Berkemeier v. Standard Beverage Corp.

171 F.Supp.3d 1122

Rosann Schultz Berkemeier, Plaintiff,

v.Standard Beverage Corporation, Defendant.

Case No. 14-2363-JAR

United States District Court, D. Kansas.

Signed March 18, 2016

Athena M. Dickson, Eric W. Smith, Raymond A. Dake, Rik N. Siro, Siro Smith Dickson, PC, Kansas City, MO, Kevin Mark Smith, Parkville, MO, for Plaintiff.

Patrick A. Edwards, Stephanie N. Scheck, Stinson Leonard Street LLP, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

Plaintiff Rosann Schultz Berkemeier brings this action against her former employer, Defendant Standard Beverage Corporation (“SBC”), alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964, and retaliatory discharge in violation of public policy under Kansas law. Before the Court is Defendant's Motion for Summary Judgment (Doc. 44). The motion is fully briefed and the Court is prepared to rule. For the reasons explained in detail below, the Court grants in part and denies in part Defendant's motion for summary judgment.

I. 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 judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”³ A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”⁴ An issue of fact is “genuine” if “ ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ”⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the 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.⁷

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”⁸ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁹ Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”¹⁰ To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”¹¹ Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹² The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹³

Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”¹⁴ In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”¹⁵

II. Uncontroverted Facts

The following material facts are uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff as the nonmoving party.

Plaintiff has a Bachelor of Science degree from Missouri State University and an MBA from the University of Notre Dame. Prior to her work at SBC, Plaintiff worked at YRC Freight for eleven years (most recently as Director of Finance), and at Hostess Brands for approximately one year (also as Director of Finance). Shortly before October 2010, a recruiter contacted Plaintiff about the open position of Vice President of Financial Planning and Analysis at SBC. Plaintiff interviewed for the position with several people, including Darrell Swank (President of then SBC-affiliated company, LRICO Services, LLC), Ross Schimmels (President of SBC), and Nate Rosier (Chief Operating Officer for SBC). Plaintiff was hired by SBC on October 29, 2010, in the position of Vice President of Financial Planning and Analysis in its Lenexa facility, with a starting salary of $125,000 per year, as well as eligibility for an annual performance bonus up to 25% of her base salary. Plaintiff was responsible for daily, weekly, and monthly financial reporting; metric analysis; monthly and quarterly business reviews; oversight of supplier funds; expense reporting; financial modeling; and pricing analysis. During the term of her employment, Plaintiff was the only female Vice President employed by SBC.

For the first nine months of Plaintiff's employment, all of the Lenexa offices were occupied, so she worked from an assigned cubicle. Plaintiff was given an office in June 2011, after the President's secretary was moved out of an office, and after the Lenexa facility was remodeled. Her office was near Bruce Alexander's office, who became President of SBC in June 2011.

Company Vehicle Policy

Defendant's 2005 Employee Handbook included a vehicle use policy, stating that “Vice Presidents, Regional Managers and Sr. Management will be allowed to drive a SBC owned vehicle as a fringe benefit.”¹⁶ Plaintiff learned soon after being hired that she was the only Vice President in the company who was not assigned a company vehicle. She began asking her superiors about the vehicle policy and why she was not assigned a company vehicle. Rosier told Plaintiff that he did not have a company vehicle either, and that he believed SBC was preparing to eliminate the vehicle program. Plaintiff claims she spoke to Alexander about the issue several times between June 2011 and March 2012. She recalls telling Alexander that she believed she was being treated unfairly because she was the only female Vice President. Alexander told Plaintiff that the vehicle policy was intended only for those in sales positions and denied her allegation of unfair treatment. Alexander later told Plaintiff that the policy was intended only for those employees whose roles required travel. But Plaintiff was aware of other non-sales Vice Presidents who had been provided company cars. Plaintiff raised the issue again with Alexander in February 2012, after SBC hired Darryl Lyon as Vice President of Operations and provided him with a company vehicle. Alexander told Plaintiff that Lyon was provided a car because he may be traveling to Wichita and Kansas City on occasion.

Alexander acknowledges that Plaintiff had a conversation with him about company vehicles, but denies that she brought up the company policy on the matter or that he had ever seen the policy prior to March of 2012, when Plaintiff took her complaint to Swank and to the head of Human Resources (“HR”) at LRICO, Russell Diez-Canseco. Plaintiff pointed Diez-Conseco to the language in the 2005 Handbook, and asked why she was the only Vice President at SBC who did not have a company vehicle. Diez-Canseco asked Plaintiff whether she had discussed a car with her supervisors, and she responded that she had talked about the issue with Rosier. Within days of e-mailing Diez-Canseco, Plaintiff received a call from him advising her that “the decision was made that [she] could have a company car.” Alexander did not make the decision to provide Plaintiff with a car, and Swank does not recall discussing the decision with Diez-Canseco. Diez-Conseco does not recall exactly who made the decision to provide Plaintiff with a company car and does not recall her claiming that the policy was applied differently to her because she is female. Plaintiff had the use of a company car for the remainder of her tenure at SBC.

Just after SBC provided Plaintiff with a company car, the SBC handbook was modified to remove the company vehicle policy. It is unclear exactly who at SBC decided to eliminate the company vehicle policy.

Performance

During her employment with SBC, Plaintiff received only one written performance review, which was prepared by Alexander in August 2011, based on her performance between June 1, 2011 and August 15, 2011. Alexander gave Plaintiff an overall rating of “Exceeds standards,” the highest possible overall rating. The evaluation included ratings for several job responsibilities. Alexander assigned a rating on a scale of 1–5 for each of twelve job responsibilities and provided supporting comments next to each. Plaintiff was rated a 3 (consistently meets requirements) or 4 (exceeds requirements) on all but one job responsibility. On personal appearance, Plaintiff received a 2 (occasionally meets requirements). Alexander explained: “As we strive towards a more professional work environment, I ask all our VPs to work on a more professional look while in the office and especially when meeting with suppliers and customers.”¹⁷ But the majority of Alexander's comments were positive, including: “Rosie adds tremendous value to SBC”; “She sets high standards for herself and her staff and delivers against a very aggressive project load”; “Rosie can be counted on to deliver each day”; “Rosie is aggressive about getting things done. She knows what resources are needed and only involves those who are needed. She can be counted [sic] get things done well beyond a normal work day.”¹⁸

Bonuses for vice presidents were based on a predetermined model where, if an employee hit certain metrics within the employee's job responsibility, the employee was paid a bonus of a specific percentage. On October 10, 2011, at the end of SBC's September 30 fiscal year, Plaintiff received a...