Williams et al vs. Nex-Tech Wireless, L.L.C.

Filing 107

MEMORANDUM AND ORDER denying 82 & 85 Motions for Summary Judgment and granting in part and denying in part 84 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 4/13/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRAD E. WILLIAMS, CAROL
KINDERKNECHT and MELINDA
DOUGHERTY,
Plaintiffs,
v.

CASE NO.

15-4888-SAC-KGS

NEX-TECH WIRELESS, LLC,
Defendant.
MEMORANDUM AND ORDER
This
three

is

former

an

employment

employees

of

discrimination
defendant

action

Nex-Tech

brought

Wireless,

by

LLC.

These employees are Brad E. Williams, Carol Kinderknecht and
Melinda Dougherty.

According to the pretrial order, plaintiffs

are

following

making

the

claims

pursuant

to

the

Age

Discrimination in Employment Act, 29 U.S.C. § 623(a)(1)(“ADEA”)
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”):
Plaintiff Williams asserts that he was terminated
from his job on August 21, 2014 in violation of the
ADEA.
Plaintiff Kinderknecht asserts that she was not
promoted to supervisor over accounting on January 27,
2013 and to Director of Finance in October 17, 2014 in
violation of the ADEA and Title VII of the Civil
Rights Act of 1964.
The supervisor over accounting
position has also been referred to as Manager of
Finance.
Plaintiff
terminated
on

Dougherty
asserts
that
she
March
24,
2014
because
of
1

was
age

discrimination
ADEA.

and

See Doc. No. 75, p. 10.
defendant’s

three

retaliation

in

violation

of

the

This case is now before the court upon

motions

for

summary

judgment

against

the

govern

the

claims of each plaintiff.
I. SUMMARY JUDGMENT STANDARDS
This

court

set

forth

the

principles

which

analysis of a summary judgment motion in Womack v. Delaware
Highlands AL Services Provider, 883 F.Supp.2d 1013, 1017 (D.Kan.
2012):
Rule 56 authorizes a court to “grant summary judgment
if the movant shows that 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). A
fact is material if it would affect the outcome of a
claim or defense under the governing law. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). “[T]he dispute about a
material fact is ‘genuine,’ ..., if the evidence is
such that a reasonable jury could return a verdict for
the nonmoving party.” Id.
On summary judgment, the initial burden is with the
movant to point out the portions of the record which
show that the movant is entitled to judgment as a
matter of law. Thomas v. Wichita Coca–Cola Bottling
Co., 968 F.2d 1022, 1024 (10th Cir. 1992), cert.
denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566
(1992). Instead of disproving a claim or defense, the
movant need only show “a lack of evidence” on an
essential element. Adler v. Wal–Mart Stores, Inc., 144
F.3d 664, 671 (10th Cir. 1998). If the movant meets
that burden, the non-movant must come forward with
specific facts based on admissible evidence from which
a rational fact finder could find in the non-movant's
favor. Id. The non-movant's “burden to respond arises
only if the” movant meets its initial burden of
production. Neal v. Lewis, 414 F.3d 1244, 1248 (10th
2

Cir.2005) (citation omitted). The essential inquiry is
“whether
the
evidence
presents
a
sufficient
disagreement to require submission to the jury or
whether the evidence is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty
Lobby, 477 U.S. at 251–52, 106 S.Ct. 2505. Put another
way, “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for
trial.’ ”
Matsushita Elec. Indust. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); See Pinkerton v. Colorado Dept. of
Transp., 563 F.3d 1052, 1058 (10th Cir. 2009).
In applying this standard, all inferences arising from
the record must be drawn in favor of the nonmovant.
Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th
Cir.
2003).
Credibility
determinations
and
the
weighing of the evidence are jury functions, not those
of a judge. Id. at 1216. Nevertheless, “the nonmovant
must establish, at a minimum, ‘an inference of the
existence of each element essential to [her] case.’ ”
Croy v. COBE Laboratories, Inc., 345 F.3d 1199, 1201
(10th Cir. 2003) (quoting Hulsey v. Kmart, Inc., 43
F.3d 555, 557 (10th Cir. 1994)).
The Tenth Circuit, in Lounds v. Lincare, Inc., 812 F.3d
1208, 1220-21 (10th Cir. 2015), has counseled:
[I]n the context of employment discrimination, “[i]t
is not the purpose of a motion for summary judgment to
force the judge to conduct a ‘mini trial’ to determine
the defendant's true state of mind.” Randle v. City of
Aurora, 69 F.3d 441, 453 (10th Cir.1995). Many of the
highly fact-sensitive determinations involved in these
cases “are best left for trial and are within the
province of the jury.” Id.; see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986) (“[T]he inquiry [at summary
judgment
is]
whether
the
evidence
presents
a
sufficient disagreement to require submission to a
jury....”). Consequently, “in this Circuit ... an
employment discrimination suit will always go to the
jury so long as the evidence is sufficient to allow
the jury to disbelieve the employer's [explanation for
the alleged misconduct].” Beaird v. Seagate Tech.,
3

Inc., 145 F.3d 1159, 1177 (10th Cir.1998) (Tacha, J.,
concurring in part); see Randle, 69 F.3d at 452 (“[I]f
... inferential evidence is sufficient to allow a
plaintiff to prevail at trial, it is surely sufficient
to permit a plaintiff to avoid summary judgment so
that the plaintiff can get to trial.”).
II. UNCONTROVERTED FACTS
The following facts are accepted as true solely for the
purposes of the summary judgment motions now before the court.
Other facts, which also are accepted as true, may be mentioned
later in this order as part of the court’s discussion of the
legal arguments for and against summary judgment.
Defendant is a wireless service provider in central and
western Kansas and part of eastern Colorado.

