United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum, United States District Judge.
and his wife, Katherine McKinney, who is not a party to this
lawsuit, are both former employees of defendant. Defendant
terminated Ms. McKinney in January 2015 and, in May 2015, Ms.
McKinney filed a charge of discrimination alleging sex
discrimination and retaliation. Plaintiff was still employed
by defendant at that time. In late October 2015, plaintiff
participated in defendant's investigation into the
allegations contained in Ms. McKinney's charge of
discrimination. Less than six weeks later, defendant
terminated plaintiff's employment.
filed this lawsuit against defendant asserting two distinct
theories of retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. First, plaintiff
contends that defendant terminated his employment in
retaliation for plaintiff's engaging in protected
activity-namely, plaintiff's participation in the
investigation of his wife's charge and/or his opposition
to discrimination against his wife. Second, plaintiff
contends that defendant terminated his employment in
retaliation for Ms. McKinney's filing a charge of
discrimination. This matter is presently before the court on
defendant's motion for summary judgment (doc. 47). As
will be explained, the motion is denied.
following facts are uncontroverted, stipulated in the
pretrial order, or related in the light most favorable to
plaintiff as the nonmoving party. Defendant Kansas City
Automobile Company Limited Partnership operates as a retail
automobile dealership doing business as Hendrick Lexus Kansas
City. Plaintiff Michael McKinney began his employment with
the defendant in May 2001 at its dealership location in
Merriam, Kansas. At some point, plaintiff began working as
one of two Pre-Owned Sales Managers and he remained in that
position throughout 2015, until the termination of his
employment in December 2015. Plaintiff's wife, Katherine
McKinney, began her employment with defendant in
approximately 1995. Most recently, Ms. McKinney was employed
as a Finance Manager at the Merriam dealership until her
employment was terminated in early January 2015. Phil Humbert
was defendant's General Manager from December 2000 until
the termination of his employment on September 30, 2015.
Humbert terminated Ms. McKinney's employment in January
2015. At that time, Ms. McKinney began working at Bob Allen
Ford, another dealership in the Kansas City area. In May
2015, defendant received notice that Ms. McKinney had filed a
charge of discrimination alleging, among other things, that
defendant (and, more specifically, Mr. Humbert) had
terminated her employment because of her pregnancy and in
retaliation for exercising her rights under the FMLA. In late
October 2015, a mediation of Ms. McKinney's charge was
held at the EEOC's Kansas City, Kansas
office. Ms. McKinney was represented by counsel
and defendant was represented by outside counsel and Jenny
Mann, a Human Resources manager employed by Hendrick
Automotive Group, a company that provides various management
services to defendant. The mediation did not resolve Ms.
McKinney's charge and, after the mediation session, Ms.
Mann went to the Merriam dealership to meet with witnesses
whom she believed might have information relevant to Ms.
of her investigation into Ms. McKinney's claims against
the dealership, Ms. Mann met with plaintiff. During that
interview, plaintiff told Ms. Mann that he had heard that Mr.
Humbert had referred to his wife as a “bitch” and
had said that he was going to “fire that bitch”
when she returned from maternity leave. Plaintiff advised Ms.
Mann that he believed his wife had been fired unjustly and he
expressed how upset he was that his wife was singled out
during a managers' meeting on the day of her discharge
and told to “sit the fuck down.” As plaintiff
continued to tell Ms. Mann how he felt about the termination
of his wife's employment, he became emotional and started
to tear up. Ms. Mann then told him that was “enough,
” and ended the meeting.
this same time, Ms. McKinney purchased a new Ford Explorer
from Bob Allen Ford, her employer, and traded in her 2015
Lexus RX 350, a transaction that began in August or September
2015 when Ms. McKinney placed an order through Bob Allen Ford
to build a Ford Explorer with the specific options she
wanted. As a Pre-Owned Sales Manager, plaintiff had the
authority to buy, sell, and price used vehicles and
trade-ins, from both customers and other dealerships. In
September 2015, plaintiff, on defendant's behalf,
submitted a buy bid to Bob Allen Ford for the vehicle that
his wife planned to trade in when her Explorer was ready.
