1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1088

___________

Dr. Jean Montes, *

*

Plaintiff–Appellant, *

*

* Appeal from the United States

v. * District Court for the District 

* of Minnesota.

Greater Twin Cities Youth *

 Symphonies (GTCYS), *

*

Defendant–Appellee. *

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Submitted: October 15, 2007

Filed: August 28, 2008

___________

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

___________

MELLOY, Circuit Judge.

Dr. Jean Montes appeals from the district court’s1

 grant of summary judgment

in favor of Greater Twin Cities Youth Symphonies, a non-profit music organization

for youth, on his race- and national-origin-based employment-discrimination claims

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). We

affirm.
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I.

We review the facts of this case “in the light most favorable” to Montes and

“draw[] all reasonable inferences” in his favor “without resort to speculation.”

Twymon v. Wells Fargo & Co., 462 F.3d 925, 928 n.2 (8th Cir. 2006). Youth

Symphonies is a non-profit organization in Minneapolis, Minnesota, that provides

orchestral experiences for youth. The organization is governed by a board of directors

that hires the Executive Director and the Artistic Director. 

Montes was born in Haiti and lived there until he was “about 18” years old,

when he immigrated to the United States. He held several positions as an orchestral

conductor and administrator, and he received his Doctor of Musical Arts degree in

May 2003. In July 2003, he began working as the Artistic Director at Youth

Symphonies. Montes was an at-will employee. He was the only racial minority at the

organization. Montes asserts numerous actions taken by Youth Symphonies indicate

he was terminated based on his race or national origin. 

Board members characterized Montes as African-American and suggested that

he needed assistance assimilating. According to the deposition of Christine Corcoran,

a former Executive Director of Youth Symphonies, board members talked about

forming a transitional committee, and one board member, Cynthia Cargill, suggested

the board form an African-American committee to help Montes “assimilate” into

Minneapolis. Corcoran testified she responded by telling Cargill that Montes is

Haitian, not African-American. In her deposition, Corcoran said she thought forming

the committee would be inappropriate. Corcoran also testified board members

discussed helping Montes with his speaking ability, as Montes had difficulties

“speaking up [and] projecting.” They also discussed helping him “get a better

command of English,” and a board member explained that some people “thought that

they couldn’t understand his accent.” Montes testified Corcoran repeated Cargill’s

comments to Montes: that Montes “needed to be integrated into the community as an
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African-American.” Montes found this characterization to be discriminatory. Montes

later indicated he was disappointed the board never formed a transition team to help

him in the early months of his employment. 

Montes also alleged that the board president’s use of the phrase la bête noire

evinced discrimination. He testified at his deposition that at an August 2003 meeting,

the president of the board, Charlie Feuss, said he understood that Montes “was

considered la bête noire of the organization.” Montes understood this to be in

reference to unpopular decisions Montes had recently made. Feuss, in his deposition,

stated Montes had first used the phrase. Montes, in his deposition, stated he was not

the first person at Youth Symphonies to use the phrase. Montes, in his brief,

acknowledged that after Montes used the phrase in a meeting with Feuss, Feuss

responded by asking Montes whether it means “the black beast.” This is the French

phrase’s literal meaning, and it has been incorporated into the English language as a

phrase that means “one that is particularly disliked or that is to be avoided.” The

American Heritage Dictionary of the English Language 174 (4th ed. 2006). Montes

testified that “in [his] opinion,” use of the phrase reflected “a discriminatory

perception of [his] being.” 

Feuss used the phrase again during a September 2003 meeting with Montes.

According to Montes, Feuss used the phrase “to describe [Montes’s] situation” of

starting to work at Youth Symphonies when it was having difficulties. According to

Montes, Feuss later used the phrase to explain how Montes was being treated by a

staff member. Additionally, Montes alleged the phrase “was used several times

through [his] tenure,” although he did not identify other specific instances. 

Montes also alleged discrimination based on the board undermining his

decisions. In support of this assertion, Montes explained the board asked him to

restructure the orchestras in order to reduce costs. He made a recommendation to

reassign two conductors, which the board approved. However, when others opposed

this decision, board members failed to support Montes. 
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Montes explained he was treated differently from the new Executive Director

of Youth Symphonies, Gwendolyn Freed, and from previous Artistic Directors. The

organization gave Freed, but not Montes, a parking place close to the building.

Additionally, Montes’s actions were monitored more closely than Freed’s. Montes

also stated in his deposition he was not welcomed to Youth Symphonies or taken to

lunch, unlike previous Artistic Directors. 

Soon after Montes started, Youth Symphonies hired David Ranheim as interim

Executive Director, which is not a position of authority over the Artistic Director.

