkowski caused
her not to be considered for any future job prospects and that
this was, in and of itself, an adverse action. But until any
openings became available, she suffered no harm and there was
3
Findorff produced sworn statements that there were no operator
positions open when Eaton applied in 2017. Eaton’s testimony that Louis
Rupert told her that there was an opening cannot overcome this sworn
testimony because it is inadmissible hearsay. Rupert was not deposed and
Eaton did not obtain an affidavit from him. Inadmissible hearsay evidence
may not be considered on summary judgment. Fed. R. Civ. P. 56(c)(2);
Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016).
No. 20-1731 7
no adverse action. Without any evidence that she was denied an
open position in 2017, that claim fails.
We turn to whether Eaton has produced any evidence of
causation for Findorff’s 2018 refusal to hire her. Specifically, we
consider whether Eaton has any evidence from which a trier of
fact could conclude that Eaton’s 2012 claim of discrimination
against Findorff was the but-for cause of Findorff’s refusal to
hire her in 2018. We conclude, as did the district court, that she
has no such evidence. Findorff produced undisputed evidence
that Szymkowski and Schneider, the decision-makers who
determined that Eaton would not be hired again, did not know
that her 2012 complaint was based on discrimination. Femal,
the person who handled the complaint for the company, told
Szymkowski only that Eaton had complained about the layoff,
and did not convey the nature or basis of the complaint.
Szymkowski believed that Eaton had filed a union grievance,
as she had done in 2011 when she was terminated from the
telehandler job after one day. Eaton herself never told
Szymkowski about the grounds for her complaint.
On appeal, Eaton argues that Findorff responded to her
2012 complaint, and that because Szymkowski and Schneider
were the decision-makers, the company must have consulted
them about the complaint, and must have informed them that
it was based on sex discrimination. In order to demonstrate
that a defendant was motivated to retaliate based on the
plaintiff’s protected activity, the plaintiff must first produce
evidence that the defendant had actual knowledge of the
protected activity. Emerson v. Dart, 900 F.3d 469, 472 (7th Cir.
2018); Consolino, 872 F.3d at 830; Nagle v. Village of Calumet Park,
554 F.3d 1106, 1122 (7th Cir. 2009). It is not sufficient that a
8 No. 20-1731
decision-maker could have or even should have known about
the employee’s complaint. Nagle, 554 F.3d at 1122. See also
Tomanovich v. City of Indianapolis, 457 F.3d 656, 668–69 (7th
Cir.2006) (if an employer did not know the plaintiff engaged in
statutorily protected activity, the employer cannot be trying to
penalize the employee for engaging in that activity). At best,
Eaton argues that Szymkowski and Schneider must have
known or should have known that her 2012 complaint was
based on sex discrimination because the company responded
to her complaint. But both Schneider and Szymkowski offered
sworn testimony that they did not know that Eaton’s com-
plaint about the one-week layoff was based on sex discrimina-
tion. Imputing the company’s knowledge or Femal’s knowl-
edge to Szymkowski or Schneider is based on speculation and
cannot overcome the undisputed record evidence that:
(1) neither Femal nor Eaton herself told the decision-makers the
basis of Eaton’s complaint; and (2) neither Schneider nor
Szymkowski knew that Eaton’s complaint was based on sex
discrimination. Emerson, 900 F.3d at 473 (a finding of retaliatory
intent must be based on something other than speculation);
Consolino, 872 F.3d at 830 (speculation is not enough to create
a genuine issue of fact for the purposes of summary judgment).
Because Eaton lacks any evidence that the decision-makers
knew that she had engaged in protected activity, she has failed
to raise a genuine issue of material fact in support of causation
for her retaliation claim. The district court correctly granted
summary judgment in favor of Findorff.
AFFIRMED.