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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
BERNADINE E. MATTHEW S, Plaintiff, v. W ISCONSIN ENERGY CORPORATION, INC., Defendant. Case No. 05-CV-537

ORDER
This case comes before the court on a second motion for summary judgment following a remand by the Seventh Circuit Court of Appeals and the subsequent reopening of discovery. Plaintiff Bernadine Matthews ("Matthews") alleges that her former employer, defendant W isconsin Energy Corporation, Inc. ("Wisconsin Gas"1 ), breached a provision of their settlement agreement regarding the type of information W isconsin Gas could give in response to a reference request. Wisconsin Gas now moves for summary judgment on this remaining claim for breach of contract. Based on the reasoning set forth below, the court will deny the motion 2 .

The defendant asserts that it is im properly identified as "W isconsin Energy Corporation, Inc.," and should instead be identified as the "W isconsin Gas Com pany." The defendant refers to itself as "W isconsin Gas" and the court will do the sam e throughout its order. Matthews filed a m otion requesting oral argum ent on the instant sum m ary judgm ent m otion. However, the court finds that oral argum ent is unnecessary because it can render a decision based solely on the record and the subm itted briefs.
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BACKGROUND Matthews was employed by W isconsin Gas for nearly twenty years, from 1980 until 1999. The relationship between the two soured and the parties executed an Employment Separation Agreement in 1999. Four years later, Matthews filed suit alleging that certain responses W isconsin Gas made to companies seeking employment references for her violated the agreement. The parties resolved their dispute and executed a new written settlement agreement on December 23, 2003. The settlement agreement addresses the manner in which W isconsin Gas may respond to inquiries regarding Matthews, and reads in relevant part: W isconsin Gas agrees to respond to any request for a reference regarding Matthews in a manner that is consistent with the W isconsin Gas policy in place regarding reference checks at the time. W isconsin Gas will not respond to any request for a reference regarding Matthews by indicating that Matthews was terminated or fired from W isconsin Gas. W isconsin Gas's policy regarding reference checks from third parties was to confirm the dates of the individual's employment and the title of the last position held by that individual. Over the next two years, Matthews applied for a number of jobs and several employers contacted W isconsin Gas for references. Matthews believed that

W isconsin Gas was providing unflattering responses to the reference checks, in violation of the settlement agreement, and filed the instant lawsuit on May 13, 2005. Matthews's original complaint asserted claims for breach of contract, retaliation in

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violation of Title VII of the Civil Rights Act of 1964, defamation, and intentional infliction of emotional distress. Shortly after filing her suit, Matthews enrolled in a program through the Social Security Administration called "Ticket to W ork," a program that would allow her to reenter the job market while still receiving benefits. Matthews also retained the services of Howard Schwartz ("Schwartz"), an employment consultant providing outplacement services for the Social Security Administration who specialized in assisting disabled individuals in finding work. Matthews informed Schwartz early on in their relationship that she believed W isconsin Gas was not providing positive reference information to prospective employers. Thereafter, in September 2005, Schwartz revised Matthews's resume to omit her nearly 20-year employment history with W isconsin Gas. Schwartz sent a copy of the revised resume to Matthews and her attorney on or around September 23, 2005, and recommended that Matthews use the revised version. Schwartz received authorization to use the revised resume approximately one week later. However, Schwartz also followed up on Matthews's claims by contacting W isconsin Gas before distributing the revised resume. On October 15, 2005, Schwartz sent a letter to the W isconsin Gas Human Resources Manager identifying himself as a government contractor who assists in job placement, and requesting confirmation of Matthews's work history. Lynne English ("Attorney English"), an in-house attorney for W isconsin Gas, contacted Schwartz via telephone on October 19, 2005. During the conversation, Attorney -3-

English asked questions about Matthews's participation in the Social Security program and informed Schwartz that Wisconsin Gas was engaged in litigation with Matthews regarding how the company responds to reference requests. After his phone call with Attorney English, Schwartz began distributing the revised version of Matthews's resume excluding her employment history with W isconsin Gas to a number of business contacts. Matthews herself did not

distribute the revised resume; the two resumes she submitted to potential employers after October 2005 listed her job history with W isconsin Gas. Schwartz

disseminated revised resumes, but he also submitted resumes listing Wisconsin Gas to the following potential employers: the Social Security Administration, Extended University, the United States Department of Labor, and Home Instead. Meanwhile, the litigation between Matthews and W isconsin Gas was proceeding. In August 2005, this court dismissed Matthews's claims for Title VII retaliation and intentional infliction of emotional distress without prejudice. Matthews filed an amended complaint, but did not re-assert her intentional infliction of emotional distress claim. In March 2007, the court granted summary judgment to W isconsin Gas on Matthews's remaining counts alleging Title VII retaliation, breach of contract, and defamation. Matthews subsequently appealed. On July 7, 2008, the Seventh Circuit Court of Appeals issued a decision affirming the majority of the court's decision. The Seventh Circuit did, however, reverse the grant of summary judgment on Matthews's breach of contract claim and vacate the award of attorneys' -4-

fees to W isconsin Gas. The Seventh Circuit held that a jury could find a breach of contract based on the reference W isconsin Gas provided to Schwartz because Attorney English provided him with more information than simply Matthews's dates of employment and final position. The Seventh Circuit then remanded the case for further proceedings consistent with its opinion. The case returned before this court and W isconsin Gas moved to reopen discovery for the limited purpose of exploring facts surrounding Schwartz and his attempts to assist Matthews in her job search. The court granted this motion on

