CAMPBELL v. KENNY KENT CHEVROLET COMPANY, INC. et al

Filing 109

ORDER denying defendant's 68 Motion for Summary Judgment. Signed by Judge Richard L. Young on 5/18/2011. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

RICK CAMPBELL,
Plaintiff,
vs.
KENNY KENT CHEVROLET
COMPANY, INC., EVANSVILLE
AUTOMOTIVE LLC, and VT, INC.,
Defendants.

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3:09-cv-68-RLY-WGH

ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff, Rick Campbell (“Plaintiff”), is the former general manager of Kenny
Kent Chevrolet Company, Inc. and Kenny Kent Hyundai (“Kenny Kent”). Plaintiff
alleges that he was terminated in retaliation for refusing to follow his boss’s (Doug
Hennier) (“Hennier”) orders to terminate a Kenny Kent saleswoman who rebuffed
Hennier’s sexual advances, and for reporting the same. For the reasons set forth below,
the court DENIES Kenny Kent’s motion.
I.

Background
The defendants in this case, Kenny Kent, Evansville Automotive LLC, and VT,

Inc., are referred to generically in the Complaint as “Defendants.” From a review of the
record, it appears that defendant, Evansville Automotive LLC, is more properly known as
Evansville Automotive (HYU) a/k/a Kenny Kent Hyundai, and that defendant, VT, Inc.
(“VT”), owns both Kenny Kent dealerships (among many others in the United States)
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(collectively “Defendants”). There is also a separate entity not named as a defendant
known as the Van Tuyl Group, Inc., which provides management consulting to VT, Inc.’s
car dealerships. (See Affidavit of James Thayer (“Thayer Aff.”) ¶ 4). It is the court’s
understanding that VT and the Van Tuyl Group are owned by Cecil and Larry Van Tuyl.
(Deposition of Rick Campbell (“Plaintiff Dep.”) at 24) (testifying that Cecil and Larry
Van Tuyl owned the largest privately held auto group in the country).
A.

Plaintiff’s Employment

On February 28, 2007, Larry Van Tuyl hired Plaintiff as General Manager of
Kenny Kent. (Id. at 30). At all times, Plaintiff was an employee of and paid by Kenny
Kent. (Id. at 47-48). Plaintiff’s direct superior was Hennier. Hennier was the head of
Auditing for VT, and, at that particular time, also oversaw the Kenny Kent dealerships.
(Id. at 28-29).
Soon after Plaintiff was hired as General Manager, Hennier hired George Clark
(“Clark”) as Controller for Kenny Kent. (Deposition of George Clark (“Clark Dep.”) at
16, 19). Both Plaintiff and Clark were hired to revive Kenny Kent, whose sales and
profits had slipped significantly in the past couple of years, (id. at 19), and whose general
ledgers were fraught with accounting errors (id. at 29-30).
B.

Sexual Harassment Policy and Allegations

Kenny Kent has a sexual harassment policy, which generally requires a Kenny
Kent employee, who believes he/she has been the victim of harassment, to report the
incident to “your Manager or to any other Manager with the Dealership or to the General
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Manager as soon as possible.” (Plaintiff Dep. Ex. 3). If, for any reason the employee
does not wish to report an incident to a Manager, “you should call the Employee Hot
Line 1-800-435-5858.” (Id.). The Employee Hot Line is administered by a third party
human resources consulting company known as Auto HR. (Plaintiff Dep. Ex. 17).
In June 2007, Plaintiff learned of a relationship between Hennier and one of
Plaintiff’s salespersons, Haley Maravich (“Maravich”). (Plaintiff Dep. at 66-67). Shortly
thereafter, Hennier contacted Plaintiff and instructed him to take care of his “liabilities.”
(Id. at 67, 72, 93, 124). Plaintiff misunderstood Hennier’s request, and informed him of
the actions he was taking to improve the dealership. (Id. at 71-72). Hennier responded,
“I’m not talking about those liabilities; I’m talking about the girl.” (Id. at 72). Plaintiff
told Hennier that Maravich was not his liability, she was Hennier’s liability. (Id.).
Hennier reiterated that Plaintiff needed to get rid of his responsibilities, i.e., Maravich,
and walked out. (Id.). At that time, Plaintiff did not report his conversation with Hennier
to anyone. (Id. at 73).
On June 20, 2007, Maravich met with Plaintiff to discuss her job performance.
(Id. at 75). Maravich explained to Plaintiff why her sales had dropped off and revealed
her relationship with Hennier. (Id. at 78-79). Maravich informed Plaintiff that Hennier
asked her out numerous times, and that they had a one time sexual encounter. (Id. at 8081). Hennier continued to contact Maravich, and wanted to see her every time he was in
town. (Id. at 81). Plaintiff asked Maravich what she wanted him to do about the
situation, and she responded that she did not want him to do anything, as she wanted to
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discuss the matter with her father and brother first. (Id. at 88). Following this meeting,
Plaintiff told Clark about the Hennier and Maravich situation, but no one else. (Id. at 8688).
The day after his meeting with Maravich, Plaintiff informed Hennier by telephone
that Maravich was not a “liability” and that he would not discipline or fire her. (Id. at
82). Hennier responded by saying, “suit yourself” and proceeded to hang up the
telephone. (Id.).
C.

