Fuller v. Meredith Corporation

Filing 79

MEMORANDUM AND ORDER denying 63 Motion for Summary Judgment. Signed by District Judge John W. Lungstrum on 8/20/2018. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KAREN FULLER,

)
)
Plaintiff,
)
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v.
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)
MEREDITH CORPORATION,
)
)
Defendant.
)
)
_______________________________________)

Case No. 17-2335-JWL

MEMORANDUM AND ORDER
Plaintiff asserts two claims in connection with defendant’s decision to terminate her
employment as a television news anchor: a claim for gender discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and a claim for age
discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621 et seq. This matter comes before the Court on defendant’s motion for
summary judgment on both claims (Doc. # 63). For the reasons set forth below, the Court
denies the motion.

I.

Background

Defendant Meredith Corporation owns and operates KCTV, a television station in
the Kansas City area. Beginning in 2003, defendant employed plaintiff Karen Fuller as a
news anchor at the station. In January 2015, the station’s general manager, Darrin

McDonald, in consultation with news director Ed Kosowski, decided not to renew
plaintiff’s contract when it expired in April of that year. Before plaintiff was informed of
that decision, however, Mr. McDonald was replaced as general manager by Mike Cukyne.
Mr. Cukyne conferred with Mr. Kosowski, and he also decided that plaintiff’s employment
would be terminated. Plaintiff was 47 years old at that time. Plaintiff subsequently brought
the instant suit.

II.

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 a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all
reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke
v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact
is “genuine” if “the evidence allows a reasonable jury to resolve the issue either way.”
Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is
“material” when “it is essential to the proper disposition of the claim.” Id.
The moving party bears the initial burden of demonstrating an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. Thom v. Bristol-Myers
Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the
ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the

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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. Id. (citing Celotex, 477 U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon
the pleadings but must “bring forward specific facts showing a genuine issue for trial as to
those dispositive matters for which he or she carries the burden of proof.” Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence
pertinent to the material issue “must be identified by reference to an affidavit, a deposition
transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J. Kennedy Law Firm,
289 F.3d 671, 675 (10th Cir. 2002).
Finally, the court notes that summary judgment is not a “disfavored procedural
shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed. R. Civ.
P. 1).

III.

ADEA Claim

Plaintiff asserts a claim under the ADEA, which makes it unlawful for an employer
to discriminate “because of” a person’s age. See 29 U.S.C. § 623(a)(1). In Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that the ADEA did
not authorize a “mixed-motives” age discrimination claim (alleging discrimination based
on both permissible and impermissible factors) in which age was only a motivating factor
in the employment decision; rather, to succeed on an ADEA claim, the plaintiff must show
that age was the “but-for” cause of the decision. See id. at 175-78.
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As a preliminary matter, defendant argues that it is entitled to summary judgment
on plaintiff’s age claim under the ADEA because plaintiff conceded in her deposition that
her gender also played a role in defendant’s decision to terminate her employment.
Defendant argues that because the decision was based also on her gender, age cannot have
been the but-for cause of the termination. The Court rejects this argument.
The Tenth Circuit has held that, under this standard as enunciated by the Supreme
Court, a plaintiff alleging a violation of the ADEA need not show that age was the sole
motivating factor in the employment decision; “[i]nstead, an employer may be held liable
under the ADEA if other factors contributed to its taking an adverse action, as long as age
was the factor that made a difference.” See Jones v. Oklahoma City Public Schools, 617
F.3d 1273, 1277 (10th Cir. 2010) (internal quotation and citations omitted). Although
defendant argues that the Court should not permit an “age-plus-gender” claim under the
ADEA, defendant has not cited any authority from the Tenth Circuit prohibiting a claim
under the ADEA in which an additional motivating factor was an impermissible factor such
as gender. Defendant notes that in Gross the Supreme Court held that the ADEA did not
allow for so-called mixed-motive claims. The Supreme Court, however, meant only that
it was not sufficient to show that age was a mere motivating factor, and that but-for
causation was required. See Gross, 557 U.S. at 175-78. Whether or not gender was also a

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motivating factor, to succeed on this claim plaintiff will be required at trial to show that
age was the determining factor.1
In the deposition testimony on which defendant relies, plaintiff merely conceded
that age was not the sole factor in defendant’s decision to terminate her employment. She
did not concede that age was not the but-for cause of that decision. Accordingly, that
testimony does not provide a basis for judgment as a matter of law on plaintiff’s ADEA
claim.