December 18, 2008, and provided additional deadlines. W isconsin Gas filed a second motion for summary judgment on June 8, 2009, and this motion is now before the court.3

3 W isconsin Gas also filed a m otion to strike portions of Schwartz's declarations and the portions of Matthews's response brief which rely upon them because certain statem ents contained in Schwartz's declarations allegedly contradict his earlier deposition testim ony. W isconsin Gas bases its argum ent on the Seventh Circuit Court of Appeals' holding that parties cannot "thwart the purposes of" sum m ary judgm ent "by creating `sham ' issues of fact with affidavits that contradict their prior depositions." Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168 (7th Cir. 1996).

The court will deny the m otion to strike, however, because the challenged statem ents do not directly contradict Schwartz's deposition testim ony when considered in context and against the entirety of his testim ony. See Allied Signal, 75 F.3d at 1168 (stating that a grant of sum m ary judgm ent is only appropriate "when a witness has contradicted directly his or her own earlier statem ent without explaining adequately the contradiction or without attem pting to resolve the disparity."). Because the declaration statem ents are not plainly incredible and can be reconciled with Schwartz's deposition testim ony, the rem aining determ inations of whether to believe the statem ents and how m uch weight to assign to them are m atters for the jury. See Patton v. MFS/Sun Life Financial Distributors, Inc., 480 F.3d 478, 488 (7th Cir. 2007) ("a court m ust exam ine the particular circum stances of a change in testim ony to see whether it is plainly incredible or m erely creates a credibility issue for the jury.").

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DISCUSSION W isconsin Gas moves for summary judgment on Matthews' sole surviving claim for breach of contract. A grant of summary judgment is appropriate where the moving party establishes that there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Material facts" are those facts which "might affect the outcome of the suit," and a dispute about a material fact is "genuine" if a reasonable finder of fact could find in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party opposing summary judgment cannot simply rest on allegations or denials in its pleadings, but rather, it must also introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial. Anders v. Waste Management of Wisconsin, 463 F.3d 670, 675 (7th Cir. 2006). The court views all facts and draws all reasonable inferences in favor of the nonmoving party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir. 2006). The Seventh Circuit Court of Appeals reversed the grant of summary judgment on Matthews's breach of contract claim after concluding that a jury could find that W isconsin Gas breached the settlement agreement between the parties based on the reference Attorney English provided to Schwartz. Matthews v. Wisconsin Energy Corp., Inc., 534 F.3d 547, 557-59 (7th Cir. 2008). The Seventh Circuit then remanded the case for "further proceedings consistent with this opinion." -6-

Id. at 559. The parties have widely differing views about the implications of this statement for the instant motion for summary judgment. W isconsin Gas believes that the Seventh Circuit Court of Appeals' opinion allows this court to decide the case based on its second summary judgment motion, while Matthews believes that the opinion precludes this court from considering a second summary judgment motion and requires the claim to be decided by a jury. W isconsin Gas interprets the Seventh Circuit's opinion as holding that Schwartz may have edited Matthews's resume after his conversation with English and may have suffered damages from a lost job, and that the court remanded the case for resolution of this issue. W isconsin Gas argues that no genuine issue of fact remains as to whether these "possible" events actually occurred and that summary judgment is now appropriate. Matthews, however, interprets the opinion as remanding for a resolution of the issue by a jury only and that a grant of summary judgment directly contradicts the Seventh Circuit's instructions. This court believes that the remand "for further proceedings" allows it to consider W isconsin Gas's summary judgment motion, though the outcome of this debate is ultimately irrelevant. The claim will reach a jury regardless because the court must deny summary judgment after construing all facts in favor of Matthews. After determining that it may consider W isconsin Gas's second motion for summary judgment, the court now turns to the merits of the motion. W isconsin Gas argues that it is entitled to summary judgment on the breach of contract claim because Matthews cannot establish any damages arising from the alleged breach -7-

of the settlement agreement. To establish a breach of contract in W isconsin, "the plaintiff must show a valid contract that the defendant breached and damages flowing from that breach." Matthews, 534 F.3d at 553 (citing Northwestern Motor Car, Inc. v. Pope, 51 W is. 2d 292, 296, 187 N.W.2d 200 (W is. 1971)). W isconsin Gas does not contest that a breach of the settlement agreement occurred. Indeed, the Seventh Circuit explicitly stated that the information provided by Attorney English to Schwartz during their October 19, 2005 phone call precludes a finding of summary judgment on this point: Neither participant in the conversation denies that English told Schwartz of Matthews's litigation history. This information went well beyond the objective information concerning Matthews's dates of employment, final salary, and final position held. A jury could believe Schwartz's version of the conversation, which included what would be unfavorable information regarding Matthews. And it could likewise conclude that the parties agreed that W isconsin Energy would provide only the objective information set out in its "policy." If so, this would show that W isconsin Energy breached the settlement agreement. Matthews, 534 F.3d at 557. Instead, W isconsin Gas concentrates its argument on the second element of a breach of contract claim

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