Larry D. Montandon v. Farmland Industries ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2629
___________
Larry D. Montandon, *
*
Appellant, *
*
Tish Walker Montandon, *
* Appeal from the United States
Plaintiff, * District Court for the
* Northern District of Iowa.
v. *
*
Farmland Industries, Inc., a KS *
Corporation; Michael Ehlers; *
Gene Todd, *
*
Defendants/Appellees. *
___________
Submitted: February 13, 1997
Filed: June 26, 1997
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Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF,1 District Judge.
___________
1
The HONORABLE RICHARD G. KOPF, United States District Judge for the
District of Nebraska, sitting by designation.
WOLLMAN, Circuit Judge.
Larry Montandon appeals the district court’s2 grant of summary judgment in
favor of Farmland Industries (Farmland) on Montandon’s discrimination claims under
Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq., and
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. We affirm.
I.
Montandon was employed with Farmland from September 1967 until May 13,
1994. During the time relevant to this case, Montandon was the Assistant Hog
Procurement Manager at Farmland’s Denison, Iowa, processing plant. His duties
involved the purchase of the 7,500 hogs butchered daily at the plant and supervision
of the yard and the office. Michael Ehlers, Plant Procurement Manager, was
Montandon’s direct supervisor, and Gene Todd, Director of Hog Procurement, was
Ehlers’ supervisor.
Montandon’s harassment claim is based on Ehlers’ behavior. According to
Montandon, Ehlers used vulgar, profane language, slammed things, stomped around,
loudly reprimanded employees, and used intimidation. For example, in April of 1992,
in the presence of three local hog buyers and the office staff, Ehlers slammed his fist
on Montandon’s desk and said to Montandon, “You don’t buy no f---ing hogs from the
Crete buying staff, you buy the f---ing hogs from my people.”
Montandon reported this conduct to Todd on April 17, 1992. A year later, at a
meeting on April 19, 1993, Montandon and four other employees informed Joyce Hurt,
Farmland’s Director of Human Resources, of Ehlers’ behavior.
2
The Honorable John A. Jarvey, Chief United States Magistrate Judge for the
Northern District of Iowa, to whom this case was referred with the consent of the
parties pursuant to 28 U.S.C. § 636(c)(3).
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Montandon’s retaliation claim revolves around the events that occurred after
Montandon complained of Ehlers’ behavior. Montandon had originally resided in
Denison, but moved to Omaha, Nebraska, in January of 1991. Montandon states that
he had informed Todd of his move and that Todd had not voiced any objection at that
time. On May 24, 1993, however, Todd and Ehlers informed Montandon that he would
have to move back to Denison by September 1, 1993. On June 7, 1993, Montandon
received a score of 157 on his performance review, thirty points lower than his score
in 1992.
On August 16, 1993, Montandon informed Ehlers that he would not move to
Denison, in response to which Ehlers told him he need not report to work any longer.
On September 20, 1993, Montandon sent a letter to Todd stating that he had not
voluntarily resigned and wanted to return to work. When Montandon asked whether
he would have to move to Denison to retain his job, Todd informed him he would live
where he could best meet the needs of Farmland.
Montandon did not resume work and took sick leave until March 1, 1994.
Montandon testified that he had suffered knots in his stomach every morning before
going to work at Farmland. Montandon’s consulting psychologist was of the opinion
that Montandon was suffering from fatigue and loss of appetite. Montandon believed
that these symptoms constituted a disability and requested that Farmland accommodate
him by eliminating or limiting his contact with Ehlers. Farmland declined to do so and
informed Montandon that he must report to work or request a leave of absence before
May 12, 1994. Montandon failed to respond and was terminated on May 13, 1994.
Montandon filed suit alleging sexual harassment, retaliation, and disability
discrimination. The district court held that Montandon failed to establish a prima facie
case of sexual harassment; that Montandon’s retaliation claim failed because he did not
adduce evidence rebutting Farmland’s legitimate reason for requiring Montandon to
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move to Denison and for his receiving a lower score on his yearly evaluation; and that
Montandon failed to establish that he was disabled.3
II.
