Nancy G. Holmes Plaintiff- Appellant
Trinity Health Defendant-Appellee
Submitted: June 11, 2013
Appeal from United States District Court for the District of North Dakota - Bismarck
Before LOKEN, BEAM, and BYE, Circuit Judges.
BEAM, CIRCUIT JUDGE.
Nancy Holmes appeals the district court's grant of summary judgment in favor of Trinity Health ("Trinity") and the denial of her motion for a default judgment. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Holmes began working for Trinity in 1975. In 2009, John Kutch became Trinity's Chief Executive Officer ("CEO"). At that time, Holmes was the Senior Vice President and Chief Operating Officer ("COO"), and, as such, was a member of the senior management team. On September 9, 2010, Holmes's employment with Trinity ended after a meeting between Holmes and Kutch. During the meeting, the two discussed Kutch's actions as CEO and Holmes's displeasure with his management style, specifically that Kutch met with Holmes's subordinates without informing her. Also, at the meeting Holmes indicated she was going to meet with Trinity's Board of Directors to discuss Kutch's failure to respond to a report issued by the North Dakota Department of Health. According to Holmes, Kutch responded by asking her if she was threatening him. At some point during this conversation the two became confrontational. Kutch testified that Holmes asked Kutch if he wanted her to resign, to which Kutch said he wanted her to do her job. Following the meeting with Kutch, Holmes relayed the happenings of the meeting to the Vice President of Human Resources, Paul Simonson. According to Holmes, she did not tender her resignation to either Kutch or Simonson, but Trinity, on the other hand, maintains Holmes resigned during her conversation with Kutch. Later that evening, Kutch's assistant, Allison Repnow, called Holmes and told her to turn over her company cell phone and computer.
On January 28, 2011, Holmes filed this lawsuit, after receiving a right to sue letter from the Equal Employment Opportunity Commission. Relevant to this appeal, Holmes alleged Trinity wrongfully terminated her employment in violation of the Age Discrimination in Employment Act ("ADEA"); in violation of Title VII of the Civil Rights Act on the basis of sex; in violation of the North Dakota whistleblower statute; and that Kutch intimidated her in violation of North Dakota Century Code section 34-01-04 ("intimidation statute"). On March 30, 2012, Holmes filed a "Motion for Summary Judgment or Default Judgment, " asking the court to dispose of the case due to alleged discovery violations by Trinity. Trinity also filed a motion for summary judgment. The district court denied Holmes's motion because the court had not previously issued an order to compel discovery, nor had one been requested. The court granted Trinity's motion, concluding that, while the work environment was "less-than-desirable, " Holmes had failed to raise a genuine issue of fact on any of her claims. Holmes appeals.
A. Discovery Sanctions
Holmes appeals the district court's denial of her "Motion for Summary Judgment or Default Judgment, " which asked the court to grant a dispositive discovery sanction against Trinity for its "willful pattern of action in failing to comply" with the scheduling order. We review the denial of discovery sanctions for an abuse of discretion and give substantial deference to the district court's determination. Stepnes v. Ritschel. 663 F.3d 952. 965 (8th Cir. 2011). The district court reasoned that because it had not issued, nor had Holmes requested, an order to compel discovery, such an extreme sanction was not justified. On appeal, Holmes argues that the court's preliminary scheduling order was the type of order contemplated by Federal Rule of Civil Procedure 37 and that no other motion by Holmes nor order from the court was necessary. Our circuit has not adopted this position; accordingly, we find no abuse of discretion in the district court's denial of the extreme sanction sought by Holmes. Chrysler Corp. v. Carey. 186 F.3d 1016, 1019 (8th Cir. 1999) ("In order to impose sanctions under Rule 37, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party."); Dependahl v. Falstaff Brewing Corp.. 653 F.2d 1208, 1213 (8th Cir. 1981) ("We recognize that a Rule 37(b) sanction should not be imposed by the trial court unless a Rule 37(a) order is in effect. ... [A] Rule 37(a) order insures that the party failing to comply with discovery is given adequate notice and an opportunity to contest the discovery sought prior to the imposition of sanctions." (citation omitted)); see also R.W. Int'l Corp. v. Welch Foods. Inc.. 937 F.2d 11. 15-16 (1st Cir. 1991) (where a party sought a dismissal under Rule 37(b) without first requesting an order to compel, the court concluded that bypassing a Rule 37(a) order was "tantamount to a ball player sprinting from second base to home plate, without bothering to round, let alone touch, third base, " and also concluded that a scheduling order was not a suitable surrogate for a Rule 37(a) order).
B. Summary Judgment
Holmes further appeals the district court's grant of summary judgment in favor of Trinity as to her age discrimination, sex discrimination, whistleblower and intimidation claims. We review de novo the grant of summary judgment, considering the facts in the light most favorable to Holmes and giving her the benefit of all reasonable inferences in the record. Butler v. Crittenden Cnty.. Ark.. 708 F.3d 1044, 1048 (8th Cir. 2013). We will only uphold a grant of summary judgment ...