Held v. Ferrellgas, Inc. , 505 F. App'x 687 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 7, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
ALEX HELD,
Plaintiff–Appellant,
No. 11-3344
v. (D.C. No. 2:10-CV-02393-EFM-GLR)
(D. Kan.)
FERRELLGAS, INC.,
Defendant–Appellee.
ORDER AND JUDGMENT*
Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.
Alex Held filed suit against his former employer, Ferrellgas, Inc., under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), alleging that Ferrellgas had
unlawfully retaliated against him for exercising his Title VII rights. The district court
granted summary judgment in favor of Ferrellgas, concluding that Held failed to establish
a prima facie case of retaliation. Exercising jurisdiction under 28 U.S.C. § 1291, we
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
affirm.
I
Held began working for Ferrellgas on February 13, 2008. He was one of five
National Account Coordinators employed at Ferrellgas’ Overland Park, Kansas location.
At the time of his termination, Held was the only male National Account Coordinator in
Overland Park. During the first several months of Held’s employment, however, there
was one other male National Account Coordinator who was subsequently promoted.
On April 14 or 15, 2009, Held requested a meeting with Amber Potts, his
immediate supervisor, to address concerns regarding his co-worker Megan Foresee,
another National Account Coordinator. Held stated that when he asked Foresee
questions, she would “rudely respond” with a “sharp tone,” a “sigh,” and an “off-putting”
look. Held testified that Foresee’s rude conduct began a “couple months” before he
spoke with Potts, and occurred a couple of times a week. According to Held, he told
Potts he believed Foresee treated him differently than the other account coordinators
because he was a man.
Shortly after Held’s initial meeting with Potts, Potts convened a meeting with
Held and Foresee to address their conflict. At the meeting, Foresee stated that she
responded to Held’s questions as she did because she had a grudge against him. Foresee
explained that when she was a new employee Held declined to help her despite being
more senior. She also believed that Held was not carrying his weight on the team.
Foresee said that she would work on her attitude and phrasing things more appropriately.
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Held felt the meeting had resolved the issue.
On April 17, 2009, Troy Coats, Held’s second-level supervisor, informed Held
that he was immediately terminating Held’s employment. Coats told Held that he did not
like the way he had handled the situation with Foresee because Held should have first
tried to resolve the situation on his own. According to Held, Coats also stated that he did
not see Held “busting his ass” on his accounts. Coats and Potts later testified that they
were generally concerned that Held could not manage his workload, was often absent
from work, did not always follow company procedures, and was not a team player.
In July 2010, Held filed a lawsuit alleging that Ferrellgas retaliated against him for
complaining about gender discrimination and harassment. The district court granted
summary judgment in favor of Ferrellgas. Held timely appealed.
II
We review a district court’s grant of summary judgment de novo. Kan. Penn
Gaming, L.L.C. v. HV Props. of Kan., L.L.C., 662 F.3d 1275, 1284 (10th Cir. 2011).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In applying this standard, we review the evidence in the light most
favorable to the nonmoving party. Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th
Cir. 2012).
Title VII’s anti-retaliation provision makes it unlawful for an employer to retaliate
against an employee who has acted to vindicate his statutorily protected rights by
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reporting harassment or discrimination in the workplace. § 2000e-3(a); see also Petersen
v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). An employer therefore
cannot take any adverse action against an employee because that employee has “opposed
any practice made an unlawful employment practice by [Title VII].” § 2000e-3(a).
We analyze Held’s Title VII claim under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which both parties invoke.1
Under the McDonell Douglas three-part test, a plaintiff must first establish a prima facie
case of retaliation by showing “(1) that [h]e engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged action
materially adverse, and (3) that a causal connection existed between the protected activity
and the materially adverse action.” Khalik v. United Air Lines, 671 F.3d 1188, 1193
(10th Cir. 2012). Once a plaintiff has established a prima facie case of retaliation, the
burden shifts to the employer to articulate a legitimate reason for its adverse employment
action. Twigg, 659 F.3d at 998. Finally, if the employer satisfies its burden, then the
plaintiff must demonstrate that the employer’s proffered reason for its adverse action is
pretexual. Id.
The district court found that Held could not satisfy his initial burden of
establishing a prima facie case of retaliation because he failed to show that he engaged in
1
We apply the McDonnell Douglas burden-shifting framework when we lack
direct evidence that retaliation played a motivating role in the employment decision.
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011).
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a statutorily protected activity. Held contends that he did so by reporting Foresee’s
behavior to Potts, behavior Held characterizes as violating Title VII’s prohibition against
gender discrimination and creating a hostile work environment.2
To establish that he was engaged in statutorily protected activity, Held must show
that he had a reasonable, good faith belief that he was opposing discrimination prohibited
by Title VII. Crumpacker v. Kan. Dep’t of Human Res., 338 F.3d 1163, 1171 (10th Cir.
2003). A plaintiff need not establish that he was actually discriminated against; he need
only show that he had a reasonable, good faith belief that he was reporting conduct
prohibited by Title VII. Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16 (10th Cir.
2004).
To determine whether a reasonable person in Held’s position could have believed
that he was opposing prohibited conduct, we look to the underlying substantive law. See
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam) (considering
the elements of a sexual harassment claim in determining whether a plaintiff had a
reasonable belief that she had been sexually harassed when she complained to her
employer).
