govinfo:USCOURTS-ksd-2_24-cv-02312-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
PETER ZISHKA, 
 
 Plaintiff,
 
 v.
 
WWEX FRANCHISE HOLDINGS, 
LLC, et al.,
 
 Defendants.
 
 
 
 
 

 
MEMORANDUM AND ORDER 
 This is an employment-discrimination case. Plaintiff Peter Zishka sues his former employer 
WWEX/Globaltranz Enterprises for sex, age, and disability discrimination, as well as retaliation. 
Zishka also alleges breach of implied contract. The claims arise out of his termination in 2023. 
Defendants contend he was terminated because he was among the lowest performers on the sales 
team in terms of generating new business . Zishka contends it was discrimination and retaliation 
based on sex, age, and disability primarily because of a text message in which a manager referred 
to him as “old man” after he requested time off for a colonoscopy and because of a change in the 
commission structure that Zishka claims was designed to penalize older employees. 
 Defendants move for summary judgment. Doc. 136. The Court grants the motion. Zishka 
has failed to come forward with evidence that establishes a prima facie case of discrimination or 
retaliation. And, even to the extent he could make a prima facie case, he has not come forward 
with evidence from which a reasonable jury could conclude that the otherwise legitimate grounds 
for his termination were a pretext for discrimination or retaliation. Zishka has also conceded his 
implied-contract claim. The Court therefore enters summary judgment in favor of Defendants on 
all claims. 

2 
I. BACKGROUND1 
 A. Defendants’ Policies 
 WWEX has policies demonstrating a commitment to a workplace free of discrimination 
and retaliation. DSOF 1 -5. WWEX also has a disability-accommodation policy. DSOF 6. The 
employee handbook requires employees to report any prohibited conduct to a supervisor or 
manager and provide specific details. DSOF 7 -8. WWEX’s Corrective Action policy states 
employees may be subject to disciplinary action if their performance or conduct is unsatisfactory, 
which can include termination without prior counseling or warning. DSOF 10. 
 WWEX’s employee handbook also provides for performance improvement plans (“PIP”) 
if an employee fails to meet job expectations. DSOF 11. PIPs are discretionary and are only used 
if the PIP will improve the deficiencies at issue. Id. Theresa Obinger, WWEX’s HR business 
partner, testified that, in her experience, sales representatives did not get PIPs because their goals 
are different than those in operations positions. DSOF 12. Sales representatives were aware that 
their goal was account acquisition, new logo acquisition, and up sell/cross-sell results, 2 and not 
meeting those goals could cost someone their job. Id. (including response). Sales representatives 
had access to sales-tracking systems to track their activities. Id. Zishka was not aware of anyone 
on his sales team that was given a PIP. Id. 
 The employee handbook expressly states that it does not constitute an employment contract 
or agreement of any kind and that employees can be terminated at any time. DSOF 14. When he 
 
1 The following facts are undisputed for purposes of summary judgment and are viewed in a light most favorable to 
the non-moving party. “DSOF” refers to the facts listed in Defendants’ memorandum. Doc. 137. “PSOF” refers to 
the additional facts listed in Zishka’s response. Doc. 145. The Court notes that the parties almost uniformly do not 
directly respond to the factual allegations set forth by the other side ; instead, they respond with additional—and 
often repetitive —facts o r arguments about the implications of those facts. This unnecessarily complicates 
resolution of summary-judgment motions and is not appropriate. 
2 New logo acquisition is a term used by WWEX for procuring new customers. DSOF 13. Upselling or cross-selling 
refers to selling existing customers more services. Id. 

