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Ade v. Conklin Cars Salina, L.L.C.

United States District Court, D. Kansas

June 20, 2019

JILLIAN ADE, Plaintiff,



         Plaintiff Jillian Ade has sued her former employer, Defendant Conklin Cars Salina, LLC, for wrongful termination under Title VII and retaliatory discharge under Kansas law. Ade contends her termination violated Title VII because a male co-worker received more favorable treatment. She alleges her termination was retaliatory and unlawful under Kansas law because it came after she had raised concerns about how other employees were being paid.

         Conklin Cars moves for summary judgment on all claims. Doc. 37. For the reasons stated below, the Court grants summary judgment to Conklin Cars on Ade's Title VII claim because Ade has not demonstrated a genuine issue of material fact that the stated reasons for her termination were pretext. The Court further grants summary judgment to Conklin Cars on Ade's state law retaliatory-discharge claim because she has not alleged sufficient facts to establish she was fired for exercising her rights under the Kansas Wage Payment Act or for whistleblowing.

         I. BACKGROUND

         Conklin Cars is an automotive dealership with locations in Salina and Hutchinson. Doc. 38 at 6. Ade began working for Conklin Cars selling used cars at the Salina location in 2005. Id. at 7; Doc. 41 at 8. Her supervisor in Salina was Javier Lopez, the Used Truck Manager. Doc. 41 at 8. In 2010, Ade left the Salina location to take a position in Hutchinson as the Honda Sales Manager, a position she held until December 2016, when she resigned because of the long commute. Doc. 38 at 7; Doc. 41 at 8. After she resigned, Ade contacted Lopez to ask about openings at the Salina location, which was closer to her home. Doc. 38 at 8-9.

         Around that time, the Used Cars Sales Manager position opened in Salina, and Ade asked to be considered for it. Doc. 38 at 9. She contacted the Salina General Manager, Gerard Smith, and also discussed it with Lopez, who recommended Ade for the job. Id. Smith hired Ade for the Used Car Sales Manager position because “she'd done a good job previously so I thought she could do a really good job.” Id. Ade started her new position at the Salina branch in December 2016. Doc. 41 at 8.[1]

         A. Ade's Second Tenure in Salina

         Although Ade's second tenure at the Salina branch lasted only a few months before she was fired, she was involved in several incidents. The first involved Ade getting angry at an employee who failed to satisfactorily wash a car before bringing it to the lot. Doc. 38. at 9. Ade complained to the employee's supervisor and demanded the employee be fired. Id. at 10. When the supervisor refused, Ade threatened to fire the employee herself even though she did not have authority over that particular worker. Id. Another incident involved Ade stating that the finance department was “too slow, ” “old, ” and “slow as fuck.” Id. Yet another time, a sales representative confronted Ade and accused her of playing favorites. Id. Ade explained her actions but also said that she could do “whatever the fuck” she wanted to do and called the sales representative a “cry baby.” Id; Doc. 41 at 4.

         Other employees at Conklin Cars occasionally cursed at work. Doc. 38 at 10; Doc. 41 at 9; Doc. 46 at 18. Ade testified that Lopez cursed at coworkers, but she could only recall one specific occasion. Doc. 41 at 9; Doc. 41-1 at 34-35 (deposition pages 99-100). But Ade cursed more than most, to the extent it was sometimes an issue. Doc. 38 at 10; Doc. 41 at 4; Doc. 46 at 8.[2] On at least three occasions in the approximately six months that Ade was back working at the Salina location, Smith had to speak to her about her use of bad language. Id. at 10; Doc. 41 at 4. And towards the end of her time at the Hutchinson location, Ade conducted a sales meeting during which she used profanity. Doc. 38 at 7-8. After that meeting, an anonymous complaint was made to the Hutchinson general manager, Myron Sasse. Id. at 8. Sasse met with Ade and verbally reprimanded her about her use of bad language at work. Id. Around that same time, Ade received an anonymous note from an employee describing the ways in which she was a bad manager, including using bad language and playing favorites. Id.

         B. Ade's Termination

         Ade's second tenure in Salina culminated in an email exchange with Smith while Smith was on vacation. Ade's email to Smith, sent in June 2017, read:

There is no reason the contest payouts should [be] taken out of the salesperson guarantee. If it's a bonus it's a bonus. They should be paid the 1500 plus the bonus they won. You do this to get them excited to sell and then turn around and not pay. That is just wrong.
I think the contest work for creating excitement but they won't anymore if this is how you are going to play it. So either do it right or don't do it at all.
This place was a shit show yesterday, all 12 hours I was here, and now I'm here getting a couple things finished up and it's still a shit show. It's little things like not paying employees right that cost you more in the long run. I will stop now because I could go on all day why it's a cluster f*#% here, but I won't.

