United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2160
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Ron Ryan, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Capital Contractors, Inc., *
*
Appellee. *
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Submitted: January 10, 2012
Filed: May 29, 2012
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Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
Ron Ryan sued his former employer, Capital Contractors, Inc. (Capital
Contractors), under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,
and the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. Ann.
§ 48-1101 et seq. The district court1 granted Capital Contractors’ motion for
summary judgment on all claims. Ryan appealed with respect to his ADA and
NFEPA claims. We affirm.
1
The Honorable Richard Kopf, United States District Judge for the District of
Nebraska.
I.
We state the facts in the light most favorable to Ryan. See Wierman v. Casey’s
Gen. Stores, 638 F.3d 984, 989 (8th Cir. 2011). Ryan was hired by Capital
Contractors in 1973. He worked until his voluntary departure in 1999. Ryan was
rehired in 2000 and again left voluntarily in 2003. Ryan was hired for a third time in
2005, and he was terminated on December 1, 2008.
A neuropsychological evaluation showed that Ryan has a Full Scale IQ of fifty-
six, which corresponds to the mildly to moderately mentally retarded range. Ryan
also speaks with a stutter that becomes more pronounced when he is excited, nervous,
or tired. Ryan was placed in special education classes in school. Although he
graduated from high school, he stated that he “just passed through.” He has difficulty
reading and writing, and a vocational rehabilitation specialist concluded that Ryan’s
cognitive functioning limits his ability to speak and work. Ryan, however, never
informed any member of Capital Contractors’ management that he was disabled, and
his limitations did not keep him from completing the tasks expected of him at work.
Although Ryan’s co-workers and management at Capital Contractors knew that he
was a little “slow,” they also noticed that he could be “pretty inventive.” Davis Crist,
the vice president and general manager of Capital Contractors, testified that Ryan was
probably in the “lower half” of Capital Contractors employees in terms of cognitive
function, but he was not the lowest.
Prior to his termination, Ryan was working as a sandblaster. Troy Collins, the
paint room foreman, was his supervisor. Collins oversaw Ryan and one other
employee, Gregg Dissmeyer. Foremen at Capital Contractors work alongside the
employees they oversee. The foreman can direct the day-to-day tasks of the workers,
but they have limited authority and cannot select workers for overtime or discipline
the workers directly, although they can write up a worker for tardiness or other
infractions.
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Physical horseplay and name calling done in a joking manner were common
at Capital Contractors, but the company had a “no fighting” policy and employees
knew that fighting would result in termination. Ryan testified that Collins frequently
called him “fucking dummy,” “fucking retard,” “stupid,” “idiot,” and “numb nuts.”
According to Ryan, Collins also asked Ryan if his mother had dropped him on his
head when he was little. None of these derogatory comments were made in the
presence of management. Ryan also called Collins names–“fatty,” “Shrek,” “giant,”
and “bitch”–as well. Additionally, Ryan and Collins would give each other “charley
horses” and “titty twisters,” and regularly pinch each other. Ryan testified that
although he repeatedly asked Collins to stop this behavior, Collins did not do so.
On November 26, 2008, an altercation took place between Ryan and Collins.
Collins told Ryan to “get the fuck over there and start grinding.” Ryan asked Collins
either, “what’s up your butt?” or “what’s up your ass?,” and began to walk away.
According to Dissmeyer, the only eyewitness, Collins then grabbed Ryan by the coat
with both hands. Dissmeyer’s written statement, from the day of the incident, states
that Collins then “kinda picked Ronnie up” and shook him.2 After grabbing Ryan,
Collins told him that if he did not want to work he could go home, and Ryan “ended
up in the pit, from a small push from [Collins].” Ryan then swung at Collins and
knocked the breathing device off of Collins’s respirator mask. Collins told Ryan to
go home and reported the incident to his supervisor.
At the time of the incident, Jerry Borrell was the production superintendent and
Collins’s direct supervisor. On November 26, 2008, however, Ron Neidecker was
2
We note that Dissmeyer’s written statement was later called into question.
Jerry Borrell testified that Dissmeyer told him only that he saw Collins grab Ryan and
Ryan take a swing, and that there was nothing about “falling in the pit or anything
like that.” In his deposition, Dissmeyer said that the wording he used in the written
report was “a little extreme.” For the purposes of a motion for summary judgment,
however, we consider the facts in the light most favorable to Ryan.