3 
received the employee handbook, Zishka attested that he was required to read and be familiar with 
the guidelines and that he understood his employment with WWEX was at -will and he could be 
terminated at any time. DSOF 15. Zishka also attested he understood the handbook was not an 
express or implied contract or guarantee of continued employment. Id. 
 B. Zishka’s Employment 
 Zishka worked in the trucking and logistics industry his entire career. PSOF 1. Zishka 
began working for WWEX in May 2017 after WWEX acquired his former employer, Logistics 
Planning Services, LLC (“LPS”). DSOF 16. 3 At LPS, Zishka worked with Ross Spanier, who 
eventually became Zishka’s supervisor at LPS. DSOF 17. Spanier came to work at LPS after being 
recruited by his friend Justin Hall, whose family owned LPS. DSOF 18. While at LPS, Zishka and 
Spanier traveled tog ether for sales and developed a “pretty strong, deep working relationship.” 
DSOF 19. Zishka though t Spanier was helpful and supportive , and their work led to success at 
LPS. Id. 
 When WWEX acquired LPS, their work continued in similar roles, and Spanier initially 
continued as Zishka’s supervisor and as a supervisor for the entire “Enterprise Sales” team. DSOF 
20. Spanier was eventually promoted. DSOF 21. J.J. Lewis briefly became the supervisor for the 
Enterprise Sales team, before that position was taken over by Roger Jone s. Id. Lewis and Jones 
both reported to Spanier in their time supervising the Enterprise Sales team. Id. Spanier was 
responsible for reviewing personnel decisions for the Enterprise Sales team. Id. 
 
3 The parties’ unopposed facts state both that WWEX acquired LPS in May 2017 and that Globaltranz Enterprises, 
LLC acquired LPS in May 2017. DSOF 16; PSOF 5. At some point, WWEX and Globaltranz merged. PSOF 7. 
Both WWEX and Globaltranz are named defendants. The Pretrial Order states that Defendants believe Globaltranz 
should be dismissed because WWEX was Zishka’s employer at the time of his termination, and WWEX agrees to 
assume all liability for damages. Doc. 133 at 1 n.2. Zishka does not agree to dismissing Globaltranz because some 
of the alleged discriminatory conduct occurred while he was employed by both Globaltranz and WWEX because 
of their combination/merger. Id. The parties generally refer to the business as WWEX, and the Court does likewise 
with the intent that this also includes Globaltranz where applicable. 

4 
 Because of their past relationship, Zishka and Spanier remained friendly, routinely gave 
each other updates on their personal lives, sent holiday and birthday well wishes, talked sports, 
and joked around with each other. DSOF 22. When Spanier and his famil y took a trip to Florida 
in January 2022, Spanier and his family stayed at Zishka’s condo and used Zishka’s vehicle. Id. 
Zishka said he hoped his “amigo” would enjoy the vacation. Id. When Zishka contracted COVID-
19 in September 2020 and was hospitalized, Spanier was in contact with Zishka’s family and 
arranged for deliver ies of flowers and food. DSOF 23. Zishka believed Spanier was expressing 
true concern for him. Id. 
 Zishka suffered cognitive impairment and fatigue from his bout with COVID -19 that 
affected his job performance over the next two years. PSOF 6, 35. Zishka was regarded as disabled 
by WWEX because of a partial amputation of his left hand, his impairments from COVID-19, and 
because he was an older male undergoing colorectal cancer screening. PSOF 35.4 
 C. Commission Changes 
 In January 2020, WWEX implemented a revised commission plan that changed the 
structure of commission payments. DSOF 26 (including response). 5 The new plan increased the 
incentive for first -year business and lowered the commission on existing business that had been 
with the company over three years. Id. Jones testified that the purpose of paying higher 
commissions on new accounts was to encourage acquisition of new business. Id. Zishka reported 
to Spanier that the new commission structure negatively affected older sales representatives and 
benefited the younger reps. DSOF 26-27 (including response); see also PSOF 10-13. Spanier told 
 
4 Defendants do not directly respond to this statement of fact. There doesn’t seem to be any dispute that Zishka was 
regarded as disabled because of his hand and his impairments from COVID -19. But it is unclear how being “an 
older male undergoing colorectal cancer screening” would qualify as a disability under the law. 
5 Zishka originally testified that the commission changes occurred in 2022. See Doc. 145-2 at 11-12 (deposition line 
86:21-87:23). He later corrected himself and agreed the commission changes occurred in 2020. See Doc. 137-6 at 
14 (deposition line 148:2-25). 