Plaintiff’s Performance and Alleged Retaliation

Plaintiff and Clark worked together on a daily basis to improve Kenny Kent’s car
sales. (Clark Dep. at 39). Plaintiff maintains that from March to July 2007, Kenny Kent
lost $185,000, which was a significant improvement over the loss statement for the last
three months of 2006. (Id. at 152). According to Clark, by the time Plaintiff was
terminated in early September 2007, Kenny Kent was doing very well compared to
similar dealerships in the local market over the same time period. (Id. at 79-82). In fact,
prior to July 2007, Plaintiff was praised for his work at Kenny Kent by Hennier, Thayer,
Cecil and Larry Van Tuyl. (Plaintiff Dep. at 55). In a June 18, 2007, email from Hennier
to Plaintiff, Hennier recognized that Plaintiff brought “stability, professionalism and
organization to the dealership,” and that Clark “impresses me every time I meet with
him.” (Plaintiff Dep. Ex. 20). In addition, prior to July 2007, Plaintiff heard from
Hennier by phone almost every day. (Plaintiff Dep. at 102).
By July 2007, the relationship between Plaintiff and the Defendants changed. For
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example, Hennier dropped off almost all communication with Plaintiff. (Plaintiff Dep. at
102). Clark also testified that by July 2007, his communication with Hennier dropped to
“nearly nothing.” (Clark Dep. at 49). At Van Tuyl’s July 2007 quarterly meeting,
Hennier ignored Plaintiff. (Plaintiff Dep. at 57-58). Plaintiff thought Hennier’s
avoidance was significant because at the last quarterly meeting in April, Hennier told
Plaintiff that after he decided to terminate Kenny Kent’s previous General Manager, he
“just quit talking to him.” (Id. at 57).
By July 1, 2007, James Thayer (“Thayer”), Chief Financial Officer of Van Tuyl
Group, testified that Plaintiff’s performance in terms of cars sold and profits was
significantly worse than the terminated general manager he replaced. (Thayer Aff. ¶ 10;
see also Thayer Aff. Exs. B, C). One of the reasons that Kenny Kent’s car sales and
profits did not appear to be improving is because, according to Clark, Hennier directed
him to absorb losses that should have been accounted for before Plaintiff took over.
(Clark Dep. at 17-18, 37-39). At any rate, Thayer maintains that, at that time, he made
the decision to interview applicants to replace both Plaintiff and Clark. (Thayer Aff. ¶
12).
In addition, Hennier ordered a 10-day audit of Kenny Kent. (Plaintiff Dep. at 94).
According to Plaintiff, there was no need for this audit because Kenny Kent had “just
been through an extensive audit [in May] trying to clean up the books from previous
management the last two or three years.” (Id.). The final audit from May adjusted
several months where Plaintiff and Clark thought they had made profits. (Id. at 98). The
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adjustment did not concern Plaintiff at that time, because, according to his employment
contract, his salary was not tied to profits until September 2007. (Id.; Plaintiff Dep. Ex.
2).
In August 2007, Plaintiff planned for a used car sale and spent approximately
$75,000 marketing the event. (Clark Dep. at 52; Plaintiff Dep. at 116). Kent
Montgomery (“Montgomery”), the Director of Pre-Owned Operations of Van Tuyl
Group, called Plaintiff and told him that Larry Van Tuyl, after having discussed the
situation with Hennier, instructed Montgomery to take up to 80 cars off Kenny Kent’s
lots to sell them at auction in Dallas, Texas. (Plaintiff Dep. at 115; Affidavit of Kent
Montgomery ¶¶ 11-12). Clark could think of no legitimate business reason to sell the
used car inventory before the used car sale, as the dealership had invested large sums of
money in marketing and promotion. (Clark Dep. at 54-55, 143-44). Plaintiff testified that
Defendants’ action “destroyed the morale of all the salespeople [and] the service people
. . . .” (Plaintiff Dep. at 118). This action also “negatively impacted the August financial
statement hugely.” (Clark Dep. at 52-53). Making matters worse, Hennier sent an email
to Plaintiff criticizing him for the “write down” of Kenny Kent’s inventory for August
2007. (Id. at 86).
Also in August 2007, a man named “Javier,” an auditor from VT, informed
Plaintiff that cars could not be sold until Kenny Kent had actual possession of title. (Id. at
94-99). This policy change did not affect any of the Defendants’ other dealerships. (Id.).
On August 20, 2007, Plaintiff emailed Hennier, Thayer, and Larry Van Tuyl, asking that
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the policy be changed, because in Indiana, Kenny Kent may have to wait up to thirty days
before it received the requisite legal title. (Plaintiff Dep. Ex. 14). Plaintiff explained that
“[w]ith the current write down policy, this has made it difficult to sale [sic] a vehicle with
in [sic] the write down time frame.” (Id.). Hennier did not agree to change the policy.
(Clark Dep. at 98).
D.

