Donald Rickard v. Swedish Match North America , 773 F.3d 181 ( 2014 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-3729
    ___________________________
    Donald Rickard
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    Swedish Match North America, Inc.
    lllllllllllllllllllll Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Jonesboro
    ____________
    Submitted: September 11, 2014
    Filed: December 2, 2014
    ____________
    Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
    ____________
    RILEY, Chief Judge.
    Donald Rickard sued his employer, Swedish Match North America, Inc.
    (Swedish Match), under the Age Discrimination in Employment Act of 1967 (ADEA),
    29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as
    amended, 42 U.S.C. § 2000e et seq. The district court1 granted summary judgment
    in favor of Swedish Match, and Rickard appeals. With appellate jurisdiction under
    28 U.S.C. § 1291, we affirm.
    I.    BACKGROUND
    Rickard worked for Swedish Match and its predecessors in a sales position from
    1984 until 2011, when he retired at age fifty-five. In 2007, Perry Payne, who is one
    year younger than Rickard, took the position of “retail team manager” in which he
    supervised Rickard. Rickard and Payne had an antagonistic relationship. Rickard
    objected to Payne’s managerial style and believed Payne scrutinized him more closely
    than his coworkers and unjustifiably criticized his work. Rickard contends he had
    strong sales performance throughout most of his career, but Payne consistently
    evaluated him as being at or below expectations. Payne repeatedly told Rickard to
    improve his job performance and allegedly threatened to fire Rickard on multiple
    occasions.
    In addition to these performance-based criticisms, Rickard alleges Payne
    engaged in inappropriate, crude behavior. On June 23, 2010, Payne grabbed and
    squeezed Rickard’s nipple and stated “this is a form of sexual harassment.” Payne
    also took a towel from Rickard, “rubbed it on his own crotch,” and gave “it back to
    Rickard.” Rickard reported these incidents to Payne’s supervisor. Although Payne
    denied the allegations, Payne’s supervisor documented the complaint and reprimanded
    Payne. Several other male employees complained about similar conduct from Payne
    but, after complaining to Payne’s supervisor, Rickard never experienced this crude
    behavior from Payne again.
    1
    The Honorable Kristine G. Baker, United States District Judge for the Eastern
    District of Arkansas.
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    Payne also made several comments about Rickard’s age. For example, once
    Payne stated, “you know, you’ve been here long enough, you’ve got a lot of age on
    you and you’ve been here long enough, and you know that I’m going to hold you at
    a higher level than I do some of these that have not been here but a year.” Payne also
    repeatedly referenced Rickard’s age saying, “you know, old man, you have a lot of
    years in.” Rickard never reported the age-based comments to Swedish Match
    supervisors. Rickard claims it was common knowledge among the employees that
    Swedish Match was trying to eliminate older employees and had hired Payne for this
    purpose.
    While working for Payne, Rickard began experiencing a number of health
    issues which he attributes to the stress of working with Payne. On January 31, 2011,
    Payne issued Rickard a final, written warning, which stated Rickard would be
    terminated if his performance did not improve. Rickard then took leave using his
    vacation time, sick time, and leave under Swedish Match’s Family Medical Leave Act
    policy and did not return to work again. On May 1, 2011, Rickard retired, publicly
    explaining it was due to his deteriorating health, but privately telling others he had
    been forced to retire. No one at Swedish Match asked Rickard to retire, nor was there
    ever a formal recommendation or decision to terminate Rickard.
    Rickard sued Swedish Match, alleging, among other things, a hostile work
    environment based on age and sex; constructive discharge; disparate treatment; and
    retaliation in violation of the ADEA and Title VII. The district court granted Swedish
    Match’s motion for summary judgment, finding Rickard had not offered sufficient
    evidence for a reasonable juror to find in his favor on any of the claims. Rickard now
    appeals.