5 
Zishka that WWEX needed to change the commission plan to “realign with the newer reps, the 
younger reps.” PSOF 13. Spanier testified the new plan would impact employees with longer 
tenure at the company, not necessarily older employees. DSOF 27. Other than this brief 
conversation between Zishka and Spanier, Zishka never raised concerns about the new commission 
plan with anyone in management or HR. DSOF 28. Zishka discussed the new plan with other 
employees, but the only conversation he could recall was with an employee who found the new 
structure to be beneficial. DSOF 29. That employee was over 40 years old when the new plan went 
into effect. Id. 
 D. Zishka’s Performance 
 In October 2020, Lewis wrote an email to Spanier noting that Zishka ranked last among 
the Enterprise Sales team in terms of new business for 2019 and 2020. DSOF 39. Additionally, 
Zishka’s significant accounts in 2020 were accounts that he acquired while at LPS, which was 
later acquired by WWEX. Id. 
 Nevertheless, in July 2021, Zishka achieved President’s Club status and his sales 
performance garnered recognition from WWEX. PSOF 8. On April 20, 2022, Jones invited Zishka 
and his wife to attend a President’s Club ceremony on Marco Island, Florida, in recognition of 
Zishka’s sales performance in 2021. PSOF 9. 
 In late 2022, WWEX began restructuring to save costs and increase revenue. DSOF 30. 
This included eliminating positions that were unproductive or unnecessary. Id. It also included the 
initiation of a “Q1 Low Performer Project” in early 2023 intended to identify and terminate low 
performing sales and operations employees. Id. Obinger assisted with tracking and reviewing the 
terminations. DSOF 31. WWEX also tracked voluntary resignations because those helped with 
cost savings. Id. 

6 
 By December 16, 2022, Jones had identified Zishka as a “low performer” who might need 
a “soft exit.” PSOF 14. This was so even though eight months earlier Zishka had been recognized 
for his sales performance . Id. Jones contacted Obinger to ask about terminations, noting he had 
identified Zishka and one other Enterprise Sales team member as low performers who could 
potentially be terminated. DSOF 32. The identification of low performers was based solely on their 
ability to acquire new business. DSOF 33. Zishka ranked last among the Enterprise Sales team in 
terms of new business acquisition in 2022 and 2023. Id. Jones reviewed Zis hka’s performance 
metrics with Obinger and Spanier before Zishka’s termination. Id. The Enterprise Sales team was 
designed to acquire new customers and to upsell/cross -sell existing customers, so Zishka was 
aware of expectations about new account acquisition. DSOF 34. But Zishka was never written up 
or placed on a PIP or had any performance issue documented. Id. (including response). 
 Jones contacted Zishka in January 2023 to discuss his performance. DSOF 35. Jones noted 
Zishka had not acquired any new customers since May 2021, and that Zishka had no documented 
sales activities. Id. Zishka believed he was merely “cherry picking new business.” Id. (including 
response); see also Doc. 145-2 at 31-32 (deposition line 176:12-13).6 Zishka believed he had new 
business developing in the form of “new verticals” and “new services” within existing accounts. 
DSOF 35 (including response). 
 Zishka did not dispute that he had not acquired any new customers since May 2021. DSOF 
36. But he stated that his performance evaluation should account for the revenue produced by one 
customer, Deliverr.com. Id. That account played a significant factor in Zishka receiving the 
President’s Club award in 2021, which was given each year to employees who achieved success 
 
6 Zishka’s response to DSOF 35 states that Jones was “‘cherry picking’ a definition of ‘new business.’” Zishka’s 
testimony was that Jones was “cherry picking new business.” Doc. 145-2 at 31 (deposition line 176:12-13). 