Plaintiff Reports the Harassment

On August 2, 2007, Plaintiff and Clark reported Hennier’s alleged sexual
harassment of Maravich, and Hennier’s response, to Dan Charpie (“Charpie”), Head of
Risk Management for VT. (Plaintiff Dep. at 105-06, 112, 124). Charpie told Plaintiff
and Clark to call Auto HR or discuss the matter with Thayer. (Id. at 105).
On August 27, 2007, Plaintiff left a message with Auto HR reporting the
relationship between Maravich and Hennier. (Id. at 155-56; Plaintiff Dep. Ex. 18).
Plaintiff also reported that since he refused Hennier’s request to fire Maravich, Hennier
has treated him differently and, in his opinion, intentionally tried to undermine him and
his performance by “holding money back so that it will look like we are not doing as
well.” (Plaintiff Dep. Ex. 18). Two days later, Plaintiff again contacted Auto HR and
personally spoke with a representative, noting his concern that he had not heard from
anyone regarding his complaint. (Plaintiff Dep. Ex. 19). Plaintiff reported the fact that
he had a copy of the text messaging records between Maravich and Hennier. (Clark Dep
at 103; Plaintiff Dep. Ex. 19). The Auto HR representative asked Plaintiff to email or fax
a copy of Maravich’s records regarding her complaint to Auto HR. (Clark Dep. Ex. 19).
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Plaintiff stated he would rather just hold on to them. (Id.).
On August 31, 2007, Thayer flew in and met with Plaintiff. (Plaintiff Dep. at 12931). Thayer confirmed that he was aware of Maravich’s sexual harassment complaint,
and asked what could be done to resolve the situation between Maravich and Hennier.
(Id. at 130). Plaintiff suggested that Thayer compensate Maravich for Hennier’s
treatment of her, that his salespersons be compensated for the money they did not earn as
a result of the Defendants’ decision to move the used car inventory to Dallas for auction,
and that he be able to run his store free from Hennier’s interference. (Id. at 130-31).
Thayer responded, “that’s not going to happen. We’ve never settled with anybody and
we’re never going to.” (Id.).
E.

