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Williams v. Nex-Tech Wireless, LLC

United States District Court, D. Kansas

April 13, 2017



          Sam A. Crow, U.S. District Senior Judge

         This is an employment discrimination action brought by three former employees of defendant Nex-Tech Wireless, LLC. These employees are Brad E. Williams, Carol Kinderknecht and Melinda Dougherty. According to the pretrial order, plaintiffs are making the following claims pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1)(“ADEA”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”):

Plaintiff Williams asserts that he was terminated from his job on August 21, 2014 in violation of the ADEA.
Plaintiff Kinderknecht asserts that she was not promoted to supervisor over accounting on January 27, 2013 and to Director of Finance in October 17, 2014 in violation of the ADEA and Title VII of the Civil Rights Act of 1964. The supervisor over accounting position has also been referred to as Manager of Finance.
Plaintiff Dougherty asserts that she was terminated on March 24, 2014 because of age discrimination and retaliation in violation of the ADEA.

See Doc. No. 75, p. 10. This case is now before the court upon defendant's three motions for summary judgment against the claims of each plaintiff.


         This court set forth the principles which govern the analysis of a summary judgment motion in Womack v. Delaware Highlands AL Services Provider, 883 F.Supp.2d 1013, 1017 (D.Kan. 2012):

Rule 56 authorizes a court to “grant summary judgment 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 fact is material if it would affect the outcome of a claim or defense under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[T]he dispute about a material fact is ‘genuine, ' ..., if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
On summary judgment, the initial burden is with the movant to point out the portions of the record which show that the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). Instead of disproving a claim or defense, the movant need only show “a lack of evidence” on an essential element. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). If the movant meets that burden, the non-movant must come forward with specific facts based on admissible evidence from which a rational fact finder could find in the non-movant's favor. Id. The non-movant's “burden to respond arises only if the” movant meets its initial burden of production. Neal v. Lewis, 414 F.3d 1244, 1248 (10th Cir.2005) (citation omitted). The essential inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. Put another way, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); See Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009).
In applying this standard, all inferences arising from the record must be drawn in favor of the nonmovant. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). Credibility determinations and the weighing of the evidence are jury functions, not those of a judge. Id. at 1216. Nevertheless, “the nonmovant must establish, at a minimum, ‘an inference of the existence of each element essential to [her] case.' ” Croy v. COBE Laboratories, Inc., 345 F.3d 1199, 1201 (10th Cir. 2003) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)).

         The Tenth Circuit, in Lounds v. Lincare, Inc., 812 F.3d 1208, 1220-21 (10th Cir. 2015), has counseled:

[I]n the context of employment discrimination, “[i]t is not the purpose of a motion for summary judgment to force the judge to conduct a ‘mini trial' to determine the defendant's true state of mind.” Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir.1995). Many of the highly fact-sensitive determinations involved in these cases “are best left for trial and are within the province of the jury.” Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he inquiry [at summary judgment is] whether the evidence presents a sufficient disagreement to require submission to a jury....”). Consequently, “in this Circuit ... an employment discrimination suit will always go to the jury so long as the evidence is sufficient to allow the jury to disbelieve the employer's [explanation for the alleged misconduct].” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177 (10th Cir.1998) (Tacha, J., concurring in part); see Randle, 69 F.3d at 452 (“[I]f ... inferential evidence is sufficient to allow a plaintiff to prevail at trial, it is surely sufficient to permit a plaintiff to avoid summary judgment so that the plaintiff can get to trial.”).


         The following facts are accepted as true solely for the purposes of the summary judgment motions now before the court. Other facts, which also are accepted as true, may be mentioned later in this order as part of the court's discussion of the legal arguments for and against summary judgment.

         Defendant is a wireless service provider in central and western Kansas and part of eastern Colorado. Defendant was created in 2004.

         Plaintiff Brad E. Williams was hired on November 1, 2004 as a Project Coordinator. He was one of the first employees of the company. He held various positions thereafter and received consistently good evaluations. He had the position of Network and Construction Manager at the time he was terminated on August 21, 2014. Williams was born in 1971 and was 43 years old when he was discharged.

         Plaintiff Carol Kinderknecht was hired as a Bookkeeper by the parent company of defendant on December 3, 2007. She started with defendant in 2010 and worked as an accountant. She was born in 1949.

         Plaintiff Melinda Dougherty was hired on October 26, 2008 as a Receptionist and later became a Network Administrative Assistant. She was born in 1962.

         Jon Lightle was hired on October 24, 2011 as Director of Finance & Operations and would later become President/CEO. He was born in 1959.

         Defendant experienced substantial financial pressure in 2012 and thereafter because significant funding sources from the federal and state government were being phased out. Defendant was set to lose about $19 million in a 5-year period. During a discussion regarding the financial pressures faced by defendant, the President of the Board, Larry Sevier, implied that there may be some head count reductions based on age or health.

         CEO Johnie Johnson was terminated for performance reasons on December 21, 2012. From the date of Johnson's discharge until October 2013, defendant was run by three directors who were expected to cooperate. These directors were: Jeff Kisner (Network Operations and Engineering); Karly Rogers (Customer Service, Sales and Marketing); and Jon Lightle (Finance). The three directors, however, struggled to work cooperatively.

         Shortly before Johnson was terminated, plaintiff Dougherty was changed from Network Administrative Assistant to Executive Assistant to Johnson and given a substantial raise. After Johnson was discharged, plaintiff Dougherty was told to report to Jeff Kisner. Shortly thereafter, in January 2013, emails were exchanged indicating that plaintiff Dougherty would go back to an Administrative Assistant's position reporting to Kisner and that the position of Executive Assistant would be eliminated.

         In January 2013, Daron Jamison, who was in his early thirties, was promoted to Manager of Finance by Jon Lightle who, at that time, was Director of Finance.[1] Jamison had been hired as a Project Coordinator in August 2011. The Manager of Finance position was not advertised prior to the promotion. Plaintiff Williams did not think Jamison was qualified for the job. In this post, Jamison worked above plaintiff Kinderknecht. Kinderknecht, who was in her sixties, had expressed interest in the job. She testified that Lightle instructed her to train Jamison for the job after he was promoted.

         Jon Lightle applied for and was selected by defendant's Board to serve as President/CEO in October 2013. Lightle was 54 years old when he was made President/CEO. Both Kisner and Rogers spoke to the Board in opposition to Lightle's selection. Each would resign under pressure or be terminated during the next 10 months.

         On December 15, 2013, plaintiff Dougherty's job title and pay were returned to what they were prior to her becoming an Executive Assistant approximately one year earlier. About this time, Dougherty and Lightle had a discussion regarding her job responsibilities in light of the change in job title. Dougherty mentioned that she had sent an email to Camber Boland in Human Resources asking about Dougherty's job situation. Lightle expressed frustration with Dougherty when she refused to share the email with him. He told her maybe she ought to look for another job. He also told Dougherty that “your people do not like change” and that it wasn't going to end well for her people. Dougherty took “your people” to mean “older people.” Aaron Gillespie was promoted to Director of Operations on January 1, 2014. He had held other positions since he was hired in 2006. He was 30 years old. Plaintiff Williams and Rogers did not think he was qualified for the position.

         On occasion, Lightle spoke derogatorily concerning the age of defendant's Board members, suggesting for instance that they had trouble staying awake at meetings.

         Jeff Kisner was terminated on March 10, 2014, when he was 46 years old. He reached a ...

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