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Montes v. Greater Twin Cities Youth Symphonies: EMPLOYMENT - honest belief in headstrong attitude was legit, non-pretextual reason for firing

1The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
United States Court of Appeals
No. 07-1088
Dr. Jean Montes, *
PlaintiffAppellant, *
Appeal from the United States
v. * District Court for the District
* of Minnesota.
Greater Twin Cities Youth *
Symphonies (GTCYS), **
DefendantAppellee. *
Submitted: October 15, 2007
Filed: August 28, 2008
Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
MELLOY, Circuit Judge.
Dr. Jean Montes appeals from the district courts1 grant of summary judgment
in favor of Greater Twin Cities Youth Symphonies, a non-profit music organization
for youth, on his race- and national-origin-based employment-discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1). We
We review the facts of this case in the light most favorable to Montes and
draw[] all reasonable inferences in his favor without resort to speculation.
Twymon v. Wells Fargo & Co., 462 F.3d 925, 928 n.2 (8th Cir. 2006). Youth
Symphonies is a non-profit organization in Minneapolis, Minnesota, that provides
orchestral experiences for youth. The organization is governed by a board of directors
that hires the Executive Director and the Artistic Director.
Montes was born in Haiti and lived there until he was about 18 years old,
when he immigrated to the United States. He held several positions as an orchestral
conductor and administrator, and he received his Doctor of Musical Arts degree in
May 2003. In July 2003, he began working as the Artistic Director at Youth
Symphonies. Montes was an at-will employee. He was the only racial minority at the
organization. Montes asserts numerous actions taken by Youth Symphonies indicate
he was terminated based on his race or national origin.
Board members characterized Montes as African-American and suggested that
he needed assistance assimilating. According to the deposition of Christine Corcoran,
a former Executive Director of Youth Symphonies, board members talked about
forming a transitional committee, and one board member, Cynthia Cargill, suggested
the board form an African-American committee to help Montes assimilate into
Minneapolis. Corcoran testified she responded by telling Cargill that Montes is
Haitian, not African-American. In her deposition, Corcoran said she thought forming
the committee would be inappropriate. Corcoran also testified board members
discussed helping Montes with his speaking ability, as Montes had difficulties
speaking up [and] projecting. They also discussed helping him get a better
command of English, and a board member explained that some people thought that
they couldnt understand his accent. Montes testified Corcoran repeated Cargills
comments to Montes: that Montes needed to be integrated into the community as an
African-American. Montes found this characterization to be discriminatory. Montes
later indicated he was disappointed the board never formed a transition team to help
him in the early months of his employment.
Montes also alleged that the board presidents use of the phrase la bte noire
evinced discrimination. He testified at his deposition that at an August 2003 meeting,
the president of the board, Charlie Feuss, said he understood that Montes was
considered la bte noire of the organization. Montes understood this to be in
reference to unpopular decisions Montes had recently made. Feuss, in his deposition,
stated Montes had first used the phrase. Montes, in his deposition, stated he was not
the first person at Youth Symphonies to use the phrase. Montes, in his brief,
acknowledged that after Montes used the phrase in a meeting with Feuss, Feuss
responded by asking Montes whether it means the black beast. This is the French
phrases literal meaning, and it has been incorporated into the English language as a
phrase that means one that is particularly disliked or that is to be avoided. The
American Heritage Dictionary of the English Language 174 (4th ed. 2006). Montes
testified that in [his] opinion, use of the phrase reflected a discriminatory
perception of [his] being.
Feuss used the phrase again during a September 2003 meeting with Montes.
According to Montes, Feuss used the phrase to describe [Montess] situation of
starting to work at Youth Symphonies when it was having difficulties. According to
Montes, Feuss later used the phrase to explain how Montes was being treated by a
staff member. Additionally, Montes alleged the phrase was used several times
through [his] tenure, although he did not identify other specific instances.
Montes also alleged discrimination based on the board undermining his
decisions. In support of this assertion, Montes explained the board asked him to
restructure the orchestras in order to reduce costs. He made a recommendation to
reassign two conductors, which the board approved. However, when others opposed
this decision, board members failed to support Montes.
Montes explained he was treated differently from the new Executive Director
of Youth Symphonies, Gwendolyn Freed, and from previous Artistic Directors. The
organization gave Freed, but not Montes, a parking place close to the building.
Additionally, Montess actions were monitored more closely than Freeds. Montes
also stated in his deposition he was not welcomed to Youth Symphonies or taken to
lunch, unlike previous Artistic Directors.
Soon after Montes started, Youth Symphonies hired David Ranheim as interim
Executive Director, which is not a position of authority over the Artistic Director.
