Wingerd v. Kaabooworks Servs., LLC

• Decision Date: 12 March 2019
• Docket Number: Case No. 18-CV-2024-JAR-KGG
• Parties: BRIAN WINGERD, Plaintiff, v. KAABOOWORKS SERVICES, LLC, and THE MADISON COMPANIES, LLC, Defendants.
• Court: U.S. District Court — District of Kansas

BRIAN WINGERD, Plaintiff, v. KAABOOWORKS SERVICES, LLC,and THE MADISON COMPANIES, LLC, Defendants.

Case No. 18-CV-2024-JAR-KGG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

March 12, 2019

MEMORANDUM & ORDER

Plaintiff Brian Wingerd brings this action against Defendants Kaabooworks Services, LLC ("KAABOO") and the Madison Companies, LLC ("Madison"), alleging claims of disability discrimination and retaliation under the Americans with Disabilities Act as Amended ("ADA"), age discrimination under the Age Discrimination in Employment Act ("ADEA"), failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"), unlawful termination, demotion, and retaliation under the California Fair Employment and Housing Act ("FEHA"),¹ and wrongful demotion and termination in violation of California public policy. Wingerd has elected not to pursue his age discrimination claim at trial.²

This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 117). For the reasons stated in this opinion, the Court grants summary judgment on Wingerd's ADEA, FLSA, and state law wrongful termination claims (Counts III, IV, VI, VIII, and X), denies summary judgment on Wingerd's ADA disability discrimination and retaliation claimsand state law wrongful demotion claims (Counts I, II, V, VII, and IX), and denies summary judgment on the issue of Madison's liability.

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."³ In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.⁴ "There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."⁵ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁶ A dispute of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."⁷

The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.⁸ In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant'sclaim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.⁹

Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."¹⁰ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.¹¹ 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."¹² In setting forth these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."¹³ To successfully oppose summary judgment, the nonmovant must bring forward "more than a mere scintilla of evidence" in support of his position.¹⁴ A nonmovant "cannot create a genuine issue of material fact with unsupported, conclusory allegations."¹⁵ 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."¹⁶

II. Evidentiary Issues

Defendants ask the Court to strike and disregard the portions of Wingerd's affidavit in which he states that he requested an accommodation, arguing that the portions constitute a "sham" affidavit because the statements contradict Wingerd's deposition testimony.

"[A]n affidavit may not be disregarded [solely] because it conflicts with the affiant's prior sworn statements. In assessing a conflict under these circumstances, however, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue."¹⁷ In determining whether an affidavit creates a sham issue, the Tenth Circuit directs district courts to consider whether "(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain."¹⁸ The Tenth Circuit "explicitly require[s] that a district court first 'determine whether the conflicting affidavit is simply an attempt to create a "sham fact issue" before excluding it from summary judgment consideration.'"¹⁹

In addition, Fed. R. Civ. P. 56(c)(4) provides that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." "Though an affidavit which fails to meet any of the three requirements is subjectto a motion to strike, the [c]ourt may also enforce the rule by disregarding portions of the affidavit it finds insufficient."²⁰ "Conclusory and self-serving affidavits are not sufficient."²¹

In his deposition testimony, Wingerd testified that "he did not ask for any accommodations."²² Conversely, Wingerd's affidavit states, "when I testified in my deposition that I had not asked for an accommodation, I did not understand the legal meaning of the term 'accommodation' as it is defined within the context of the Americans with Disabilities Act."²³ The Court finds that this statement properly attempts to explain confusion in the deposition testimony.

The record shows that Wingerd (1) participated in company meetings via telephone, which both Bryan Gordon and Jason Felts labeled as an accommodation; (2) created a bandwidth plan and delegated his work to other marketing department employees; (3) took time off for cancer treatments and related illness; (4) and took a six-week medical leave for cancer surgery. The relevant facts supporting Wingerd's accommodation claim are properly presented to the Court, and Wingerd's affidavit does not conflict with their substance. Whether Wingerd called these actions "accommodations" in deposition testimony after the alleged accommodations occurred is not dispositive.²⁴ Therefore, the Court denies Defendants' motion to strike.

III. Uncontroverted Facts

The following facts are either uncontroverted or viewed in the light most favorable to Wingerd.

A. The Parties

KAABOO is a "Colorado-based live music and entertainment company" that provides management, employment and contracting services primarily to companies operating live music and culture events.²⁵ KAABOO's primary services relate to the Del Mar Festival, which has been held annually since September 2015. KAABOO is a Delaware limited liability company and maintains its principal administrative offices in Colorado. As of September 29, 2017, KAABOO had thirty-five to forty employees. Madison is a Delaware limited liability company and maintains its principal administrative offices in Colorado, at the same location as KAABOO's principal administrative offices.

Madison's equity members are also active equity members of KAABOO. Bryan Gordon is the Chairman and Chief Executive Officer of KAABOO and the Managing Director of Madison. Shawna Earnest is the Senior Vice President of Human Resources at both KAABOO and Madison. When Wingerd took medical leave, it was tracked on workforcenow.adp.com, which includes Madison's logo on the webpage,²⁶ although a KAABOO employee, Jill Sulser, created the webpage. When Earnest communicated with Wingerd about the disability policy governing his medical leave, she did so from her @madisoncos.com email address.²⁷ Wingerd and other employees received email communications related to KAABOO employmentresponsibilities and services from the @madisoncos.com domain.²⁸ Wingerd's January 2017 quarterly review was entitled "The Madison Companies, LLC Quarterly Review."²⁹

Madison incubated KAABOO and considers KAABOO its featured investment, shares its only office with KAABOO, and shares human resource professionals with KAABOO. Some of KAABOO's documents, including legal contracts, are "kept in Madison's Citrix Environment," an online digital storage platform.³⁰ KAABOO's employees provide some services to Madison, for which Madison reimburses KAABOO, including services at the annual Del Mar festival.

Brian Wingerd is a resident of Lawrence, Kansas. Although Wingerd worked primarily from his home in Kansas, his primary job focus was marketing the Del Mar Music Festival, which took place in Del Mar, California. Wingerd, along with his business partner Brian Pilsl, initially provided services for the 2015 Del Mar Festival through his company, Sprocket Marketing. Following the 2015 festival, he received an offer of employment bearing a KAABOO logo via U.S. mail, which he accepted on a telephone call with Gordon on October 2, 2015. Wingerd was hired as the Senior Vice President of Marketing, and Gordon was his direct supervisor; Gordon reviewed and directed Wingerd's day-to-day work. When Gordon recruited Wingerd for employment, he described Madison as the employer and KAABOO as the project. Pilsl, who went to work for KAABOO as its Senior Vice President of Business Development, testified that he understood "KAABOO was one of the portfolio properties of Madison." Pilsl received instructions to use the Madison FedEx account to ship goods, store documents on theMadison Citrix Environment, and was told by Gordon that ...