Larry Ellett v. Big Red Keno ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 98-3046
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Larry Ellett, *
*
Appellant, *
*
v. *
*
Big Red Keno, Inc., a Nebraska *
gaming corporation; Strategic *
Staff Management, Inc., a Nebraska *
Personnel corporation; Mike *
Roseland, principal corporate official * Appeals from the United States
of Strategic; Gregory D. Erwin, * District Court for the
principal stockholder, director and * District of Nebraska
president of Big Red Keno, Inc.; Dan *
Pankow, Operations Manager; Mark * [UNPUBLISHED]
Munger, Director of Operations; *
Gary Vander Woude, Secretary and *
Treasurer; Big Red Keno Limited, a *
Partnership; Alan Baer, owners and *
stockholders; Ted Baer, Principal *
owner and stockholder, *
*
Appellees. *
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No. 98-3694
___________
Larry Ellett, *
*
Appellee, *
*
v. *
*
Big Red Keno, Inc., a Nebraska *
gaming corporation; Strategic Staff *
Management, Inc., a Nebraska *
Personnel corporation; Mike *
Roseland, principal corporate *
official of Strategic; Gregory D. *
Erwin, principal stockholder, *
director and president of Big Red *
Keno, Inc.; Dan Pankow, *
Operations Manager; Mark Munger, *
Director of Operations; Gary *
Vander Woude, Secretary and *
Treasurer; Big Red Keno Limited, a *
Partnership; Alan Baer, owners and *
stockholders; Ted Baer, Principal *
owner and stockholder; Jeffrey A. *
Silver, *
*
Appellants. *
*
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Submitted: March 21, 2000
Filed: July 21, 2000
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Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
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In these consolidated appeals, Larry Ellett appeals from the final judgment
entered in the District Court1 for the District of Nebraska in his employment
discrimination action (Appeal No. 98-3046), and defendants appeal the district court’s
subsequent denial of attorney’s fees and sanctions (Appeal No. 98-3694). For reversal,
Ellett argues that summary judgment was improper and that he was denied procedural
due process and equal protection in the proceedings below by certain pretrial rulings
and discovery orders. For the reasons discussed below, we affirm the district court’s
grant of summary judgment and denial of attorney’s fees and sanctions.
Ellett was formerly an employee of Strategic Staff Management, Inc., a Nebraska
personnel corporation that leased employees to Big Red Keno, Inc., and Big Red Keno,
Ltd., respectively a Nebraska gaming corporation and a partnership (hereinafter,
collectively referred to as “Big Red”). Viewed in the light most favorable to Ellett, see
Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 486 (8th Cir. 1998), the
evidence established that throughout Ellett’s employment at Big Red, he was subjected
to a working environment in which sexual jokes, pornography, office affairs and
flirtations, and the display of “sex toys” were commonplace. Ellett alleged that this
atmosphere violated his rights under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17, as well as his civil rights, and that he was constructively
discharged in retaliation for reporting this offensive conduct.
We conclude summary judgment was proper. As to Ellett’s hostile-work-
environment claim, Ellett is unable to establish sexual harassment based on his gender
because the record shows and Ellett admitted that all employees--male and female--
were subject to the same offensive workplace atmosphere. A dually offensive sexual
atmosphere in the workplace, no matter how offensive, is not unlawful discrimination
unless one gender is treated differently than the other. See Oncale v. Sundowner
1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
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Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998) (although Title VII’s prohibition
against sex discrimination protects men as well as women and harassing conduct need
not be motivated by sexual desire to support inference of sex discrimination, critical
issue is whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of other sex are not); Stacks v.
Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326-27 (8th Cir. 1994) (same;
court must look to totality of circumstances in assessment). As to his claim of quid pro
quo sexual harassment, Ellett did not present evidence capable of proving that his
submission to unwelcome advances was an express or implied condition for receiving
job benefits or that his refusal to submit resulted in a tangible job detriment. See
Newton v. Cadwell Labs., 156 F.3d 880, 882 (8th Cir. 1998) (prima facie elements of
quid pro quo sexual harassment).
Ellett’s claim that he was discriminatorily denied a promotion also fails, because
Big Red promoted another male for the position for which Ellett applied, and Ellett
failed to show Big Red’s proffered reason for not promoting him--i.e., his accumulation
of several disciplinary reports and lack of managerial skills--was pretextual. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) (elements of prima
facie case of discrimination; after employer offers nondiscriminatory reason, burden
shifts to plaintiff to show proffered reason was pretextual and intentional discrimination
was real reason); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 857-58 (8th Cir. 1998)
(applying McDonnell Douglas test to case involving alleged disparate treatment and
termination based on sex). Because Ellett failed to show pretext, his retaliation and
constructive discharge claims also fail. See Jackson v. Delta Special Sch. Dist. No. 2,
86 F.3d 1489, 1494 (8th Cir. 1996) (outlining three-stage order of proof and
presumptions governing retaliatory discharge claims); cf. Hukkanen v. International
Union of Operating Eng’rs Local No. 101, 3 F.3d 281, 285 (8th Cir. 1993)
(constructive discharge exists where resignation was reasonably foreseeable
consequence of employer’s discriminatory actions).
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We further conclude that Ellett failed to establish the requisite degree of state
action to implicate 42 U.S.C. § 1983, see Miller v. Compton, 122 F.3d 1094, 1098 (8th
Cir. 1997) (§ 1983 plaintiff must produce evidence from which reasonable jurors could
conclude private party is willing participant in joint action with state or its agents), and
we find that any 42 U.S.C. § 1983 or § 1985 conspiracy claim was insufficiently
supported, see Larson by Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (en
banc) (elements of § 1985(3) action); Nelson v. City of McGehee, 876 F.2d 56, 59 (8th
Cir. 1989) (§ 1983 plaintiff must show defendants reached agreement to violate his
federally protected rights). Ellett failed to present any evidence in support of his
Thirteenth Amendment claim of “white slavery.”
Concerning Ellett’s due process and equal protection arguments, we conclude
that the district court did not abuse its discretion in denying certain pretrial motions, or
err in issuing certain discovery orders. See Goldberg v. Kelly, 397 U.S. 254, 267
(1970) (fundamental requisite of due process of law is opportunity to be heard); cf.
United States v. Casares-Cardenas, 14 F.3d 1283, 1286 (8th Cir.) (reviewing refusal
to consider untimely pretrial motions for abuse of discretion), cert. denied, 513 U.S.
849 (1994); Solari Furs v. United States, 436 F.2d 683, 685 (8th Cir. 1971) (usual
procedure is to deposit mass of original data with court for examination when
condensed material is sought to be admitted).
Finally, we conclude the district court did not err in denying defendants’ motion
for attorney’s fees and sanctions. Ellett’s former counsel’s motion is denied as moot.
Accordingly, we affirm the judgment and the order of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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