United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
Ade's Second Tenure in Salina
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.
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. 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.
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. Ade understood
how the bonus structure at Conklin Cars worked. Doc. 38 at
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.
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
Before she was fired, Ade had not received any formal
disciplinary write-ups; any disciplinary action had been
verbal only. Doc. 41 at 10.
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.
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.
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.
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.
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).
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.
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