IV.

Gender and Age Claims

Plaintiff does not argue that she has direct evidence of gender or age discrimination
with respect to her termination. Accordingly, as both parties agree, the Court must analyze
her claims under Title VII and the ADEA at the summary judgment stage under the burdenshifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012) (applying
framework to gender and age claims). In this case, defendant does not argue that plaintiff
cannot establish a prima facie case of discrimination (the first step in the framework), and
plaintiff does not dispute that defendant has asserted a legitimate nondiscriminatory reason

1

In Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010), the plaintiff
asserted separate gender and age claims, and the court held that because the plaintiff had
produced sufficient evidence of age discrimination to withstand summary judgment on that
claim, there was no need to create an independent age-plus-gender claim, as her age claim
could simply be judged under the Gross standard of but-for causation. See id. at 109-10.
Similarly here, plaintiff has asserted a claim under the ADEA, and it may be considered
under the but-for standard, whether or not there were any motivating factors other than age,
including plaintiff’s gender.
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for its decision to terminate her employment (the second step). Thus, the Court proceeds
to the final step of the framework, in which plaintiff must introduce evidence that the stated
nondiscriminatory reason is merely a pretext for discriminatory intent. See id.
Evidence of pretext “may take a variety of forms,” including evidence tending to
show “that the defendant’s stated reason for the adverse employment action was false” and
evidence tending to show “that the defendant acted contrary to a written company policy
prescribing the action to be taken by the defendant under the circumstances.” See Carter
v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1150 (10th Cir. 2011) (internal quotations
and citation omitted). A plaintiff may also show pretext with evidence that the defendant
has “shifted rationales” or that it has treated similarly situated employees differently. See
Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1197 (10th Cir. 2011). In essence, a
plaintiff shows pretext by presenting evidence of “weakness, implausibility, inconsistency,
incoherency, or contradiction in the employer’s stated reasons, such that a reasonable jury
could find them unconvincing.” See Debord v. Mercy Health System of Kansas, Inc., 737
F.3d 642, 655 (10th Cir. 2013). In determining whether the proffered reason is pretextual,
the Court examines “the facts as they appear to the person making the decision, not as they
appear to the plaintiff.” See id. (emphasis in original). The Court does not “ask whether
the employer’s proffered reasons were wise, fair or correct” but only whether “the
employer honestly believed those reasons and acted in good faith upon those beliefs.” See
id.
Plaintiff has pointed to a number of facts (while submitting evidence to support
those facts) that she argues undermine defendant’s stated reasons for her termination.
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Defendant disputes those facts, and it argues in a number instances that a particular fact is
not sufficient in itself to establish the necessary pretext. The Court concludes, however,
that when the evidence is viewed in the light most favorable to plaintiff, the totality of that
evidence creates a reasonable inference that defendant’s stated reasons are pretextual.
As set forth in its answer to interrogatories, defendant’s stated reasons for
terminating plaintiff’s employment are as follows:
Karen Fuller’s contract was not renewed due to Defendant’s
assessment that her performance was unsatisfactory, both on- and off-air.
As to Ms. Fuller’s on-air performance, she was perceived by
Defendant as merely going through the motions, i.e., a “prompter reader,”
without any connection to the news reports she was delivering.
As to Ms. Fuller’s off-air performance, it was anticipated that Ms.
Fuller, as a prime-time anchor, would be a newsroom leader. Instead, she
was very insular, spending much of her time at her desk watching TV by
herself. She also showed little interest in mentoring less-experienced
newsroom staff.
This failure to participate in the activities in the newsroom was most
evident in Ms. Fuller’s consistent absence from the daily editorial meetings.
As a result, her on-air performance suffered because she did not have the
benefit of the extended discussion of news events which occurred during the
meeting, resulting in her inability to relate to the news reports she was
delivering. This fact was particularly obvious when Ms. Fuller was required
to ad lib, because she was ill-prepared.
Plaintiff argues that defendant’s reliance on wholly subjective criteria in evaluating her
performance provides evidence of pretext. As the Tenth Circuit has noted, “[c]ourts view
with skepticism subjective evaluation methods,” the use of which may support an inference
of pretext. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1218 (10th Cir. 2002).
The use of subjective criteria by itself is not considered evidence of pretext, but “the