We will affirm a grant of summary judgment if the evidence, viewed in the light
most favorable to the nonmoving party, establishes that no genuine question of material
fact exists and that the moving party is entitled to judgment as a matter of law. See
Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994).
Montandon first argues that the district court erred in finding that he had failed
to establish a prima facie case of sexual harassment. To prevail, Montandon was
required to show that he was a member of a protected group, that he was subjected to
unwelcome harassment based on sex, that the harassment affected a term, condition,
or privilege of his employment, and that Farmland knew or should have known of the
harassment and failed to take remedial action. See Smith v. St. Louis University, 109
F.3d 1261, 1264 (8th Cir. 1997); Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559,
564 (8th Cir. 1992).
A male may assert a claim of sexual harassment against another male. See Quick
v. Donaldson Co., Inc., 90 F.3d 1372, 1377 (8th Cir. 1996).4 That harassment,
3
Montandon also alleged Title VII claims against Todd and Ehlers in their
personal capacities, as well as constructive discharge and intentional infliction of
emotional distress claims. His wife, Tish Walker Montandon, claimed loss of
consortium. The district court dismissed these claims. Because they have not been
raised on appeal, they are deemed abandoned. See Jasperson v. Purolator Courier
Corp., 765 F.2d 736, 740-41 (8th Cir. 1985).
4
It remains to be seen whether our holding in Quick will remain the law. See
Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118 (5th Cir. 1996) (holding that
Title VII does not address same-sex harassment), cert. granted, 65 U.S.L.W. 3432
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however, must be based on the complaining person’s sex. See id. at 1378. Whether
harassing conduct constitutes discrimination based on sex is determined by inquiring
whether “‘members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.’” Id. at 1379 (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).
Montandon alleges that Ehlers’ yelling, gesturing, and use of foul language
constituted harassment based on sex. Montandon testified, however, that Ehlers’
treatment of employees did not depend on their sex but on the degree to which Ehlers
disliked a particular employee:
Q: Well, how were women treated differently from men in the
Denison hog office?
A: It depends on who you were.
Q: Well, how were women treated differently from men in the
Denison procurement office?
A: How were women treated differently? If [Ehlers] didn’t like
somebody, he would treat them like dirt. And if he liked the guy,
they could do no wrong.
Q: Mr. Montandon, are you saying that Mr. Ehlers treated all of the
women bad, but he treated the guys okay?
A: Not all the guys, no.
Q: How were women treated differently from men, if at all, by Mr.
Ehlers?
(U.S. June 9, 1997) (No. 96-568).
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A: If he liked a woman, they could do no wrong. If he didn’t like a
woman, he would raise his voice and point fingers and whatever,
and the same thing with men. So they were equal as far as being
treated -- I mean, there was no sexual preference. It’s just who he
did like and who he didn’t like is what it amounted to.
In light of this testimony, we agree with the district court that “[a]lthough Ehlers’
conduct was offensive and unprofessional, [Montandon] has failed to show that it was
based on sex.”
Montandon asserts that he was present when Ehlers “hoot[ed], holler[ed], and
whistl[ed]” at a female co-worker. This allegation cannot support Montandon’s claim
of harassment, however, because it was not harassment based on Montandon’s sex.
See Quick, 90 F.3d at 1378. Moreover, this one incident cannot be considered so
“severe or pervasive” as to fall within the purview of Title VII. Harris, 510 U.S. at 21.
Montandon also mentions that he saw Ehlers grab his testicles on two occasions.
Montandon admitted in deposition, however, that he didn’t know “if [Ehlers’ grabbing]
was nervousness or what,” that Ehlers “could have been scratching” or “rearranging,”
as the grabbing lasted only a “three or four seconds,” and that it was “not [offensive]
to [him], but to the women [he was] sure it was.” This conduct, unoffensive to
Montandon, cannot support his sexual harassment claim. See Quick, 90 F.3d at 1378.