2
Although Ferrellgas characterizes Held’s retaliation claim as also based on
reporting sexual harassment, the district court did not interpret Held’s claim as such, and
on appeal Held argues that Ferrellgas “terminated his employment in retaliation for his
complaint of a hostile work environment and gender discrimination.” Therefore, we only
address the substantive law relating to these two claims.
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A
Held first asserts that it was reasonable for him to believe that he was a victim of
reverse gender discrimination. “Title VII forbids actions taken on the basis of sex that
‘discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment.’” Id. at 270 (quoting § 2000e-2(a)(1)). To assert a prima
facie case of gender discrimination in the workplace, a plaintiff must ordinarily show that
“(1) the victim belongs to a protected class; (2) the victim suffered an adverse
employment action; and (3) the challenged action took place under circumstances giving
rise to an inference of discrimination.” EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th
Cir. 2007). In a reverse gender discrimination case, a plaintiff “must, in lieu of showing
that he belongs to a protected group, establish background circumstances that support an
inference that the defendant is one of those unusual employers who discriminates against
the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201
(10th Cir. 2006).
We agree with the district court that Held’s belief that Foresee’s conduct
constituted reverse gender discrimination was not objectively reasonable. Held does not
claim that Foresee discriminated against him with respect to the terms or conditions of his
employment, or that her rude behavior was an adverse employment action. Neither does
Held assert that men at Ferrellgas suffered adverse treatment as a class, nor that Foresee
treated the many other men in the workplace similarly. And the sole factual circumstance
Held presents to support an inference of gender discrimination is that he was the only
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man among the five-person team of National Account Coordinators.
Held relies on several cases that are materially distinguishable from the case at
bar. First, Held argues that the district court erred in looking to the substantive
requirements of a reverse gender discrimination claim, citing Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006), for the proposition that Title VII’s retaliation
provision reaches more broadly than its substantive prohibitions. However, Burlington
applies to the second prong of the prima facie case for retaliation, which is not at issue in
this case.3 See id. at 67. Second, Held asserts that a good faith belief that the reported
behavior violates Title VII is sufficient to satisfy the first prong of a prima facie case. He
relies on Love v. RE/MAX of Am., Inc., 738 F.2d 383 (10th Cir. 1984), a case decided
well before this court concluded in Crumpacker that the Supreme Court has rejected “any
interpretation of Title VII which would permit plaintiffs to maintain retaliation claims
based on an unreasonable good-faith belief that the underlying conduct violated Title
VII.” 338 F.3d at 1171 (emphasis added). Finally, Held notes that in Argo this court
held that a plaintiff had satisfied the requirements for a prima facie case of retaliation by
claiming that the female supervisor had commented on the male employee’s legs, smiled
and winked at him, given him a sexually suggestive birthday card, touched him, and
otherwise acted in a flirtatious manner. 452 F.3d at 1196-98. However, in this case
3
Ferrellgas argues that Held cannot establish the first and third prongs of his
prima facie case of retaliation, but does not dispute that Held has established the second
prong (that Ferrellgas took adverse employment action against him).
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there is no such evidence that Foresee’s treatment of Held was motivated by his gender.
We therefore conclude that Held’s belief that he was subjected to reverse gender
discrimination was not reasonable.
B
Held also argues that it was reasonable for him to believe that Foresee subjected
him to a hostile work environment in violation of Title VII. An actionable hostile work
environment claim requires a showing that “the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.” Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1326-27 (10th Cir.
2004) (quotation omitted). It also requires a plaintiff to “produce evidence” that he was
“targeted for harassment because of h[is] gender . . . .” Id. at 1327.
A theme derived from cases addressing the scope of Title VII is that it does not
protect from “the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). We have therefore held that a co-worker “could
be unconscionably rude and unfair [to a plaintiff] without violating Title VII.” Petersen,
301 F.3d at 1188; see also Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir.
2008) (noting that Title VII is not a “general civility code”).
We agree with the district court that Held’s belief that he was subject to a hostile
work environment in violation of Title VII was not objectively reasonable. Foresee’s
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“sharp tone,” “sigh[s],” and “off-putting” looks were not sufficiently severe or pervasive
to alter the conditions of his employment and create an abusive working environment.
Moreover, they do not establish that Foresee “targeted” Held for harassment because of
his gender. See Sandoval, 388 F.3d at 1327. In Sandoval, we held that a plaintiff could
not survive summary judgment on a hostile work environment claim despite being the
“target of apparently sexist remarks” on two occasions. Id. After noting that the plaintiff
had failed to show that other alleged mistreatment was motivated by gender bias, we
concluded the plaintiff could not show that the treatment was sufficiently severe or
pervasive. Id. Held has made an even lesser showing that he was targeted by Foresee
because of his gender, and rude behavior alone is insufficient to show a hostile work
environment. Cf. Petersen, 301 F.3d at 1188 (unconscionable rudeness is not a Title VII
violation).
III
For the foregoing reasons, we conclude that Held has failed to establish that he
possessed an objectively reasonable belief that the activity he opposed was unlawful
under Title VII. Having made this determination, we need not consider the other
elements of Held’s prima face case for retaliation. The judgment of the district court is
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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