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existence of other circumstantial evidence may provoke a stronger inference of
discrimination in the context of subjective evaluations standards.” See Riggs v. AirTran
Airways, Inc., 497 F.3d 1108, 1120 (10th Cir. 2007).
Defendant asserts that plaintiff’s employment was terminated because of poor onair and off-air performance, and defendant concedes that the quality of an anchor’s
performance is a matter of subjective opinion. Indeed, as defendant’s interrogatory answer
reflects, defendant has cited such subjective criteria as the level of plaintiff’s connection to
the news that she delivered, whether she was a newsroom leader, the degree to which she
was insular, and her interest in serving as a mentor. Defendant did not rely on any
numerical or other objective evaluation of plaintiff’s performance. Accordingly, because
defendant relied entirely on subjective criteria that are more susceptible to manipulation
and less able to be disputed objectively, plaintiff’s other evidence of pretext becomes even
stronger.2
Plaintiff also notes that Mr. Cukyne decided to terminate plaintiff with very little
input from those most familiar with plaintiff’s performance. Mr. Cukyne started at the
station in January 2015, just before he made the decision to terminate plaintiff, and he
conceded that he had no personal knowledge of plaintiff’s performance. He testified that
he relied on Mr. Kosowski, the news director, but Mr. Kosowski had arrived only the

2

Defendant argues that it did not rely solely on subjective criteria because plaintiff
ranked poorly among the local stations’ anchors in a 2013 research report. In neither the
interrogatory answer nor in the declarations of station managers McDonald and Cukyne,
however, were the 2013 rankings cited among the reasons for the decision to terminate
plaintiff’s employment.
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previous month. Mr. Cukyne did not get any input from Mr. McDonald or from the
previous news director about plaintiff. Defendant argues that Mr. McDonald had reached
the same decision before Mr. Cukyne arrived. Nevertheless, the decision whether to retain
or terminate plaintiff ultimately resided with Mr. Cukyne after his arrival, and the fact that
he made that decision with relatively little input from those with personal knowledge of
plaintiff’s performance makes that decision at least somewhat less credible.
The credibility of that decision is also undermined somewhat by the scarcity of
supporting evidence that plaintiff’s performance was in fact poor. For instance, although
a couple of co-workers stated that they reported issues about plaintiff’s performance to the
news director, defendant has not been able to produce any contemporaneous documentary
evidence or any video evidence of poor performance by plaintiff, including any previous
negative evaluations of plaintiff or written complaints about her. Nor is there is evidence
that plaintiff was ever told that her performance was lacking or warned that her
performance could result in her termination, even though defendant’s president admitted
that management would usually tell an anchor of any performance issues.3 Defendant
again points to the 2013 research; but plaintiff has provided evidence, including from the
report itself, that her and the station’s negative ratings may have resulted from lingering

