                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3129
                         ___________________________

                                  Nancy G. Holmes

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                    Trinity Health

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                              Submitted: June 11, 2013
                              Filed: September 4, 2013
                                   ____________

Before LOKEN, BEAM, and BYE, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

      Nancy Holmes appeals the district court's1 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.

      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
I.    BACKGROUND

        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

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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.

II.   DISCUSSION

      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

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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 where there
is no genuine issue as to any material fact and the movant is entitled to judgment as
a matter of law. Id. at 1049.

             1.     Age and Sex Discrimination Claims

        The ADEA prohibits discrimination against employees, over the age of 40,
because of their age. 29 U.S.C. § 623(a); Gibson v. Am. Greetings Corp., 670 F.3d
844, 855 (8th Cir.), cert. denied, 133 S. Ct. 313 (2012). Title VII makes it "an
unlawful employment practice for an employer to . . . discharge any individual
. . . because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a); Roberts v. Park
Nicollet Health Servs., 528 F.3d 1123, 1127 (8th Cir. 2008). In both ADEA and Title
VII discrimination cases, the claimant may either offer direct evidence of the
discrimination or satisfy the burden-shifting scheme established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Gibson, 670 F.3d at 855-56

                                          -4-
(establishing the standard for age discrimination cases); Torgerson v. City of
Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011) (setting forth the standard for sex
discrimination cases).

        On her ADEA and Title VII claims, Holmes asserts that the district court erred
in granting summary judgment because she provided direct evidence of both age and
sex discrimination. Direct evidence is "evidence showing a specific link between the
alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action." Togerson, 643 F.3d at 1044 (quotation omitted). To
support her claims, Holmes points to the deposition testimony of two former
employees, Nicola Roed and Deedra Hoffart, as direct evidence of both age and sex
discrimination. Roed, for example, stated, "I really think that anyone that was older
with more experience [Kutch] felt that they were threatening to him, and I felt that
way personally." Hoffart made statements of a similar vein: "I felt like to other
members of the senior leadership team[,] I felt like my age and perhaps even the fact
that I was a female was, I think, a limiting factor." After reviewing this testimony, we
conclude that these statements are not strong evidence that rises to the level of direct
proof. They do not provide a "specific link" between the alleged discriminatory
motive and the adverse employment decision, but rather merely provide the thoughts
and feelings of former employees regarding the workplace. Thus, the district court
did not err by moving to a McDonnell Douglas analysis on Holmes's age and sex
discrimination claims.

       Holmes also contends that the district court incorrectly granted summary
judgment on her age discrimination claim because she failed to establish a prima facie
case. To establish a prima facie case, Holmes was required to show she: "(1) was at
least forty years old, (2) suffered an adverse employment action, (3) was meeting [her]
employer's legitimate expectations at the time of the adverse employment action, and



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(4) was replaced by someone substantially younger." Gibson, 670 F.3d at 856
(quotation omitted).

       It is undisputed that Holmes was at least 40 years old and was meeting Trinity's
expectations at the time of the alleged adverse employment action, satisfying the first
and third elements of a prima facie case. Assuming, without holding, that the district
court correctly concluded there was a genuine question of material fact as to whether
Holmes suffered an adverse employment action, we turn to the fourth
element–whether Holmes was replaced by someone substantially younger. Trinity
asserts that Holmes was replaced by Barbra Brown, who was over seventy years old.
In April 2011, Brown was hired as the Vice President of Patient Care Services and
Chief Nursing Officer. Holmes claims that Brown was not her replacement because
Trinity eliminated the COO position. The evidence, even viewed in the light most
favorable to Holmes, does not support her contention. While Kutch testified that the
COO position was not filled and that the position no longer exists at Trinity, the
evidence in the record indicates that Brown, acting under a different title, assumed
almost all of Holmes's job functions. The fact that the job title changed does not
compel a finding in Holmes's favor. See Hart v. Bon Secours Baltimore Health Sys.,
455 F. App'x 337, 339-40 (4th Cir. 2011) (per curiam) (affirming a district court's
grant of summary judgment on an ADEA claim where an older replacement assumed
the responsibilities of the terminated employee, but the job titles were not precisely
the same); cf. Christensen v. Titan Distrib., Inc., 481 F.3d 1085, 1096 n.5 (8th Cir.
2007) (finding the fourth element of a prima facie case where the job title changed,
but a younger employee performed the same duties); Ultimately, without any other
evidence that Trinity did in fact replace Holmes with someone substantially younger,
Holmes failed to meet her prima facie case. Accordingly, the district court
appropriately dismissed her age discrimination claim on summary judgment.

       Likewise, Holmes challenges the lower court's grant of summary judgment on
the basis that she did not establish a prima facie case on her sex discrimination claim.

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To establish a prima facie case, Holmes was required to prove that she "(1) is a
member of a protected class; (2) was qualified to perform her job; (3) suffered an
adverse employment action; and (4) was treated differently than similarly situated
employees who were not members of the protected class." Wilkie v. Dep't of Health
and Human Servs., 638 F.3d 944, 954-55 (8th Cir. 2011).

       Again, the parties do not dispute the first two elements of a prima facie case,
and assuming that the district court correctly determined there was an issue of fact as
to whether Holmes suffered an adverse employment action, we turn to the final
element–whether Holmes was treated differently than similarly situated male
employees. Holmes alleges the Vice President of Human Resources, Simonson, was
a similarly situated male employee and challenges the district court's conclusion to the
contrary. Although Simonson was a member of the senior management team, he was
not a "similarly situated" employee, because he did not engage in the same conduct.
Specifically, Simonson did not voice similar dissatisfactions with Kutch's behavior
and management style. Evance v. Trumann Health Servs., LLC, 719 F.3d 673, 678
(8th Cir. 2013) ("[T]he individuals used for comparison must have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances." (alteration in original and
quotation omitted)). Holmes does not advance any evidence that indicates she was
treated differently than any other similarly situated male employee. Thus, she failed
to meet her prima facie case, and the district court properly granted summary
judgment.