Defendant was

created in 2004.
Plaintiff Brad E. Williams was hired on November 1, 2004 as
a Project Coordinator.
company.

He

held

He was one of the first employees of the

various

positions

consistently good evaluations.

thereafter

and

received

He had the position of Network

and Construction Manager at the time he was terminated on August
21, 2014.

Williams was born in 1971 and was 43 years old when

he was discharged.
Plaintiff Carol Kinderknecht was hired as a Bookkeeper by
the

parent

company

of

defendant

on

December

3,

2007.

started with defendant in 2010 and worked as an accountant.
was born in 1949.

4

She
She

Plaintiff Melinda Dougherty was hired on October 26, 2008
as

a

Receptionist

Assistant.

and

later

became

a

Network

Administrative

She was born in 1962.

Jon Lightle was hired on October 24, 2011 as Director of
Finance & Operations and would later become President/CEO.

He

was born in 1959.
Defendant

experienced

substantial

financial

pressure

in

2012 and thereafter because significant funding sources from the
federal and state government were being phased out.

Defendant

was set to lose about $19 million in a 5-year period.

During a

discussion regarding the financial pressures faced by defendant,
the President of the Board, Larry Sevier, implied that there may
be some head count reductions based on age or health.
CEO Johnie Johnson was terminated for performance reasons
on December 21, 2012.

From the date of Johnson’s discharge

until October 2013, defendant was run by three directors who
were expected to cooperate.
(Network

Operations

and

These directors were:

Engineering);

Karly

Jeff Kisner

Rogers

(Customer

Service, Sales and Marketing); and Jon Lightle (Finance).

The

three directors, however, struggled to work cooperatively.
Shortly before Johnson was terminated, plaintiff Dougherty
was changed from Network Administrative Assistant to Executive
Assistant

to

Johnson

and

given

a

substantial

raise.

After

Johnson was discharged, plaintiff Dougherty was told to report
5

to Jeff Kisner.

Shortly thereafter, in January 2013, emails

were exchanged indicating that plaintiff Dougherty would go back
to an Administrative Assistant’s position reporting to Kisner
and

that

the

position

of

Executive

Assistant

would

be

eliminated.
In

January

2013,

Daron

Jamison,

who

was

in

his

early

thirties, was promoted to Manager of Finance by Jon Lightle who,
at that time, was Director of Finance.1

Jamison had been hired

as a Project Coordinator in August 2011.

The Manager of Finance

position was not advertised prior to the promotion.

Plaintiff

Williams did not think Jamison was qualified for the job.
this

post,

Jamison

worked

above

plaintiff

In

Kinderknecht.

Kinderknecht, who was in her sixties, had expressed interest in
the job.

She testified that Lightle instructed her to train

Jamison for the job after he was promoted.
Jon Lightle applied for and was selected by defendant’s
Board to serve as President/CEO in October 2013.
54 years old when he was made President/CEO.

Lightle was

Both Kisner and

Rogers spoke to the Board in opposition to Lightle’s selection.
Each would resign under pressure or be terminated during the
next 10 months.
On December 15, 2013, plaintiff Dougherty’s job title and
pay were returned to what they were prior to her becoming an
1

The Manager of Finance position
Finance/Business Development Manager.

6

has

also

been

referred

to

as

Executive Assistant approximately one year earlier.

About this

time, Dougherty and Lightle had a discussion regarding her job
responsibilities in light of the change in job title.

Dougherty

mentioned that she had sent an email to Camber Boland in Human
Resources

asking

about

Dougherty’s

job

situation.

Lightle

expressed frustration with Dougherty when she refused to share
the email with him.
another job.
like

change”

people.

He told her maybe she ought to look for

He also told Dougherty that “your people do not
and

that

it

wasn’t

going

to

end

well

for

her

Dougherty took “your people” to mean “older people.”

Aaron Gillespie was promoted to Director of Operations on
January 1, 2014.
in 2006.

He had held other positions since he was hired

He was 30 years old.

Plaintiff Williams and Rogers

did not think he was qualified for the position.
On occasion, Lightle spoke derogatorily concerning the age
of defendant’s Board members, suggesting for instance that they
had trouble staying awake at meetings.
Jeff Kisner was terminated on March 10, 2014, when he was
46 years old.
Plaintiff

He reached a severance agreement with defendant.
Dougherty,

who

had

reported

to

Kisner,

was

released from employment on March 24, 2014 as her position as
Network Administrative Assistant was eliminated.

Dougherty was

51 years old. Not long before Dougherty was discharged, Karly
Rogers wanted to offer Dougherty a position in her department.
7

But, this was not permitted. Some of Dougherty’s duties were
taken over by Amy Miller, who had been trained by Dougherty and
who was approximately 40 years old at the time Dougherty was
discharged.
stated

to

About the time of March to May 2014, Jon Lightle
plaintiff

Williams

that

plaintiff

Dougherty

was

worthless, old and just didn’t fit in.
On May 6, 2014, Nathan Sutter was promoted to Director of
Network and Engineering, the position left open when Kisner was
discharged.
another

He

older

was

33

employee

interest in the position.
nationwide

search,

but

years

old.

