Hardy v. S.F. Phosphates Ltd. Co.

• Decision Date: 18 June 1999
• Docket Number: S.F. PHOSPHATES,PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,No. 98-8039,98-8039
• Citation: 185 F.3d 1076
• Parties: (10th Cir. 1999) RAY HARDY,, v.LIMITED COMPANY, A UTAH LIMITED LIABILITY COMPANY,,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1076

185 F.3d 1076 (10th Cir. 1999)

RAY HARDY, PLAINTIFF-APPELLANT, v. S.F. PHOSPHATES LIMITED COMPANY, A UTAH LIMITED LIABILITY COMPANY, DEFENDANT-APPELLEE,

No. 98-8039

U.S. Court of Appeals, Tenth Circuit

June 18, 1999

Appeal from the United States District Court for the District of Wyoming (D.C. No. 97-CV-200-B) Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming, for Plaintiff-Appellant.

Bruce S. Asay of Associated Legal Group, Llc, Cheyenne, Wyoming, for Defendant-Appellee.

Before Seymour, Chief Judge, Porfilio and Kelly, Circuit Judges.

Seymour, Chief Judge.

Ray Hardy sued his former employer, S.F. Phosphates, under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., alleging the company illegally terminated his employment due to his age and his heart condition, rather than on the basis of his sexually harassing conduct as S.F. Phosphates asserted. In addition, he claimed that S.F. Phosphates breached an implied contract based on the personnel manual which required progressive discipline and good cause for termination. The district court granted summary judgment for S.F. Phosphates on all counts. We affirm.

I.

Mr. Hardy began working for Chevron Chemical Company in Rock Springs, Wyoming in January 1986.¹ About five years later, S.F. Phosphates acquired that facility and retained most of the original workforce, including Mr. Hardy. Mr. Hardy was a good employee who consistently performed his assigned duties at the full performance level or higher. He was also a friendly, "touchy" man, who often made physical contact with those with whom he interacted.

Over the years, incidents of sexual and other harassment occurred at S.F. Phosphates, and two women brought sexual harassment suits against the company during the spring and summer of 1996. The company hired the human resources company, J.R. Simplot, to help "get these sexual harassment problems that [S.F. Phosphates was] having under control and intensify the training... and make sure that [S.F. Phosphates] did not have reoccurrences of these kinds of thing [sic] in the future." Aplt. App. at 431. The company instituted respectful workplace and diversity training sessions to address issues of women and minorities in the workforce, which Mr. Hardy and others attended. Mr. Hardy and other male employees were not always in philosophical agreement with the training sessions, and openly voiced their Dissent, occasionally visibly upsetting Cindy Nelson, the presenter.

On October 29, 1996, Ms. Nelson attended a committee meeting in which employees, including Mr. Hardy, discussed issues raised by women in the workplace. Mr. Hardy began to give his opinion on women in the workplace, to which Ms. Nelson responded in effect, "let's not hear this again." Aplt. App. at 57. Mr. Hardy continued, stating that in his view women should be put on a pedestal until they do something to fall off. Soon thereafter the group took its lunch break.

As Ms. Nelson went to get her lunch, Mr. Hardy, who is significantly larger than she is, approached her from behind and slightly to her left. He then stepped beside her on her left, put his right arm on her right shoulder, and leaned down so that his face was approximately a foot from hers. He said that "this is not worth fighting about" and that everything was all right, to which she responded that the situation was not all right and that "this has got to stop." Id. at 58-59. He noticed that she looked a "little T'ed off." Id. at 59. He did not perceive that she tried to get away, although according to Ms. Nelson she struggled but could not free herself. Mr. Hardy held Ms. Nelson for five to ten seconds. Afterward, Ms. Nelson was quite upset and retreated to her office for lunch. She continued with the training in the afternoon, but wrote a memo later that day to Darlene Perez, the Human Resources Manager, relating the incident and her discomfort with it. She later conveyed to her employers that she was very upset, afraid, and "felt like that she had been grabbed and aggressively manhandled." Id. at 430.