7 
in acquiring new customers. Id. Jones acknowledged Zishka’s point about Deliverr.com and his 
prior success, but he noted that account had been won in October 2020 and that Zishka had not 
been performing since that time. DSOF 37. Additionally, the Deliverr.com account had come to 
WWEX through Hall, Spanier’s friend from LPS. DSOF 38. Hall said the account should go to 
Zishka, who was thankful for the opportunity. Id. Hall received commissions on the account, as 
did Zishka. Id. But Zishka was the sales representative who developed and expanded the account 
and ensured Deliverr.com remained loyal to WWEX. Id. (including response). 
 E. Colonoscopy Text Message 
 On January 26, 2023, Zishka informed Spanier and Jones he had scheduled a colonoscopy. 
DSOF 24 (including response). Adults aged 50 to 75 are recommended to undergo colorectal 
cancer screening. PSOF 21. A colonoscopy is the common procedure used for those screenings. 
Id. Zishka texted: “Tomorrow will be out of action getting my 5 year colonoscopy. Hopefully the 
doctor will send [flower emoji].” PSOF 16. Spanier responded: “Good luck [four leaf clover emoji] 
Old man [crying laughing emoji] Jk.” PSOF 17. Spanier intended it as a humorous message that 
Zishka would find funny. DSOF 24. Zishka understood “Jk” meant “just kidding,” id., but he found 
the message offensive because it called him an “old man” and he felt Spanier and Jones were 
ridiculing him for his age, PSOF 18. Jones provided Zishka with advice about the procedure and 
Zishka responded with a laughing reaction. DSOF 25 (including response). Zishka expected Jones 
to “make issue” of Spanier’s comment. Id. But Jones thought Spanier’s message was just wishing 
Zishka good luck and did not think it was derogatory. Id. Zishka never reported any concerns about 
the text exchange to anyone in HR or management. Id. 

8 
 F. Termination 
 On March 7, 2023, Jones Facetimed Zishka and terminated his employment, citing him 
being the lowest performer of the Enterprise Sales team. DSOF 40; PSOF 19. Zishka was not 
replaced with another employee. Id. Zishka’s termination came one month and 12 days after he 
requested leave for his colonoscopy. PSOF 20. When Jones told Zishka he was being terminated, 
Zishka did not raise concerns about discrimination. Likewise, Zishka did not raise concerns about 
discrimination when he talked with HR later that day. DSOF 42. At the time of Zishka’s 
termination, Zishka was 59 years old, Jones was 61 years old, and Spanier was 42 years old. DSOF 
41. 
 Another low performing member of the Enterprise Sales team was also fired on March 7, 
2023, in connection with the Q1 Low Performer Project. DSOF 43. That employee (David Potter) 
was also age-protected. PSOF 40. Before the terminations on March 7, 2023, the average age of 
the Enterprise Sales team was 47.65. PSOF 39. After the termination of Zishka and Potter, the 
average age was reduced to 45.71. PSOF 41. 
 In June 2023, WWEX implemented a reduction in force that resulted in the termination of 
two additional Enterprise Sales team members, including one who was 37 years old (David 
Schleyer). DSOF 44 (including response).7 Schleyer, who was not in an age -protected category 
and was not disabled, had been identified in the December 2022 email as a low performer who 
might need a “soft exit.” PSOF 28 -31. A “soft exit” referred to a severance package. PSOF 32. 
Despite both Zishka and Schleyer being referenced in the same December 2022 email about low 
performance, Schleyer was retained until June 28, 2023. PSOF 33. At the time of the March 2023 
terminations, Schleyer was outperforming both Zishka and one other team member. Id. (including 
 