(Brian

Plaintiff

Brungardt,

age

Williams
45)

and

expressed

They were told that there would be a
the

position

was

filled

internally.

Kisner and others did not believe Sutter had the qualifications
for the position.
At meetings attended by various employees, Nathan Sutter
was reported to have said that things were going well now that
defendant was getting “our younger management team put in place”
and that Lightle “wanted everyone to know that he couldn’t be
happier with this new younger management team.”2
Plaintiff Kinderknecht has stated that Lightle told her on
numerous occasions that he needed to get rid of Karly Rogers and
2

The first statement, which purportedly was made on May 21, 2014, was
attributed to Sutter by plaintiff Williams. Doc. No. 86-1, p. 176. Kendall
Stinemetz attributed the second statement to Sutter at a different gathering
at an unknown date. Doc. No. 86-6, p. 8. These statements appear admissible
under FED.R.EVID. 801(d)(2)(A).
See Thomas v. IBM, 48 F.3d 478, 485 (10th
Cir. 1995).

8

replace her with somebody younger that had different and better
ideas.
Karly Rogers resigned her employment on or about July 30,
2014 and received a severance amount from defendant.
years old.
her

job

She was 51

She felt that Lightle had removed a major portion of

duties

and

given

them

to

a

significantly

younger

employee, Aaron Gillespie.
Plaintiff Williams was terminated on August 21, 2014.

He

had received no written disciplinary measures prior to being
discharged.

Defendant

insubordination,

asserts

performance

about the company.

that

issues,

Williams
and

was

speaking

fired

for

negatively

Williams’ job responsibilities were assumed

by younger employees.
The position of Director of Finance, which had been held by
Lightle

before

he

was

made

President/CEO

remained unfilled until October 5, 2014.
promoted to the position at that time.

in

October

2013,

Daron Jamison was

He was 34 years old when

he became Director of Finance, Business Development & Strategy.
According to Lightle, this position required Jamison to continue
“to

oversee

accounting/finance,

contracts,

grounds

development

and

[to

and

regulatory,

maintenance,

provide]

leadership

issues.” Doc. No. 86-12, p. 10.

purchasing

corporate
on

strategy

and

business
related

Lightle has stated that Jamison

was chosen because he had “demonstrated exceptional leadership
9

skills both within the [company] and the community as a whole.”
Id.

Plaintiff

Kinderknecht

did

not

believe

Jamison

was

qualified for the position based upon her experience in working
with and training Jamison.
advertised

before

it

It appears that the position was not

was

given

to

Jamison.

Plaintiff

Kinderknecht was not interviewed for it.
Karly Rogers testified that Jon Lightle wanted Kinderknecht
out of the company for what Rogers perceived as sexist reasons;
Lightle did not like strong women.
Kinderknecht
experience.
school.

had

more

years

of

accounting

She had experience as a comptroller and office manager

county

applied

forty

She had a bachelor’s degree and one year of law

for grain cooperatives.
a

than

Doc. No. 86-11, pp. 46-7.

health
for

care

She served as an executive director for
endowment

substantial

grants

association
for

that

and

successfully

association.

She

received good evaluations and pay increases while working for
defendant.

She

assumed

the

responsibilities

of

defendant’s

accounting supervisor for three months while the supervisor was
on maternity leave.
Plaintiff Kinderknecht was scheduled to have a meeting to
review her job evaluation on January 9, 2015.

Prior to the

meeting, Kinderknecht resigned her employment.

She filed her

administrative charge of discrimination on January 23, 2015.

10

III.
STANDARDS
GOVERNING
EMPLOYMENT
DISCRIMINATION
RETALIATION CLAIMS UNDER THE ADEA AND TITLE VII.
Plaintiffs
alleged

have

adverse

the

burden

employment

ultimately

actions

in

to

show

violation

AND

that

of

the

the
ADEA

would not have happened but for the alleged discriminatory or
retaliatory intent.

See Gross v. FBL Fin. Servs., Inc., 557

U.S. 167, 176 (2009); Brainard v. City of Topeka, 597 Fed.Appx.
974, 981 (10th Cir. 2015).
of

proving

that

sexual

Plaintiff Kinderknecht has the burden
bias

was

a

motivating

factor

employment actions she alleges violated Title VII.

in

the

Univ. of

Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517,
2522-23 (2013).
There

are

discrimination

two
or

ways

of

retaliation

circumstantial evidence.

proves

the

claim,

with

to

direct

support
evidence

a
or

Direct evidence is evidence which if

existence

inference or presumption.
F.3d 1204, 1207 (10th

proof

See Ward v. Jewell, 772 F.3d 1199,

1202 (10th Cir. 2014).
believed

presenting

of

a

fact

in

issue

without

Shorter v. ICG Holdings, Inc., 188

Cir. 1999)(interior quotations omitted)

overruled in part on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003).

Plaintiffs have not presented direct

evidence of discrimination or retaliation in their responses to
the

summary

Operations,

judgment
Inc.,

motions.

