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Gleason v. Mesirow Financial

June 25, 1997

LORI M. GLEASON, PLAINTIFF-APPELLANT,

v.

MESIROW FINANCIAL, INCORPORATED, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 5955 James B. Zagel, Judge.

Before COFFEY, RIPPLE and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED SEPTEMBER 11, 1996

DECIDED JUNE 25, 1997

Plaintiff-appellant Lori M. Gleason ("Gleason") was terminated from her employment with the defendant-appellee Mesirow Financial, Inc. ("Mesirow") on November 2, 1992, when she was seven months pregnant. Following her termination, Gleason filed a three-count complaint against Mesirow, claiming (1) pregnancy discrimination, (2) "hostile work environment" sexual harassment, and (3) retaliatory discharge, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. sec. 2000e et seq. The district court granted summary judgment in favor of the defendant on each count. Gleason appeals. We AFFIRM.

I. BACKGROUND

Mesirow is a financial services firm that provides, inter alia, execution and clearing services on various securities exchanges for brokers/dealers who are not members of any of the national exchanges. The events in this case transpired at the firm's main office in Chicago, Illinois. In May 1991, the defendant-appellee hired Gleason as a systems operator phone clerk at its Correspondent Trading Desk ("the desk"), a position that required her to accept and accurately process orders for various securities transactions. Brokers/dealers would place such orders by telephone or by computer, and a phone clerk would then record the transaction in writing and transmit the order via computer or telephone to the appropriate exchange (e.g., the New York Stock Exchange or the Chicago Board of Options Exchange) for execution.

Greg Novak, hired in February 1992 to be the manager of the desk, supervised Gleason and the half-dozen other employees at the desk, but he had no authority to hire, fire, or promote any personnel. As the district court observed, "Novak's abrasive management style . . . was not calculated to win friends and influence people -- nor did it. Novak's overbearing behavior -- yelling, slamming down the phone, making nasty comments about clients, talking down to his fellow workers -- was the source of complaints to higher levels of management by both male and female co-workers." (emphasis added). Cassandra Armstrong, who worked with the plaintiff at the desk, found Novak "overpowering," "hyper," "unsettled," "jumpy," and "irritable." Likewise, Gleason's co-worker David Garcia referred to Novak as "generally offensive to employees and customers," "overbearing," "unprofessional," and "a jerk."

Gleason was among those who complained to management concerning Novak's generally obnoxious conduct and difficult personality, but as far as the record reveals neither Gleason nor anyone else at the desk ever raised specific concerns or allegations of sexual harassment by Novak. Four to six weeks after Novak became manager of the desk, a group of six desk employees (male and female) held a meeting with Novak to discuss objections to his management style. Armstrong was chosen to be the spokesperson for the group. She recalls "the gist of [the meeting] was that . . . we felt . . . uncomfortable [about] how he treated each of us." All of those present, including the plaintiff, had an opportunity to air their grievances. It was suggested to Novak that some of his behavior (yelling, slamming down phones) may have been acceptable in his previous position while working on the floor of a busy stock exchange, but was not considered appropriate in the more sedate and professional surroundings at Mesirow. When Novak, even after this "gripe session," persisted in "yelling and screaming and talking down to his fellow workers," Armstrong and Gleason asked to meet with William McGowan (a Senior Vice President with responsibility for the operations of the desk) concerning Novak. Armstrong and Gleason complained about Novak's being "out of line," re-iterating the concerns they and their co-workers had voiced at the earlier meeting with Novak. In Gleason's own words, they spoke of Novak's behavior "on a general basis," but she admitted that she did not use the term "sexual harassment" nor did she describe his conduct as being of a sexually harassing nature. Furthermore, neither Armstrong nor McGowan (the other two individuals present at this meeting) recalled any discussion of sexual harassment. In short, if Gleason had specific concerns about sexual harassment, she kept them to herself during the meetings with Novak and McGowan. Gleason likewise failed to utilize the complaint procedures clearly set forth in the company's sexual harassment policy, which was included in an employee handbook provided to her. The policy stated that "[a]ny employee who believes that he or she has been sexually harassed should immediately bring the matter to the attention of his or her manager, or the Human Resources Department." The policy further explained that Mesirow would investigate such complaints thoroughly and, "to the extent possible," treat them as "strictly confidential."

Although Gleason failed to raise any charges of sexual harassment while she was in the defendant's employ, in this lawsuit she alleges in some detail that Novak sexually harassed her between February and November 1992. Gleason claims that Novak: (1) flirted with her cousin (not a Mesirow employee) when she visited the office, (2) flirted with her sister over the telephone, (3) told co-workers that some female customers were "bitchy," "dumb," or suffering from "PMS", (4) spoke to another female employee about the size of her breasts, *fn1 (5) told another female employee that he liked her in tighter skirts, and (6) stood up at his desk to "ogle" women as they walked by. According to Gleason, Novak once placed an advertisement for a nudist colony on her desk and informed her that he had spent the weekend there (he had). On another occasion, Novak allegedly told Gleason, tearfully, that he had dreamt about holding hands with her.