7 The other was 56. See Doc. 137-12 at 3. 

9 
reply). Schleyer received a severance package during the reduction in force. PSOF 34. Zishka did 
not get a severance. PSOF 36. Jones and Spanier supervised Schleyer, and Jones consulted Spanier 
about the termination of both Zishka and Schleyer. PSOF 37. After the terminations, Spanier and 
Obinger celebrated the amount of money saved from not paying commissions to Zishka and other 
terminated employees. PSOF 23-25. 
 At the time of Zishka’s termination, the Enterprise Sales team had 12 members, including 
ten men and two women. DSOF 45. Five members (three men and two women) were retained 
beyond June 2023. Id. Four of those five were over the age of 40, including two over the age of 
50. Id. WWEX also retained the only other disabled member of the Enterprise Sales team. Id. 
 Dennis Sisson was also an age -protected sales representative with high -producing legacy 
accounts. PSOF 26. WWEX pressured him to retire. Id. He accepted a marketing representative 
role and was not paid all his commissions. Id. WWEX also encouraged Sisson to drop his 
employer-sponsored health insurance and instead sign up for Medicare. PSOF 27. This resulted in 
an increase in healthcare costs for Sisson. Id. 
 G. Claims 
 Zishka asserts five claims in the Pretrial Order. Count I is a Title VII claim that Defendants 
terminated Zishka because of his sex. Count II is an ADEA claim that Defendants terminated 
Zishka based on his age. Count III is an ADA claim that Defendants terminated Zishka because of 
his disability. Count IV is a retaliation claim in violation of Title VII, the ADEA, and the ADA. 
And Count V asserts that WWEX breached an implied -in-fact contract by terminating Zishka’s 
employment. Doc. 133 at 10. 

10 
II. STANDARD 
 Summary judgment is appropriate if 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). The moving party 
bears the initial burden of establishing the absence of a genuine is sue of fact. Celotex Corp. v. 
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that 
genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 
586-87 (1986). In applying this standard, courts view the facts and any reasonable inferences in a 
light most favorable to the non -moving party. Henderson v. Inter-Chem Coal Co. , 41 F.3d 567, 
569 (10th Cir. 1994). “An issue of material fact is genuine if a reasonable jury could return a 
verdict for the nonmoving party.” Id. (internal quotation and citation omitted). 
III. ANALYSIS 
 As noted, Zishka asserts five claims. Count V is for breach of implied contract. Zishka 
concedes in his response that he signed the employee handbook, which expressly state s that 
nothing in the handbook create s a contractual relationship between Zishka and WWEX. He does 
not oppose summary judgment in Defendants’ favor on that claim. Doc. 145 at 43 -44. The 
remaining claims are: sex discrimination, age discrimination, disability discrimination, and 
retaliation. 
A. Direct Evidence 
 Zishka argues that there is direct evidence of his sex, age, and retaliation claims. He points 
to Spanier’s comments about the impact of the revised commission plan on “younger reps” and 
the text message that called Zishka an “old man.” See id. at 30-32. 
 “Direct evidence demonstrates on its face that the employment decision was reached for 
discriminatory reasons.” Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202, 1213 (10th Cir. 2022). 

11 
But it is only direct evidence if it proves a fact in issue with out the need of any inference or 
presumption. Id. In employment cases, direct evidence of discrimination is “usually impossible to 
obtain.” Id. Even where comments by a decisionmaker reflect animus toward a particular group, 
those comments alone are not sufficient unless they demonstrate on their face that the 
decisionmaker acted on that animus. See id. at 1213-14; see also Perry v. Woodward , 199 F.3d 
1126, 1134 (10th Cir. 1999) (requiring a nexus between the discriminatory comments and the 
decision to terminate). 
 Zishka first argues there is a direct nexus between Spanier’s comments about realign ing 
commissions for “younger reps” to his termination because Spanier “celebrated two days before 
Mr. Zishka’s termination that WWEX/GTZ should calculate Mr. Zish ka’s commission payments 
‘as part of the savings’ from Mr. Zishka’s termination” and that the commissions “are 100% cost 
savings.” Doc. 145 at 31 -32 (emphasis in original) . Even to the extent that Spanier’s comment 
about younger reps carried a discriminatory animus,8 and even ignoring that Spanier only approved 
but did not make the termination decision, the Court struggles to see a nexus to Zishka’s 
termination. To the extent Zishka contends that the commission change more than two years earlier 
is linked to his termination because WWEX wanted to save on paying those commissions, there is 
a degree of illogic in that argument. Zishka claims the commission structure was changed to pay 
older employees less and younger employees more. If the ultimate goal was to save on those 
commission payments, it’s unclear why the terminations would later target the older employees, 
who according to Zishka, earned less under the changed commission structure. 
 