3

Defendant argues that it was not required to warn plaintiff before terminating her.
The point is not that defendant failed to impose some lesser sanction before resorting to
termination; rather, the fact that plaintiff was never told during her long tenure that her
performance was poor---even though an anchor would ordinarily be told of such an issue--provides evidence that her performance was not in fact poor, and thus provides evidence
of pretext.
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negative audience feelings from a previous station manager’s aggressive, tabloid-like style
for the station’s news, and such evidence must be viewed in plaintiff’s favor at this stage.
In addition, plaintiff has provided evidence that her performance was in fact good.
First, plaintiff points to the fact that defendant kept her as anchor for 11 years, renewing
her contract multiple times. Defendant argues that different decision-makers may apply
different standards that justify different treatment of employees. See Metzler v. Federal
Home Loan Bank of Topeka, 464 F.3d 1164, 1175-76 & n.5 (10th Cir. 2006) (pretext not
inferred from different treatment of plaintiff by new supervisors). As noted above,
however, Mr. Cukyne had no personal knowledge to support his decision, and it is
significant that Mr. McDonald did not decide to terminate plaintiff until more than two
years after he arrived in December 2012 (and nearly two years after receiving the 2013
report). Defendant cites reasons for why Mr. McDonald did not act sooner, but at this
summary judgment stage, the Court must infer that Mr. McDonald’s continuation of
plaintiff’s performance for two years reveals that he did not in fact have a serious issue
with plaintiff’s performance.
Moreover, plaintiff’s previous performance appraisals were positive. Defendant
argues that the evaluations were made by a previous news director who was not involved
in the decision to terminate her. Those evaluations, however, refer specifically to issues
later cited by defendant, such as the extent to which plaintiff was a team player and a
newsroom leader. Accordingly, the appraisals provide evidence that defendant’s citation
to those issues in terminating plaintiff was pretextual.

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Plaintiff has also provided evidence from former co-workers who worked closely
with plaintiff at the station, who stated that plaintiff’s performance was good and that they
never heard anyone complain about that performance. Defendant argues that such opinions
by non-decision-makers are irrelevant. Defendant cites Young v. Cobe Laboratories, Inc.,
1998 WL 184449 (10th Cir. Apr. 17, 1998) (unpub. op.), in which the court stated that
conclusory statements by co-workers about the plaintiff’s performance was not sufficient
to support a finding of pretext. See id. at *4. The court in Young cited Fallis v. KerrMcGee Corp., 944 F.2dd 743 (10th Cir. 1991), in which the court stated that a general
disagreement with a negative job performance evaluation, without additional evidence,
does not establish pretext. See id. at 747. In this case, however, plaintiff has not merely
offered opposing general opinions about her job performance. Rather, plaintiff’s coworkers (including two who worked with plaintiff under Mr. McDonald and one former
news director) have addressed and disputed some of the specific issues on which defendant
purported to rely, such as plaintiff’s daily preparation; whether she was insular; her ability
to have reporters “toss” to her after stories; her ability to ad lib; the extent to which she was
a team player; and her absence from meetings. These particularized disputes regarding
specific qualities distinguish the evidence in this case from the conclusory evidence in
Fallis and Young. All of this evidence of good performance by plaintiff and the lack of

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complaints about plaintiff’s performance, viewed in plaintiff’s favor, supports an inference
of pretext.4
Plaintiff also argues, in support of her pretext argument, that defendant allowed
plaintiff to anchor during the important February sweeps period even after the station
managers had decided to terminate her, and that her telecasts achieved good ratings during
that period. Defendant argues that plaintiff simply worked that month as expected because
her contract did not actually expire until April. Defendant certainly could have chosen to
replace plaintiff as anchor during the sweeps period, however, while allowing her to
complete her contract period in another capacity. Viewing the evidence in plaintiff’s favor,
the fact that plaintiff was allowed to anchor during one of the most important viewing
periods of the year provides evidence that defendant did not actually consider her a poor
on-air performer. Defendant also insists and provides evidence that ratings are not driven
by the performance of an anchor; but ratings must depend at least in part on the anchor, as
Mr. Cukyne effectively admitted in testifying that the February 2015 ratings did not suggest
that one anchor had a poor on-air performance. Defendant also notes that these good
ratings came after the decision to terminate plaintiff and thus were not known to those
decision-makers; but a good performance shortly after the decision provides evidence to