Plaintiff’s Termination

On September 5, 2007, Maravich presented to Plaintiff and Clark her formal,
handwritten complaint of sexual harassment. (Id. at 134-35, 138; Plaintiff Dep. Ex. 21).
Plaintiff and Clark forwarded the complaint via email to Charpie, Thayer, James Delwyn,
and Larry Van Tuyl. (Plaintiff Dep. at 138).
The following day, Thayer traveled to Evansville to meet with Plaintiff between
6:30 p.m. and 7:00 p.m.. (Thayer Aff. ¶ 18; Plaintiff Dep. at 141). Thayer asked Plaintiff
to produce the text message records that Maravich gave Plaintiff. (Plaintiff Dep. at 140).
Plaintiff told Thayer that he did not have the records at the store but that they were at his
home. (Id.). Thayer then asked Plaintiff to go home to get the records. (Id.). Plaintiff
said he lived approximately an hour away from the dealership and would be happy to
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bring them in the morning. (Id.). Thayer asked him again to get the records, and Plaintiff
refused. (Id. at 141; Thayer Aff. ¶ 21). Thayer then terminated Plaintiff’s employment.
(Plaintiff Dep. at 141; Thayer Aff. ¶ 22).
That same day, Thayer terminated Clark. (Clark Dep. at 129). Clark testified that
Thayer told him that he fired Plaintiff for insubordination, and that he was “going to let
me go, as well, because they felt like I was too close to [Plaintiff], but, comma, they
would say it was for performance reasons.” (Id.).
Prior to their respective terminations, neither Plaintiff nor Clark had received any
warning or progressive discipline. (Plaintiff Dep. at 149-50; Clark Dep. at 129).
II.

Summary Judgment Standard
Summary judgment is proper only if the record shows “that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the burden of informing the court of the basis for its motion and
demonstrating the “absence of evidence on an essential element of the non-moving
party’s case,” Celotex Corp., 477 U.S. at 323, 325. To withstand a motion for summary
judgment, the nonmoving party may not simply rest on the pleadings, but rather must
“make a showing sufficient to establish the existence of [the] element[s] essential to that
party’s case, and on which that party will bear the burden of proof at trial. . .”. Id. at 322.
If the non-moving party fails to make this showing, then the moving party is entitled to
judgment as a matter of law. Id. at 323.
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In determining whether a genuine issue of material fact exists, the court must view
the record and all reasonable inferences in the light most favorable to the non-moving
party. See Nat’l Soffit & Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264 (7th
Cir. 1996). No genuine issue exists if the record viewed as a whole could not lead a
rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ritchie v. Glidden Co., 242 F.3d
713, 720 (7th Cir. 2001).
III.

Discussion
Plaintiff alleges that the Defendants retaliated against him for his complaints of

