United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
Gust brings suit against Wireless Vision, L.L.C. for
retaliatory discharge in violation of public policy under
Kansas law. This matter is before the Court on
Defendant's Motion For Summary Judgment (Doc.
#73) filed March 9, 2016. For reasons stated below, the Court
overrules defendant's motion.
judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740
(10th Cir. 2007). A factual dispute is “material”
only if it “might affect the outcome of the suit under
the governing law.” Liberty Lobby, 477 U.S. at
248. A “genuine” factual dispute requires more
than a mere scintilla of evidence in support of a party's
position. Id. at 252.
moving party bears the initial burden of showing the absence
of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v.
Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the
moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate that genuine issues remain for
trial as to those dispositive matters for which the nonmoving
party carries the burden of proof. Applied Genetics
Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d
1238, 1241 (10th Cir. 1990); see also Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). To carry this burden, the nonmoving party may not
rest on the pleadings but must instead set forth specific
facts supported by competent evidence. Nahno-Lopez,
625 F.3d at 1283.
Court views the record in the light most favorable to the
nonmoving party. See Deepwater Invs., Ltd. v. Jackson
Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It
may grant summary judgment if the nonmoving party's
evidence is merely colorable or is not significantly
probative. See Liberty Lobby, 477 U.S. at 250-51. In
response to a motion for summary judgment, a party cannot
rely on ignorance of facts, speculation or suspicion, and may
not escape summary judgment in the mere hope that something
will turn up at trial. Conaway v. Smith, 853 F.2d
789, 794 (10th Cir. 1988); Olympic Club v. Those
Interested Underwriters at Lloyd's London, 991 F.2d
497, 503 (9th Cir. 1993). The heart of the inquiry is
“whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Liberty Lobby, 477 U.S. at 251-52.
following facts are uncontroverted, deemed admitted or
construed in the light most favorable to
Vision is an independent contractor and exclusive retailer
for T-Mobile cellular phones in multiple states. T-Mobile
also sells its phones in T-Mobile corporate-owned stores.
January of 2011 to August of 2014, Bradley Gust worked at a
T-Mobile corporate-owned store in Olathe, Kansas. Gust worked
in sales operations. His responsibilities included accounting
for inventory, stocking the sales floor, ordering supplies
and making sure that employees correctly processed and filed
August 4, 2014, Wireless Vision hired Gust to work as a
retail sales associate at its store in Overland Park, Kansas
(the “Overland Park store”). Wireless Vision
agreed to pay $10.25 per hour plus a commission on sales. The
letter of engagement stated that for the first 90 days, Gust
would serve as a probationary employee.
Naas served as store manager for the Overland Park store. As
store manager, Naas received a salary plus a sales
commission. As required under company policy, Naas gave his
employees written performance reviews every month.
Sawa served as Wireless Vision regional manager over the
Overland Park store. Anthony Sawa's brother, Leith Sawa,
also served as regional manager. At least two or three times
a week, Anthony Sawa visited the Overland Park store. Naas
primarily communicated with Anthony Sawa.
Rodriguez served as sales team leader in the Overland Park
store. Sales team leaders, also called “floor coaches,
” have authority to assign duties, help train and coach
employees and ensure that the store is running correctly.
Wireless Vision pays sales team leaders an hourly wage plus
August 11, 2014, Gust first reported to work. Naas did not do
much to train him. Naas believed that since Gust had come
from a T-Mobile corporate-owned store, he already knew the
products. Deposition of David Ephraim Naas at 48:14-18,
51:9-15, Exhibit 7 to Plaintiff's Memorandum In
Opposition To Defendant's Motion For Summary
Response”) (Doc. #75).
beginning of Gust's employment, Anthony Sawa would ask
how he liked working for Wireless Vision. Gust would reply,
“I absolutely love this place.” Deposition of
Anthony Sawa at 21:1-20, Exhibit 15 to Plaintiff's
Response (Doc. #75). Gust loved his pay and commission
and said that it was a much better place to work than his
previous job. Id. at 21:21-23.
testified that Gust told him that Gust did not like to bundle
products and/or services. Naas Depo. at 85:25 to 86:3.
