Donald Rickard v. Swedish Match North America, 2014 U.S. App. LEXIS 22741

Rickard worked in sales for Swedish Match from 1984 until he retired in 2011 at age 55 after conflicts with his manager, Perry Payne (hired 2007), who supervised and frequently criticized him.
Payne allegedly engaged in crude physical conduct: on June 23, 2010 he squeezed Rickard’s nipple and said “this is a form of sexual harassment,” and engaged in a towel incident; Rickard reported these incidents and Payne was reprimanded; similar complaints from other men followed and the conduct ceased.
Payne made repeated age-related comments to Rickard (e.g., calling him “old man” and suggesting he had “a lot of age on you”); Rickard never reported these age comments to management.
Payne issued a final written warning to Rickard in January 2011; Rickard took leave for health reasons, did not return, and retired May 1, 2011, stating publicly health reasons but privately that he was forced to retire.
Rickard sued under the ADEA and Title VII alleging age- and sex-based hostile work environment, constructive discharge, disparate treatment, and retaliation; the district court granted summary judgment for Swedish Match and this appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Hostile work environment — age	Payne’s age-based comments and harsher scrutiny show age-based harassment creating hostile environment	Comments were rough managerial style, not age-based harassment that altered employment terms	Reversed? No — Affirmed: comments were not severe or pervasive enough to affect terms/conditions; claim fails
Hostile work environment — sex	Physical incidents (nipple squeeze, towel incident) and Payne’s conduct show sex-based harassment	Conduct was inappropriate but not motivated by sexual desire or hostility toward men; insufficient to establish sex-based harassment	Affirmed: conduct, though offensive, was not shown to be based on sex; claim fails
Constructive discharge	Rickard was forced to retire because of Payne’s harassment and final warning	No evidence Swedish Match intended to force Rickard to quit; he voluntarily retired and there was no formal termination recommendation	Affirmed: no evidence of employer intent; constructive discharge requires more than hostile environment and is not shown
Disparate treatment / Retaliation	Retirement was adverse action caused by employer treatment; disparate treatment and retaliation follow	Rickard suffered no adverse employment action because he voluntarily retired and not constructively discharged	Affirmed: no adverse employment action proved, so disparate treatment and retaliation claims fail

Pye v. Nu Aire, Inc., 641 F.3d 1011 (8th Cir. 2011) (standard of review for summary judgment)
Moody v. St. Charles Cnty., 23 F.3d 1410 (8th Cir. 1994) (plaintiff must present probative evidence beyond speculation)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct. 1986) (summary judgment standards — only disputes that affect outcome preclude judgment)
Peterson v. Scott Cnty., 406 F.3d 515 (8th Cir. 2005) (elements of hostile work environment claim)
Faragher v. City of Boca Raton, 524 U.S. 775 (Sup. Ct. 1998) (offhand comments/teasing not enough for hostile work environment)
Clay v. Credit Bureau Enters., Inc., 754 F.3d 535 (8th Cir. 2014) (hostile-environment objective and subjective standards)
McCown v. St. John’s Health Sys., Inc., 349 F.3d 540 (8th Cir. 2003) (ways to prove sex-based harassment)
Rester v. Stephens Media, LLC, 739 F.3d 1127 (8th Cir. 2014) (adverse action and constructive discharge standards)
Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944 (8th Cir. 2011) (constructive discharge framework)
Penn. State Police v. Suders, 542 U.S. 129 (Sup. Ct. 2004) (hostile-environment constructive discharge requires something more)
Gibson v. Am. Greetings Corp., 670 F.3d 844 (8th Cir. 2012) (adverse employment action requirement)
Sallis v. Univ. of Minn., 408 F.3d 470 (8th Cir. 2005) (retaliation and adverse-action analysis)