Joseph Florence v. Novo Nordisk Inc.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15206
Non-Argument Calendar
________________________
D.C. Docket No. 8:12-cv-00855-SDM-EAJ
JOSEPH FLORENCE,
Plaintiff-Appellant,
versus
NOVO NORDISK INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 25, 2014)
Before TJOFLAT, HULL and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Joseph Florence brought this case against his former employer, Novo
Nordisk, Inc. (“Novo”), asserting age discrimination and retaliation claims under
the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §
623(a)(1) and (d). After the issues were joined and the parties engaged in
discovery, the District Court granted Novo’s motion for summary judgment, and a
final summary judgment was entered accordingly. Florence appeals, challenging
in addition to the summary judgment two nondispositive orders entered by the
Magistrate Judge: an order granting, in part, Novo’s motion for a discovery
protective order under Federal Rule of Civil Procedure 26(c), and an order
granting, in part, Novo’s motion for sanctions under Federal Rule of Civil
Procedure 37(a). We affirm.
I.
We consider first the nondispositive orders entered by the Magistrate Judge.
The background against which the orders were entered is informative, so we start
with Florence’s employment with Novo and go from there.
Novo is responsible for marketing Nordisk A/S's pharmaceutical products in
the United States—in particular, products related to bleeding disorders. Florence
went to work for Novo on January 8, 2001. He was 47 years old. Novo terminated
his employment on November 19, 2010. His last job with the company was
BioPharmaceutical Sales Manager. In that capacity, he contacted health care
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professionals about Nordisk A/S’s products and provided them with educational
tools and resources, including product literature. According to Novo, it terminated
Florence’s employment because of his poor job performance—his failure to meet
the minimum requirements of his position.
On March 14, 2011, Florence filed a Charge of Discrimination with the
Florida Commission on Human Relations, alleging that he was subjected to age
discrimination and retaliated against in violation of the Florida Civil Rights Act of
1992 ("FCRA"), FLA. STAT. §760.01 et seq. and the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. On September 8,
2011, following its investigation into the matter, the Commission determined that
there was no reasonable cause to believe that Novo had engaged in any unlawful
employment practice, stating:
[Florence] was terminated for a legitimate non-discriminatory reason.
Specifically, [he] was placed on a Performance Improvement Plan to
assist him in conquering his performance problems. [He] was
repeatedly counseled on his failure to meet the minimum requirements
for his position and when he failed to do so despite being given
abundant opportunity, [Novo] terminated [his] employment.
Additionally, [Novo] was able to prove that eight of the ten staff
members [his supervisor supervised] over were over the age of 40.
Doc. 10-3, at 73.
Notwithstanding the Commission's no-reasonable-cause determination,
Florence, on September 30, 2011, initiated a proceeding on his FCRA age
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discrimination and retaliation claims before the Florida Division of Administrative
Hearings ("DOAH"), Joseph G. Florence v. Novo Nordisk Inc., DOAH Case No.
11-51113. While the case was before DOAH, Florence obtained extensive
discovery from Novo, including the taking of depositions of Novo employees
possessing information relevant to his claims.
The ALJ set March 21, 2012, as the trial date for Florence’s case. On March
15, Florence withdrew his claims, and his DOAH case was closed. Then, on April
19, 2012, he brought the instant law suit. His complaint contained the same
allegations he had presented to the ALJ in the DOAH proceeding, except that they
were brought only under the ADEA. Florence thereafter served Novo with the
same discovery requests he previously made in the DOAH proceeding. On
October 5, 2012, Novo, in an effort to avoid having to duplicate the discovery it
had provided Florence in the DOAH proceeding, moved the District Court for a
protective order pursuant to Federal Rule of Civil Procedure 26(c). The District
Judge referred the motion to the Magistrate Judge, who held several hearings on
the matter. On December 19, 2012, the Magistrate Judge granted Novo’s
protective order in part and denied it in part—granting Florence permission to re-
depose his immediate supervisor regarding any documents produced in discovery
after he deposed the supervisor in the DOAH proceeding, and to depose two
individuals who had knowledge about Florence’s job performance—and deferred
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ruling in part. Doc. 20, at 1-2. 1 On January 8, 2013, the Magistrate Judge
resolved the deferred issues in favor of Novo. Doc. 24. Florence did not file
objections to the Magistrate Judge’s order pursuant to Federal Rule of Civil
Procedure 72(a).