Ranheim belittled, demeaned, and intimidated Montes. Montes testified Ranheim told
Montes that Montes did not have the persona to be an Artistic Director. Montes
understood Ranheim meant this was because Montes was not European. Ranheim told
Montes that Montes reminded Ranheim of his son. Ranheim called Montes a young
African conductor. Ranheim also said Montes needed support and guidance from
Ranheim. Montes alleged Ranheim referred to Montess race in the fall of 2003,
although Montes could not identify the statement. Montes alleged he discussed
Ranheims conduct with Feuss, but nothing was done to stop . . . Ranheims
Additionally, Montes alleges the boards reaction to his relationship with
another music organization evinces discrimination. On May 11, 2004, Montes sent
an e-mail to Youth Symphonies members informing them of an orchestra camp in
Wayzata, Minnesota, Allegro Music Camp, where Montes was also an employee. The
new Executive Director of Youth Symphonies, Freed, wrote in an e-mail to Montes
that Allegro Music Camp compete[d] directly with Youth Symphonies. Montes,
however, stated that the organizations did not compete and that before his involvement
with Allegro, it was tradition for [Youth Symphonies] personnel to participate in the
Allegro camp. Montes noted that the Allegro director had indicated this to Montes
and that a former Youth Symphonies employee participated in the camp before and
after Montess termination. Montes also testified that an Executive Director at Youth
Symphonies had asked for Montess assistance in recruiting students to a camp in the
Boston area. Montes said in his deposition that the board should not have been
surprised he sent the e-mail, as board member and former president Lois Hesselroth
was present when Montes discussed sending it.
When Freed replied to Montess e-mail to express her dissatisfaction, she blindcopied
board members. Feuss met with Freed to discuss her e-mail, and he later
discussed this issue with Montes. The boards Executive Committee responded to
Montess relationship to Allegro by giving Montes a Counseling Report. Feuss and
Jonathan Lewis, Executive Committee members, gave the Report to Montes at a
meeting on May 25, 2004.
This Report noted that Montess relationship with Allegro Music Camp . . .
raised several issues. Specifically, according to the Counseling Report, Montes
accepted a position with the potential competitor without first seeking input or
approval from the board. He promoted Allegro to Youth Symphonies students during
a rehearsal and through an e-mail announcement. In the Counseling Report, the board
also identified its expectations of Montes: Montes would consult with the board
president before accepting outside jobs, he would not promote outside programs, he
would treat Youth Symphonies confidential information as such, and he would
consult with the Executive Director before bringing non-Youth Symphonies members
to rehearsals and before sending formal communications to Youth Symphonies
students, parents, or donors. Montes alleged this altered the terms of his employment
as identified in his offer letter, which provided he would be permitted to engage in
other musical or educational endeavors which do not interfere with [his]
responsibilities at [Youth Symphonies]. The Counseling Report had a signature line
where Montes was to sign to acknowledge receipt. Montes refused to sign it at that
According to an e-mail Lewis sent to the boards Executive Committee, Montes
had said at the May 25th meeting it was unnecessary for him to seek any approval
from the board president. Montes told the board he did not consider himself a Youth
Symphonies employee, but thought his position was equivalent to a directors
position, and thus the board should not question his actions. In this e-mail, Lewis
described Montes as rude, condescending, arrogant and uncooperative. Lewis wrote
to the board members that he thought they should meet again with Montes and if he
would not agree to the Counseling Report, they would talk about him moving on.
On July 1, Montes addressed members of the board. Montes testified that he
talked about how excited he was about working for Youth Symphonies and thanked
them for the opportunity to work there. He also told board members he would be
willing to sign the Counseling Report if the entire board agreed he should. He thought
this agreement was appropriate because, as explained above, he believed the Report
amended his offer letter. Board members testified that Montes gave the board an
ultimatum at the meeting, saying he would resign if the organizational structure of
Youth Symphonies was not changed. Montes denies this. The following day, Feuss
told Montes the board had voted to terminate Montess employment, although he had
the option to resign. According to a letter Feuss sent Montes, Montes was terminated
because of his:
continued unwillingness to cooperate with [Youth Symphonies] Board
and other staff members regarding the overall operations of the
organization. This unwillingness to cooperate was most recently noted
in [his] refusal to sign the counseling report presented to [him] on May
24, 2004 and in [his] statement to the Board on July 1, 2004 that [he]
would resign [his] position rather than continue in the dual-leadership
arrangement into which [he was] hired.
