Cowan v. Prudential Ins. Co. of America

• Decision Date: 10 April 1998
• Docket Number: No. 97-1871,97-1871
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1370, 72 Empl. Prac. Dec. P 45,271 Bernice M. COWAN, Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 751

141 F.3d 751

77 Fair Empl.Prac.Cas. (BNA) 1370,

72 Empl. Prac. Dec. P 45,271

Bernice M. COWAN, Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

No. 97-1871.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 1997.

Decided April 10, 1998.

Bernice M. Cowan (argued), Chester, IL, for Plaintiff-Appellant.

Clifford A. Godinerd (argued), Thompson & Coburn, St. Louis, MO, for Defendant-Appellee.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

MANION, Circuit Judge.

Bernice Cowan was a commissioned insurance agent for Prudential Insurance Company of America. When her sales production dropped to the second lowest in her office, she was terminated but later reinstated by an arbitrator. Soon thereafter she took disability leave and was again terminated when she did not return to work after her leave expired. She sued Prudential for sex discrimination, retaliation, and constructive discharge. Cowan appeals from the district court's summary judgment for Prudential. We affirm.

I. Facts

In February 1989 Bernice Cowan began working for Prudential Insurance Company of America. Cowan worked in Prudential's Belleville, Illinois office, and claims that during the course of her employment she was treated less favorably than her male coworkers, and that she was subjected to a hostile work environment. (The particulars of these claims will be discussed in greater detail later.) Cowan also claims that when Prudential terminated her on July 22, 1991 it was because of her sex. Prudential claims that it terminated Cowan pursuant to its new nationwide "Low Production Probation" policy which ultimately authorized the termination of agents whose sales were in the bottom 20% of the agency; the Low Production Probation policy was instituted in August 1990, and in December 1990, Cowan ranked 39 out of 41 sales agents in the Belleville district, and by the end of December Cowan finished second to last among all Belleville sales agents.

After Cowan and a number of other Prudential agents were terminated under the Low Production Probation policy, the agents' union filed a nationwide grievance claiming that the policy constituted an unfair labor practice. The union and Prudential arbitrated the dispute. The union prevailed; the arbitrator ordered Prudential to offer reinstatement to all discharged agents.

Cowan accepted Prudential's offer of reinstatement and on October 21, 1991 Prudential reinstated her, although because there were no openings in the Belleville office, it assigned Cowan to the Cahokia office. Cowan claims that this constituted retaliation. Cowan also asserts that after she returned to work, co-workers retaliated against her by treating her negatively or ignoring her outright, and that this made it impossible for her to do her job. This, coupled with the location of her new assignment, caused what she perceived to be a constructive discharge.

Prudential moved for summary judgment, arguing that Cowan failed to prove that the environment at Belleville was objectively hostile, or that she was treated less favorably than male co-workers, and that it terminated Cowan because of her poor performance and not because of her sex. Finally, Prudential argued that there was no evidence supporting Cowan's retaliation or constructive discharge claims. The district court granted Prudential summary judgment on all counts. Cowan appeals.

II. Analysis

As we routinely recite in these cases, summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c); we review the district court's grant of summary judgment de novo viewing the record in the light most favorable to the nonmoving party. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7th Cir.1997). With these standards in mind, we turn to each of Cowan's Title VII claims.

A. Hostile Work Environment

The Supreme Court enlarged the scope of sex discrimination under Title VII by validating a claim for sexual harassment emanating from abusive conditions in the workplace that we now call a hostile work environment. "[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). "[F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Id. at 67, 106 S.Ct. at 2405. This requires that the conduct "adversely affect the work performance and the well-being of both a reasonable person and the particular plaintiff bringing the action...." Brooms v. Regal Tube Co., 881 F.2d 412, 419 (7th Cir.1989).

In support of her hostile environment claim, Cowan relies on her deposition testimony, an affidavit she filed after her deposition, and an affidavit filed by Donna Skouby in a separate suit Skouby filed against Prudential alleging sex discrimination. In her deposition, Cowan proffered three instances that she claimed were sexual harassment: (1) the use of a provocatively dressed cheerleader in Prudential's 1990 Football Manual, which was printed for voluntary distribution to clients; (2) the circulation in the Belleville office of a cartoon depicting two safes involved in "safe sex;" and (3) a comment made by plaintiff's district manager Larry Clark that he could do like the plaintiff and "abstain from sex." Later in an affidavit Cowan presented some additional facts as supporting her sexual harassment claim: her supervisor refused to talk to her except when it was absolutely necessary and he snubbed her in a variety of ways, such as pointedly greeting each sales representative by name except for her; men went on fishing, golfing and other social outings with each other and women were not invited to these events; on Saturday mornings male agents and managers loudly called each other crude names (which were derogatory to women); once in her presence her immediate supervisor Michael Pierce loudly referred to women as "blood-suckers," "leeches" and "dizzy broads"; the men, including the sales managers, made frequent in-office reference to PT's, a strip club in Centreville, and they would make plans to go there, or discuss their exploits at PT's approximately once per month; on one occasion, some agents circulated in the office a photograph that another agent had had taken with a stripper; sexual joking was rampant within the Belleville office; and Larry Clark asked Cowan why she did not "just get married and let some man take care" of her.

Prudential argues that we should exclude the incidents which Cowan set forth in her affidavit because she did not include them in her deposition testimony. "We have long followed the rule that parties cannot thwart the purposes of Rule 56 by creating 'sham' issues of fact with affidavits that contradict their prior depositions." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir.1996). We have also made clear that a deposition is the time for the plaintiff to make a record capable of surviving summary judgment--not a later filed affidavit. However, we also recognize that an affidavit is not meritless if "it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.1995). While there is no plausible explanation for a lapse of memory here, our review of Cowan's deposition testimony illustrates that perhaps the questioning was confusing.

In Cowan's deposition, Prudential's attorney began by asking: "Ms. Cowan, are you claiming in this lawsuit that you were sexually harassed when you worked at Prudential?" She replied: "There was one comment made to me that I considered inappropriate." Question: "Okay. Why don't you tell me who made that comment? Let's start there." Cowan then explained the circumstances surrounding the "abstain from sex" comment (and that Clark, who had made the statement, apologized the next morning). After explaining the incident she said: "There was also what I considered a very demeaning book that was published by Prudential." Prudential's attorney interrupted by saying: "Why don't I stop you, and I apologize, Ms. Cowan. What I want to do is get the details on the first one, then we'll talk the book. I will give you an opportunity, I promise." Prudential's attorney then asked Cowan more questions about the first incident. After that the attorney asked: "Now, you were starting to tell me, and I'll let you tell me about this demeaning book you called it?" Cowan then explained about the football book issued in 1989 or 1990, which included a photo of a scantily-clad cheerleader, for which the corporation later issued a companywide apology and canceled the printer's contract. The attorney then said: "any other incidents or comments relating to sexual harassment?" Cowan replied: "Well, there was a mimeographed dirty joke that was distributed in the office one day. I'm not really sure what the origin of it was, but it was very offensive." The attorney then asked Cowan some more specific questions regarding the cartoon, and then the following exchange took place:

Q. Did you complain to anybody at Prudential about this cartoon?

A. I talked with some of the agents on our staff. It was very-

Q. Did you talk to anybody in management?

A. As I recall, I believe Mike Pierce was standing there when I was discussing my disgust with it with the other agents, but I can't remember specifically saying to him. As I recall, I believe he was standing there when I was discussing it with some of the other agents on...