On April 10, 2013, Novo moved the District Court Novo to enter an order
awarding it expenses, including attorney’s fees, pursuant to Federal Rule of Civil
Procedure 37(a)(5)(A). 2 The District Court referred the matter to the Magistrate
Judge. On August 23, 2013, the Magistrate Judge entered an order granting
Novo’s motion as follows:
Defendant is entitled to up to seventy-five percent of its reasonable
expenses, including attorneys’ fees, incurred in filing the motion for
protective order. This is appropriate as Defendant’s motion for
protective order was granted as to most of the relief sought. . . . If the
parties are unable to agree as to the amount, the Court will decide the
amount of sanctions.
1
As it turned out, Florence did not depose the three witnesses.
2
The motion represented that Novo
was compelled to file its Motion for Protective Order, supplement its
Case\Management Report, prepare for and attend three hearings before [the]
Magistrate Judge. . . , including an evidentiary hearing, and respond to Plaintiff’s
needless Motion to Extend Time to Complete Discovery to protect itself from
Plaintiff’s duplicative, burdensome, and harassing requests. Discovery is now
closed and, ultimately, the only discovery Plaintiff obtained in this case was
Defendant’s 12 page supplemental document production. Notably, although this
Court granted Plaintiff’s Motion to Extend Time to Complete Discovery, Plaintiff
did not take any depositions. Instead, out of the three depositions permitted by the
Court, Plaintiff never scheduled one of them and he unilaterally cancelled the
remaining two.
Doc. 34, at 1-2.
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Doc. 64, at 6. Florence did not file objections to the Magistrate Judge’s order
pursuant to Rule 72(a). Meanwhile, on May 1, 2013, Novo moved the District
Court for summary judgment. The court granted the motion on October 17, 2013.
With this background in hand, we consider now Florence’s challenges to the
Magistrate Judge’s nondispositive orders granting in part Novo’s motions for a
protective order and for expenses and attorney’s fees.
A.
A party, or any person from whom discovery is sought, may move for a
protective order in the court where the action is pending. Fed. R. Civ. P. 26(c).
The motion should be “plain enough and specific enough so that the court can
understand in what way the interrogatories are alleged to be objectionable.”
Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985). If it
grants the motion, the court must limit the frequency or extent of discovery if it
determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at
stake in the action, and the importance of discovery in resolving the
issues.
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Fed. R. Civ. P. 26(b)(2)(C).
Rule 72(a), Nondispositive Matters, states:
When a pretrial matter not dispositive of a party's claim or defense is
referred to a magistrate judge to hear and decide, the magistrate judge
must promptly conduct the required proceedings and, when
appropriate, issue a written order stating the decision. A party may
serve and file objections to the order within 14 days after being served
with a copy. A party may not assign as error a defect in the order not
timely objected to. The district judge in the case must consider timely
objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.
Novo’s motion for a protective order was a nondispositive matter. Thus, the
Magistrate Judge’s ruling on the motion was a nondispositive order falling within
Rule 72(a)’s ambit. See Maynard v. Bd. of Regents of Div. of Univs. of Florida
Dept. of Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1286 (11th Cir. 2003).
If Florence thought the Magistrate Judge’s order contained constituted an abuse of
discretion, he had an obligation under Rule 72 to file an objection to the order in
the District Court. He did not and therefore was precluded from filing an objection
here, in his brief on appeal. “[W]here a party fails to challenge a magistrate’s
nondispositive order before the district court, the party waived his right to appeal
those orders in this Court.” Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361,
1365 (11th Cir. 2007). The result of Florence’s failure to object is that the
Magistrate Judge’s order stands as if it were affirmed.
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B.
Rule 37 provides that if a motion for a protective order is “granted in part
and denied in part, the court . . . may, after giving an opportunity to be heard,
apportion the reasonable expenses” for prosecuting or defending the motion. Fed.
R. Civ. P. 37(a)(5)(C). Rule 26(c) states that “Rule 37(a)(5) applies to the award
of expenses.” Fed. R. Civ. P. 26(c)(3). But the court must not award expenses if:
(i) the movant filed the motion before attempting in good faith to resolve the issue
without court action; (ii) the opposing party’s actions were substantially justified;
or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P.
37(a)(5)(A). Like the Magistrate Judge’s ruling on Novo’s Rule 26(c) motion, the
Magistrate Judge’s ruling on disposition of Novo’s Rule 37(a)(5)(A) motion falls
under Rule 72, and because he did not object to the ruling, we do not consider it
here. The ruling stands as if it were affirmed.