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acting as superintendent in Borrell’s absence. Neidecker testified that he first learned
of the incident when Ryan approached him during the morning break. Ryan told
Neidecker that Collins had grabbed him and that he (Ryan) then had taken a swing
at Collins. At the end of the break, Collins spoke to Neidecker. Someone reported
the incident to Crist, the general manager. Crist and Borrell each spoke with Ryan,
Collins, and Dissmeyer. Crist made the ultimate decision to terminate Ryan, with
input from Borrell. Crist determined that Ryan would be terminated “the minute he
[Ryan] admitted to striking a fellow employee.” According to both Crist and Borrell,
it took longer to decide how to deal with Collins because he was a supervisor.
On December 1, 2008, Ryan was terminated from his employment with Capital
Contractors. Collins was demoted from foreman status, lost the pay associated with
being a foreman, was suspended without pay for three days, and was placed on
probation for ninety days. The work reprimand report stated that Ryan was dismissed
for striking a fellow employee and that Collins was disciplined for aggressive
behavior toward a subordinate. Two or three days later, Ryan asked Frank Sidles, the
owner of Capital Contractors, if he could have his job back. Sidles refused to rehire
him.
Collins was terminated in January of 2009, during his probationary period,
after Crist and Borrell received complaints from several individuals that Collins
engaged in unwelcome physical contact. Collins was rehired as a painter in July
2009, with the stipulation that he would hold no supervisory positions.
Ryan sued Capital Contractors under theories of age and disability
discrimination. He appeals from the district court’s grant of summary judgment with
respect to his disability discrimination claims. Ryan alleges that he was wrongfully
terminated, arguing that he was treated differently than Collins under Capital
Contractors’s anti-violence policy because of his disability. Ryan also alleges that
he was subjected to a hostile work environment in violation of the ADA.
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II.
We review de novo the district court’s grant of summary judgment, viewing all
evidence and drawing all reasonable inferences in favor of the non-moving party.
Wierman, 638 F.3d at 993. Summary judgment is proper if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Wierman, 638 F.3d at 993 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986)). At the summary judgment stage, “the nonmoving party must set forth
specific facts sufficient to raise a genuine issue for trial and cannot rest on allegations
in the pleadings.” Nw. Airlines, Inc. v. Astraea Aviation Servs., Inc., 111 F.3d 1386,
1393 (8th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
A. Wrongful Termination
In the absence of direct evidence of discrimination, we evaluate Ryan’s
wrongful termination claim under the familiar McDonnell Douglas framework. See
Kozisek v. Cnty. of Seward, Neb., 539 F.3d 930, 935 (8th Cir. 2008). “To establish
a prima facie case under the ADA, [Ryan] must show that he was a disabled person
within the meaning of the ADA, that he was qualified to perform the essential
functions of the job, and that he suffered an adverse employment action under
circumstances giving rise to an inference of unlawful discrimination.” Id. at 934
(citing Miners v. Cargill Commc’ns, Inc., 113 F.3d 820, 823 (8th Cir. 1997)).3 Once
3
“The disability discrimination provision in the NFEPA are patterned after the
ADA, and the statutory definitions of ‘disability’ and ‘qualified individual with a
disability’ contained in the NFEPA are virtually identical to the definitions of the
ADA.” Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002) (citing Neb.
Rev. Stat. Ann. § 48-1102(9) & (10); 42 U.S.C. §§ 12102(2), 12111(8)). “In
construing the NFEPA, Nebraska courts have looked to federal decisions, because the
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Ryan has established a prima facie case, the burden shifts to Capital Contractors to
articulate a legitimate, non-discriminatory reason for Ryan’s termination; if it does
so, the burden shifts back to Ryan to demonstrate that Capital Contractors’s proffered
reason is a pretext for unlawful discrimination. Id. at 935 (citations omitted).
Although it is not clear that Ryan has established the third element of a prima
facie case, the parties have focused their arguments on whether Ryan can establish
pretext. Accordingly, we assume without deciding that Ryan established a prima
facie case of disability discrimination. Capital Contractors has articulated a
legitimate, non-discriminatory reason for terminating Ryan: that by striking Collins
he violated the company’s policy against fighting in the workplace. “We have
consistently held that violating a company policy is a legitimate, non-discriminatory
rationale for terminating an employee.” Twymon v. Wells Fargo & Co., 462 F.3d
925, 935 (8th Cir. 2006) (citation omitted). Furthermore, “[i]t is beyond question that
an employee’s striking of a fellow employee is a legitimate, nondiscriminatory reason
for dismissal.” Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560 (8th
Cir. 1997). We thus turn to the question whether Ryan can show that Capital
Contractors’s reason is pretext for intentional discrimination.
