Twanetta Rollins v. Cone Distributing, Inc.

Case: 16-15009 Date Filed: 09/28/2017 Page: 1 of 19

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-15009
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-00486-RH-CAS

TWANETTA ROLLINS,

Plaintiff-Appellant,

versus

CONE DISTRIBUTING, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(September 28, 2017)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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Twanetta Rollins sued her former employer, Cone Distributing Inc., for sex

discrimination and retaliation under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e-2, 3, and the Florida Civil Rights Act of 1992

(“FCRA”), Fla. Stat. §§ 760.10(1)(a), (7). The district court granted summary

judgment in favor of Cone on both claims. Rollins appeals the court’s summary

judgment ruling as well as several of its discovery rulings. After careful review of

the parties’ briefs and the record, we affirm.

I. BACKGROUND

Rollins worked at Cone for 45 days in a probationary capacity as a

warehouse worker. Cone is a beverage distribution company, and Rollins was

responsible for loading bulk quantities of beer and other beverages onto (and

removing them from) Cone trucks. She worked in Cone’s Tallahassee warehouse

alongside another warehouse worker named Avery Mitchell. Rollins and Mitchell

were supervised by Steve Verhage.

During Rollins’ second week of employment, a Cone truck driver

complained that his truck had not been loaded properly. Rollins had been

responsible for loading that truck, so Tallassee office manager Kim Boyer called

her in to meet with the driver. Rollins explained that she had not been trained

properly, so the truck driver provided her with additional training. That same

week, Rollins complained to Verhage that Mitchell was not performing his share of

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the work in the warehouse. Verhage stated he would speak with Mitchell about the

issue. Within the following two weeks, Rollins complained to Verhage that

Mitchell had stopped working. Verhage, Rollins, and Boyer spoke about the issue.

Boyer assured Rollins that warehouse work would be distributed evenly between

her and Mitchell. Yet other workers complained that Rollins and Mitchell did not

timely complete the work assigned to them during their shift. In response, Rollins

and Mitchell together developed a plan for splitting the work and presented it to

Verhage.

At the beginning of Rollins’s fourth week of work, she started training to

receive a commercial driver’s license (“CDL”) with Dan Yero, Cone’s CDL

instructor. The two worked together for five days during that week. During a

weekly personnel meeting with other Cone employees, Yero complained of

difficulties training Rollins. He reported that Rollins was not receptive and would

not listen to his instructions and that she was the most difficult and combative

trainee he had ever encountered.

Cone employees within their first 90 days of employment are on probation

and subject to close scrutiny. Cone Vice President for Administration Joseph

Lopez therefore instructed Cone Director of Human Resources Tim Null to look

into whether Rollins was a good fit for the company. Null spoke to Yero about

Rollins; Yero explained that Rollins was combative and that when Yero would

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instruct Rollins to do something, she would argue that he was incorrect and do

something different. Ultimately, Null decided to terminate Rollins’s employment

before the end of her probation. He came to this decision because he concluded

that Rollins had difficulty working with others, did not perform tasks as instructed,

and failed to follow Yero’s instructions during driver training.

Rollins filed suit in Florida state court alleging sex discrimination and

retaliation under state and federal law. Rollins alleged that her disagreements with

Mitchell were based on his anger that Cone had hired a female warehouse worker

and that Mitchell refused to train or work with her because of her sex. She also

alleged that Yero intentionally gave her misleading information and said she was

unready to take a CDL test while providing male employees with more

opportunities for CDL training. Finally, Rollins alleged that she reported

Mitchell’s mistreatment of her to Verhage and that she was terminated in

retaliation for filing this report. Cone removed the case to district court.

The parties proceeded to discovery. Rollins testified that she heard from

another co-worker that Mitchell said he did not want to work with Rollins because

she was a girl. She testified that she reported this comment to Verhage when she

complained that Mitchell was not performing his share of the warehouse work.

Cone produced the personnel files of Mitchell and a male employee whom

Rollins specifically identified as someone who might have received more favorable

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treatment. Rollins deposed many Cone employees including Null, Boyer,

Verhage, Yero, and Lopez.

Yero testified that Rollins was argumentative, that she claimed she saw the

road from a different perspective than Yero, and that she repeatedly did not follow

his instructions about turning the truck during training. Yero conceded that Rollins

never expressly refused to follow his instructions.