             2.     Whistleblower Claim

       Holmes also challenges the district court's grant of summary judgment as to her
retaliatory discharge claim under the North Dakota whistleblower statute, North
Dakota Century Code section 34–01–20. According to Holmes, Kutch was concerned
Holmes was going to report to the Board of Directors his failure to create a plan

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following the corrective action letter from the North Dakota Department of Health and
that Holmes had other knowledge relating to Kutch's alleged inappropriate use of
company funds and property. The North Dakota Department of Health had
investigated Trinity in February 2010, and issued a letter, dated June 10, 2010, in
response to that investigation. The letter indicated that Trinity was in compliance with
the relevant Medicare requirements, but also cited some deficiencies. With regard to
the deficiencies, the letter stated Trinity was not required to submit a plan for
correcting the deficiencies, but that Trinity was permitted to submit a "plan of
correction" if it wished to do so.

       The North Dakota whistleblower statute provides "'[a]n employer may not
discharge . . . an employee . . . because . . . [t]he employee . . . in good faith, reports
a violation or suspected violation of federal or state law or rule to an employer or to
a governmental body or law enforcement official.'" Dahlberg v. Lutheran Soc. Servs.
of N.D., 625 N.W.2d 241, 252 (N.D. 2001) (alterations in original) (quoting N.D.
Cent. Code § 34–01–20(1)). The statute requires that a "report" be made for the
purpose of blowing the whistle to expose an illegality. Jacob v. Nodak Mut. Ins. Co.,
693 N.W.2d 604, 611 (N.D. 2005). To prove retaliatory discharge under the statute,
Holmes must demonstrate: (1) she engaged in protected activity; (2) Trinity took an
adverse employment action against her; and (3) a causal link between her protected
conduct and the adverse employment action. Dahlberg, 625 N.W.2d at 253. "An
employee engages in protected activity when she reports, in good faith, a violation or
suspected violation of federal or state law to her employer." Ambers v. Vill. Family
Serv. Ctr., Inc., 329 F. Supp. 2d 1046, 1052-53 (D.N.D. 2004).

       Holmes did not engage in a protected activity, as she did not report a violation
or suspected violation of federal or state law to her employer. The letter plainly states
that Trinity was in compliance and no further report was necessary. Moreover,
Holmes's testimony indicates that she approached Kutch because he did not share the
report with her in a timely manner and that "[she thought Kutch] was threatened that

                                           -8-
[she] was going to go to the Board of Directors with that information." Based on the
evidence in the record alone, no reasonable jury could find that Holmes made a
"report" to her employer of a suspected violation of federal or state law. See
Dahlberg, 625 N.W.2d at 254 (concluding that "'mere mention of [the suspected
violation to the employer] did not constitute a "report"' because the employee knew
his employer was already aware of the potentially illegal conduct" (quoting Rothmeier
v. Inv. Advisers, Inc., 556 N.W.2d 590, 593 (Minn. Ct. App. 1996))). Holmes did
not engage in a protected activity. Thus, the district court correctly granted summary
judgment on her claim.

             3.    Intimidation Claim

       Finally, Holmes challenges the district court's grant of summary judgment on
her claim under the North Dakota intimidation statute.2 North Dakota courts have not
acknowledged whether a private cause of action exists under this statute.
Accordingly, we must determine what the state's highest court would hold if it were
called on to decide the issue. Dahl v. ConAgra, Inc., 998 F.2d 619, 621 (8th Cir.
1993). When determining whether a private cause of action exists, North Dakota
court's consider three factors:




      2
       North Dakota Century Code section 34-01-04 reads:

      Every person who, by any use of force, threats, or intimidation, prevents
      any person employed by another from continuing or performing the
      person's work or from accepting any new work or employment, and
      every person who uses any force, threats, or intimidation to induce such
      hired person to relinquish the person's work or employment or to return
      any work the person has in hand before it is finished, is guilty of a class
      B misdemeanor.


                                         -9-
       (1) whether the plaintiff is one of the class for whose special benefit the
       statute was enacted; (2) whether there is an indication of legislative
       intent, explicit or implicit, either to create such remedy or to deny one;
       and (3) whether it is consistent with the underlying purposes of the
       legislative scheme to imply such a remedy for the plaintiff.

Ernst v. Burdick, 687 N.W.2d 473, 477 (N.D. 2004). Assuming that Holmes was a
member of the class that the statute was enacted to benefit (i.e., she was an employee),
we turn to the second factor. Holmes asserts that, with regard to the second factor,
because the language of the statute "enumerate[d] a criminal penalty," but does not
"provide language exclusive to a criminal penalty," the court should "imply that a civil
remedy may be applied." This reasoning does not persuade us, and as the North
Dakota Supreme Court recognized, "[t]he legislature's silence in failing to expressly
provide a private right of action is a strong indication it did not intend such a remedy."
Id. at 478. Because Holmes's argument fails on the second factor, we need not address
the third. Accordingly, we conclude the district court correctly granted summary
judgment on this claim because there is no private right of action under the
intimidation statute. See Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006,
1015 (D.N.D. 2006) (concluding there is no private cause of action in the intimidation
statute).

III.   CONCLUSION

       We affirm the district court's order granting summary judgment in favor of
Trinity and denying Holmes's motion for a default judgment.
                      ______________________________




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