The incident was primarily investigated by three individuals: Jim Williams, a vice-president at S.F. Phosphates and head of the Rock Springs plant, Ms. Perez, and Keith Harkless of J.R. Simplot, the organization providing outside consultation for S.F. Phosphates' problems with harassment and treatment of people in the workplace. They questioned Ed Eyring and Brian Lake, two upper-level managers who had witnessed the lunchroom incident and who generally confirmed Ms. Nelson's version of events, although they did not notice her struggle to get away. They did not interview Bud Nations, the only other person who actually observed the incident, nor did they discuss the incident with Mr. Hardy until November 19, the day he was fired.

On that day Mr. Williams, Ms. Perez, Mr. Harkless, and possibly several others, met with Mr. Hardy. Mr. Williams informed Mr. Hardy that he was to be terminated and asked if there was anything that would give the company cause to reconsider. Apparently there was not and at the end of the meeting Mr. Hardy received his termination letter which stated in part:

After a thorough investigation, the Company has concluded that you have made inappropriate comments of a sexual or gender demeaning nature to three female employees. You made these comments after receiving training and individual counseling regarding the inappropriateness of such remarks. In addition, it was concluded that in two separate instances, you embraced female employees against their wishes and in one incident, refused to release her when she tried to get free, hurting her arm.

Because of the above violations of Company policy, and because your actions and comments demonstrate an unwillingness to adhere to company policy and end the inappropriate behaviors, you are being separated from employment.

Aplt. App. at 15. At the time, as S.F. Phosphates was aware, Mr. Hardy was sixty years old and previously had had bypass surgery and a heart attack.

II.

A grant of summary judgment is appropriate only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Templeton v. Neodata Servs. Inc., 162 F.3d 617, 618 (10th Cir. 1998). "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

We review Mr. Hardy's ADA and ADEA claims under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (disability); Greene v. Safeway Stores, Inc., 98 F.3d 554, 558-59 (10th Cir. 1996) (age). Under this framework, the plaintiff has the burden of articulating a prima facie case of discrimination.² The burden of production then shifts to the employer to articulate a legitimate nondiscriminatory reason for taking the adverse action against the plaintiff. See Sanchez, 164 F.3d at 531; Morgan, 108 F.3d at 1323. The burden then shifts back to the plaintiff to present evidence "such that a reasonable jury could conclude that the proffered nondiscriminatory reason for the employment action is pretextual, that is, `unworthy of belief.'" Simms v. Oklahoma ex rel. Dep't of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999); see also Sanchez, 164 F.3d at 531; Morgan, 108 F.3d at 1323.

"Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan, 108 F.3d at 1323 (internal quotation marks and citation omitted). While "[t]his burden is not onerous... it is also not empty or perfunctory." Id. at 1323-24 (internal citations omitted). The plaintiff need not present direct evidence of illegal discriminatory animus to survive summary judgment. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).

The district court assumed without deciding that Mr. Hardy had made a prima facie showing of age and disability discrimination. We do so as well. The company shouldered its burden of articulating a legitimate reason for the termination. Mr. Hardy presented no direct evidence that the company discriminated against him on the basis of his age or because of a disability.³ We therefore must decide whether Mr. Hardy has presented sufficient evidence such that a reasonable jury could find pretext. We emphasize the relevant inquiry is not whether Mr. Hardy intended to engage in sexual harassment, nor is it whether Ms. Nelson could have sued S.F. Phosphates based on Mr. Hardy's conduct. Rather, it is whether S.F. Phosphates perceived Mr. Hardy's behavior as gender-based harassment, or simply used that rationale as a pretext for illegal discrimination because of Mr. Hardy's age or his heart condition. See Giannopoulos v. Brach & Brock Confections, Inc. 109 F.3d 406, 411 (7th Cir. 1997) (noting that the "pertinent question" in determining pretext is not whether the employer was right to think the employee engaged in misconduct, but whether that belief was genuine or pretextual); cf. DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998); Furr v. Seagate Tech. Inc., 82 F.3d 980, 988 (10th Cir. 1996) (noting that in a pretext case "[it is] the perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of his own relative performance").

Mr. Hardy points to three weaknesses in S.F. Phosphates' case to establish pretext: 1) S.F. Phosphates...