Twanetta Rollins v. Cone Distributing, Inc.

Filing

Opinion issued by court as to Appellant Twanetta Rollins. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15009
Non-Argument Calendar
________________________
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.
A.

DISCUSSION

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.

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CONCLUSION

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

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