Lopez testified as Cone’s corporate representative. His deposition lasted

five hours and covered a wide variety of topics. Lopez stated that Rollins’s job

performance was not what led to her termination. But he did blame that

termination in part on Rollins’s failure to perform her duties as instructed,

including the time she failed to load kegs into the driver’s truck. He also described

Yero’s difficulty training Rollins and Yero’s complaint to Null. Lopez detailed

Null’s investigation and decision to terminate Rollins because she was not a good

fit for the company.

Rollins filed three motions to compel. These motions argued that Cone

failed to comply with many of Rollins’s discovery requests, three of which are

relevant on appeal. 1 First, she sought the personnel files of every employee who

1
In addition to the items we discuss below, Rollins also moved to compel Cone’s written
progressive discipline policy; the descriptions of the Transporter and Merchandiser positions;
EEOC and Florida Commission on Human Relations charge forms served on Cone since 2010;
files that Cone human resources employees possessed discussing complaints of harassment,
retaliation, or discrimination since 2010; and documents created by Null regarding employee

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had ever held Rollins’s position at the Tallahassee warehouse to determine if these

employees had received more favorable treatment than she did. Second, Rollins

asked to conduct a second deposition of Lopez because he was not sufficiently

prepared for his first deposition. Third, Rollins insisted that Cone respond to her

interrogatories requesting information about the reasons for her termination; any

documents related to those reasons; and any policies or procedures she could have

utilized to address employment discrimination or harassment.

The district court denied each of these requests as disproportional to the

needs of the case and duplicative of items already produced. The court did,

however, grant part of one of Rollins’s motions to compel and ordered Cone to

produce any notes Boyer took during a meeting she held with Rollins and Mitchell.

Even though it granted Rollins’s motion in part, the court declined to order Cone to

pay any of Rollins’s expenses because it concluded that Cone was substantially

justified in opposing Rollins’s requests.

Cone moved for summary judgment. Rollins opposed the motion. The

district court concluded that there was no evidence that race motivated Null’s

discipline. Although Rollins mentions these items in passing on appeal, she fails to provide any
specific arguments about why the district court erred in refusing to compel their production. We
therefore decline to review the district court’s rulings on these items. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (holding issues not adequately briefed
on appeal are abandoned).

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decision to terminate Rollins, so it granted summary judgment. This is Rollins’s

appeal.

II. STANDARDS OF REVIEW

We review a district court’s denial of a motion to compel discovery for an

abuse of discretion. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1306 (11th Cir. 2011). We also review the denial of a request for expenses

related to filing or responding to a motion to compel under Rule 37 for an abuse of

discretion. Id. at 1313. This Court will not overturn a district court’s discovery

ruling unless the court has made a clear error of judgment, or has applied the

wrong legal standard or the court’s ruling “resulted in substantial harm to the

appellant’s case.” Id. at 1306 (internal quotation marks omitted).

We review the district court’s grant of summary judgment de novo, applying

the same legal standards applied by the district court. Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A factual dispute exists where a reasonable fact-finder could find by a

preponderance of the evidence that the non-moving party is entitled to a verdict.

Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). In

determining whether evidence creates a factual dispute, a court should draw

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reasonable inferences in favor of the non-moving party, but “inferences based upon

speculation are not reasonable.” Id. at 1301 (quotation omitted).

III. DISCUSSION

A. Discovery Rulings

Rollins appeals the district court’s denial of her motions to compel three

items. First, Rollins sought copies of Cone personnel files, but her request was

overbroad. Second, she pursued a second deposition of Lopez; however, deposing

Lopez again would have been duplicative and would not have helped resolve the

issues in the case. Third, Rollins demanded responses to three of her

interrogatories. Yet these interrogatories sought information already in the record.

The district court therefore did not abuse its discretion in denying Rollins’s

motions to compel.

Nor did the district court abuse its discretion in denying Rollins’s request

for costs. Although her motions to compel were partially successful, Cone was

substantially justified in resisting her discovery requests.

1. Motions to Compel

Rollins challenges the court’s denial of her motions to compel. A party may

move for an order compelling discovery or disclosure. Fed. R. Civ. P. 37(a)(1).

Discovery may be had as to “any nonprivileged matter that is relevant to any

party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.