Barry Farrell, a member of the board who was at the meeting, disagreed with
the boards decision to terminate Montes and resigned. Farrell wrote in his
resignation letter that certain perceptions about Dr. Montes have been based on
incomplete information, inaccurate details, biases, and misunderstandings. Farrell
also testified he thought the boards vote was staged, as board members had already
decided to terminate Montess employment before they voted on it at the meeting.
Youth Symphonies later hired Marlene Pauley, who is Caucasian, as Artistic Director.
Montes had known since that June that Virginia Commonwealth University was
interested in making him an offer for employment at a higher salary, and he began
working at the university after the board terminated his Youth Symphonies
Montes filed a complaint alleging racial discrimination with the Equal
Employment Opportunity Commission, which issued a right to sue letter. Montes
filed suit in district court alleging the board terminated his employment and he was
subjected to a continuous pattern of harassment and a hostile work environment
because of his race, color, and national origin, in violation of 42 U.S.C. 2000e-
Youth Symphonies filed a motion for summary judgment, which the district
court granted. In granting the motion, the district court first determined Montes did
not offer direct evidence of discrimination. Cargills suggestion that the board form
an African-American committee to assist Montess transition to the community was
not direct evidence because the committee was intended to enhance, rather than harm
Montes experience with [Youth Symphonies]. Additionally, according to the
district court, [n]othing in the context of . . . Cargills suggestion could support a
finding by a reasonable jury that her comment was not made for [a] well-intentioned
purpose. The district court found Cargills comment was also not direct evidence
because it was made in the context of hiring Montes, not firing him.
The district court additionally determined use of the phrase la bte noire was
not direct evidence of discrimination because the phrase has been incorporated into
the English language with a race-neutral meaning and carries no discriminatory
connotation. The district court considered the context in which Feuss used the
phrase, and determined that the only reasonable conclusion is that the phrase was
used in the conventional English-language way.
The district court held that, under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 80203 (1973), Montes failed to discredit [the
Youth Symphonies] stated reasons for termination, noting it is undisputed Montes
and the board had a conflict over Montess obligations to report to the board and
Montes was ultimately terminated for failing to notify the board before promoting
Allegro, a potentially competing music camp.
Montes appeals only the grant of summary judgment on his unlawful
termination claim, not his hostile work environment claim.
We review the district courts grant of summary judgment de novo. Whitley
v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000). Summary judgment
is appropriate where one party has failed to present evidence sufficient to create a
jury question as to an essential element of its claim. Id. (citation omitted).
Title VII of the Civil Rights Act of 1964 prohibits Youth Symphonies from
discharg[ing] any individual . . . because of such individuals race, color . . . or
national origin. 42 U.S.C. 2000e-2(a)(1). Because Montes does not assert he has
direct evidence of discrimination, see Price Waterhouse v. Hopkins, 490 U.S. 228,
27079 (1989) (OConnor, J., concurring), we apply the framework from McDonnell
Douglas Corp., 411 U.S. at 80203. Twymon, 462 F.3d at 93334; see also
Gebresadik v. Gonzales, 491 F.3d 846, 851 n.6 (8th Cir. 2007) (finding that arguments
not briefed are waived).
The McDonnell Douglas framework requires Montes to first establish a prima
facie case of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. Here,
we assume without deciding Montes has established a prima facie case. See Twymon,
462 F.3d at 935 (assuming without deciding that a the plaintiff established a prima
facie case). We assume Montes is a member of a protected class, he was meeting
legitimate job expectations, termination of his employment was an adverse
employment action, and he was replaced by a person outside the protected class. See
Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996).
Under the second step of McDonnell Douglas, Youth Symphonies must
articulate [a] legitimate, nondiscriminatory reason for Montess discharge. Id. at
802. The organization terminated Montes because he was unwilling to cooperate with
board and staff members. The organization thus met its non-onerous burden. See
Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005) (providing that the
employers burden is not onerous).
[T]he ultimate burden falls on [Montes] to produce evidence sufficient to
create a genuine issue of material fact regarding whether [Youth Symphonies]
proffered nondiscriminatory justifications are mere pretext for intentional
discrimination. Id. [T]he burden-shifting framework is merely an analytical
construct; the ultimate burden of proving [discrimination] remains at all times with
[Montes]. Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007);
see also St. Marys Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993) (finding that the
plaintiff retains that ultimate burden of persuading the trier of fact that he has been
the victim of intentional discrimination (internal quotation and brackets omitted)).
