Gust v. Wireless Vision, L.L.C.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         Bradley Gust brings suit against Wireless Vision, L.L.C. for retaliatory discharge in violation of public policy under Kansas law.^[1] 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.

         I. Legal Standards

         Summary 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.

         The 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.

         The 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.

         II. Facts

         The following facts are uncontroverted, deemed admitted or construed in the light most favorable to plaintiff.^[2]

         Wireless 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.

         From 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 paperwork.

         On 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.^[3]

         David 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.

         Anthony 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.

         Austin 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 sales commission.

         On 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 Judgment (“Plaintiff's Response”) (Doc. #75).

         At the 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.

         Naas 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.

         During 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. #75).

         At a 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.^[4] 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 113:8:17.

         On 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.

         In late 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.

         On 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.

         Anthony 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.^[5]

         Anthony 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. at 79:16-19.

         Gust 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.^[6] 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.^[7]

         Anthony 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.^[8] 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.

         On or 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.

         On 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:

Reasons:

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 ...