Ranheim belittled, demeaned, and intimidated Montes. Montes testified Ranheim told

Montes that Montes did not have the persona to be an Artistic Director. Montes

understood Ranheim meant this was because Montes was not European. Ranheim told

Montes that Montes reminded Ranheim of his son. Ranheim called Montes a young

African conductor. Ranheim also said Montes needed support and guidance from

Ranheim. Montes alleged Ranheim referred to Montes’s race in the fall of 2003,

although Montes could not identify the statement. Montes alleged he discussed

Ranheim’s conduct with Feuss, but “nothing was done to stop . . . Ranheim’s

conduct.” 

Additionally, Montes alleges the board’s reaction to his relationship with

another music organization evinces discrimination. On May 11, 2004, Montes sent

an e-mail to Youth Symphonies members informing them of an orchestra camp in

Wayzata, Minnesota, Allegro Music Camp, where Montes was also an employee. The

new Executive Director of Youth Symphonies, Freed, wrote in an e-mail to Montes

that Allegro Music Camp “compete[d] directly” with Youth Symphonies. Montes,

however, stated that the organizations did not compete and that before his involvement

with Allegro, “it was tradition for [Youth Symphonies] personnel to participate in the

Allegro camp.” Montes noted that the Allegro director had indicated this to Montes

and that a former Youth Symphonies employee participated in the camp before and

after Montes’s termination. Montes also testified that an Executive Director at Youth

Symphonies had asked for Montes’s assistance in recruiting students to a camp in the
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Boston area. Montes said in his deposition that the board should not have been

surprised he sent the e-mail, as board member and former president Lois Hesselroth

was present when Montes discussed sending it. 

When Freed replied to Montes’s e-mail to express her dissatisfaction, she blindcopied board members. Feuss met with Freed to discuss her e-mail, and he later

discussed this issue with Montes. The board’s Executive Committee responded to

Montes’s relationship to Allegro by giving Montes a Counseling Report. Feuss and

Jonathan Lewis, Executive Committee members, gave the Report to Montes at a

meeting on May 25, 2004. 

This Report noted that Montes’s relationship with “Allegro Music Camp . . .

raised several issues.” Specifically, according to the Counseling Report, Montes

accepted a position with the potential competitor without first seeking input or

approval from the board. He promoted Allegro to Youth Symphonies students during

a rehearsal and through an e-mail announcement. In the Counseling Report, the board

also identified its expectations of Montes: Montes would consult with the board

president before accepting outside jobs, he would not promote outside programs, he

would treat Youth Symphonies’ confidential information as such, and he would

consult with the Executive Director before bringing non-Youth Symphonies members

to rehearsals and before sending formal communications to Youth Symphonies

students, parents, or donors. Montes alleged this altered the terms of his employment

as identified in his offer letter, which provided he would “be permitted to engage in

other musical or educational endeavors which do not interfere with [his]

responsibilities at [Youth Symphonies].” The Counseling Report had a signature line

where Montes was to sign to acknowledge receipt. Montes refused to sign it at that

time. 

According to an e-mail Lewis sent to the board’s Executive Committee, Montes

had said at the May 25th meeting it was unnecessary for him to seek any approval

from the board president. Montes told the board he did not consider himself a Youth
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Symphonies employee, but thought his position was equivalent to a director’s

position, and thus the board should not question his actions. In this e-mail, Lewis

described Montes as “rude, condescending, arrogant and uncooperative.” Lewis wrote

to the board members that he thought they should meet again with Montes and if he

would not agree to the Counseling Report, they would “talk about him moving on.”

On July 1, Montes addressed members of the board. Montes testified that he

talked about how excited he was about working for Youth Symphonies and thanked

them for the opportunity to work there. He also told board members he would be

willing to sign the Counseling Report if the entire board agreed he should. He thought

this agreement was appropriate because, as explained above, he believed the Report

amended his offer letter. Board members testified that Montes gave the board an

ultimatum at the meeting, saying he would resign if the organizational structure of

Youth Symphonies was not changed. Montes denies this. The following day, Feuss

told Montes the board had voted to terminate Montes’s employment, although he had

the option to resign. According to a letter Feuss sent Montes, Montes was terminated

because of his: 

continued unwillingness to cooperate with [Youth Symphonies’] Board

and other staff members regarding the overall operations of the

organization. This unwillingness to cooperate was most recently noted

in [his] refusal to sign the counseling report presented to [him] on May

24, 2004 and in [his] statement to the Board on July 1, 2004 that [he]

would resign [his] position rather than continue in the dual-leadership

arrangement into which [he was] hired. 

Barry Farrell, a member of the board who was at the meeting, disagreed with

the board’s decision to terminate Montes and resigned. Farrell wrote in his

resignation letter that “certain perceptions about Dr. Montes have been based on

incomplete information, inaccurate details, biases, and misunderstandings.” Farrell

also testified he thought the board’s vote was “staged,” as board members had already
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decided to terminate Montes’s employment before they voted on it at the meeting.

