# 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 etseq. , and Title VII of the Civil Rights Act of 1964 (Title VII), asamended, 42 U.S.C. § 2000e etseq. The district court 1 granted summary judgment in favor of Swedish Match, and Rickard appeals. Withappellate 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 ha d an antagonistic relationship. Rickard objected to Payne’s managerial style and be lieved Payne scrutinized him more closely than his coworkers and unjustifiably critici zed his work. Rickard contends he had strong sales performance throughout most of his career, but Payne consistently evaluated him as being at or below expect ations. 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 sexua l 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 supervisordocumented the complaint and reprimanded Payne. Several other male employees co mplained about sim ilar conduct from Payne but, after complaining to Payne’s supervis or, Rickard never experienced this crude behavior from Payne again.

1 The Honorable Kristine G. Bak er, United States District Judge for the Eastern District of Arkansas.
-2-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 ha ve not been here but a year.” Payne also repeatedly referenced Rickard’s age sa ying, “you know, old man, you have a lot of years in.” Rickard never reported th e age-based comments to Swedish Match supervisors. Rickard claims it was common knowledge among the employees that Swedish Match was trying to eliminate olde r employees and had hired Payne for this purpose.
While working for Payne, Rickard be gan 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 impr ove. Rickard then took leave using his vacation time, sick time, and leave under Sw edish 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 Rick ard to retire, nor was there ever a formal recommendation or decision to terminate Rickard.

Rickard sued Swedish Match, allegi ng, 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 hi s 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 allegati ons 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 clai ms, many of Rickard’ s argued “facts” are unrelated to the case at hand. “Only disput es over facts that mi ght affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irre levant 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 envi ronment, 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] se x, (3) the harassmen t affected a term, condition, or privilege of [his] employm ent; (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 T itle VII hostile work environment purposes.” The district court further explained its conclusion would be the same regardless because Rickard failed to prove th e other elements of his claims.
-4-1. Age-Based Harassment To show age-based harassment, Rickar d 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), abrogatedon 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 ac tionable. 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 b ecause of her age were not sufficient to give rise to a claim of hostile work envir onment 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 pres ented anything beyond their own conjecture suggesting Swedish Match discriminated against Rickard because of his age.
-5-a reasonable person would not have found a ny comments or incidents created a hostile environment under the law. See id. Because Payne’s age-re lated comments were not so severe as to affect a term, condition, orprivilege of his employment, Rickard’s agebased hostile work environment claim must fail.

2. Sex-Based Harassment To prove sex-based harassment, Rick ard can (1) show the actions were motivated by sexual desire, (2) show hi s 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 mistreat ment of Rickard establish sex-based harassment. This claim fails b ecause Rickard cannot show the mistreatment he endured was based on sex.

Rickard appears to argue Payne was ge nerally 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 th e 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 harassm ent under the law. Without more than Rickard’s speculation, a reasonable juro r 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) (quoti ng 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 conjectur e, 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 c onstructive 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 ch ange in working conditions that produces a material employment di sadvantage.’” Rester , 739 F.3d at 1131 (quoting Wilkie , 638 F.3d at 955). Rickard voluntarily retired from Swedish Match a nd, as discussed above, cannot prove he was c onstructively discharged. As such, he has not suffered an adverse employment action and cannot es tablish a claim for either disparate treatment or retaliation.

III. CONCLUSION Because Rickard has not substantiated hi s allegations with sufficient material probative evidence to support his claims beyond conjecture, we affirm.

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