8 It’s not clear whether Spanier used the term “younger reps” or whether Zishka statement to that effect was just 
relaying the gist of the conversation. But when deciding a summary-judgment motion, the Court construes the facts 
in a light most favorable to the non-moving party. 

12 
 The second evidence Zishka contends is direct evidence is the colonoscopy text where 
Spanier referred to Zishka as an “old man.” The only connection to his termination is that it came 
one month and 12 days later. But a (somewhat) temporal connection in time does not show that 
Spanier (to the extent he was a decisionmaker) acted on any sex - or age -related animus. See 
Fassbender v. Correct Care Sols., LLC , 890 F.3d 875, 883 (10th Cir. 2018) (finding comment 
about wanting fewer pregnant employees followed by termination of the plaintiff about a month 
later was not direct evidence of discrimination); Heim v. State of Utah, 8 F.3d 1541, 1546-47 (10th 
Cir. 1993) (finding that remark by supervisor, “I hate having fucking women in the office,” and 
then shortly thereafter denial of field assignment was not direct evidence of discrimination). 
“Evidence demonstrating discriminatory animus in the decisional process needs to be 
distinguished from stray remarks in the workplace, statements by nondecisionmakers, or 
statements by decisionmakers unrelated to the decisional process.” Power v. Koss Const. Co., 499 
F. Supp. 2d 1194, 1201 -02 (D. Kan. 2007) (internal quotation and citation omitted). Here, 
Spanier’s comment was a stray remark by someone who did not make the decision to terminate 
Zishka and was not related to Zishka’s termination. 
 The only way to link Spanier’s comment to Zishka’s termination is to make an inference 
(i.e. that Spanier held an age-based animus as demonstrated by the use of the term “old man” and 
later must have acted on that belief). Evidence that requires an inference is not direct evidence of 
discrimination or retaliation. See Ramsey v. City & Cnty. of Denver , 907 F.2d 1004, 1008 (10th 
Cir. 1990) (noting that “an offer of specific instances of discriminatory statements, from which it 
was argued that the determining cause of an employment decision might be inferred, was not direct 
evidence of causation on the employment decision”).9 
 
9 Zishka cites two district court cases from Maryland to support his claim of direct evidence. The first is factually 
distinguishable. See Oladokun v. Grafton Sch., Inc., 182 F. Supp. 2d 483, 491 (D. Md. 2002) (involving use of a 

13 
 In sum, Zishka has not come forward with direct evidence of discrimination or retaliation 
and must proceed under the McDonnell Douglas framework. 
B. Sex Discrimination – Title VII (Count I) 
 In the absence of direct evidence of discrimination, t he McDonnell Douglas framework 
applies to Zishka’s sex-discrimination claim. Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 
1261, 1266 (10th Cir. 2015). A plaintiff must first establish a prima facie case of discrimination. 
Id. This includes evidence tha t “[he] is a member of a protected class, [he] suffered an adverse 
employment action, and the challenged action occurred under circumstances giving rise to an 
inference of discrimination.” Id. 
 Zishka’s sex-discrimination claim seems to be based on the fact that he is a man, Spanier’s 
text message used the phrase “old man,” and colorectal cancers are more common in men. 10 See 
Doc. 145 at 34. This borders on frivolous. Zishka is perhaps aware of this because his brief 
dedicates just a few cursory and conclusory words to his sex-discrimination claim and does not 
meaningfully try to carry his burden at all. 
 