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26(b)(1). The court must limit the frequency or extent of discovery otherwise

permitted if it determines that “the discovery sought is unreasonable cumulative or

duplicative,” or “the party seeking discovery has had ample opportunity to obtain

the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C). “The

scope of discovery in Title VII cases is not without limits.” Washington v. Brown

& Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992). “Where a

significant amount of discovery has been obtained, and it appears that further

discovery would not be helpful in resolving the issues, a request for further

discovery is properly denied.” Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325

F.3d 1274, 1286 (11th Cir. 2003) (internal quotation marks omitted).

The district court did not abuse its discretion in denying Rollins’s motion to

compel Cone personnel files, a second deposition of Lopez, and responses to

several of her interrogatories. We consider each of these discovery requests in

turn.

First, the district court did not abuse its discretion in determining that

Rollins’s requests for personnel files exceeded the proper scope of discovery.

Rollins sought the personnel files of every warehouse worker Cone ever employed

in the Tallahassee warehouse to determine whether Cone treated any male

employee more favorably than Rollins. Cone had already produced the personnel

files of Rollins, Mitchell, and another employee whom Rollins specifically

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identified as a male employee who might have received more favorable treatment,

as well as many other documents in response to her discovery requests. Absent

any indication that any particular warehouse employee was a comparator who had

been treated more favorably, we cannot say that the district court abused its

discretion in denying the motion to compel. See Washington, 959 F.2d at 1570

(stating in Title VII case that “information sought must be relevant and not overly

burdensome to the responding party” and “tailored to the issues involved in the

particular case.”).

Rollins cites a bevy of cases in which other courts have granted Title VII

plaintiffs access to personnel files, but an examination of each case reveals that the

requests for discovery were more circumscribed and proportional than Rollins’s

blanket request here. See, e.g., Coughlin v. Lee, 946 F.2d 1152, 1159 (11th Cir.

1991) (remanding for district court to consider whether to order production of

personnel files of identifiable “employees who had arguably been guilty of a

variety of infractions more serious than those committed by plaintiffs, but who

nevertheless were not discharged by” the defendant); Costa v. Remillard, 160

F.R.D. 434 (D.R.I. 1995) (compelling production of personnel files of two named

police officers accused by plaintiff of creating hostile work environment).

Second, it was not an abuse of discretion for the district court to conclude

that a second deposition of Lopez would have been duplicative or cumulative of

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other evidence in the record. Pursuant to Federal Rule of Civil Procedure 36(b)(2),

Rollins deposed Cone’s corporate representative, Lopez, for over five hours on a

wide variety of topics. Both in her motion to compel and now on appeal, Rollins

argues that Lopez was unprepared to discuss the topics she identified in her Rule

36(b)(2) notice. Yet the record reflects that Lopez gave responsive answers on all

of these topics. For example, Rollins alleges that Lopez was unprepared to discuss

the reasons Cone terminated her employment. But Lopez described Yero’s

difficulty training Rollins, Null’s investigation and determination that Rollins was

not a good fit for the company, and Null’s decision to terminate Rollins on these

grounds. Moreover, Rollins deposed Null, Boyer, Verhage, Yero, and at least

three other Cone employees. She fails to explain what further evidence Lopez

could provide that would be helpful in resolving the issues in the case. See Iraola,

325 F.3d at 1286 (“Where . . . it appears that further discovery would not be

helpful in resolving the issues, a request for further discovery is properly denied.”

(internal quotation marks omitted)) We therefore affirm the district court’s denial

of Rollins’s motion to compel another deposition with Lopez.

Third, the district court did not abuse its discretion when it determined that

Rollins’s interrogatories were duplicative. Rollins identified three interrogatories

to which Cone failed to respond. These interrogatories requested information

about the reasons for Rollins’s termination, any documents related to those

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reasons, and any policies or procedures Rollins could have utilized to address

employment discrimination or harassment. Although these interrogatories sought

relevant information, our review of the record persuades us that Rollins received

this same information through her document requests and depositions. “The

discovery sought” was therefore “unreasonably cumulative or duplicative” and

Rollins “had ample opportunity to obtain the information” she sought. Fed. R. Civ.

P. 26(b)(2)(C). The district court’s denial of Rollins’s motion to compel responses

to the three interrogatories was a proper exercise of its discretion.

