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Rickard v. Swedish Match North America, Inc.

United States Court of Appeals, Eighth Circuit

December 2, 2014

Donald Rickard, Plaintiff - Appellant
v.
Swedish Match North America, Inc., Defendant - Appellee

Submitted September 11, 2014

Page 182

Appeal from United States District Court for the Eastern District of Arkansas - Jonesboro.

For Donald Rickard, Plaintiff - Appellant: Larry Joe Steele, Walnut Ridge, AR.

For Swedish Match North America, Inc., Defendant - Appellee: John C. Calhoun, Jr., James M. McHaney, Jr., HILBURN & CALHOON, North Little Rock, AR; Daryl Eugene Webb, Jr., TROUTMAN & SANDERS, Richmond, VA.

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

OPINION

Page 183

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 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The district court[1] granted summary judgment in favor of Swedish Match, and Rickard appeals. With appellate 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 had an antagonistic relationship. Rickard objected to Payne's managerial style and believed Payne scrutinized him more closely than his coworkers and unjustifiably criticized his work. Rickard contends he had strong sales performance throughout most of his career, but Payne consistently evaluated him as being at or below expectations. 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 sexual 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 supervisor documented the complaint and reprimanded Payne. Several other male employees complained about similar conduct from Payne but, after complaining to Payne's supervisor, Rickard never experienced this crude behavior from Payne again.

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 have not been here but a year." Payne also repeatedly referenced Rickard's age saying, " you know, old man, you have a lot of years in." Rickard never reported the age-based ...


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