222

Fed.Appx.

11

Cf.,

Merritt

679,

681

v.
(10th

Tellabs
Cir.

2007)(statement by CEO that reducing average age of management
is

a

good

thing

is

not

direct

evidence

of

discrimination);

Shorter, 188 F.3d at 1207-08 (racial slur used by officer who
fired employee one or two days after termination is not direct
evidence of discrimination); Heim v. State of Utah, 8 F.3d 1541,
1546 (10th Cir. 1993)(manager’s remark that he hated having women
in the office was not direct evidence of discriminatory intent);
Furr v. AT&T Technologies, Inc., 824 F.2d 1537, 1549 (10th Cir.
1987)(a manager’s statement that plaintiff could not be promoted
because

he

was

too

damned

old

was

not

direct

evidence

of

discriminatory intent).
Circumstantial

evidence

is

Douglas burden shifting test.

analyzed

under

the

McDonnell

Ward, 772 F.3d at 1202.

Under

this test a plaintiff has the burden of proving a prima facie
case of discrimination or retaliation by preponderance of the
evidence.

Id.; Adamson v. Multi Community Diversified Services,

Inc., 514 F.3d 1136, 1145 (10th Cir. 2008)(McDonnell Douglas test
requires plaintiff to prove prima facie case of discrimination).
The prima facie burden is not “an onerous one.”
Albuquerque,
purpose
initial

of

417
a

prima

inference

presumption

of

F.3d

1144,

facie
of

1149

case

unlawful

liability

in

is

(10th
‘the

Cir.

Orr v. City of
2005).

establishment

discrimination

plaintiff’s

“[T]he
of

an

warranting

a

favor.’”

Lewis

v.

Twenty-First Century Bean Processing, 2015 WL 4774052 *3 (D.Kan.
12

8/13/2015)(quoting Velasquez v. Philips Elecs. N.Am. Corp., 2015
WL 505628 *7 (D.Kan. 2/6/2015)).
If a plaintiff establishes a prima facie case, then the
burden shifts to the defendant “to articulate a legitimate, nondiscriminatory

reason

for

the

adverse

employment

action.”

Jaramillo v. Colorado Judicial Dept., 427 F.3d 1303, 1307 (10th
Cir. 2005).

If the defendant meets this standard, the burden

shifts back to the plaintiff to show by a preponderance of the
evidence that the employer’s reasons are a pretext for unlawful
discrimination

or

retaliation.

See

id.

(applying

burden

shifting approach to Title VII sex discrimination action); Hinds
v. Sprint/United Management Co., 523 F.3d 1187, 1195 (10th Cir.
2008)(applying burden shifting analysis to ADEA claim); Nealy v.
Water

District

No.

1,

324

Fed.Appx.

744,

748

(10th

Cir.

2009)(applying burden-shifting framework to ADEA and retaliation
claims).
The

Tenth

demonstrated

Circuit

“by

implausibilities,

has

producing

stated

that

evidence

of

inconsistencies,

pretext
such

may

be

weaknesses,

incoherencies,

or

contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer
did

not

act

for

the

asserted

non-discriminatory

reasons.”

Jaramillo, 427 F.3d at 1308 (interior quotations omitted).
13

Such

evidence
employer's

may

include

policy

(including

and

“prior

treatment

practice

statistical

regarding

data);

of

plaintiff;

minority

disturbing

the

employment
procedural

irregularities (e.g., falsifying or manipulating ... criteria);
and the use of subjective criteria.”

Id. (interior quotations

omitted); see also, Greene v. Safeway Stores, Inc., 98 F.3d 554,
560-61 (10th Cir. 1996)(evidence offered to show a pattern of
removals based on age is admissible to show age discrimination
at trial).

Remarks or actions which reflect bias may also be

considered evidence of pretext.

See Johnson v. Weld County,

Colo., 594 F.3d 1202, 1202-13 (10th Cir. 2010); see also Greene,
98 F.3d at 561.
often

helpful

“’Evidence supporting the prima facie case is
in

the

pretext

stage

and

nothing

about

the

McDonnell Douglas formula requires us to ration the evidence
between one stage or the other.’”

Wells v. Colorado Dept. of

Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)(quoting Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 286 (3rd Cir. 2000)).
IV. THE COURT SHALL DENY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AGAINST PLAINTIFF WILLIAMS.
As already noted, plaintiff Williams alleges that he was
terminated in violation of the ADEA.

Defendant contends that

plaintiff Williams cannot demonstrate a prima facie case of age
discrimination and that plaintiff Williams cannot demonstrate

14

that defendant’s alleged reasons for terminating Williams are a
pretext for age discrimination.
A. Plaintiff Williams has demonstrated a prima facie case
of age discrimination.
To show a prima facie case of age discrimination in the
termination of an employee, a plaintiff must show that he or
she:

1) is a member of the protected class; 2) suffered an

adverse employment action; 3) was qualified for the position at
issue; and 4) was treated less favorably than others not in the
protected class.

Jones v. Oklahoma City Public Schools, 617

F.3d 1273, 1279 (10th Cir. 2010).

This court has observed that

the fourth element of a prima facie case has been articulated in
different ways by the Tenth Circuit.

Lewis, supra.