4

Plaintiff also argues that her performance was commended by Mr. Kosowski in
January 2015, around the time the station managers decided to terminate her. In the cited
emails, however, Mr. Kosowski addressed the newsroom generally, with no specific
mention of plaintiff, and those emails thus do not provide any evidence about plaintiff’s
performance or Mr. Kosowsi’s opinion thereof.
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contradict the claim that plaintiff was a poor performer at that time, and it thus provides
evidence of pretext.5
Plaintiff also attacks defendant’s reliance on her absence from daily editorial
meetings. Plaintiff has provided evidence that in late December 2014 she sent an email to
Mr. Kosowski, the news director, explaining that she had not been in editorial meetings
lately because she was doing additional work for the 4 p.m. telecast; and that Mr. Kosowski
responded the next day as follows: “No problem, I understand you’re doing more shows
than usual.” The Court agrees that this evidence (which defendant did not address in its
reply brief) contradicts defendant’s assertion that it terminated plaintiff shortly thereafter
in part because of her absences from those meetings. Defendant notes that plaintiff told
the EEOC that she stopped going to meetings because it was not productive for her to
attend. Viewed in plaintiff’s favor, however, the evidence shows that she was also absent
because of other duties. Moreover, regardless of the reason for her absence, Mr. Kosowski
seemingly sanctioned her absences, which undermines defendant’s claim that plaintiff’s
off-air performance failure was most evident in her absence from meetings. Mr. Kosowski
did not respond to plaintiff that her attendance was important or that her absence would
affect her on-air performance, as defendant now claims. Defendant also notes that it did
not terminate plaintiff solely because of those absences. It did cite that reason as a factor,

5

The Court rejects plaintiff’s argument that defendant’s shifting rationale---relying
on ratings previously but now arguing that ratings are irrelevant---shows pretext. Plaintiff
cites a letter from defendant’s counsel, but plaintiff did not properly submit that exhibit in
accordance with the applicable summary judgment rules. Moreover, in the letter
defendant’s counsel did not state that defendant terminated plaintiff because of bad ratings,
but instead argued that the ratings did not support an argument made by plaintiff’s counsel.
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however, and evidence that defendant did not in fact worry about such absences serves as
evidence of pretext.
Finally, plaintiff provides evidence of two comments that she argues shows
defendant’s true desire for a younger anchor, which, because defendant cited only
performance reasons for the termination, provides evidence of pretext. Plaintiff was
replaced as anchor by 32-year-old Ellen McNamara. On February 4, 2015, Mr. Kosowski
sent Mr. Cukyne information about Ms. McNamara as a prospective hire as anchor,
including a 17-minute video of her work. Within seven minutes, Mr. Cukyne responded
“BINGO!!!!” Mr. Kosowski then replied as follows concerning her appearance and
qualifications: “Agree. She has a nice Midwestern ‘hometown girl’ look. Really solid
reporter/journalist. Good newsroom citizen from what I [have] heard.” Plaintiff argues
that the reference to a “‘hometown girl’ look” refers to a desire for a young anchor.
Defendant argues that the comment does not show pretext because it is simply an isolated
and ambiguous remark. See Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th
Cir. 1994) (isolated or ambiguous comments, unrelated to the challenged action, are
insufficient to show discriminatory animus; plaintiff must demonstrate a nexus between
the statement and the challenged action).
Defendant first argues that the “hometown girl” remark does not refer to age at all,
but instead refers solely to appearance, which is a relevant factor in hiring news anchors.
Mr. Kosowski testified that in using that language he meant that Ms. McNamara “had a
wholesome, friendly, relatable appearance.” He further testified, however, that he would
not say that Barbara Walters had a “hometown girl” appearance “[b]ecause of her age.”
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Thus, Mr. Kosowski (one of the decision-makers, according to defendant) effectively
conceded that there was an age-related component to his “hometown girl” reference.
Defendant also argues that the comment was not about plaintiff, whom defendant had
already decided to terminate. Nevertheless, the comment was about plaintiff’s replacement
and, by extension, her position, and thus the necessary nexus exists. See Rea v. Martin
Marietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994) (“A causal nexus can be shown if the
allegedly discriminatory comments were directed at the plaintiff, her position, or the
defendant’s policy which resulted in the adverse action taken against the plaintiff.”) (citing
Cone, 14 F.3d at 531-32).
Plaintiff also cites comments made in February 2015 by Tye Murphy, the station’s
creative director, to Mr. Kosowski about Ms. McNamara’s appearance. Mr. Kosowski sent
Mr. Murphy the information on Ms. McNamara, and the two exchanged comments about
her appearance. In one such comment, Mr. Murphy stated as follows: “She can be cute
and young but also able to dress up and be more serious and respectable. . . . How will
she age I wonder?” Defendant does not dispute that this comment refers to the age of the
prospective anchor, with a seeming preference for youth. Defendant argues that this
comment is irrelevant because Mr. Murphy was not involved in the decision to terminate
plaintiff. The necessary nexus is there, however, as Mr. Kosowski (an admitted decisionmaker) solicited Mr. Murphy’s opinion and engaged in a discussion with him about Ms.
McNamara’s appearance.