II.
We review the grant of summary judgment de novo. Rojas v. Florida, 285
F.3d 1339, 1341 (11th Cir. 2002). “When deciding whether summary judgment is
appropriate, all evidence and reasonable factual inferences drawn therefrom are
reviewed in a light most favorable to the non-moving party.” Id. at 1341-42.
Summary judgment should be granted only when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
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as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c)(2).
The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire
or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). When a plaintiff relies
on circumstantial evidence to establish his ADEA claim, as Florence did here, the
district court applies the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013).
Under that framework, the plaintiff must first establish a prima facie case of
discrimination. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2010)(en
banc). Second, if a prima facie case is established, the burden shifts to the
employer to present a legitimate, non-discriminatory reason for the employment
action. Id. Third, if the employer articulates such a reason, the plaintiff may
present evidence sufficient for a factfinder to conclude that the employer’s
proffered reason is a pretext for discrimination. Id.
A plaintiff may show that an employer’s proffered legitimate non-
discriminatory reason is pretext by either “persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
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that the employer’s proffered explanation is unworthy of credence.” Jackson v.
State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). “The
district court must evaluate whether the plaintiff has demonstrated such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997). A plaintiff seeking to show pretext must
“meet [the reason] head on and rebut it.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1088 (11th Cir. 2004). We do not judge whether an employer’s decisions
are prudent or fair, but, instead, rather whether they were motivated by an unlawful
animus. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999). Moreover, a reason is not pretextual “unless it is shown both that the
reason was false, and that discrimination was the real reason. St. Mary’s Honor
Cts. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2751, 125 L. Ed. 2d 407 (1993).
Florence did not meet Novo’s reason for terminating him “head on and rebut
it.” Wilson, 376 F.3d at 1088. He admitted that, in his position as a sales manager,
his call average was low throughout his employment, and his former manager had
expressed displeasure with his administrative efficiency and Blackberry use—all
issues outlined in the Performance Improvement Plan (“PIP”) that preceded his
termination. Furthermore, even if company officials had already formed the intent
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to terminate him regardless of the results of his PIP, that did not show that they
were going to terminate him anyway, because of his age. See St. Mary’s Honor
Ctr., 509 U.S. at 515, 113 S.Ct. at 2751. Florence says his high sales numbers
indicate pretext. But sales numbers were not at issue in his PIP, and we will not
judge whether the employer’s decisions were prudent or fair. Damon, 196 F.3d at
1361. In sum, Florence did not present “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in Novo’s proffered legitimate
reasons for its action that a reasonable factfinder could find them unworthy of
credence.” Combs, 106 F.3d at 1538.
III.
Employers are forbidden from discriminating against any employee because
that individual opposed any practice made unlawful by the ADEA’s provisions.
See 29 U.S.C. § 623(d). The McDonnell-Douglas framework governs ADEA
retaliation cases. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919
(11th Cir. 1993) (noting that this court has adapted Title VII principles to ADEA
cases, and applying the McDonnell-Douglas framework to an ADEA retaliation
case). A plaintiff alleging retaliation in violation of the ADEA must first establish
a prima facie case by showing: (1) a statutorily protected expression; (2) a
materially adverse action; and (3) a causal link between the protected expression
and the adverse action. See id. Once the plaintiff has established a prima facie
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case of retaliation, the burden shifts to the defendant to rebut the presumption of
retaliation by producing legitimate reasons for the adverse employment action. Id.
To obtain reversal of a district court judgment that is based on multiple,
independent grounds, an appellant must convince this court that every stated
ground is incorrect. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014). When an appellant fails to challenge on appeal one of the
grounds on which the district court based its judgment, he is deemed to have
abandoned any challenge on that ground; hence, it follows that the judgment is due
to be affirmed. Id.
The District Court did not find that Florence established a prima facie case
of retaliation, and he has not expressly argued the issue on appeal, so it is
abandoned, and the judgment is due to be affirmed on that ground. Sapuppo, 739
F.3d at 680. Additionally, even if he had not abandoned the issue, and he had
established a prima facie case, Florence did not show that Novo’s proffered
legitimate, nondiscriminatory reason for its actions was merely a pretext for
retaliation, for the same reasons he did not show that the reason was merely a
pretext for age discrimination.
AFFIRMED.
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