In its

“broadest formulation,” the fourth element has been stated as
requiring

that

the

adverse

employment

action

“occur

under

circumstances giving rise to an inference of discrimination.”
Id. at *3-4.
Plaintiff Williams has demonstrated a prima facie case of
age discrimination relating to his job termination.
element

in

question

is

the

last

element

which

The only
is

whether

plaintiff Williams was treated less favorably than others not in
his class or whether he was terminated under circumstances which
give rise to an inference of age discrimination.

Plaintiff

Williams was terminated and had his responsibilities assumed,

15

according

to

his

deposition

testimony,

by

younger, although not substantially younger.
271-73.

persons

who

were

Doc. No. 86-1, pp.

In addition, there is other evidence which will be

discussed in relation to the pretext issue that gives rise to an
inference of age discrimination.

Therefore, the court rejects

defendant’s contention that plaintiff Williams has not stated a
prima facie case of age discrimination.
B. Plaintiff Williams has presented evidence which creates
a
material
fact
issue
as
to
whether
defendant’s
nondiscriminatory reasons for his termination are a pretext for
age discrimination.
It is undisputed that defendant has presented evidence of a
non-discriminatory
Defendant

asserts

insubordination,

explanation
that

for

for

plaintiff

speaking

to

plaintiff’s

Williams
front

was

line

termination.

terminated
employees

for

in

a

negative manner regarding the direction of the company, and for
performance issues.
Plaintiff Williams has presented evidence that he received
positive job evaluations throughout his career with defendant
and that he did not receive any written disciplinary action
while working for defendant.

Williams also alleges that he was

not told a reason for termination.
March

2014

termination

and
in

July
August

2014,
2014,

There is evidence that in

proximate
two

in

persons

time
who

to
were

Williams’
in

their

forties or fifties were forced out from Director positions and

16

replaced by employees in their thirties.

Two other employees in

their thirties were promoted to Director positions in 2014, one
in January 2014 and one in October 2014.
disputing

the

qualifications

Director positions.

of

the

There is evidence

younger

persons

for

the

There is also evidence that older employees

who sought consideration for some of these positions were not
considered for the jobs.
Additionally, there is evidence that the President/CEO Jon
Lightle made remarks suggesting a bias against older employees
and older members of the Board of Directors.

There is evidence

that other members of management made comments suggesting that
there was a desire for younger employees or management in the
company.
of

And there is evidence that the Chairman of the Board

defendant

made

a

comment

suggesting

that

older

employees

might be targeted for discharge.
Defendant contends that some of the comments were not made
by relevant decisionmakers and that the comments were stale and
stray

remarks

which

do

not

suffice

to

show

pretext.

In

evaluating these arguments, the court should examine whether the
comments were directed at plaintiff Williams or at his position,
whether the comments were made by decisionmakers involved in the
adverse

employment

action,

when

the

comments

were

made,

and

whether the comments were pertinent to a policy of defendant.
See Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir.
17

1994).

The comments in this instance were made by the Chairman

of the Board, the President/CEO, and Nathan Sutter, who was
plaintiff

Williams’

supervisor

when

he

was

terminated.

The

remarks appear to have been made within months or a year of
Williams’ termination, and some of the remarks appear to suggest
a

policy

or

employees.
Williams,

goal

of

replacing

older

employees

with

younger

Reviewing the evidence in a light most favorable to
the

court

believes

the

alleged

biased

remarks

in

combination with the evidence of resignations, terminations and
promotions, and the evidence of Williams’ job performance, are
sufficient to create a material fact issue as to whether the
reasons given for Williams’ termination were a pretext for age
discrimination.
In conclusion, the court rejects defendant’s argument for
summary judgment against plaintiff Williams.
IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF
KINDERKNECHT’S CLAIMS SHALL BE GRANTED IN PART AND DENIED IN
PART.
A. Summary judgment must be granted against plaintiff
Kinderknecht’s claim that she was not promoted to supervisor
over accounting or manager of finance on January 27, 2013.
A plaintiff may not bring a Title VII action or an ADEA
claim in federal court upon an issue about which plaintiff has
not filed a timely administrative charge.

Daniels v. United

Parcel Service, Inc., 701 F.3d 620, 628 (10th Cir. 2012)(citing
National

R.R.

Passenger

Corp.

v.
18

Morgan,

536

U.S.

101,

109

(2002)).

In

Kansas,

employees

must

bring

an

administrative

charge within 300 days of a discrete act of discrimination.

Id.

Plaintiff Kinderknecht did not bring an administrative charge
within 300 days of defendant’s failure to promote plaintiff to
the position of supervisor over accounting or manager of finance
on January 27, 2013.

She contends that the continuing violation

doctrine permits her to proceed with her claim regarding that
position.

But, as recognized in Daniels, 701 F.3d at 632 and

Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003), the
Supreme Court in Morgan, 536 U.S. at 113-14 has held that the
continuing violation theory does not apply to discrete actions
like a failure to promote.
B. Summary judgment will be denied as to plaintiff
Kinderknecht’s claims regarding the promotion to Director of
Finance, Business Development & Strategy.3
1.
Plaintiff Kinderknecht has shown a prima facie
case of age discrimination.
To show a prima facie case of a discriminatory promotion
practice, a plaintiff must establish that he or she:

1) is a

member of a protected class; 2) applied for and was qualified
for the particular position; 3) was not promoted despite the
qualifications; and 4) the position was filled or remained open
after he or she was rejected.