    II.   DISCUSSION
    “We review de novo the district court’s decision to grant summary judgment,
    viewing the record in the light most favorable to the nonmoving party.” Pye v. Nu
    -3-
    Aire, Inc., 
    641 F.3d 1011
    , 1017 (8th Cir. 2011). To survive summary judgment, a
    plaintiff “must substantiate his allegations with sufficient probative evidence that
    would permit a finding in his favor on more than mere speculation, conjecture, or
    fantasy.” Moody v. St. Charles Cnty., 
    23 F.3d 1410
    , 1412 (8th Cir. 1994) (quoting
    Gregory v. City of Rogers, 
    974 F.2d 1006
    , 1010 (8th Cir. 1992) (internal marks
    omitted)). Although Rickard argues the district court improperly considered his
    evidence and did not credit his factual claims, many of Rickard’s argued “facts” are
    unrelated to the case at hand. “Only disputes over facts that might affect the outcome
    of the suit under the governing law will properly preclude the entry of summary
    judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    A.     Hostile Work Environment
    To prove a claim of hostile work environment, whether based on age or sex,
    Rickard must show “(1) [he] belongs to a protected group, (2) [he] was subjected to
    unwelcome harassment based on age [or] sex, (3) the harassment affected a term,
    condition, or privilege of [his] employment; (4) [his] employer knew or should have
    known of the harassment; and (5) the employer failed to take proper action.”2
    Peterson v. Scott Cnty., 
    406 F.3d 515
    , 523-24 (8th Cir. 2005), abrogated on other
    grounds by Torgerson v. City of Rochester, 
    643 F.3d 1031
    , 1043, 1059 app. (8th Cir.
    2011) (en banc).
    2
    A plaintiff need not prove the final two prongs of this framework when his
    supervisor has created the hostile environment. See Palesch v. Mo. Comm’n on
    Human Rights, 
    233 F.3d 560
    , 566 n.5 (8th Cir. 2000). Rickard contends the district
    court erred because it did not consider Payne his supervisor for purposes of his hostile
    work environment claims. We disagree. The district court explained it did not
    consider Payne to be Rickard’s supervisor because Rickard did “not argue that Mr.
    Payne was his supervisor for ADEA or Title VII hostile work environment purposes.”
    The district court further explained its conclusion would be the same regardless
    because Rickard failed to prove the other elements of his claims.
    -4-
    1.    Age-Based Harassment
    To show age-based harassment, Rickard chronicles a series of perceived
    injustices he suffered at the hands of Payne and contends these incidents evidence
    Payne’s attempt to force older employees to retire.3 Rickard presents meager evidence
    that this mistreatment was because of his age, with most of his criticisms amounting
    to little more than an attack on Payne’s crude managerial style. See Devin v.
    Schwan’s Home Serv., Inc., 
    491 F.3d 778
    , 788 (8th Cir. 2007), abrogated on other
    grounds by 
    Torgerson, 643 F.3d at 1043
    , 1058 app.
    To the limited extent Rickard actually presents evidence of age-related
    comments, he cannot show these comments “affected a term, condition, or privilege
    of [his] employment.” 
    Peterson, 406 F.3d at 523-24
    . It is not enough to allege
    “‘simple teasing’ [or] ‘offhand comments.’” 
    Id. at 524
    (quoting Faragher v. City of
    Boca Raton, 
    524 U.S. 775
    , 788 (1998)). Rather, the harassment must create “‘an
    environment that a reasonable person would find hostile and one that the victim
    actually perceived as abusive.’” Clay v. Credit Bureau Enters., Inc., 
    754 F.3d 535
    ,
    540 (8th Cir. 2014) (quoting Duncan v. Gen. Motors Corp., 
    300 F.3d 928
    , 934 (8th
    Cir. 2002)).
    Payne’s statements about Rickard’s age, even if intentionally disparaging, are
    not severe enough to be actionable. In Peterson, we found a supervisor’s repeated
    references to “old ladies,” comments from a coworker that women are lazy, and the
    supervisor’s refusal to train the plaintiff because of her age were not sufficient to give
    rise to a claim of hostile work environment based on age or sex. 
    Peterson, 406 F.3d at 524
    . Although it appears Rickard suffered because of his interactions with Payne,
    3
    While Rickard presented testimony from other former employees who agreed
    with his theory that Swedish Match tried to encourage its older employees to retire,
    without some evidence, these unsupported allegations simply are company gossip.