Thus there is evidence to support an inference that Mr.

Kosowski wanted Mr. Murphy’s opinion and therefore would have relied on that opinion,
and that Mr. Murphy therefore did participate in the hiring of plaintiff’s replacement.
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Defendant cites Cuenca v. University of Kansas, 101 F. App’x 782 (10th Cir. 2004) (unpub.
op.), in which the court noted that “[i]n general, statements by a non-decisionmaker . . .
cannot be used to establish that a decision was tainted by discriminatory animus.” See id.
at 788. Defendant has omitted the rest of the court’s discussion, however, as the court in
Cuenca continued as follows: “An exception arises when the record contains evidence
from which a reasonable inference may be drawn that a decisionmaker adopted or relied
upon the allegedly discriminatory statement in reaching its decision.” See id. (citing
Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1097 (6th Cir. 1996)). The exchange
between Messrs. Kosowski and Murphy, solicited by the former, concerning the
appearance of a prospective replacement for plaintiff provides evidence from which one
may reasonably infer that Mr. Kosowski relied on and adopted the statement, and that he
too valued youth as a preferable quality for the female anchor position---especially when
this remark is considered in conjunction with Mr. Kosowski’s own age-related comment
to Mr. Cukyne. Accordingly, the Court agrees that these two comments provide some
evidence of pretext here.
The Court need not consider whether any piece of evidence discussed above, if
considered by itself, would provide the necessary evidence of pretext to withstand
summary judgment. The Court concludes that the totality of this evidence, considered in
the light most favorable to plaintiff, does create a reasonable inference that defendant’s
stated reasons for its decision to terminate plaintiff’s employment are not genuine, that
those reasons are therefore pretextual, and that defendant instead terminated plaintiff for
impermissible reasons. Defendant argues repeatedly that plaintiff must show that its
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decision-makers did not in fact believe that plaintiff’s performance was poor, whether or
not her performance actually was poor. In providing evidence that calls into question the
conclusion that her performance was poor, however, plaintiff has met her burden to show
the necessary pretext. To put it simply, if her performance was in fact satisfactory, the fact
that defendant said otherwise provides evidence that it actually terminated plaintiff for a
different reason. Accordingly, the Court denies defendant’s motion for summary judgment
on plaintiff’s claims of unlawful discrimination.

IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment (Doc. # 63) is hereby denied.

IT IS SO ORDERED.

Dated this 20th day of August, 2018, in Kansas City, Kansas.

S/John W. Lungstrum
_________
John W. Lungstrum
United States District Judge

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