III.
Montandon next argues that the district court erred in granting summary
judgment in favor of Farmland on his retaliation claim. To establish a prima facie case
of retaliation, a plaintiff must show that he engaged in statutorily protected activity, that
the defendant took adverse action against him, and a connection between the two. See
Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995), cert. denied,
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116 S. Ct. 1319 (1996); Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir. 1993). The
defendant may then rebut the plaintiff’s case by advancing a legitimate, nonretaliatory
reason for the adverse employment action. See Ruby v. Springfield R-12 Pub. Sch.
Dist., 76 F.3d 909, 911 (8th Cir. 1996). If the defendant makes this showing, the
plaintiff must show that the defendant’s proffered reason was a pretext for illegal
retaliation. See id.
To establish that he engaged in statutorily protected activity, Montandon need
not prevail on his underlying Title VII claim. See Sisco v. J. S. Alberici Constr. Co.,
Inc., 655 F.2d 146, 150 (8th Cir. 1981). He must, however, have a reasonable belief
that his activity was protected by Title VII, Evans, 65 F.3d at 100, and “cannot avoid
scrutiny of his claims” merely by claiming such a belief. Id. at 101.
The record does not support a claim that Montandon believed that his complaint
regarding Ehlers’ conduct was protected by Title VII or that such a belief would be
reasonable. Montandon does not contend that he suggested in his complaint to Todd
in 1992 that his sex was the basis for Ehlers’ behavior. In the meeting with Hurt,
discrimination based on Montandon’s sex was never posited as a basis for Ehlers’
conduct. As indicated above, Montandon’s own testimony reveals that he was aware
that all employees, not only those of a particular sex, were subject to Ehlers’
inappropriate behavior.
Montandon has also failed to show that he suffered an adverse employment
action. The adverse actions Montandon alleges are the requirement that he move to
Denison and his 1993 employment evaluation. Although “actions short of termination
may constitute adverse actions within the meaning of the statute,” Smith, 109 F.3d at
1266, “not everything that makes an employee unhappy is an actionable adverse
action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); see Mattern v.
Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997). Rather, the action must
have had some adverse impact on Montandon to constitute an adverse employment
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action. See Mattern, 104 F.3d at 708; Williams v. Bristol-Myers Squibb Co., 85 F.3d
270, 274 (7th Cir. 1996).
The requirement that Montandon move did not entail a change in position, title,
salary, or any other aspect of his employment. However unpalatable the prospect may
have been to him, the requirement that Montandon move to Denison did not rise to the
level of an adverse employment action. See Williams, 85 F.3d at 274 (transfer that
does not involve demotion in form or substance, or change in pay or working
conditions, does not constitute adverse employment action).
Similarly, Montandon has not shown that his 1993 evaluation was negative.
Although it was thirty points lower than his 1992 evaluation, it still merited a “meets
expectations” score. The 1993 score was based on new and expanded evaluation
categories, and Montandon has not explained the relationship between the new and
previous evaluation systems. Moreover, because this evaluation was never used as the
basis for any action against Montandon, it cannot fairly be considered an adverse
employment action. See Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.
1994) (“meets expectations” score on a new scale, lower than previous evaluations,
fails to establish adverse employment action absent evidence showing that such score
is in fact negative); Smart, 89 F.3d at 442 (“There is little support for the argument that
negative performance evaluations alone can constitute an adverse employment
action.”).
Even assuming that Montandon established a prima facie case, we agree with the
district court that Farmland established legitimate, nonretaliatory reasons both for
Montandon’s lower 1993 evaluation and the requirement that Montandon move.
Montandon’s 1993 score is consistent with his evaluation history, which shows a
decline from 210 in 1991 to 187 in 1992. In addition, although Montandon improved
his scores in hog purchasing and plant maintenance, his scores in some of the categories
added to the evaluation in 1993 were low and resulted in a lower total score.