racial slur followed by a statement that the supervisor would “get them out of here,” which showed an intent to 
remove the plaintiff because of his discriminatory attitude). Zishka cites the second for the proposition that whether 
a nexus exists between and offensive comment and an employment decision turns on the following factors: “ the 
intervening time between the offensive remarks and the employment action; whether the person who uttered the 
offensive remarks made or recommended the employment action; whether the contents of the offensive remarks 
related to the employment action; and the frequency of the remarks.” Magassouba v. Prince George’s Cnty., 773 
F. Supp. 3d 196, 213 (D. Md. 2025). But the facts of this case don’t show a nexus using this standard. There was 
almost a month and a half between the text and Zishka’s termination. Spanier didn’t make the termination decision. 
The text reference to “old man” did not relate to the termination, and it was only made once in the context of a 
seemingly friendly text exchange. Further, even if the comments cited by Zishka could convey some evidence of 
age-related animus, neither indicates a sex-based or retaliatory animus. 
10 It is not at all clear how men being at higher risk for colorectal cancers gives rise to an inference that Zishka was 
terminated because of his sex. Regardless, this is not even a fact in evidence. Zishka’s cited fact states that 
colorectal screening is recommended for all adults aged 50 to 75. PSOF 21. And he claims to be disabled based on 
the fact that he was an older male undergoing colorectal screening. PSOF 35. Neither of these facts state that men 
have a higher risk of colorectal cancers. 

14 
 Suffice it to say, Zishka fails to establish a prima facie case of sex discrimination. All the 
decisionmakers were men. All the comparators were men. Based on the undisputed facts, most of 
the sales team were men. An isolated reference to Zishka as a “man” in a text message unrelated 
to and one -and-half months before his termination and a higher incident of colon cancer among 
men does not give rise to an inference that he was terminated because of his sex. No reasonable 
jury could conclude otherwise. Defendants are entitled to summary judgment on Count I.11 
 C. Age Discrimination – ADEA (Count II) 
 The ADEA prohibits terminating an employee because of the employee’s age. Markley v. 
U.S. Bank Nat’l Ass’n, 59 F.4th 1072, 1080 (10th Cir. 2023). It applies to individuals age 40 and 
over. Id.12 The same McDonnell Douglas standard applies to Zishka’s ADEA claim . See id. at 
1081; see also Bennett, 792 F.3d at 1266 (addressing claims under both Title VII and the ADEA). 
“To establish a prima facie case of age discrimination, the plaintiff must show that (1) he is within 
the protected age group; (2) he was doing satisfactory work; (3) he was discharged; and (4) his 
position was filled by a younger person.” Markley, 59 F.4th at 1081 (citation modified). Where an 
employee is not replaced, a plaintiff must show that older employees were fired while younger 
ones were retained. Frappied v. Affinity Gaming Black Hawk, LLC , 966 F.3d 1038, 105 7 (10th 
Cir. 2020). The remainder of the McDonnell Douglas analysis remains the same as in the Title VII 
context. See Mauldin v. Driscoll, 136 F.4th 984, 996-97 (10th Cir. 2025). 
 
11 Even if Zishka could show a prima facie case of sex discrimination, Defendants have given a legitimate reason for 
his termination (low performance). None of Zishka’s pretext arguments address sex discrimination. See Doc. 145 
at 40-43. 
12 It is undisputed Zishka was 59 at the time of his termination. DSOF 41. 

15 
 1. Prima Facie Case 
 Defendants argue that Zishka cannot establish a prima facie case of age discrimination and, 
even if he could make that showing, he has no evidence of pretext. Zishka argues that three factors 
give rise to an inference of age discrimination. First, a similarly situated 37-year-old employee 
(Schleyer) was treated more favorably because he was fired three months later and given a 
severance. Second, Spanier’s text included an age-based comment. And third, the average age of 
the Enterprise Sales team shifted nearly two years younger after the March 7, 2023 terminations. 
 On the first point, Zishka argues that Schleyer was, like him, identified as a lower performer 
at the end of 2022. However, Schleyer was allowed to work three more months before he was 
terminated and was given a severance. 13 But the record reflects that Schleyer was outperforming 
Zishka and another member of the team (Potter) at the time of the terminations on March 7, 2023. 
And while Schleyer got a severance when he was fired in June 2023, his termination was from a 
reduction in force, while Zishka was fired in accordance with the Q1 Low Performer Project, which 
was intended to identify and terminate low performing sales and operations employees. These are 
important distinctions in how Zishka and Schleyer were treated that are separate and apart from 
their age difference. 
 On the second point, Zishka states that Spanier’s “ageist” comment in the text message 
creates an inference of discrimination. The Court disagrees. It is undisputed that Spanier and 
Zishka had a friendly relationship. The “old man” comment was made in the context of a joking 
text conversation that Zishka started. Spanier was also over 40 , which is protected under the 
ADEA. Moreover, Spanier was not the primary decisionmaker. That was Jones, who was older 
 
