Cosgrove v. Sears, Roebuck & Co.

• Citation: 9 F.3d 1033
• Decision Date: 19 November 1993
• Docket Number: No. 260,D,260
• Parties: 63 Empl. Prac. Dec. P 42,685 Patricia COSGROVE, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee. ocket 92-7197.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1033

9 F.3d 1033

63 Empl. Prac. Dec. P 42,685

Patricia COSGROVE, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 260, Docket 92-7197.

United States Court of Appeals Second Circuit.

Argued Dec. 17, 1992.

Decided Nov. 19, 1993.

Patricia Cosgrove, plaintiff-appellant, pro se.

Dee Estelle Alpert, New York City, of counsel to plaintiff-appellant.

Noah A. Kinigstein, New York City, amicus curiae to plaintiff-appellant.

Paul Bogas, Washington, DC (Donald R. Livingston, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Carolyn L. Wheeler, Asst. Gen. Counsel, E.E.O.C.) amicus curiae to plaintiff-appellant.

Pamela S. Horowitz, Advocates at Law Chartered, Washington, DC, for defendant-appellee.

Arthur J. Ginsburg, Frankfurt, Garbus, Klein & Selz, New York City, for defendant-appellee.

Before: CARDAMONE, PIERCE and ALTIMARI, Circuit Judges.

PIERCE, Circuit Judge.

Patricia Cosgrove, pro se, appeals from a judgment entered in the United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge). Following a bench trial, the district court dismissed Cosgrove's employment discrimination complaint filed against Sears, Roebuck & Co. ("Sears") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Cosgrove alleged in her complaint that: (1) Sears discriminated against her in both compensation and promotion based upon her gender, in violation of 42 U.S.C. Sec. 2000e-2(a)(1); (2) Sears retaliated against her, and eventually fired her, following a sex discrimination complaint filed with the Equal Employment Opportunity Commission ("EEOC"), in violation of 42 U.S.C. Sec. 2000e-3(a); (3) she had been the object of harassment in the workplace; and (4) following her

termination, Sears impeded her efforts to obtain new employment. On January 10, 1992, following a bench trial, the district court determined that: (1) Sears had demonstrated a legitimate reason for Cosgrove's discharge; (2) Cosgrove had failed to prove gender discrimination; (3) Cosgrove had failed to prove sexual harassment in the workplace; and (4) Cosgrove had failed to prove post-termination discrimination. Cosgrove v. Sears Roebuck & Co., No. 81 Civ. 3482, 1992 WL 8718 (S.D.N.Y. January 10, 1992). For the reasons set forth below, we affirm in part and reverse in part, and remand the case to the district court for further proceedings.

BACKGROUND

Patricia Cosgrove's bench trial began on September 11, 1991. The evidence adduced at trial revealed the following facts: On November 4, 1969, Cosgrove was hired by Sears as a women's sportswear buyer's assistant in Department 607 (women's sportswear). On June 16, 1974, she was temporarily assigned to Department 618 (women's intimate apparel) as a trainee for the position of assistant merchandise controller. Her immediate supervisor was Raleigh Hegwood, merchandise controller for Department 618, and the head of the department was Elmer Brumfield, the national merchandise manager for the product line. Cosgrove was promoted to the position of assistant controller in Department 618 on November 1, 1974. In Cosgrove's initial position as a buyer's assistant, she was classified as a "timecard" employee, and was compensated on an hourly basis. As an assistant merchandise controller, however, she had a management position, classifying her as a "checklist" employee, and was compensated on a monthly basis. Cosgrove, as assistant merchandise controller, handled service of supply problems, such as determining when products would be shipped, and also maintained reports on accounts receivable, "sold merchandise," and other statistical data. She also supervised electronic data system employees in the department, and maintained contact with buyers.

In 1976, seven years after Cosgrove was employed, Sears adopted the Hay system of employee job and compensation evaluation. Under the Hay system, checklist employees were evaluated by their supervisor on a scale of zero to nine in fifty-eight categories in eight areas (technical knowledge, knowledge application, administrative effectiveness, work relations, response to superiors, directing subordinates, personal commitment, and source relations). Cosgrove was evaluated in seven of the eight areas. Scores were translated to six performance level ratings (distinguished, commendable, competent, adequate, fair, and unsatisfactory), which established the salary range for the position.

