Rodgers v. Western-Southern Life Ins. Co.
| Decision Date | 17 December 1993 |
| Docket Number | 93-1266,WESTERN-SOUTHERN,Nos. 93-1125,s. 93-1125 |
| Citation | 12 F.3d 668 |
| Parties | 63 Fair Empl.Prac.Cas. (BNA) 694, 63 Empl. Prac. Dec. P 42,729, 62 USLW 2435 James E. RODGERS, Plaintiff-Appellee, Cross-Appellant, v.LIFE INSURANCE COMPANY, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Curry First (argued), Lawrence G. Albrecht, Gretchen E. Miller, Hall, First & Patterson, Milwaukee, WI, for James E. Rodgers.
Lawrence T. Lynch, Anita M. Sorensen (argued), Foley & Lardner, Milwaukee, WI, for Western-Southern Life Ins. Co.
Gwendolyn Young Reams, Donald R. Livingston, Robert J. Gregory (argued), Lorraine C. Davis, E.E.O.C., Office of Gen. Counsel, Washington, DC, for E.E.O.C. amicus curiae.
Before FLAUM and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
On April 27, 1989, after exhausting state administrative remedies, James E. Rodgers ("Rodgers") brought suit in federal district court against his former employer, Western-Southern Life Insurance Company ("Western-Southern"). Rodgers alleged that Western-Southern discriminated against him by creating a racially hostile environment in violation of Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment and in so doing constructively discharged him. The district court dismissed Rodgers' Fourteenth Amendment claim on the ground that Western-Southern is not a state actor. Following a bench trial, the district court held Western-Southern liable under Title VII for maintaining a racially hostile work environment and awarded back pay to Rodgers in the amount of $101,674.78 under the constructive discharge theory. The court also ordered Western-Southern to provide Rodgers with an annuity in accordance with its pension plan. Western-Southern appeals from the court's liability determination and its award of back pay. Rodgers cross-appeals from the court's failure to award front pay. For the following reasons, we affirm the district court in all respects.
James E. Rodgers was employed in the Milwaukee, Wisconsin office of Western-Southern Life Insurance Company from 1973 until 1985. Throughout Rodgers' period of employment, Western-Southern's Milwaukee office employed approximately eighteen to twenty Sales Agents who reported to four Associate Sales Managers who, in turn, reported to one District Sales Manager. The District Sales Manager during this entire period was William Mann ("Mann"). In addition to supervising the overall operation of the Milwaukee office, Mann also hired all Sales Agents, including Rodgers. Mann is a white man; Rodgers is a black man.
Rodgers began his tenure with Western-Southern as a Sales Agent, a position that required Rodgers to sell insurance policies, collect premiums from policyholders, negotiate policy loans and transfers, and perform weekly and monthly accounting of the premiums he collected. As of 1973, four of the Milwaukee-based Sales Agents were black, and that number increased to six or seven by the time Rodgers quit in 1985. By all accounts, Rodgers compiled an outstanding record as a Sales Agent and experienced no significant conflicts with any of the Associate Sales Managers who supervised him.
In 1980, Rodgers received a promotion to Associate Sales Manager, a position which he held until his resignation in 1985. At that time, two black men--Rodgers and Mark Thomas ("Thomas")--and two white men filled the four Associate Sales Manager positions. Rodgers' duties as a Associate Sales Manager consisted of supervising five Sales Agents, reporting directly to District Sales Manager Mann on a daily basis, assisting the Sales Agents in making sales, training new Sales Agents, and assisting the new agents in their preparation for the state insurance sales licensing examination. In addition to performing their own duties, Associate Sales Managers also were expected to service "open accounts"--accounts vacated when one of the Sales Agents quit--until a replacement Sales Agent was hired. Not surprisingly, these extensive duties required Associate Sales Managers to work long hours. In a typical week, Rodgers and his colleagues logged twelve-hour days from Monday through Friday, and often put in several more hours on Saturday and occasionally on Sunday.
