Male Worker Whose Nipple Was Allegedly Squeezed by Boss Lacks Harassment Claim

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By Jay-Anne Casuga

Dec. 2 — A male former sales employee for an Arkansas tobacco products manufacturer who alleged that his male supervisor squeezed his nipple can't proceed to trial on a Title VII of the 1964 Civil Rights Act sexual harassment claim, the U.S. Court of Appeals for the Eighth Circuit ruled Dec. 2.

Affirming summary judgment for Swedish Match North America Inc., the Eighth Circuit found that Donald Rickard failed to show that his supervisor's alleged actions, which also included rubbing a towel on his crotch before giving it to Rickard, were based on sex or motivated by sexual desire.

The appeals court also affirmed summary judgment for Swedish Match on Rickard's hostile work environment claim under the Age Discrimination in Employment Act. Although Rickard, who retired at age 55, offered evidence that the same supervisor called him an “old man” and told him he had “a lot of age on [him],” the court held that those comments were not sufficiently severe to affect a term, condition or privilege of Rickard's employment.

Harassment Not Based on Sex

In order to prevail on a Title VII sexual harassment claim, the court explained, Rickard must show that the purported offensive conduct of his supervisor, Perry Payne, either was motivated by sexual desire or demonstrated a “general hostility” toward males in the workplace.

The court acknowledged that Payne's alleged actions are “manifestly inappropriate and obnoxious.” However, it said, they are insufficient to establish that Payne “harbored hostility against men in the workplace.”

In addition, Rickard introduced no evidence apart from speculation that Payne was motivated by sexual desire, the court said. Rickard also admitted that Payne never sought a sexual or romantic relationship, it said.

Age-Based Comments Not Severe

Turning to Rickard's ADEA claim, the Eighth Circuit concluded that Payne's alleged ageist comments, “even if intentionally disparaging,” were not severe enough to constitute actionable harassment.

The Eighth Circuit acknowledged that supervisor Perry Payne's alleged actions were “manifestly inappropriate and obnoxious,” but it said they were insufficient to establish that Payne “harbored hostility against men in the workplace.”

The court found that Rickard failed to show how the comments affected a term, condition or privilege of his employment.

“Although it appears Rickard suffered because of his interactions with Payne, a reasonable person would not have found any comments or incidents [that] created a hostile environment under the law,” the court said.

Given that Rickard couldn't establish an age-based hostile environment, the court also dismissed his constructive discharge claim, which was based on his contention that he was forced to retire because of intolerable working conditions.

Additionally, Rickard has no Title VII disparate treatment or retaliation claims because he voluntarily retired and thus didn't experience an adverse employment action, the court said.

Larry J. Steele of Walnut Ridge, Ark., represented Rickard. Hilburn & Calhoon and Troutman & Sanders represented Swedish Match.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Donald_Rickard_v_Swedish_Match_North_America_Docket_No_1303729_8t.