Plaintiff testified that he sought and received approval from
Mr. Humbert, who was still employed at that time, prior to
submitting the bid. It is uncontroverted that plaintiff
discussed the buy bid with Brian Exposito, the
dealership's other Pre-Owned Sales Manager, who agreed
with plaintiff that the price plaintiff suggested for the
vehicle ($45, 000) was the appropriate price for the vehicle.
Bob Allen accepted the offer.
McKinney accepted delivery of her new Explorer on October 31,
2015. The Lexus that she had traded in to Bob Allen Ford came
into defendant's inventory on November 6, 2015 and
plaintiff completed a Pre-Owned Worksheet at that time,
indicating that the vehicle had been obtained from Bob Allen
Ford. Plaintiff assigned a stock number to the vehicle,
placed it on the showroom floor and made it available for
sale. Plaintiff also advised the sales staff that the RX350
that he had purchased from Bob Allen Ford was his wife's
former Lexus and was on the lot as new inventory.
December 2, 2015, plaintiff learned that Bob Allen Ford was
ready to deliver the title to the RX350 to the dealership. On
that same day, plaintiff submitted a check request to pay for
the vehicle so that he could have the check ready when the
title was delivered. When the dealership's office manager
presented Nick Karras, the General Manager who replaced Mr.
Humbert in early October 2015, with the check for his
signature, she advised him that plaintiff needed the check
“immediately” and wanted the check hand-delivered
to Bob Allen Ford that same day.
Karras testified that the check request raised a “red
flag” in his mind because the purchase order for the
vehicle was dated November 6, 2015, but the check request was
being processed nearly a month later and was a
“hand-delivery” request-all of which he
considered atypical. It is undisputed that Mr. Karras was
also concerned about the price that the dealership was paying
for the vehicle and that he believed the price was roughly
$5000 higher than what the vehicle was worth. Mr. Karras
called plaintiff and asked whether plaintiff “had too
much in an RX350” that plaintiff had purchased for the
dealership and whether the car had been priced correctly. In
response, plaintiff advised Mr. Karras that he was
comfortable with the price, that the dealership needed RXs,
and that he could sell it. Plaintiff did not advise Mr.
Karras that the vehicle was his wife's former vehicle
because, according to plaintiff, he did not realize that Mr.
Karras was talking about that particular vehicle. Mr. Karras
signed the check.
that afternoon, on December 2, 2015, Mr. Karras saw the title
to the vehicle and realized that Ms. McKinney's name was
on the title as the registered lessee. He also learned at
that time that Ms. McKinney was working at Bob Allen Ford as
the Finance Manager. Mr. Karras called plaintiff again and
asked him why he had not mentioned to Mr. Karras during their
previous conversation that the vehicle belonged to his wife
and whether anyone else knew about the car being purchased
from Bob Allen Ford. Plaintiff told Mr. Karras that Mr.
Humbert had given plaintiff approval to purchase the vehicle.
following day, December 3, 2015, Mr. Karras notified Ms. Mann
that he was suspending plaintiff “from working on any
transactions as he is manipulating our profitability.”
He then called Mr. Humbert to ask whether he had approved the
purchase of the vehicle. Mr. Humbert denied knowing anything
about the transaction. Mr. Karras shared that discussion with
Ms. Mann, who told Mr. Karras to obtain written confirmation
from Mr. Humbert that he had not authorized the transaction.
Mr. Humbert sent an email to Mr. Karras confirming that he
had no knowledge of the transaction. On the evening of
December 3, 2015, Mr. Karras sent an email to Ms. Mann
requesting that defendant terminate plaintiff's
employment in light of the fact that plaintiff was
“deceptive” and exercised poor judgment that
impacted the profitability of the dealership.
Friday, December 4, 2015, Mr. Karras met with plaintiff and
advised him that he was suspending plaintiff for purchasing
the RX350 because plaintiff did “not have a form
signed.” Plaintiff testified that he asked Mr. Karras
several times what form he meant because he had no knowledge
of any form that was required. According to plaintiff, Mr.
Karras did not elaborate but suspended plaintiff. When
plaintiff asked whether defendant intended to terminate his
employment, Mr. Karras advised him that he would get back to
him. On Monday, December 7, 2015, Mr. Karras met with
plaintiff and terminated his employment after consultation
with Ms. Mann and John Desmond, the Market Vice President for
Hendrick Automotive Group. It is uncontroverted that Mr.