Jaramillo, 427 F.3d at 1306-07.

3

This position, that was filled by Daron Jamison on October 17, 2014, is
sometimes referred to by the parties as Director of Finance. The court shall
also refer to it as Director of Finance for short.
But, the court is
cognizant that the full title implies greater responsibilities.

19

Mindful that a prima facie case is not an onerous burden,
the court finds that plaintiff Kinderknecht has satisfied the
standard with regard to the promotion claim for the Director of
Finance

position.

Defendant

makes

a

general

plaintiff has not established a prima facie case.

claim

that

There appears

to be proof in the record, however, which satisfies the two
elements

which

are

contested

here.

First,

plaintiff

has

presented evidence (see resume at Doc. No. 98-1, Ex. A) which,
viewed in a light most favorable to plaintiff on this record,
shows that she has the experience and qualifications sufficient
to

qualify

for

the

position

of

Director

of

Finance.

See

Kilcrease v. Domenico Transportation Co., 828 F.3d 1214, 1220
(10th Cir. 2016)(at prima facie stage a plaintiff need only show
some evidence that she possesses the objective qualifications
for the job).

“A failure to satisfy either subjective criteria,

or

qualifications

objective

‘that

have

no

bearing

on

an

applicant’s ability to perform the job sought,’ cannot be used
to

defeat

a

plaintiff’s

prima

facie

case.”

Id.

at

1220-21

(quoting EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1194 (10th Cir. 2000)).

Second, plaintiff Kinderknecht is among

the group of people who might reasonably be interested in the
position of Director of Finance.

This satisfies the element of

a job application since the position was filled internally and
apparently without the requirement of a formal application.
20

See

Bennett v. Quark, Inc., 258 F.3d 1220, 1228 (10th Cir. 2001)
overruled on other grounds, Boyer v. Cordant Technologies, Inc.,
316 F.3d 1137, 1140 (10th Cir. 2003).
2. Plaintiff Kinderknecht has presented evidence which
creates a genuine issue of material fact as to whether
defendant’s reasons for not promoting Kinderknecht are a pretext
for discrimination.
Defendant has satisfied its burden of articulating a reason
for

not

produced

promoting
evidence

plaintiff
that

Kinderknecht.

Jamison

was

promoted

Defendant
to

Director

has
of

Finance over plaintiff Kinderknecht because he was considered
more qualified for the position.
plaintiff

to

proffer

evidence

reasons are pretextual.

This shifts the burden back to
demonstrating

that

defendant’s

MacKenzie v. City and Cnty. of Denver,

414 F.3d 1266, 1278 (10th Cir. 2005).

If qualifications were

the only evidence to weigh, the court would not deny summary
judgment.
“super
business

The court is cognizant that it may not act as a

personnel

department

judgments,”

that

that
“minor

second

guesses

differences”

employers’

between

job

applicants’ qualifications are not sufficient to show pretext,
and

instead

“the

‘overwhelming.’”

disparity

in

qualifications

must

be

Vigil v. City of Albuquerque, 210 Fed.Appx.

758, 764 (10th Cir. 2006)(quoting Jaramillo, 427 F.3d at 1308).
The court is also aware of Jamison’s education and business

21

background as discussed in his deposition.

See Doc. No. 89, ¶

16 (citing Doc. No. 86-7).
The court finds that there is a genuine issue of material
fact as to whether Jamison’s qualifications were a pretext for
age

discrimination

for

the

following

reasons.

First,

the

decisionmaker on the promotion emphasized what appears to be a
subjective

criterion

(“leadership

skills”)

in

explaining

reason for promoting Jamison. Doc. No. 86-12, ¶ 30.

his

As already

mentioned, this is a factor which may be considered in showing
pretext.

Second, the evidence of the defendant’s pattern of

employment
employees

decisions
is

evidence

and

negative

remarks

of

pretext.

Some

regarding

of

the

older

previously

described remarks were not directed at plaintiff Kinderknecht,
but they were directed at older employees by a decisionmaker.
Also, Karly Rogers testified that Lightle wanted Kinderknecht
out of the company, even though she received good evaluations as
an employee.
made

Finally, there is evidence that Kinderknecht was

responsible

for

training

Jamison

for

the

position

of

Manager of Finance after Jamison was placed in that position, in
spite of plaintiff’s alleged interest in the position.

There is

also evidence that plaintiff Williams did not consider Jamison
qualified for Manager of Finance.

This evidence of plaintiff’s

prior treatment may also be considered proof of pretext.

22

The court finds that plaintiff proven enough on this record
for a reasonable person to question whether age motivated the
promotion decision.
3. Plaintiff Kinderknecht has presented evidence
sufficient to create a genuine issue for trial regarding sex
discrimination.
Plaintiff Kinderknecht also asserts that bias against women
was a motive for promoting Jamison over Kinderknecht for the
Director of Finance position.

The court shall not repeat the

elements of a prima facie case and merely state that plaintiff
has

satisfied

those

elements.

The

court

is

mindful

that

ultimately plaintiff must show that gender bias was a motivating
factor, and not that it was the but-for cause of the promotion
decision.
As

noted

already,

defendant

has

articulated

nondiscriminatory reason for the promotion decision.

a

The issue

becomes whether plaintiff has made a sufficient showing that
defendant’s nondiscriminatory reasons for promoting Jamison to
Director of Finance were a pretext for sex discrimination.