Ryan argues that he can demonstrate pretext because he was treated differently
than a similarly situated employee, Collins. “Instances of disparate treatment can
support a claim of pretext,” but Ryan must show that he and Collins were “similarly
situated in all relevant respects.” Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d
484, 487 (8th Cir. 1998) (citation omitted), abrogated on other grounds by Torgerson
v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc). The “relevant” aspects
NFEPA is patterned after Title VII and the ADA.” Id. Thus, our analysis of Ryan’s
ADA claims and our affirmance of the district court’s grant of summary judgment
applies to Ryan’s NFEPA claims as well.
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of an employment situation are the conduct of the employees and any disparity in
their discipline. See Chappell v. Bilco Co., 675 F.3d 1110, 1118-19 (8th Cir. 2012)
(citations omitted). In the context of a physical altercation between two employees,
we have also considered whether the employees held the same position or had similar
disciplinary records. See Ward, 111 F.3d at 561.
In Ward, we upheld a grant of summary judgment to an employer in the face
of an employee’s allegation that her termination was a pretext for racial
discrimination. Id. The employee became involved in an argument with her team
leader that escalated when the team leader grabbed the employee’s hand and the
employee hit the team leader. Id. at 559. The employee was then fired based on the
employer’s rules against fighting, but the team leader was not. Id. at 560. We noted
that although both were “involved in the same argument, their actions are clearly
differentiated because the incident involved two separate levels of escalation.” Id.
at 561. The team leader had initiated the physical component of the argument, but the
employee was the only one who struck someone. We concluded that the employer
was “not obligated to treat the two escalations as substantially similar” when they
involved “objectively different conduct.” Id. Accordingly, we held that the employee
could not demonstrate pretext because the employee and team leader were not
similarly situated.
The incident at issue here also involved objectively different conduct. Collins
instigated the incident by cursing when he instructed Ryan to return to work, but
Ryan escalated it when he replied, “what’s up your butt/ass?” Ryan again intensified
the conflict by hitting Collins after Collins grabbed him. Collins then walked away
from the argument. Ryan emphasizes that Capital Contractors’s zero-tolerance policy
against fighting applied equally to all employees. He argues that the difference in the
discipline that he and Collins received was based on discriminatory animus. There
is no evidence, however, that refutes Capital Contractors’s explanation that the
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different punishments were simply based on the employees’ different conduct and its
determination that Collins’s conduct did not rise to a level warranting termination.
Furthermore, Collins was a foreman, whose position and whose knowledge of the
company Capital Contractors’s management took into account in deciding how to
discipline him.
We conclude that Ryan has not met his burden of demonstrating pretext at the
summary judgment stage. Ryan and Collins held different positions at Capital
Contractors and engaged in different levels of physical aggression in their altercation.
There is no evidence that shows that the difference in consequences for Ryan and
Collins was a result of anything except their different conduct and different roles in
the company. We do not say that the decision to terminate Ryan while retaining
Collins was right or fair, only that it does not present an actionable case of intentional
discrimination under the ADA.
B. Hostile Work Environment
To prevail on a hostile work environment claim under the ADA, Ryan must
show “that he is a member of the class of people protected by the statute, that he was
subject to unwelcome harassment, that the harassment resulted from his membership
in the protected class, and that the harassment was severe enough to affect the terms,
conditions, or privileges of his employment.” Shaver v. Indep. Stave Co., 350 F.3d
716, 720 (8th Cir. 2003) (citing Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d
906, 907-08 (8th Cir. 2003)). When the alleged harasser is the plaintiff’s fellow
employee there is a fifth element: that the employer knew or should have known of
the harassment and failed to take proper action. See Palesch v. Mo. Comm’n on
Human Rights, 233 F.3d 560, 566 (8th Cir. 2000). This element does not apply to
allegations of supervisory harassment. Id. at n.5.
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We have adopted a narrow definition of the term “supervisor” for purposes of
determining whether a company is vicariously liable for a hostile work environment.