2. Costs

Rollins argues that the district court erred in failing to award her reasonable

expenses for preparing her partially-successful motions to compel. If a motion to

compel is granted in part and denied in part, Rule 37 provides that the court may

“apportion the reasonable expenses for the motion” between the movant and the

opposing party. Fed. R. Civ. P. 37(a)(5)(C). The rule also provides that a district

court may deny reasonable expenses to a successful movant when “the opposing

party’s nondisclosure, response, or objection was substantially justified.” Fed. R.

Civ. P. 37(a)(5)(A). Resistance to a motion to compel is “substantially justified” if

“reasonable people could differ as to the appropriateness of the contested action.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988) (alterations and internal quotation

marks omitted). Here, the district court concluded that many of Rollins’s

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discovery requests were disproportional to the needs of her case and duplicative, so

Cone’s resistance was substantially justified. This was not an abuse of discretion,

so we affirm the district court’s denial of reasonable expenses to Rollins.

B. Summary Judgment

1. Sex Discrimination

Rollins argues that Cone discriminated against her by treating her differently

and terminating her because she was a woman. Title VII makes it unlawful for an

employer to “discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment” because of sex. 42

U.S.C. § 2000e-2(a)(1). 2 The plaintiff bears the burden of proving that the

employer unlawfully discriminated against her. Hinson v. Clinch Cty. Ga. Bd. of

Educ., 231 F.3d 821, 827 (11th Cir. 2000). A plaintiff may establish a Title VII

claim through the introduction of direct evidence of discrimination or through

circumstantial evidence that creates an inference of discrimination. Id. Here,

Rollins supports her discrimination claim with circumstantial evidence.

When evaluating a discrimination claim based on circumstantial evidence,

this Court applies the three-step burden-shifting framework set out in McDonnell

Douglas Corp v. Green, 411 U.S. 792 (1973). Alvarez, 610 F.3d at 1264. Under

2
The FCRA also makes it unlawful for employers to discriminate on the basis of sex.
Fla. Stat. § 760.10(1)(a). Claims under the FCRA are analyzed under the same framework as
claims brought under Title VII. See Jones v. United Space All., L.L.C., 494 F.3d 1306, 1310
(11th Cir. 2007).

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the McDonnell Douglas framework, if the plaintiff establishes a prima facie case

of discrimination and the defendant articulates a legitimate, nondiscriminatory

reason for its action, the plaintiff must then produce evidence that the employer’s

proffered reason is actually a pretext for discrimination. Id. The ultimate burden

of proving that the employer discriminated against the plaintiff remains at all times

with the plaintiff. Id. We assume without deciding that Rollins established a

prima facie case of sex discrimination.

We nevertheless conclude that the district court properly granted summary

judgment in Cone’s favor because Rollins could not show that Cone’s legitimate

nondiscriminatory reasons for firing Rollins were pretextual. Cone provided three

legitimate nondiscriminatory reasons for terminating Rollins, none of which

Rollins effectively rebuts. First, Rollins had difficulty working with others.

Rollins does not dispute that Yero complained to Null about Rollins’s behavior. 3

Second, Rollins did not perform her duties as instructed. Rollins admits that, at

least once, she incorrectly stacked kegs on a truck. Third, Rollins failed to follow

instructions from her commercial driver’s license instructor. Rollins disputes that

she refused to follow instructions. But she acknowledges that she had trouble

learning driving maneuvers from Yero. And she admits that the two had a

disagreement.

3
Rollins disputes that there was any cause for complaint, but she does not dispute that
Yero complained to Null, who decided to terminate her.

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Certainly, Cone’s reasons for terminating Rollins were subjective. But

companies are entitled to make employment decisions based on subjective criteria.

See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1033 (11th Cir. 2000) (“A

subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the

defendant articulates a clear and reasonably specific factual basis upon which it

based its subjective opinion.”). Cone’s cited reasons might also seem

inconsequential. But “[t]he role of this Court is to prevent unlawful [employment]

practices, not to act as a super personnel department that second-guesses

employers’ business judgments. Our sole concern is whether unlawful

discriminatory animus motivates a challenged employment decision.” Wilson v.