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Furthermore, Montandon scored low in maintaining producer and area pork industry
relations, an area in which Montandon’s need for improvement was noted by Todd in
1989 and by Ehlers in Montandon’s 1992 evaluation. Ehlers stated in 1992 that
“Increased participation within this area of performance will be required. This must be
done to keep Farmland in [a] competitive/acceptable position.”
Montandon argues that a jury could question the low evaluation score given by
Ehlers in light of the testimony of two of Montandon’s co-workers that Montandon was
a devoted, capable, and reliable employee. The categories in which Montandon’s
scores were low, however, were specific: supervision and training of personnel and
producer and area pork industry relations. Montandon has adduced no evidence
showing that his scores in these specific categories were unwarranted. The testimony
of Montandon’s co-workers, who are not alleged to have any managerial or supervisory
training or experience, would have little bearing on Montandon’s evaluations in these
specific categories.
Farmland also adduced legitimate reasons for requiring Montandon to move. The
perception that Montandon was not spending enough time in the Denison area was first
documented in 1989, and Ehlers indicated in Montandon’s 1992 review that Montandon
would be required to spend more time with local farmers and cooperatives. Montandon
admitted in his deposition that Ehlers informed him during that review that he would
prefer that Montandon move to Denison. In addition, other Farmland employees,
including Todd, had been required to move to the areas where they work.
Montandon argues that although he was informed as early as 1989 that he should
spend more time with local producers, it was not until May 24, 1993, that he was told
that he would be required to move to Denison. Montandon contends that Todd could
specify only two instances in which Montandon was unavailable -- once when a swine
specialist tried to reach Montandon, and once when the Denison facility flooded and
Montandon did not come in to clean up on Saturday when all other employees did,
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although he did come in on Sunday. Montandon explains that he was on vacation
during both incidents and that the flood incident happened after he was instructed to
move. He also asserts that he attended local fairs, dinners, and other functions, rode
with country buyers, and would talk to producers at events such as the spring hog show,
and adds that he could just as easily make contact with Omaha producers as with
producers in the Denison area.
Farmland’s decision to require Montandon to move to Denison is supported by
the evaluations of Montandon completed well before his complaints regarding Ehlers
and by the fact that Farmland had in the past required other managers to move.
Accordingly, Montandon’s evidence is insufficient to raise a genuine issue of fact on
the question of pretext. Although Montandon believes that the requirement that he
move was unfair and unnecessary, Title VII does not prohibit a management decision
of this nature in the absence of a showing that it was motivated by retaliation for
engaging in Title VII-protected activity. See Hutson v. McDonnell Douglas Corp., 63
F.3d 771, 781 (8th Cir. 1995) (“[T]he employment-discrimination laws have not vested
in the federal courts the authority to sit as super-personnel departments reviewing the
wisdom or fairness of the business judgments made by employers, except to the extent
that those judgments involve intentional discrimination.”). We agree with the district
court that “[e]ven adopting plaintiff’s facts as true, the defendants have shown that
requiring Montandon to move to Denison was work related and not in retaliation for
Montandon’s complaints.” See Berg v. Bruce, 112 F.3d 322, 328 (8th Cir. 1997).
IV.
Montandon next argues that the district court erred in determining that no
genuine issue of material fact existed regarding Montandon’s claim of disability under
the ADA. To invoke the protection of the ADA, Montandon must establish that he
suffers, has a record of suffering, or is perceived as suffering from “a physical or mental
impairment that substantially limits one or more of [his] major life activities.”
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42 U.S.C. § 12102(2). “Major life activities” include “caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
29 C.F.R. § 1630.2(i). However unpleasant (and understandably so) it may have been
for him to work under Ehlers’ supervision, Montandon has adduced no evidence
showing that his performance of any major life activity was substantially limited or that
he was perceived as being so limited. His disability discrimination claim therefore fails.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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