United States District Court, D. Kansas
BRAD E. WILLIAMS, CAROL KINDERKNECHT and MELINDA DOUGHERTY, Plaintiffs,
NEX-TECH WIRELESS, LLC, Defendant.
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
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.
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.
SUMMARY JUDGMENT STANDARDS
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
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
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)).
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
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.
is a wireless service provider in central and western Kansas
and part of eastern Colorado. Defendant was created in 2004.
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.
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
Melinda Dougherty was hired on October 26, 2008 as a
Receptionist and later became a Network Administrative
Assistant. She was born in 1962.
Lightle was hired on October 24, 2011 as Director of Finance
& Operations and would later become President/CEO. He was
born in 1959.
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
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.
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.
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. 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.
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.
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.
occasion, Lightle spoke derogatorily concerning the age of
defendant's Board members, suggesting for instance that
they had trouble staying awake at meetings.
Kisner was terminated on March 10, 2014, when he was 46 years
old. He reached a ...