B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (internal quotation

marks omitted). Rollins was a probationary employee who reportedly had trouble

getting along with coworkers, performing her assigned tasks, and following

instructions. Each of these was a legitimate nondiscriminatory reason to terminate

her employment.

Rollins contends that each of these reasons was pretextual, but she fails to

make her case. A plaintiff proves pretext by showing that the defendant’s

proffered reason is so weak, implausible, inconsistent, incoherent, or contradictory

that a reasonable factfinder could find the reason unworthy of credence. Alvarez,

610 F.3d at 1265. If the defendant’s proffered reason is one that would motivate a

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reasonable employer to take the adverse action, the plaintiff “must meet that reason

head on and rebut it,” and cannot prove pretext by merely recasting the defendant’s

reason or by arguing her own business judgment over that of the defendant’s. Id.

at 1265–66 (internal quotation marks omitted). Here, Rollins makes two

arguments for pretext.

Rollins’s first pretext argument is that Cone employees gave inconsistent

reasons for her termination. She cites Bechtel Construction Co. v. Secretary of

Labor, 50 F.3d 926 (11th Cir. 1995), for the proposition that shifting explanations

for terminating an employee may demonstrate that an employer’s proffered reasons

are pretextual. Id. at 935. Specifically, Rollins points out that although Null stated

that he based his decision to terminate her in part on complaints from employees

that she was difficult to work with, none of the deposed employees testified that

they complained to Null about Rollins. Yet it is undisputed that Yero, at least, did

complain about Rollins’s behavior, as he testified in his deposition. Indeed,

Rollins includes Yero’s complaint to Null in her statement of facts on appeal.

Rollins also notes that although Cone claimed that Rollins did not perform

her duties as instructed, Lopez testified that performance was not the issue that led

to her firing. But this seems to have been a matter of semantics. Lopez cited

Rollins’s failure to load kegs into the truck as an example of her failure to perform

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her duties as instructed. Lopez did not classify this failure as a performance issue

but rather an inability to follow directions.

Finally, Rollins indicates that despite her alleged inability to follow Yero’s

instructions, Yero himself testified that she never refused to follow his instructions.

But despite Yero’s testimony that Rollins never stated she would not follow his

instructions, Yero testified that Rollins was argumentative, claimed she saw things

differently than Yero, and repeatedly failed to follow his instructions about what

direction to turn the truck. The undisputed evidence therefore demonstrates that

Cone employees were substantially consistent in their complaints about Rollins.

Rollins’s second argument supporting pretext is that Cone applied its

disciplinary policies inconsistently between her and similarly situated male

employees. Specifically, she contends that although Cone provided written

reprimands to some male employees who violated company rules instead of

terminating them, she was terminated without warning. Similarly, she insists that

some male employees had as much or more trouble as she did learning to drive

trucks but were given a longer period of time to practice. But these arguments

misconceive Cone’s stated reasons for firing Rollins. Cone has never claimed that

Rollins was disciplined for violating a particular rule or that she was terminated

because she was taking too long to learn how to operate a truck. Instead, the

company consistently has maintained that it terminated her for not getting along

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with others, failing to perform her duties as instructed, and not following Yero’s

instructions. So the examples she identifies of male employees who struggled to

learn how to drive or who made mistakes in the workplace without being fired do

not demonstrate pretext.

Rollins did not demonstrate that Cone’s legitimate nondiscriminatory

reasons for terminating her employment were pretextual, so we affirm the district

court’s grant of summary judgment on her sex discrimination claim.

2. Retaliation

Rollins also argues that she was terminated in retaliation for reporting her

mistreatment by Mitchell. Title VII prohibits an employer from retaliating against

an employee because the employee “opposed any practice” made unlawful by Title

VII. 42 U.S.C. § 2000e–3(a). Absent direct evidence of retaliation, which Rollins

does not claim to have, we employ the same McDonnell Douglas burden shifting

framework for retaliation claims that we do for discrimination claims. See Bryant

v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009). Thus, even assuming Rollins

stated a prima facie case of retaliation, the same legitimate nondiscriminatory

reasons for Rollins’s termination that defeated her discrimination claim also defeat

her retaliation claim. We therefore affirm the district court’s grant of summary

judgment to Cone on this claim.

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IV. CONCLUSION

For these reasons, the judgment of the district court is AFFIRMED.

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