“Bundled sales” involved combining several
products or services for which the customer would pay in
monthly installments. Bundling products or services did not
always make them cheaper for customers.
his employment with Wireless Vision, Gust witnessed consumer
deception and was directed to engage in deceptive acts such
as adding insurance on customer accounts without their
knowledge and ringing up accessories without advising that it
would result in additional costs per month. Gust Depo. at
164:4-15. Five or six customers expressed dissatisfaction to
Gust. They complained about charges for insurance that they
did not request and/or monthly accessory charges that they
did not understand. Deposition of Bradley Gust at 104:11 to
105:20, Exhibit 1 to Plaintiff's Response (Doc.
meeting in September of 2014, Naas instructed Gust and other
store employees to add features to customer accounts. Naas
said that if they did not do so, they would be “out the
door.” Gust Depo. at 111:20 to 112:3. Naas told
employees to “just make sure that [the features] were
added.” Id. at 112:14-16. Naas said that it
would not be an issue if customers came back and questioned
it, as they had been doing, because all employees had the
same story. Id. at 112:4-8. Naas told
employees to describe the product, not break down pricing and
just add certain things such as insurance without discussing
it with the customer. Id. at 112:19 to 113:3.
Occasionally, Naas instructed them ring up high-dollar
accessories such as Bluetooth wireless speakers, cases and
car chargers without discussing them. Id. at
September 18, Naas sent his employees a group text message
which stated as follows: “Jump on every box. 4.5 gb
attachment on any new.” Rodriguez Depo. at 46:6. The
employees were familiar with this terminology.
“Jump” referred to an insurance program which
Wireless Vision offered customers on installment purchases.
“Box” meant a phone or other product. Rodriquez
testified that he understood the message to mean that
employees should offer Jump on every phone sold. Rodriguez
Depo. at 46:9-12. In response to the message, Rodriguez
texted the group: “Got it. The money is the
motive.” Id. at 46:25 to 47:3.
September, Naas criticized Gust for not adding Jump to a
customer account. Id. at 114:3-24. Naas watched Gust
ring up the sale and afterward went over to review the
account. Id. at 114:10-12. Gust explained that he
had discussed insurance with the customer several times but
the customer declined. Id. at 13-17. Naas asked,
“Well, why don't you just add it on there
anyway?” Id. at 114:23-24.
September 30, Gust sent Anthony Sawa a text message which
asked to speak with him. The same day, Anthony Sawa
telephoned Gust. During the conversation, Gust reported that
Naas was engaging in deceptive sales practices such as adding
Jump or other products on customer accounts without their
knowledge or consent and directing employees to do the same.
Gust characterized the behavior as fraud.
Sawa did not report Gust's complaint to anyone in his
chain of command. Company policy required that if a regional
manager received a complaint of actual or potential
wrongdoing, he report it to his superior, i.e. the
director of sales. Denha Depo. at 23:19:23.
Sawa testified as follows: The day after the text from Gust,
on October 1, 2014, he went to the Overland Park store when
Naas was not there. Anthony Sawa talked with three employees
- Ana Lopez, Shawn Rattler and Austin Rodriguez - and asked
whether anything fraudulent was going on in the store.
Anthony Sawa Depo. at 52:10-23, 55:4-7; see also
Defendant's Exhibit 12. The employees said
“no” and Anthony Sawa performed a spot check
audit to make sure that customers had signed their
agreements. Id. at 55:10-22, 56:10:16. Anthony Sawa
concluded that Gust's complaint was false. Id.
disputes whether Anthony Sawa visited the store and/or
investigated his complaint. Anthony Sawa could not have
talked with Rattler because Rattler did not work in the store
at that time. In addition, Rodriguez testified that (1)
he does not remember Anthony Sawa coming into the store on
October 1 and (2) Anthony Sawa never interviewed him and
asked if he had seen anything fraudulent happening in the
store. Rodriguez Depo. at 49:1-9.
Sawa told Gust that he had spoken with Naas and a couple of
associates at the store and had addressed all of Gust's
concerns. Gust Depo. at 125:17 to 126:3. Anthony
Sawa said that he could not believe that Naas would do the
things that Gust had alleged. Id. at 126:11-14.
about October 1, 2014, Anthony Sawa spoke with Naas about
Gust. During the conversation, Naas said that he wanted to
fire Gust. Anthony Sawa agreed with the decision. Anthony
Sawa cannot remember any earlier conversations in which he
and Naas discussed firing Gust.
October 1, 2014, Naas sent Lauren Bowers Thomas, Wireless
Vision human resources (“HR”) generalist, an
email which stated as follows:
I have a new hire who is within the 90 day probationary
period in which I am terminating:
1) He does not listen to the team sales lead when given
advice, talks down on other employees and tells them how he
knows more than all the market managers or everybody who
works on the corporate side or branded.
2) He boast [sic] about how he has gotten his previous
supervisors and coworkers fired from corporate.
3) He has not hit goal and does not get the leads or myself
involved when a ...