    Neither Rickard nor his witnesses presented anything beyond their own conjecture
    suggesting Swedish Match discriminated against Rickard because of his age.
    -5-
    a reasonable person would not have found any comments or incidents created a hostile
    environment under the law. See 
    id. Because Payne’s
    age-related comments were not
    so severe as to affect a term, condition, or privilege of his employment, Rickard’s age-
    based hostile work environment claim must fail.
    2.    Sex-Based Harassment
    To prove sex-based harassment, Rickard can (1) show the actions were
    motivated by sexual desire, (2) show his employer had a general hostility toward
    members of his sex in the workplace, or (3) offer evidence that similarly situated
    individuals of the opposite sex were treated more favorably. See McCown v. St.
    John’s Health Sys., Inc., 
    349 F.3d 540
    , 543 (8th Cir. 2003). Rickard alleges the
    squeezing and towel incidents and Payne’s general mistreatment of Rickard establish
    sex-based harassment. This claim fails because Rickard cannot show the mistreatment
    he endured was based on sex.
    Rickard appears to argue Payne was generally hostile to men in the workplace
    because Payne had squeezed the nipples of Rickard and several of Rickard’s male
    coworkers, “receiv[ing] some perverse sexual gratification.” Payne’s alleged
    behavior—while manifestly inappropriate and obnoxious—is insufficient to show
    Payne harbored hostility against men in the workplace. Rickard speculates Payne’s
    actions were motivated by sexual desire, but Rickard admits Payne never pursued a
    sexual or romantic relationship with him, and Rickard offered no evidence or
    reasonable inferences suggesting Payne’s behavior was motivated by sexual desire.
    We also reject Rickard’s assertion that the squeezing incident must have been
    sex-based harassment because Payne stated “this is a form of sexual harassment.”
    This court will not take the statement of a layperson—Payne—as definitive proof that
    his actions qualified as sexual harassment under the law. Without more than
    Rickard’s speculation, a reasonable juror could not find Payne’s actions—although
    contemptible—amounted to harassment based on sex.
    -6-
    B.      Constructive Discharge
    “To establish a case of constructive discharge, [Rickard] must show that ‘(1) a
    reasonable person in [his] situation would find [his] working conditions intolerable,
    and (2) the employer intended to force [him] to quit.’” Rester v. Stephens Media,
    LLC, 
    739 F.3d 1127
    , 1132 (8th Cir. 2014) (quoting Wilkie v. Dep’t of Health &
    Human Servs., 
    638 F.3d 944
    , 954 (8th Cir. 2011)). Rickard argues he was
    constructively discharged because of Payne’s age-based harassment, but the record
    is barren, beyond Rickard’s own conjecture, of any evidence to suggest Swedish
    Match intended to force Rickard to retire. Because Rickard has not shown sufficient
    facts to infer a hostile work environment, he also cannot prove constructive discharge.
    See Penn. State Police v. Suders, 
    542 U.S. 129
    , 147 (2004) (“A hostile-environment
    constructive discharge claim entails something more [than a hostile work
    environment].”). The district court did not err in granting summary judgment on this
    claim.
    C.      Disparate Treatment and Retaliation
    To prevail on his remaining Title VII claims, Rickard must have suffered an
    adverse employment action. See, e.g., Gibson v. Am. Greetings Corp., 
    670 F.3d 844
    ,
    856 (8th Cir. 2012); Sallis v. Univ. of Minn., 
    408 F.3d 470
    , 476 (8th Cir. 2005). “‘An
    adverse employment action is a tangible change in working conditions that produces
    a material employment disadvantage.’” 
    Rester, 739 F.3d at 1131
    (quoting 
    Wilkie, 638 F.3d at 955
    ). Rickard voluntarily retired from Swedish Match and, as discussed
    above, cannot prove he was constructively discharged. As such, he has not suffered
    an adverse employment action and cannot establish a claim for either disparate
    treatment or retaliation.
    III.  CONCLUSION
    Because Rickard has not substantiated his allegations with sufficient material
    probative evidence to support his claims beyond conjecture, we affirm.
    ______________________________
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