Youth Symphonies later hired Marlene Pauley, who is Caucasian, as Artistic Director.

Montes had known since that June that Virginia Commonwealth University was

interested in making him an offer for employment at a higher salary, and he began

working at the university after the board terminated his Youth Symphonies

employment. 

Montes filed a complaint alleging racial discrimination with the Equal

Employment Opportunity Commission, which issued a right to sue letter. Montes

filed suit in district court alleging the board terminated his employment and he was

subjected to a continuous pattern of harassment and a hostile work environment

because of his race, color, and national origin, in violation of 42 U.S.C. § 2000e2(a)(1). 

Youth Symphonies filed a motion for summary judgment, which the district

court granted. In granting the motion, the district court first determined Montes did

not offer direct evidence of discrimination. Cargill’s suggestion that the board form

an African-American committee to assist Montes’s transition to the community was

not direct evidence because the committee “was intended to enhance, rather than harm

Montes’ experience with [Youth Symphonies].” Additionally, according to the

district court, “[n]othing in the context of . . . Cargill’s suggestion could support a

finding by a reasonable jury that her comment was not made for [a] well-intentioned

purpose.” The district court found Cargill’s comment was also not direct evidence

because it was made in the context of hiring Montes, not firing him. 

The district court additionally determined use of the phrase la bête noire was

not direct evidence of discrimination because the phrase “has been incorporated into

the English language with a race-neutral meaning and carries no discriminatory

connotation.” The district court considered “the context in which Feuss used the
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phrase,” and determined that “the only reasonable conclusion is that the phrase was

used in the conventional English-language way.” 

The district court held that, under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973), Montes “failed to discredit [the

Youth Symphonies’] stated reasons for termination,” noting it is undisputed Montes

and the board had a conflict over Montes’s obligations to report to the board and

Montes was ultimately terminated for failing to notify the board before promoting

Allegro, a potentially competing music camp. 

Montes appeals only the grant of summary judgment on his unlawful

termination claim, not his hostile work environment claim. 

II.

“We review the district court’s grant of summary judgment de novo.” Whitley

v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000). Summary judgment

“is appropriate where one party has failed to present evidence sufficient to create a

jury question as to an essential element of its claim.” Id. (citation omitted).

Title VII of the Civil Rights Act of 1964 prohibits Youth Symphonies from

“discharg[ing] any individual . . . because of such individual’s race, color . . . or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Because Montes does not assert he has

direct evidence of discrimination, see Price Waterhouse v. Hopkins, 490 U.S. 228,

270–79 (1989) (O’Connor, J., concurring), we apply the framework from McDonnell

Douglas Corp., 411 U.S. at 802–03. Twymon, 462 F.3d at 933–34; see also

Gebresadik v. Gonzales, 491 F.3d 846, 851 n.6 (8th Cir. 2007) (finding that arguments

not briefed are waived). 
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A.

The McDonnell Douglas framework requires Montes to first establish a prima

facie case of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. Here,

we assume without deciding Montes has established a prima facie case. See Twymon,

462 F.3d at 935 (assuming without deciding that a the plaintiff established a prima

facie case). We assume Montes is a member of a protected class, he was meeting

legitimate job expectations, termination of his employment was an adverse

employment action, and he was replaced by a person outside the protected class. See

Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996).

B.

Under the second step of McDonnell Douglas, Youth Symphonies must

“articulate [a] legitimate, nondiscriminatory reason” for Montes’s discharge. Id. at

802. The organization terminated Montes because he was unwilling to cooperate with

board and staff members. The organization thus met its non-onerous burden. See

Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005) (providing that the

employer’s burden is “not onerous”). 

C.

“[T]he ultimate burden falls on [Montes] to produce evidence sufficient to

create a genuine issue of material fact regarding whether [Youth Symphonies’]

proffered nondiscriminatory justifications are mere pretext for intentional

discrimination.” Id. “[T]he burden-shifting framework is merely an analytical

construct; the ultimate burden of proving [discrimination] remains at all times with

[Montes].” Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007);

see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993) (finding that the

plaintiff “retains that ultimate burden of persuading the trier of fact that he has been

the victim of intentional discrimination” (internal quotation and brackets omitted)).
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i.