Gleason also claims that Novak made a number of improper and allegedly discriminatory comments regarding her pregnancy. According to Gleason, Novak (1) repeatedly suggested that she ought to get a special shield for her computer screen to protect the baby from radiation emitted by the screen, (2) stated that he hoped the baby's father would support the child (Gleason was a single mother), (3) shouted out "God bless you, God bless you" upon hearing about her pregnancy, (4) asked about dietary and/or alcohol restrictions on account of the pregnancy, and (5) said that he would be willing to give her advice on "single parenting," based upon his own experience as a single father. Gleason claims that Novak persisted in commenting on her pregnancy even after she requested that he stop.

On November 2, 1992, more than a year after she was hired as a phone clerk, Gleason incorrectly processed a stock trade "sell" order and failed to report the error immediately, as required by established office protocol. Instead of promptly informing her manager, Novak, who was sitting adjacent to her at the time of the mistake, the plaintiff attempted to correct the error on her own, contrary to company policy. *fn2 According to her superiors, the misstep, coupled with Gleason's failure to follow the proper procedures, ended up costing the financial services firm approximately $24,000. The plaintiff does not dispute that she was responsible for the trading error, nor does she challenge Mesirow's position that her conduct resulted in a loss of approximately $24,000. At the time she made this costly slip-up, Gleason had previously been put "on notice" from her employer that they would no longer tolerate such mistakes, for she had been admonished in early October concerning an error that had cost her employer $1,750. *fn3 Moreover, during the very month prior to her dismissal, Gleason was in attendance at two separate meetings (on October 16 and October 19) at which desk employees were informed that clerical errors would not be tolerated, and expressly warned that a sizable error, coupled with the failure to follow established procedures, *fn4 would be grounds for dismissal. Gleason claims not to remember much of what was said during these meetings, but she did admit in her deposition testimony that she took notes during one of these meetings, and that inscribed thereon is the unambiguous statement "larger errors equals [sic] grounds for dismissal."

Gleason was the desk employee with the highest dollar-amount of errors during the time frame from February to November 1992 (approximately $29,000) and the employee with the second largest number of trading errors for that period. Following Gleason, the next most "expensive" employee at the desk had incurred losses amounting to just $10,000. Yet another employee had slightly more individual errors than Gleason (23 versus her 20), but this employee's total losses only amounted to approximately $3,000.

In light of Gleason's significant and costly mistakes in processing phone orders, and her failure to follow established verification and correction procedures, McGowan decided to dismiss Gleason from her phone clerk position, and informed her on the evening of November 2. Novak, whose position gave him no authority to make personnel decisions regarding any Mesirow employees, did not participate in the decision to terminate Gleason. In fact, when McGowan asked Novak for his opinion on the matter, the only response Novak gave was: "It's not my call." Before terminating Gleason, McGowan conferred with the President of the company, James Tyree, and Ruth Hannenberg, the firm's Managing Director/ Chief Administrative Officer (who was nine months pregnant at the time). McGowan's decision to terminate Gleason was made with "substantial input and concurrence" from Hannenberg, who has described her consultation with McGowan as follows:

At the time Mr. McGowan and I were considering Ms. Gleason's termination, one of our concerns was the hardship it might cause her during her pregnancy. We considered whether we would not terminate her just because of her pregnant status. We decided that her offenses were so serious that we should not change our decision to terminate her just because she was pregnant. However, we wanted to moderate the impact of the termination upon her. Therefore, we decided that Mesirow would pay for health insurance premium[s] through the month that her baby was born. We would not be otherwise obligated to pay for a premium for a terminated employee. . . . We did pay Ms. Gleason's health insurance premium through the month the baby was born.

As noted above, Gleason never did make any written or verbal allegations of sexual harassment by Novak at any time while employed and prior to her discharge, despite the fact that her employer had clearly published procedures (set forth in its employee handbook) for reporting such misconduct. Mesirow first learned of the alleged sexual harassment by Novak about six weeks following Gleason's termination, in a letter dated December 14, 1992 from the plaintiff's attorney. Upon receipt of this letter, the company retained outside counsel to investigate Gleason's allegations. In spite of the fact that this inquiry concluded that Novak had not engaged in sexual harassment, Novak was verbally reprimanded by Tyree and warned that if he did not alter his management style, which had been referred to by his subordinates as "crude, boorish . . ., and obnoxious," he would be terminated forthwith. Employees at the desk were informed about the results of the investigation and Novak was ordered to (and did) apologize for his past behavior.

In early 1993, Gleason filed a charge of sex discrimination against defendant-appellee Mesirow, Novak, and McGowan with the Equal Employment Opportunity Commission ("EEOC"). After obtaining a right-to-sue letter from the EEOC in July 1993, Gleason filed her complaint in the district court, alleging that (1) Mesirow terminated her because of her pregnancy, (2) defendants sexually harassed her, and (3) Mesirow terminated her in retaliation for complaining about Novak. Early in 1994, the district court dismissed the defendants Novak and McGowan, leaving Mesirow as the sole defendant. *fn5 On September 18, 1995, following extensive ...


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