Montandon v. Farmland Industries, Inc.

• Citation: 1997 WL 349026,116 F.3d 355
• Decision Date: 26 June 1997
• Docket Number: No. 96-2629,96-2629
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 947, 70 Empl. Prac. Dec. P 44,786, 22 A.D.D. 661, 10 NDLR P 148 Larry D. MONTANDON, Appellant, Tish Walker Montandon, Plaintiff, v. FARMLAND INDUSTRIES, INC., a KS Corporation; Michael Ehlers; Gene Todd, Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 355

116 F.3d 355

74 Fair Empl.Prac.Cas. (BNA) 947,

70 Empl. Prac. Dec. P 44,786, 22 A.D.D. 661,

10 NDLR P 148

Larry D. MONTANDON, Appellant Tish Walker Montandon, Plaintiff, v. FARMLAND INDUSTRIES, INC., a KS Corporation; Michael Ehlers; Gene Todd, Defendants/Appellees.

No. 96-2629.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1997.

Decided June 26, 1997.

Raymond Aranza, Omaha, NE, argued, for appellant.

Michaela M. Warden, Overland Park, KS, argued (Douglas M. Weems, on the brief), for defendants/appellees.

Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF, ¹ District Judge.

WOLLMAN, Circuit Judge.

Larry Montandon appeals the district court's ² 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.

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 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, 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, 114 S.Ct. 367, 372, 126 L.Ed.2d 295 (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?

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, 114 S.Ct. at 370.

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, --- U.S. ----, 116 S.Ct. 1319, 134 L.Ed.2d 472 (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...