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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Cowan v. Prudential Ins. Co. of America, 141 F.3d 751 (7th Cir. April 10, 1998)

Keywords: Title VII (sex discrimination, probation, constructive discharge; hostile work environment sexual harassment; retaliation)

Introduction: Bernice Cowan sued Prudential under Title VII alleging various theories of sex discrimination and retaliation. The district court granted summary judgment on behalf of Prudential. The Seventh Circuit affirms.

Facts: Cowan was a commissioned insurance agent for Prudential. In 1990, Prudential instituted a "Low Production Probation" policy, which authorized the termination of agents whose sales were in the bottom 20% of the agency. At the end of December 1990, Cowan ranked 40 out of 41 sales agents in the Belleville, Illinois district. She and a number of other agents were terminated. The agents' union filed a nationwide grievance claiming that the policy constituted an unfair labor practice. The union prevailed in arbitration and Prudential had to reinstate all discharged agents. Prudential could not reinstate Cowan to the Belleville office because no positions were available. It assigned Cowan to the Cahokia office on October 21, 1991. Cowan considered this assignment a demotion. Cowan claims that her co-workers retaliated against her and that this retaliation coupled with the location of her new assignment caused what she perceived to be a constructive discharge.

Law:

1. To establish a hostile work environment, a plaintiff must show that the harassment was sufficiently severe or pervasive to alter the working conditions on both an objective and subjective basis.
2. The Seventh Circuit holds that Cowan's allegations do not meet the objective test:
   1. Prudential used a provocatively dressed cheerleader in its 1990 Football Manual that was circulated to clients.
   2. At the Belleville office a cartoon depicting two safes having "safe sex" was circulated.
   3. Cowan's district manager made a comment that he could do like the plaintiff and "abstain from sex."
   4. Male sales representatives socialized together outside of the office.
   5. On Saturday mornings, male agents called each other crude names (which were derogatory to women).
   6. In her presence, Cowan's immediate supervisor referred to women as "blood-suckers," "leeches" and "dizzy broads."
   7. Approximately once a month, men in the office discussed a strip club they visited.
   8. On one occasion a photograph was circulated showing a male employee with a stripper.
   9. Sexual joking was rampant.
   10. Cowan's district manager asked Cowan why she did not "just get married and let some man take care" of her.
3. Also, Cowan cannot rely on evidence presented in the case of a female co-worker, Donna Skouby, because Skouby's record is not part of the record in this case; there is no evidence that Cowan was ever exposed to the same circumstances as Skouby and Cowan cannot rely on alleged harassment of which she is not aware because it could not have subjectively offended her.
4. Probation and termination claims
   1. Cowan argues that she was placed on probation and eventually discharged because of her sex.
   2. Cowan failed to provide sufficient direct evidence because the males who allegedly exhibited discriminatory animus against women were not involved in the decision to place Cowan on probation and to terminate her.
   3. Cowan failed to provide sufficient indirect evidence because she failed to establish her prima facie case (that Cowan was meeting Prudential's legitimate expectations); and she failed to show that Prudential's nondiscriminatory reason for her discharge was pretextual.
5. Retaliation
   1. Cowan failed to establish a causal link between her protected activity and the adverse employment action.
6. Post-reinstatement discrimination and constructive discharge
   1. Cowan failed to present any specific evidence that male agents were treated more favorably.
   2. She also claims that she was forced to take disability leave and that she eventually left Prudential -- and that this constituted a constructive discharge. But she took disability leave because of two assaults by street thugs.
7. Therefore, the Seventh Circuit affirms the district court's grant of summary judgment.
8. Click here to see actual case.