Doc. 38 at 12. The “shit show” remark was in reference to an incident where the same car was inadvertently sold to two different customers. Id. The “contest” was a monthly sales contest for sales representatives. Doc. 41 at 11. At Conklin Cars, sales representatives receive a guaranteed monthly salary of $3, 000, but they can earn more than the guaranteed monthly salary with commissions and bonuses. Doc. 38 at 10-11. However, employees are expected to sell enough to cover the monthly guaranteed salary. Id. Only the amount of commissions and bonuses earned over the $3, 000 guarantee is paid out as extra income. Id. This was true for all contest payouts as well. Doc. 46 at 21-22.[3] Ade understood how the bonus structure at Conklin Cars worked. Doc. 38 at 11.

         Smith responded to Ade's email, saying, “I will tal[k] with you when [I] get back. If you are that unhappy maybe this is not for you[.]” Id. at 12. Ade replied, “Maybe. Its hard to work with lazy people.” Id. After she sent the email, Ade posted “who is hiring” on Facebook. Id. Some current and former Conklin Cars employees saw the post and made comments. Id. Lopez saw the post and believed it to mean Ade was planning to resign. Id. Ade maintains she was not looking for a new job. Doc. 41 at 5. Although Smith did not see the Facebook post himself, others asked him about it. Doc. 38 at 13. Until the time Ade posted on Facebook about whether anyone was hiring, Smith testified that he had intended to discuss Ade's complaints and work towards a resolution so she could stay employed at Conklin Cars. Id. But after the Facebook post, Smith testified he had had enough of Ade's disruptive behavior and decided to terminate her. Id.

         When Smith returned to work on June 12, 2017, he had a sales manager meeting at which both Ade and Lopez were present. Id. at 13. After the meeting, Ade left to retrieve her phone. Doc. 38 at 13; Doc. 41 at 6. When Ade returned, Smith, along with another manager, Scott Johnson, told Ade her employment was terminated. Doc. 38 at 14. When Ade asked for more information, Smith stated he was not able to give her a reason. Id. Ultimately, the stated grounds for Ade's termination were “Disruptive Behavior, ” “Conflict/Refusal to work with Co-Worker, ” and “Insubordination.” Id. at 13.[4] Before she was fired, Ade had not received any formal disciplinary write-ups; any disciplinary action had been verbal only. Doc. 41 at 10.

         C. Post-Termination

         After Ade was fired, she talked with Lopez and said she suspected another employee had orchestrated her termination. Doc. 38 at 14. Lopez and Ade both agreed they had made a good team. Id.; Doc. 41 at 6.

         Although Lopez had never complained about Ade before her termination, and Lopez and Ade had a friendly relationship outside of work, Doc. 38 at 15; Doc. 41 at 11, Ade later began to suspect that Lopez had influenced Smith's decision to fire her because Lopez was jealous of Ade's sales record and generally disliked women. Doc. 38 at 14.

         Regarding the sales record, Conklin Cars typically tracked both the total number of vehicles sold and the total profits from the sales. Id. at 16. During the time Ade was Used Car Sales Manager, she sold more vehicles than Lopez, but Lopez's total sales revenue during that time was higher, as was his revenue per vehicle sold. Id. at 16; Doc. 41 at 11-12. But just for the month of May 2017, Ade's volume and revenue numbers were higher than Lopez's. Doc. 41 at 11-12.

         Regarding why she thinks Lopez dislikes women, Ade said that he once asked an overweight woman why she was wearing a “muumuu.” Doc. 38 at 15; Doc. 38-2 at 16 (deposition pages 115-116). Ade also said that, when she returned to work at the Salina location, Lopez told her that another female employee, Sue Seybert, hated him. This apparently stemmed from a consensual sexual encounter Lopez had with another Conklin Cars employee, who Seybert had then counseled to report Lopez for sexual harassment. Doc. 38-2 at 16 (deposition pages 115-116); Doc. 38 at 15. In addition to the incident involving Seybert, another employee accused Lopez of sexual harassment because he had received nude photos from her. Doc. 38 at 15. Lopez was “written up” for these incidents and received sexual harassment training. No. other employees have made allegations against him since. Id.; Doc. 41 at 9.

         Ade also believes Lopez met with Smith on the day she was fired. Doc. 41 at 6. Ade bases this on a text she received from another Conklin Cars employee, Braydon Jeffrey, who reported that Lopez and Smith met while Ade was retrieving her phone. Id. Conklin Cars contends that the only meeting between Lopez and Smith was the June 12 sales meeting that Ade also attended, and that there were no other meetings that day between Lopez and Smith. Doc. 38 at 14 (citing to deposition testimony by Smith and Lopez that they never discussed Ade's performance before her termination).

         After Ade was fired, Lopez transitioned from Used Truck Manager to Used Cars Sales Manager, Ade's vacated position. Id.; Doc. 41 at 11. This occurred because the G.M. Manager at Conklin Cars felt more comfortable taking over the Used Truck Manager job (Lopez's position), because it was similar to his current job. Id. at 15. Lopez did not ask to become the Used Cars Sales Manager but was willing to take the job. Id. Lopez's pay did not increase because of the switch. Id.

         II. STANDARD

         Summary judgment is appropriate if 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). The moving party bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmovant “may not rely merely on . . . its own pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and citations omitted). “Rather, it must come forward with facts supported by competent evidence.” Id. The inquiry turns on “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a ...

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