Ledbetter v. Koss Construction ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 24 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH R. LEDBETTER,
Plaintiff-Appellant,
v.
No. 97-3362
KOSS CONSTRUCTION, (D.C. No. 96-CV-4036)
(D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, BARRETT, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Joseph R. Ledbetter, appearing pro se, appeals the
district court's disposition of his employment discrimination claims against
defendant-appellee Koss Construction Company (Koss). We affirm.
Ledbetter, a veteran over the age of forty, filed this case alleging that
Koss violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
to 2000e-17; the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§§ 621-634; and the Vietnam Era Veterans Readjustment Assistance Act
(VEVRA), 38 U.S.C. §§ 4211-4214, by refusing to hire him to work on a
highway paving project. Ledbetter also requested appointment of counsel.
The district court denied the application for appointed counsel. During
the pretrial phase of litigation, Ledbetter failed to appear for his scheduled
depositions and a pretrial conference and Koss moved for dismissal. Rather than
imposing the drastic sanction of dismissal, the district court required Ledbetter to
pay $1,487.70 of Koss's fees and expenses in monthly installments.
Subsequently, Koss moved for summary judgment. The district court
granted the motion, determining that Ledbetter: (1) presented no evidence or
argument to support the Title VII sex discrimination claim; (2) failed to produce
evidence on the ADEA claim creating a jury question concerning the credence of
Koss's expressed nondiscriminatory reasons for its hiring decisions, see, e.g.,
Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 529 (10th Cir. 1994); and
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(3) possessed no private right of action under VEVRA, see, e.g., Antol v. Perry,
82 F.3d 1291, 1296-98 (3d Cir. 1996). As an alternative disposition of the case,
the district court entered a dismissal based on Ledbetter's failure to pay the
sanctions assessed against him. See Fed. R. Civ. P. 41(b) (permitting involuntary
dismissal for failure to comply with an order of the court).
On appeal, Ledbetter asserts that the district court erred in entering
summary judgment, denying his request for appointed counsel, and assessing
the monetary sanction. “We review the district court’s grant of summary
judgment de novo, applying the same standard used by the district court under
Fed. R. Civ. P. 56(c).” Novell, Inc. v. Federal Ins. Co., 141 F.3d 983, 985
(10th Cir. 1998). We review the court's decisions concerning appointment of
counsel and sanctions for abuse of discretion. See Rucks v. Boergermann,
57 F.3d 978, 978 (10th Cir. 1995) (appointment of counsel); Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (imposition of sanctions).
After a thorough review of the record, we discern no error in the district
court's rulings. We therefore affirm for substantially the reasons stated by the
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district court in its orders of July 5, 1996, December 9, 1996, January 28, 1997,
and October 28, 1997. The mandate shall issue forthwith.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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