Prior to 1976, Cosgrove was evaluated in five categories: application, cooperation, job knowledge, resourcefulness, and attendance. In her 1973 performance evaluation, in which Cosgrove was rated "outstanding" in three of the five categories, she expressed frustration with her perception that her talents and education were not being utilized by the company. Cosgrove was first evaluated by Hegwood under the Hay system in August, 1976. Her overall performance was rated as "adequate." Based upon her rating, her compensation level was $14,556, only three dollars over the base salary level for her position. ¹ After the August evaluation, she expressed frustration with her performance rating in comparison to similarly-situated co-workers, and with the overall rating of "adequate," as she had received four "competent" ratings and only three "adequate" ratings in the seven performance areas in which she was evaluated. She also expressed dissatisfaction with her salary.

At trial, Sears claimed that Cosgrove's poor interpersonal skills had adversely affected her job performance rating. There was testimony at trial that she had problems dealing with buyers, maintained a disorganized office, did not get along with timecard employees, and generated a feeling of ill-will by her manner. Hegwood, Cosgrove's immediate Cosgrove was evaluated again by Hegwood on October 5, 1977, and received markedly poorer evaluations, with three "adequate" ratings, and four "fair" ratings. Thereafter, Cosgrove filed her first charge of gender discrimination with the EEOC on October 31, 1977, alleging unequal compensation, failure to promote, denial of training, discriminatory job evaluations, and refusal to let her view her personnel file.

supervisor, testified that complaints regarding Cosgrove became progressively worse during the Spring of 1976. On March 11, 1977, Hegwood and Brumfield had a conference with Cosgrove regarding her evaluation, after which, according to Hegwood, her performance became progressively worse. For example, she stopped speaking to Hegwood and communicated with him only through notes.

Sears' management procedure manual states that an employee must be allowed a deficiency interview in order to provide specific information regarding any deficiencies, and must be informed of specified time periods within which performance should be improved. ² On December 2, 1977, Brumfield met with Cosgrove and gave her a letter which outlined the areas in which she had received a "fair" rating. The letter stated that she had thirty days in which to improve her performance, but Brumfield extended the time period in which to improve to sixty days, which would have concluded on January 31, 1978. According to the Sears manual, following the December meeting, at least one subsequent meeting should have been scheduled between Cosgrove and Brumfield to discuss her work difficulties--this did not occur.

At the December 2 meeting, Cosgrove requested verification of criticisms of her, and complained of offensive remarks that allegedly were made to her by male co-workers, such as a comment that she should be home barefoot and pregnant and not taking a job away from a man. Cosgrove claimed that there was never any follow-up by Sears as to these matters, although Sears asserts that it investigated all of her harassment allegations. Cosgrove filed a second charge with the EEOC against Sears on January 5, 1978, alleging that her poor evaluation on December 2, 1977, was in retaliation for her first EEOC filing.

There was some disagreement at trial as to when Sears became aware of Cosgrove's EEOC charges. Cosgrove claimed that she had a conversation on November 1, 1977 with the office manager of Department 618, Betty Blake, informing her that she had filed charges with the EEOC, and that Blake later told her that "Sears would offer me a salary increase if I would drop my EEO[C] charge." Hegwood testified that he did not learn of the first EEOC charge until January 1978, when the EEOC sent Sears a copy of her retaliation charge. However, Brumfield, Hegwood's supervisor, earlier had testified in his deposition that he knew as early as mid-December 1977 that Cosgrove had filed EEOC charges against Sears.

Cosgrove was terminated from Sears on February 6, 1978, although the "Reason for Leaving" form for her termination was first prepared on January 24, 1978, one week before her sixty day period to improve would have ended. Following her termination from Sears, Cosgrove conducted a long and thorough job search, sending out hundreds of resumes. Cosgrove claimed that Sears was uncooperative in her job search by not responding to a call for a reference in one instance, and, in 1982, returning an incomplete job reference form. Cosgrove filed an amended charge of post-termination retaliation with the EEOC against Sears on April 22, 1980, alleging that Sears was retaliating against her in her efforts to seek employment elsewhere.

On June 5, 1981, after the EEOC issued a right to sue letter to Cosgrove, she filed the instant discrimination and retaliation suit against Sears in the United States District Court for the Southern District of New York. ³

On January 10, 1992, the district court issued a memorandum opinion and order concluding that Cosgrove had demonstrated, by a preponderance of the evidence, that Brumfield's "knowledge of [Cosgrove's] sex discrimination claim against Sears played a motivating role" in the decision to terminate her. Cosgro...