sexual harassment. Plaintiff proceeds under the direct method. Thus, Plaintiff must
establish that: (1) he engaged in statutorily protected expression; (2) he suffered an
adverse employment action; and (3) there is a causal link between the protected
expression and the adverse action. Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir.
2008); Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007). The
direct method allows a plaintiff to present circumstantial evidence of intentional
retaliation, “including evidence of suspicious timing, ambiguous statements, behavior
toward or comments directed at the other employees in the protected group, and other bits
and pieces from which an inference of discriminatory intent may be drawn.” Boumehdi,
489 F.3d at 792 (citing Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir.
1994)).
It is undisputed that Plaintiff engaged in protected activity by (1) reporting the
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alleged harassment of Maravich by Hennier to Charpie and Auto HR, and arguably, by
(2) refusing to terminate Maravich at Hennier’s request. It is also undisputed that
Plaintiff’s termination constitutes an adverse employment action. Thus, the element at
issue here is (3) above – i.e., whether there is a causal link between Plaintiff’s protected
expression and Plaintiff’s termination.
The evidence viewed in the light most favorable to the Plaintiff reflects that prior
to July 2007, Plaintiff was performing his position as General Manager of Kenny Kent to
his employer’s legitimate expectations. Plaintiff testified that he was on the verge of
turning Kenny Kent’s sales and profits around, and that he received praise not only from
Hennier, but also from Hennier’s boss, Thayer, and the Van Tuyls. After his refusal to
terminate Maravich, their treatment of Plaintiff and his right-hand man, Clark, changed.
Both Plaintiff and Clark consistently testified that Hennier began to ignore them, ordered
an unnecessary ten-day audit, interfered with their used car promotion, and changed
Kenny Kent’s policy with respect to the transfer of title to vehicles on its lots, all of which
significantly affected Kenny Kent’s bottom line.
Of course, in order to establish a claim of retaliation, Plaintiff must establish that
Thayer had knowledge of Plaintiff’s protected activity, and that a causal link exists
between Plaintiff’s protected activity and Thayer’s decision to terminate him. See Luckie
v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004) (“It is not sufficient that [an
employer] could or even should have known about [an employee’s] complaint; [the
employer] must have actual knowledge of the complaints for [its] decisions to be
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retaliatory.”) (emphasis in original). In other words, Plaintiff cannot rely solely on
Hennier’s actions to establish his claim of retaliation.
The evidence, again viewed in the light most favorable to Plaintiff, suggests that
Thayer made the decision to terminate Plaintiff well before his September 6, 2007,
termination. In fact, Thayer testified that he made the decision by July 1, 2007 – a date
approximately two weeks after Plaintiff refused Hennier’s order to terminate Maravich.
Although Thayer testified that, at that time, he was unaware of their affair, and that
Hennier played no part in that decision, (Thayer Aff. ¶ 12), the record reflects that he
acquired knowledge of the affair and the fact that Maravich’s text messaging records
were in Plaintiff’s possession. The record does not explain how he became aware of
these facts, but a reasonable juror could disbelieve Thayer and infer that he became aware
of these facts either from Hennier or Charpie, Thayer’s employees.
Moreover, Plaintiff was not told that he was being terminated for poor
performance during his meeting with Thayer. In fact, he had never been told that his
performance was deficient. Curiously, Clark, who likewise never received a poor
performance review, was terminated on the same day, not for performance issues, but
because he was “too close” to Plaintiff.
Thayer’s asserted reason for Plaintiff’s termination – insubordination – is also
suspect. A reasonable juror could conclude that Plaintiff, who was discussing Maravich’s
complaint of sexual harassment with Thayer, did not refuse to provide the text messages
requested by Thayer, but simply asked to return them the next morning, as the meeting
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occurred after the close of business and a two-hour drive was required to retrieve them at
that moment. Thus, a reasonable juror could conclude that the decision to terminate
Plaintiff had been made before the meeting of September 6, 2007, and that the failure of
Plaintiff to “immediately” retrieve the text message records did not “cause” his
termination. Indeed, a reasonable jury could infer that Plaintiff’s request to provide the
materials the next morning is not the type of “insubordination” that should reasonably
have resulted in termination.
Finally, Thayer’s other asserted reason for Plaintiff’s termination – that he failed to
follow Kenny Kent’s sexual harassment policy and mismanaged Maravich’s complaint –
is also suspect. Maravich told Plaintiff not to report the harassment because she wanted
to discuss her options with members of her family. Moreover, Plaintiff did report the
harassment to Charpie, who simply said to call Auto HR. Although Plaintiff did not
promptly call Auto HR, a reasonable juror could conclude that his inaction was
understandable, given the peculiar circumstances he was in, and the alleged treatment he
was receiving from his superiors.
Because the combination of suspicious timing and other bits and pieces of
circumstantial evidence creates a mosaic from which a reasonable jury could conclude
retaliatory motive on the part of Thayer, Defendants’ motion for summary judgment on
Plaintiff’s retaliation claim must be DENIED.
IV.

Conclusion
The court finds a genuine issue of fact exists as to whether Thayer’s decision to
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terminate Plaintiff was tinged with retaliatory animus. Accordingly, Defendants’ Motion
for Summary Judgment (Docket # 68) is DENIED.

SO ORDERED this 18th day of May 2011.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
RICHARD L. YOUNG, CHIEF JUDGE
Southern District of Indiana
United States District Court
Southern District of Indiana

Electronic Copies to:
Kyle Frederick Biesecker
BIESECKER DUTKANYCH & MACER, LLC
[e-mail]
Matthew T. Black
LAW OFFICES, THE CINCINNATI INSURANCE COMPANY
[e-mail]
Andrew Dutkanych III
BIESECKER DUTKANYCH & MACER LLC
[e-mail]
Alan L. McLaughlin
LITTLER MENDELSON PC
[e-mail]
Lane C. Siesky
SIESKY LAW FIRM, PC
[e-mail]

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