It is undisputed that Mann and the Associate Sales Managers had a difficult working relationship. In fact, Western-Southern concedes that Mann regularly resorted to profanity and personal insults in trying to motivate his subordinates. Many of Mann's insults, at least on their face, were race-neutral. For example, Mann routinely referred to the Sales Managers as "knobheads," "knuckleheads," "dunderheads," and "goons." When Mann wished to summon Rodgers to his office, Mann referred to Rodgers by his nickname, Rabbit, apparently to the amusement of the other agents. Mann also admonished Rodgers on one occasion with the statement: "You must think you're back in Arkansas chasing jackrabbits." The parties dispute whether this last statement, though neutral on its face, has racial overtones. The district court found that Rodgers "not unreasonably construed [this remark] as a racial slur intended to malign his black, southern heritage and to suggest that he should not have become an insurance agent." Finally, in addition to verbal abuse, on one occasion Mann emptied the contents of Rodgers' desk drawers onto Rodgers' desktop because he was unable to find something in the desk.
Mann's comments were not limited to race-neutral epithets. Rodgers testified that Mann used the word "nigger" twice in Rodgers' presence. Rodgers' colleague, Mark Thomas, testified that he heard Mann use the term "nigger" five to ten times during Thomas' tenure with Western-Southern. About six months before Rodgers quit, Mann stated in a bold, demanding tone: "You black guys are too fucking dumb to be insurance agents." Mann conceded that he might have made this statement. On another occasion, Mann told Rodgers that Mann's boss, Divisional Vice-President Dennis Lehman ("Lehman") had advised Mann not to hire any more black agents.
On two occasions, Mann's comments at sales managers' meetings so angered Rodgers that he walked out, but neither Rodgers nor Thomas ever directly confronted Mann regarding his racially offensive comments. By 1983, Rodgers began to experience physical problems that he attributed at trial to the combination of harsh treatment and racist language to which Mann subjected him at work. Rodgers received medical treatment, including stress therapy, which he discontinued after one year because the constant pressure at work limited the treatment's effectiveness.
Despite his job-related stress, Rodgers continued to work as an Associate Sales Manager. Early in 1985, one of Rodgers' Sales Agents quit, leaving Rodgers with an open account to service in addition to his other duties. In March, 1985, Mann increased the size of the open account from $23,000 in average annualized premium to approximately $80,000. The parties disagree as to Mann's motivation for this increase, but after weighing the evidence adduced at trial, the court found that Mann's enlargement of the open account was not racially motivated. Nevertheless, Rodgers reached the conclusion that he could not cope with the additional work load on top of the work-related stress he already was experiencing. At this point, Rodgers asked Mann for a demotion from Associate Sales Manager to Sales Agent. Mann persuaded Rodgers to reconsider his request by agreeing that Rodgers could reduce his responsibility for servicing accounts to two nights a week. This agreement was short-lived. Within a few weeks, Mann threatened to fire Rodgers because he was not spending enough time servicing accounts. Finally, in early May, Mann informed Rodgers that one of Rodgers' Sales Agents, Michael Taylor ("Taylor"), would be fired because Taylor had failed his licensing examination for the second time. Rodgers, fearing the prospect of having to service a second open account, orally renewed his request to be demoted to Sales Agent. Both Rodgers and Mann were aware that such a request should have been made in writing, but Mann advised Rodgers that Mann would not consider such a request in any case. Mann stated that Rodgers could either remain as an Associate Sales Manager or quit. On May 20, 1985, Rodgers quit. Rodgers' resignation letter provided as follows:
Dear Mr. Mann:
Due to my health and other things as of Monday, May 20, 1985, I will no longer be working for Western-Southern Life Insurance Co.
Sincerely,
After Rodgers resigned, Mann attempted to contact Rodgers in an effort to persuade him to reconsider. Mann's personal efforts to contact Rodgers failed, so Mann asked Thomas to try reaching Rodgers. Two weeks later, Thomas spoke with Rodgers, but was unable to convince him to return to Western-Southern. Following his resignation, Rodgers worked for a few months for John Deere Insurance Company. In 1987, Rodgers accepted employment as a job placement specialist with the Next-Door Foundation, a community service organization, where he continued to work through the date of the trial. Mann was transferred to Western-Southern's Indiana office in 1986.
On July 19, 1985, about two months after his resignation, Rodgers filed a timely charge of discrimination with the Wisconsin Equal Rights Division of the Department of Industry, Labor, and Human Relations ("ERD"). On January 25, 1989, an ERD administrative law judge determined that Rodgers had failed to prove by a fair preponderance of the evidence that Western-Southern had violated the Wisconsin Fair Employment Act by discriminating against Rodgers on the basis of his race. 1 On April 3, 1989, Rodgers received notice of his right to sue from the EEOC. He filed suit in federal district court on April 27, 1989.
Following a two-day bench trial, the district court issued its decision...
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