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Roth v. Francesca's Collections, Inc.

United States District Court, D. Kansas

March 12, 2018




         Plaintiff Avrielle Roth brings this action against her former employer, Francesca's Collection, Inc. (“Francesca's”), alleging that her termination from employment was retaliatory in violation of public policy after she complained of alleged violations of the Kansas Wage Payment Act (“KWPA”). This matter is before the Court on Francesca's Motion for Summary Judgment (Doc. 47) on Plaintiff's claim. For the reasons discussed in detail below, the Court denies Defendant's motion.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[3] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[4] An issue of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.'”[5]

         The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[6] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[7]

         Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[8] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[9] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[10]

         The facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[11] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[12]The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[13]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[14] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[15]

         II. Uncontroverted Facts

         The following material facts are uncontroverted, stipulated to for the purposes of summary judgment, or viewed in the light most favorable to Plaintiff.

         Roth started her employment with Francesca's in October 2014, as the Boutique Manager of Francesca's Oak Park Mall location in Overland Park, Kansas (“the Boutique”). Roth was a salaried, at-will employee. While employed with Francesca's, Sue Newsom was Roth's Regional Director and Ashley Russell was her District Manager. On October 10, 2014, Roth signed a Field Book Acknowledgment in which she acknowledged receipt of Francesca's Employee Handbook and agreed to abide by all policies and procedures set forth in the Handbook.[16]

         Roth's Training/Onboarding Process

         “Onboarding” is the process by which new Boutique employees and their Boutique Managers must complete various new hire paperwork. Francesca's New Hire Paperwork & Set Up policy states that “[i]t is the Boutique Manager's responsibility to ensure new hire paperwork is completed per guidelines. All guidelines can be found for each individual state on the francesca's® Intranet.”[17] Until a new hire has completed the onboarding process, he or she will not be entered into the payroll system or receive a login to electronically clock in and out. Francesca's New Hire Paperwork & Set Up policy also states, “[f]ailure to complete new hire forms accurately can result in problems with new Team member's pay.”[18]

         In November and December 2014, Francesca's Human Resources (“HR”) personnel became aware that several of the employees at the Boutique had not completed the onboarding process and therefore, had not been entered into the payroll system. As of December 2, 2014, seven of the Boutique's employees had not completed the onboarding process. Francesca's HR Coordinator, Patricia Merlos, offered to help Roth complete the onboarding process for the employees and worked with Roth to complete the onboarding process for the Boutique's employees so the employees could be entered in the payroll system and be paid. Several of the employees' onboarding paperwork was incomplete in part because Roth failed to complete the required section of the employee's I-9 form. In addition, District Manager Russell reached out to Roth regarding the status of the onboarding process and offered her assistance. Russell showed Roth how to complete the missing onboarding information. Roth testified that she did not feel fully or properly trained in the process of completing new hire paperwork, and voiced complaints about her lack of training.

         Roth hired several new employees at some point around the start of the Black Friday holiday shopping season in 2014. Roth testified that although her notes from that time period indicate that the employees could not start work until their paperwork was completed, Russell told her to “push them through, we'll worry about the paperwork later.”[19] Because the onboarding process for the Boutique's employees was not completed, and the employees were thus not able to electronically clock in or clock out, Roth submitted manual timecards for the employees on December 7, 2014. The December 7 timesheets lacked employee numbers and one time sheet was not signed.

         On December 21, 2014, Roth sent an email to Natalie Hannah, an employee in Francesca's HR department, asking for paychecks for the time period of November 23 through December 20, 2014, for employees Beverly Knox, Rosette Wertz, and KaytAnne Carpenter.[20]Although the onboarding process was not complete and the employees were unable to electronically clock in or clock out, payroll cards were issued to Knox, Wertz, and Carpenter on December 22, 2014. The payroll cards for these employees were sent to Francesca's HR department so their payroll funds could be loaded onto the cards. On December 24, 2014, Hannah confirmed that a paycheck had been mailed to Knox on December 19, 2014.[21]

         Roth's Complaints that Employees had not been Paid

         Roth complained of unpaid wages for three of her employees: Knox, Wertz, and Carpenter. Russell recalls that she believes Roth reported to her, before December 21, 2014, that Wertz and Knox did not receive paychecks when they were supposed to be paid.