To

support this inference, plaintiff Kinderknecht states that she
bases her claims “at least in part on the fact that Mr. Jamison
replaced Renee Medina, Heather Offut was replaced by two males,
Marcie Berens lost her job and Karly Rogers was replaced by Eian
Wagner.”

Doc. No. 97-1, p. 46.

But, there is no evidence of

why Heather Offut and Marcie Berens left their jobs and whether
23

the males who replaced Offut were less qualified than Offut or
other females interested in the position.
evidence that a male replaced Berens.

There is also no

In addition, the record

lacks evidence regarding Wagner’s qualifications and whether he
was chosen to replace Rogers over an equally or better qualified
female.

Also, there is no evidence presented of sexist remarks.

But, there is evidence that the only female director in the
company resigned under pressure because her duties were being
given to a male.

There is also evidence, reading the record in

a light most favorable to plaintiff, that Jamison was promoted
to the Manager of Finance position when plaintiff Kinderknecht
was better qualified.

Finally, there is evidence that Lightle

did not value strong women and wanted Kinderknecht out of the
company.
Again,
perceived

considering
advantage

in

the

subjective

“leadership

nature

skills”

of

and

Jamison’s
the

other

evidence supporting a claim of pretext, the court finds that
plaintiff

has

shown

sufficient

proof

on

this

record

for

a

reasonable person to decide that the reasons advanced for the
promotion decision are a pretext for sex discrimination.
V. THE COURT SHALL DENY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AGAINST PLAINTIFF DOUGHERTY’S CLAIMS.
Plaintiff Dougherty contends that her job was eliminated
and she was discharged because of her age and in retaliation

24

against Dougherty for conduct protected under the ADEA.

The

court rejects defendant’s summary judgment motion against both
these claims.
A. The court rejects summary judgment
Dougherty’s age discrimination claim.

against

plaintiff

Defendant disputes that plaintiff Dougherty has satisfied
the elements of a prima facie case on the grounds that Dougherty
was not terminated.

Instead, her job was eliminated.

disagrees with defendant’s contention.

The court

The purpose of the prima

facie case is to provide a framework for determining whether one
may

make

an

inference

of

discrimination.

Here,

Dougherty was within the protected age group.
satisfactory work.
taken

on

Dougherty

by

a

had

plaintiff

She was doing

But, her job was eliminated and her work was

substantially

helped

train.

younger
This,

employee
together

who
with

plaintiff
the

other

evidence of age bias described in this memorandum is sufficient
to

raise

matter

an

were

inference
treated

as

of
a

age

discrimination.

reduction-in-force

Even
case,

if

the

believes the elements of a prima facie case are satisfied.

this
court
See

Pippin v. Burlington Resources Oil and Gas Co., 440 F.3d 1186,
1192-93 (10th Cir. 2006)(reciting elements of a prima facie case
in a RIF/age discrimination dispute which include requirement of
“some evidence” the employer intended to discriminate).

25

Defendant
plaintiff

has

asserted

Dougherty’s

financial

reasons

termination.

This

as

is

grounds

supported

for
with

evidence that the company was seeking ways to cut expenses and
that Dougherty’s position was unneeded.
Thus,

the

burden

is

shifted

back

to

Doc. No. 86-12, p. 9.
plaintiff

Dougherty

to

articulate evidence showing a genuine issue of material fact as
to pretext.
opinion

Once again, the evidence described earlier in this

–

which

includes

evidence

of

biased

remarks

by

President/CEO Lightle directed at plaintiff Dougherty, a pattern
of alleged discriminatory personnel decisions, and the rejection
of

an

opening

for

Dougherty

in

a

different

section

of

the

company – is sufficient to raise a question of fact on this
record as to pretext.
B. The court rejects summary
Dougherty’s retaliation claim.
To
Dougherty

show

a

prima

must

show

facie
that

case

she:

judgment

of
1)

against

plaintiff

retaliation,

plaintiff

engaged

in

protected

opposition to discrimination; 2) suffered an adverse employment
action; and 3) a causal connection existed between the protected
activity and the adverse employment action.
at

1278–79.

prohibit

an

The
employer

anti-retaliation
from

MacKenzie, 414 F.3d

provisions

discriminating

of

against

the

an

ADEA

employee

because the employee “has opposed any practice made unlawful” by
the

statute,

or

because

she

“has

26

made

a

charge,

testified,

assisted, or participated in any manner in an investigation,
proceeding,
623(d).

or

litigation”

under

the

statute.

U.S.C.

§

Protected opposition may range from formal charges to

informal complaints to superiors.

Hertz v. Luzenac America,

Inc., 370 F.3d 1014, 1015 (10th Cir. 2004).
words

29

are

required,

to

qualify

as

“Although no magic

protected

opposition

the

employee must convey to the employer his or her concern that the
employer has engaged in a practice made unlawful by the ADEA.”
Hinds, 523 F.3d at 1203.

A plaintiff need only show that when

she engaged in protected opposition, she had a reasonable goodfaith

belief

that

the

opposed

behavior

was

discriminatory.

