Nipple-Squeezing Manager Not Guilty of Harassment

Garrett Wozniak
Garrett Wozniak
12/09/2014

Donald Rickard worked in sales for tobacco company Swedish Match North America, Inc. (SMNA) for nearly 30 years. He retired in 2011 at 55 years old. Shortly thereafter, Rickard sued SMNA claiming, in part, that he was harassed by his supervisor, Perry Payne, because of his age and gender. Rickard v. Swedish Match N. Am., Inc., No. 13-3729 (8th Cir. Dec. 2, 2014).

Rickard and Payne (age 54) did not see eye to eye. Rickard “objected to Payne’s managerial style[,] . . .believed Payne scrutinized him more closely than his coworkers and unjustifiably criticized his work.” Rickard also complained that Payne rated him as “below expectations” on Rickard’s evaluations despite the employee’s strong work performance. Payne admonished Rickard to improve his performance and allegedly threated to terminate him on many occasions.

Rickard also claimed that Payne made inappropriate physical contact and gestures. On one occasion, Payne squeezed Rickard’s nipple and said, “this is a form of sexual harassment.” At another point, Payne took a towel from Rickard, “rubbed it on his own crotch,” and gave it back to Rickard. In addition, Payne commented about Rickard’s age, stating “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 these that have not been here but a year.”

Rickard reported the nipple and towel incidents to Payne’s supervisor, who documented the complaints and reprimanded Payne.  Rickard did not experience any further crude behavior after he complained. He never reported the age-related comments.

At some point Rickard experienced multiple health issues, which he attributed to the stress of working with Payne. He went on a leave of absence that included FMLA leave. He never returned to work for SMNA, retiring on May 2, 2011, because of “his deteriorating health.” Although  Rickard told others that he was forced to retire, the record showed that  no SMNA employee  asked Rickard to retire, recommended that he retire, or decided to terminate him.

A federal district court in Arkansas granted summary judgment to SMNA on Rickard’s claims, and the Eighth Circuit affirmed. The Court said that Rickard’s complaints of age-based harassment amounted “to little more than an attack on Payne’s crude managerial style.” Further, Payne’s comments were nothing more that “simple teasing” and “offhand comments” that did not affect the terms and conditions of Rickard’s employment and, therefore, were insufficient to support an actionable hostile work environment claim. Similarly, Rickard could not show that the nipple-squeezing and towel incident were based on his sex. “Payne’s alleged behavior – while manifestly inappropriate and obnoxious – is insufficient to show Payne harbored hostility against men in the workplace.”

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