         Newsom testified that Roth repeatedly complained about Knox, Wertz, and Carpenter not being paid in a timely manner, and specifically recalled that Roth called her on December 24, 2014, to complain that Wertz had not been paid. Newsom also recalled that Roth called Francesca's corporate office with concerns about employees not being paid, and that the corporate office had to repeatedly call Roth to get her to complete the necessary paperwork for her employees. Newsom noted that “people at corporate really did not like taking her calls because she was so hostile.”[22]

         Natalie Hannah in HR testified that Roth complained to her about employees in her Boutique not being paid. Hannah testified about the December 21, 2014 email Roth sent complaining that Wertz and Carpenter had been working for one month without pay and were threatening to quit. Hannah then brought Roth's complaints to the attention of Russell and Newsom.

         Roth testified that Newsom visited the Boutique on or about February 12, 2015. Roth testified that she again complained to Newsom at that time about employees not being fully compensated.

         Timecard Audit

         Following her store visit in February, Newsom asked Hannah to run a time card audit for the Boutique, which Hannah emailed to Newsom on February 18, 2015. Newsom then sent the audit report to Russell. Newsom could not recall what led to her request for an audit. When Hannah emailed the audit report to Newsom, she wrote, “I . . . do see where Avrielle is editing time. If you want to call me, I can walk you through the report.”[23] Hannah testified that it was possible that Newsom may have requested the audit because she believed Roth may have made some edits to her time.

         Russell testified that the time card audit came about because she was visiting Roth's Boutique when she overheard an employee who was returning from break say, “oh, I'll just clock in from my phone” when the register that was normally used for clocking in was occupied by a transaction.[24] Russell testified that she became concerned that employees were not utilizing the electronic timeclock system correctly, so she discussed the matter with Newsom. Russell testified that she was not aware of whether Roth ever clocked in on her phone.

         The time card audit was conducted on February 18, 2015, and included information regarding six Boutique employees in addition to Roth.[25] The time card audit for the time period January 20 through February 18, 2015, revealed that Roth edited her own time on eight occasions. The audit further revealed that during that time period, Roth submitted her time edits in accordance with Francesca's policy to her District Manager, Russell, on three occasions for Russell to make the edits instead of Roth. Russell testified the only thing she recalls discussing with Newsom about the audit report is the edits Roth made to her time card rather than employees clocking in or out on their phones. Russell was not aware that any employees in the Boutique were disciplined for clocking in our out on their phones as a result of the audit.

         Francesca's Time and Attendance policy states: “Boutique managers are to submit their missed punches to their District Managers for Correction.”[26] The Time and Attendance and Time Reporting policies, in a subheading titled “Altering Time Records, ” each state that “[a]ltering, falsifying, tampering with records, or recording time on another employee's time record may result in disciplinary action, up to and including termination of employment.”[27]These policies applied to Roth, and she was aware of these policies.

         As Boutique Manager, if Roth needed to make any changes to her time entries, Francesca's policy required her to submit her edits to District Manager Russell. If Roth did not clock in correctly, she would edit her time entries, sometimes more than twice a week. Roth testified that Russell told her she could edit her own time, which Russell denies. Russell did not recall ever questioning the hours Roth reported she worked.

         Roth's Termination

         Francesca's terminated Roth's employment on February 26, 2015. Russell was present at the Boutique and Newsom was present on the phone. During the meeting, Newsom brought up the topic of compensation allegedly owed to Rosette Wertz, and Roth confirmed her belief that Wertz was still owed compensation for hours worked. Roth also confirmed Wertz's mother also believed her daughter was still missing a paycheck. Newsom assured Roth that Wertz had been paid despite Roth's beliefs.

         That day, Roth's time cards indicated Roth had edited her time. Roth confirmed to Newsom and Russell that she “change[d] the timecards, ” but explained that she had not done so in a dishonest manner. Roth also stated that she felt Newsom “did not like her because she speaks up and would not stand in line and follow orders.”[28] Newsom and Russell informed Roth she was being terminated for editing her own time. Roth did not know about the time card audit until ...

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