Hertz, 370 F.3d at 1016.
Defendant asserts that plaintiff Dougherty cannot establish
a prima facie case of retaliation because she did not engage in
protected activity, that is, oppose a practice made unlawful by
the

ADEA

or

make

a

legitimate

complaint

under

the

law.

Plaintiff Dougherty has testified in her deposition that she had
a heated discussion with Jon Lightle which involved, in part, an
email from Dougherty to Human Resources which she refused to
share with Lightle.

Plaintiff Dougherty alleges that Lightle

told her that her people don’t like change and that it would not
end well for people who don’t like change.

Dougherty thought

this referred to “older people,” although that term was not
used.

Doc. No. 86-3, p. 94.

According to plaintiff Dougherty,
27

Lightle

also

another job.

told

her

that

Id. at 93.

she

might

consider

looking

for

Dougherty testified that after this

exchange she left another message with Camber Boland of Human
Resources and that Boland then called Jon Lightle.

Id. at 96.

Plaintiff could reasonably construe the comment regarding
resistance to change to be a discriminatory comment.
have

recognized

that

resistance

to

change

is

Courts

an

age-related

stereotype which the ADEA was created to combat.

See Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610-11 (1993); O’Reilly v.
Marina Dodge, Inc., 435 Fed.Appx. 8, 12 (2nd Cir. 2011); Hartsel
v. Keys, 87 F.3d 795, 802 (6th Cir. 1996) cert. denied, 519 U.S.
1055 (1997); Bienkowski v. American Airlines, Inc., 851 F.2d
1503, 1507 n.4 (5th Cir. 1988); Conn v. American National Red
Cross, 149 F.Supp.3d 136, 147 (D.D.C. 2016); Peterson v. MidState Group, Inc., 54 F.Supp.3d 1039, 1044 (E.D.Wis. 2014).
This court has noted that:
supervisor's
sufficient

to

discriminatory
constitute

the

“a plaintiff's opposition to a

comment

‘has

opposition

to

been
a

considered

discriminatory

employment practice required to establish the initial prong of a
retaliation claim.’ Loggins v. Cleveland County, 2005 WL 2318606
at *6 (W.D.Okla.2005) (citing Alexander v. Gerhardt Enterprises,
Inc.,

40

F.3d

187,

195

(7th

Cir.1994);

Rowland

v.

Franklin

Career Services, LLC, 272 F.Supp.2d 1188, 1207 (D.Kan.2003));
see Domai v. Discover Financial Services, Inc., 244 Fed.Appx.
28

169,

174

(10th

Cir.2007).

(“[A]

credible

complaint

about

a

supervisor's racial animus could constitute protected opposition
to

discrimination....”).”

Womack,

883

F.Supp.2d

at

1023.

Plaintiff’s alleged report to Camber Boland, the Human Resources
Manager, regarding CEO Lightle’s alleged comments purportedly
reflecting
material

age

animus

issue

of

provides

fact

as

to

sufficient
whether

grounds

to

plaintiff

find

engaged

a
in

protected activity which was conveyed to her employer.4
Defendant

also

contends

that

there

is

no

evidence

to

support a causal connection between Dougherty’s discharge and a
retaliatory motive.

For the purposes of establishing a prima

facie

sufficient

case,

it

is

proximity

between

plaintiff

protected

opposition

to

for

there

Dougherty’s

discrimination.

to

be

a

discharge
Here

temporal
and

her

approximately

three months separated Dougherty’s opposition activity and her
termination.

This is not considered sufficiently close in time.

See Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013)(“if
the adverse action occurs three months out, the action’s timing
alone

will

element”).

not
There

causal connection.

be

sufficient

is,

however,

to

establish

other

evidence

the
to

causation
support

a

First, plaintiff Dougherty testified that

4

Defendant refers to Robinson v. Cavalry Portfolio Services, LLC, 365
Fed.Appx. 104 (10th Cir. 2010) where the court found that a complaint
regarding a co-worker’s racial slur did not constitute opposition protected
by Title VII. The Robinson case is distinguishable from this case because it
involves the remarks of a co-worker as opposed to a supervisor.

29

Lightle suggested that she look for another job when she refused
to

share

an

email

she

sent

to

Human

Resources.

Second,

plaintiff Williams testified that his experience was that it
“backfired” on people who went to Human Resources and Karly
Rogers

testified

that

she

was

advised

by

someone

in

Human

Resources not to bring up her concerns about discrimination.
Doc. No. 86-1, p. 98; Doc. No. 86-11, p. 140-41.
Defendant,

as

already

noted,

has

articulated

a

non-

retaliatory motivation for plaintiff Dougherty’s termination of
employment.

The court believes that the evidence described in

the previous paragraph is sufficient to create a genuine issue
of material fact as to whether the alleged business reasons for
plaintiff

Dougherty’s

termination

are

a

pretext

for

illegal

retaliation.
VI. CONCLUSION
For

the

above-stated

reasons,

the

court

shall

deny

defendant’s motions for summary judgment (Doc. Nos. 82 and 85)
against

the

Williams.

claims

of

plaintiffs

Melinda

Dougherty

and

Brad

Defendant’s motion for summary judgment (Doc. No. 84)

against the claims of plaintiff Carol Kinderknecht is granted in
part and denied in part.

30

IT IS SO ORDERED.
Dated this 13th day of April, 2017, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

31