Montes failed to establish that Youth Symphonies legitimate reasons for firing
him were pretextual. He claims other directors promoted and participated in other
music camps and that, before his termination, other directors promoted and
participated in Allegro. Montes does not allege, however, that they did so without
prior approval from the board. It is undisputed Montes disagreed with the board
regarding many aspects of governing the organization. Montes himself indicated in
his deposition he had been unwilling to cooperate with the board. He testified that he
has expertise and that board members do not. He testified he should have had the
ability to decide what was best for Youth Symphonies and what actions constituted
a conflict of interest. Youth Symphonies terminated Montess employment because
of this attitude, which is a legitimate, nondiscriminatory reason. See Larry v. Potter,
424 F.3d 849, 851 (8th Cir. 2005) (explaining that an employees negative work
attitude is a legitimate, nondiscriminatory reason); see also Clay v. Hyatt Regency
Hotel, 724 F.2d 721, 724 (8th Cir. 1984) (finding an applicants dominant and
headstrong personality and exhibition of a know-it-all attitude was a legitimate,
nondiscriminatory reason for not hiring him). Regardless of whether Montes, an
employee of the board, was unwilling to accept the boards authority, the board
members perception that he was unwilling is a legitimate, nondiscriminatory reason
for Montess termination. See Johnson v. AT&T Corp., 422 F.3d 756, 762 (8th Cir.
2005) (noting that the proper inquiry is not whether [the employer] was factually
correct in determining whether the employee had engaged in impermissible conduct,
but rather the proper inquiry is whether [the employer] honestly believed so). As
a result, we find that Montes has failed to create a question of fact regarding Youth
Symphonies legitimate, nondiscriminatory reason.
Further, Montes failed to satisfy his ultimate burden of persuading the trier of
fact that he has been the victim of intentional discrimination. Hicks, 509 U.S. at 508
(internal quotation and brackets omitted). The evidence does not enable a reasonable
jury to conclude the board, which had recently hired Montes, campaigned to have
Montess employment terminated because of his race or national origin. Feuss, the
president of the board, commented that Montes was referred to as la bte noire on at
least three occasions. Feuss did not call Montes la bte noire, but stated that others
were using the phrase to refer to Montes. Montes does not provide evidence that, after
using the phrase himself, he told Feuss it was offensive and evinced racial
discrimination. We thus find the use of the phrase, which refers to one who is to be
avoided, does not create a trialworthy issue of discrimination in this case.
Our conclusion is not affected by Montess argument that the board presented
him with the Counseling Report allegedly without justification. Even assuming the
board was unjustified in presenting Montes with the Report, there was still insufficient
evidence to enable a jury to conclude Montes established his ultimate burden, that
he was fired because of his race or national origin.
Farrell decided to resign from the board after it terminated Montess
employment, asserting board members were biased against Montes. When
questioned, however, Farrell was unable to identify the basis for this conclusion or
any evidence indicating the boards decision was based on Montess race or national
origin. Such conclusory assertions by a single board member do not provide a basis
on which a reasonable jury could find illegal discrimination.
Board members suggestions of forming an African-American committee to
help Montes assimilate into the Minneapolis community and a subcommittee to
address Montess soft spokenness and accent also did not evince discrimination. At
most, this evidence suggested board members were aware of Montess ethnicity and
the issues that could arise within the Minneapolis community and Youth Symphonies,
an all-Caucasian organization, as a result. No reasonable jury could conclude this
evidence indicated the board terminated Montess employment because of his race or
national origin.
Montes alleges discrimination based on the actions of Executive Director
Ranheim and on the boards failure to intervene. We express no opinion on whether
Ranheims actions constituted a hostile work environment, as this issue is not before
us. Montes only appealed his claim that he was subject to discrimination based on his
firing. Because Ranheim was not a member of the board at that time and not a
decision maker in the termination of Montess employment, Montes is required to
demonstrate some causal relationship between [Ranheims] statements and [the
boards] decision to terminate [Montess] employment. Johnson, 422 F.3d at 763.
Montes failed to demonstrate this. Montes also failed to demonstrate a causal
relationship between the boards failure to intervene and his termination. Thus, we
do not consider Ranheims actions in determining whether the board terminated
Montes because of his race or national origin.
While use of the phrase la bte noire gives us pause, we conclude that the
evidence taken as a whole is insufficient to permit a reasonable jury, without resort
to speculation, to draw [an] inference that the board terminated Montess
employment because of his race or national origin. See Stewart, 481 F.3d at 104546.
The mere existence of a scintilla of evidence in support of the plaintiffs position will
be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (cited in
Stewart, 481 F.3d at 1046). Given the boards legitimate reasons for terminating
Montess employment and the lack of evidence that the boards conduct was based on
Montess race or national origin, we conclude that the district court did not err in
granting Youth Symphonies motion for summary judgment.
We affirm the district courts granting of Youth Symphonies motion for
summary judgment.


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