To be considered a supervisor in the context of this claim, “the alleged harasser must
have had the power (not necessarily exercised) to take tangible employment action
against the victim, such as the authority to hire, fire, promote, or reassign to
significantly different duties.” Wyers v. Lear Operations Corp., 359 F.3d 1049, 1057
(8th Cir. 2004) (quoting Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir.
2004)). Collins did not have this type of authority, and we must determine whether
Capital Contractors knew or should have known of the harassment here.
It is not clear that the conduct at issue was “unwelcome” in the sense required
in hostile work environment claims. “The proper inquiry is whether [Ryan] indicated
by [his] conduct that the alleged harassment was unwelcome.” Scusa v. Nestle
U.S.A. Co., Inc., 181 F.3d 958, 966 (8th Cir. 1999) (quoting Quick v. Donaldson Co.,
Inc., 90 F.3d 1372, 1378 (8th Cir. 1996)). In Scusa, we upheld a grant of summary
judgment where the plaintiff yelled and swore at her co-workers in the same manner
that she claimed constituted harassment. Id. We assume, for purposes of summary
judgment, that Ryan was offended by Collins’s conduct and repeatedly asked him to
stop. But Ryan, like the plaintiff-appellant in Scusa, “engaged in behavior similar to
that which [he] claimed was unwelcome and offensive.” See id. Ryan’s behavior
failed to send a consistent signal that Collins’s conduct was unwelcome.
Even if Collins’s conduct constituted unwelcome harassment, it did not affect
the terms, conditions, or privileges of Ryan’s employment. We construe the phrase
“terms, conditions, or privileges of employment” with reference to our Title VII
jurisprudence. See Shaver, 350 F.3d at 720. “[W]e have repeatedly emphasized that
anti-discrimination laws do not create a general civility code.” Id. at 721 (citing
Mems v. City of St. Paul, Dep’t of Fire & Safety Servs., 327 F.3d 771, 782 (8th Cir.
2003)). A hostile work environment must be both subjectively and objectively
offensive, as well as “extreme in nature and not merely rude or unpleasant.”
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Sutherland v. Mo. Dep’t of Corr., 580 F.3d 748, 751 (8th Cir. 2009) (citations
omitted). “In determining whether a plaintiff has demonstrated a hostile work
environment, we consider the totality of the circumstances, including the frequency
and severity of the conduct, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with the plaintiff’s job performance.” Cross v.
Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir. 2010).
Collins’s conduct in this case did not reach the level of creating a hostile work
environment. Ryan was able to perform his duties at work and did everything that
was required of him despite Collins’s conduct. See, e.g., Cross, 615 F.3d at 982;
Stuart v. Gen. Motors Corp., 217 F.3d 621, 633 (8th Cir. 2000) (holding that plaintiffs
were unable to demonstrate a hostile work environment, partly because they were
able to perform their duties at work unimpeded by the harassment). In considering
the totality of the circumstances, Collins’s behavior was undoubtedly inappropriate
and likely subjectively offensive. But given the atmosphere of the workplace, Ryan’s
participation in similar conduct, and Ryan’s continued ability to perform his duties,
it did not rise to the level of extreme behavior that is objectively offensive.
Finally, Ryan has failed to present evidence that Capital Contractors knew or
should have known of this harassment and failed to address it.4 It is undisputed that
Collins did not call Ryan names and engage in horseplay when members of
management were present. It is also undisputed that Ryan never complained to
anyone other than Collins about Collins’s conduct. “An employee has a duty to take
reasonable steps to prevent harassment and mitigate harm.” Cross, 615 F.3d at 983
(citing Faragher, 524 U.S. at 806-07). Ryan had worked with production
4
Ryan argues that Capital Contractors did not have an equal employment
opportunity policy in effect at the time of the incident, and so is unable to utilize the
affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S. 775, 807-
808 (1998). Because Capital Contractors has not attempted to invoke any such
affirmative defense, see Appellee’s Br. at 38, we do not address the argument.
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superintendent Borrell for most of the past thirty years, and he also demonstrated that
he knew to contact owner Sidles when he wanted his job back. He could have
complained of Collins’s conduct to either Borrell or Sidles when Collins was not
responsive to Ryan’s requests that he cease engaging in such conduct.
We conclude that Ryan failed as a matter of law to demonstrate the elements
necessary to establish a hostile work environment claim.
III.
The judgment is affirmed.
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