Montes failed to establish that Youth Symphonies’ legitimate reasons for firing

him were pretextual. He claims other directors promoted and participated in other

music camps and that, before his termination, other directors promoted and

participated in Allegro. Montes does not allege, however, that they did so without

prior approval from the board. It is undisputed Montes disagreed with the board

regarding many aspects of governing the organization. Montes himself indicated in

his deposition he had been unwilling to cooperate with the board. He testified that he

has expertise and that board members do not. He testified he should have had the

ability to decide what was best for Youth Symphonies and what actions constituted

a conflict of interest. Youth Symphonies terminated Montes’s employment because

of this attitude, which is a legitimate, nondiscriminatory reason. See Larry v. Potter,

424 F.3d 849, 851 (8th Cir. 2005) (explaining that “an employee’s negative work

attitude” is a legitimate, nondiscriminatory reason); see also Clay v. Hyatt Regency

Hotel, 724 F.2d 721, 724 (8th Cir. 1984) (finding an applicant’s “dominant and

headstrong” personality and exhibition of a “‘know-it-all’ attitude” was a legitimate,

nondiscriminatory reason for not hiring him). Regardless of whether Montes, an

employee of the board, was unwilling to accept the board’s authority, the board

members’ perception that he was unwilling is a legitimate, nondiscriminatory reason

for Montes’s termination. See Johnson v. AT&T Corp., 422 F.3d 756, 762 (8th Cir.

2005) (noting that “the proper inquiry is not whether [the employer] was factually

correct in determining” whether the employee had engaged in impermissible conduct,

but rather “the proper inquiry is whether [the employer] honestly believed” so). As

a result, we find that Montes has failed to create a question of fact regarding Youth

Symphonies’ legitimate, nondiscriminatory reason.

ii.

Further, Montes failed to satisfy his “ultimate burden of persuading the trier of

fact that he has been the victim of intentional discrimination.” Hicks, 509 U.S. at 508
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(internal quotation and brackets omitted). The evidence does not enable a reasonable

jury to conclude the board, which had recently hired Montes, campaigned to have

Montes’s employment terminated because of his race or national origin. Feuss, the

president of the board, commented that Montes was referred to as la bête noire on at

least three occasions. Feuss did not call Montes la bête noire, but stated that others

were using the phrase to refer to Montes. Montes does not provide evidence that, after

using the phrase himself, he told Feuss it was offensive and evinced racial

discrimination. We thus find the use of the phrase, which refers to one who is to be

avoided, does not create a trialworthy issue of discrimination in this case. 

Our conclusion is not affected by Montes’s argument that the board presented

him with the Counseling Report allegedly without justification. Even assuming the

board was unjustified in presenting Montes with the Report, there was still insufficient

evidence to enable a jury to conclude Montes established his “ultimate burden,” that

he was fired because of his race or national origin. 

Farrell decided to resign from the board after it terminated Montes’s

employment, asserting board members were biased against Montes. When

questioned, however, Farrell was unable to identify the basis for this conclusion or

any evidence indicating the board’s decision was based on Montes’s race or national

origin. Such conclusory assertions by a single board member do not provide a basis

on which a reasonable jury could find illegal discrimination.

Board members’ suggestions of forming an African-American committee to

help Montes assimilate into the Minneapolis community and a subcommittee to

address Montes’s soft spokenness and accent also did not evince discrimination. At

most, this evidence suggested board members were aware of Montes’s ethnicity and

the issues that could arise within the Minneapolis community and Youth Symphonies,

an all-Caucasian organization, as a result. No reasonable jury could conclude this

evidence indicated the board terminated Montes’s employment because of his race or

national origin. 
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Montes alleges discrimination based on the actions of Executive Director

Ranheim and on the board’s failure to intervene. We express no opinion on whether

Ranheim’s actions constituted a hostile work environment, as this issue is not before

us. Montes only appealed his claim that he was subject to discrimination based on his

firing. Because Ranheim was not a member of the board at that time and not a

decision maker in the termination of Montes’s employment, Montes is “required to

demonstrate some causal relationship between [Ranheim’s] statements and [the

board’s] decision to terminate [Montes’s] employment.” Johnson, 422 F.3d at 763.

Montes failed to demonstrate this. Montes also failed to demonstrate a causal

relationship between the board’s failure to intervene and his termination. Thus, we

do not consider Ranheim’s actions in determining whether the board terminated

Montes because of his race or national origin. 

While use of the phrase la bête noire gives us pause, we conclude that the

evidence taken as a whole is “insufficient to permit a reasonable jury, without resort

to speculation, to draw [an] inference” that the board terminated Montes’s

employment because of his race or national origin. See Stewart, 481 F.3d at 1045–46.

“The mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (cited in

Stewart, 481 F.3d at 1046). Given the board’s legitimate reasons for terminating

Montes’s employment and the lack of evidence that the board’s conduct was based on

Montes’s race or national origin, we conclude that the district court did not err in

granting Youth Symphonies’ motion for summary judgment.

We affirm the district court’s granting of Youth Symphonies’ motion for

summary judgment.

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