13 The Court notes that Zishka’s age-discrimination claim is based on his termination, not on the fact that he didn’t 
receive a severance. Doc. 133 at 10. Both Schleyer and Zishka were terminated in a relatively short time frame. 
Neither party discusses whet her an extra three months plus a severance should be considered more favorable 
treatment under these circumstances. 

16 
than Zishka. The text came more than a month before Zishka was terminated, and Zishka had been 
identified as a low performer subject to termination in December 2022, more than a month before 
the text message was sent . Although age -related comments may support an inference of age 
discrimination, there must be some nexus between the statement and the adverse employment 
action. Power, 499 F. Supp. 2d at 1204-05. Here there is no such nexus. 14 Even though the 
comment was made directly to Zishka, see id., the context in which it was made and the fact that 
Zishka had already been identified as a low performer undercuts any nexus to his termination. In 
light of these undisputed facts, no reasonable jury could infer that age discrimination was a factor 
in Zishka’s termination based on Spanier’s text.15 
 On the third point, Zishka argues that the two terminations on March 7, 2023, lowered the 
average age of the Enterprise Sales team by 1.94 years. But such a small change in the average age 
is not significant. See Frappied, 966 F.3d at 1058 (finding disparities in the ages of new and 
terminated employees in the range of 12 and 29 years gives rise to an inference of discrimination 
while noting that other circuits “have generally held that an age difference of ten or more years is 
sufficiently substantial, but an age difference of less than ten years is not ”); see also Douglas v. 
Int’l Auto. Components Grp. N. Am., Inc., 483 F. App’x 178, 181 (6th Cir. 2012) (“There was only 
a slight decrease in the average age of the employees as a result of the workforce reduction. 
 
14 Zishka again argues that this comment somehow links Spanier’s comments in 2020 about the commission changes 
realigning with the “younger reps” to his termination via his “celebration” about the cost savings associated with 
the terminations. Doc. 145 at 34-35. As discussed above, the Court struggles to follow this argument and does not 
find it persuasive. 
15 Zishka cites Fisher v. Pharmacia & Upjohn , 225 F.3d 915 , 922-23 (8th Cir. 2000), to argue that “remarks like 
referring to a salesperson as an “old guy” can raise an inference of discrimination. See Doc. 145 at 34. In Fisher, 
the comment in question was the company vice president saying “we need to get rid of the old guys,” and that his 
supervisor occasionally referred to the plaintiff as “the old guy.” 225 F.3d at 922-23. This is distinguishable from 
the “old man” remark in Spanier’s text, which did not relate to Zishka’s employment and was clearly in a joking 
context. Similarly, Zishka cites Phelps v. Yale Security, Inc., 986 F.2d 1020, 1025 (6th Cir. 1993), where the age-
related comments were that the plaintiff was too old for a certain position and that her upcoming 55th birthday was 
a cause for concern. These comments are distinguishable from Spanier’s. Phelps specifically noted that “isolated 
and ambiguous comments” do not point to age discrimination. 986 F.2d at 1025-26. 

17 
Accordingly, the statistics do not create an inference that IAC targeted employees based on their 
age.”); Kolesnikow v. Hudson Valley Hosp. Ctr. , 622 F. Supp. 2d 98, 116 (S.D.N.Y. 2009) 
(“Similarly, the fact that the average age of the fourteen nursing assistants in Kolesnikow’s unit in 
November 2004 was 38, and that the average age had dropped to 37 by July 2006, is not probative 
of a bias against older employees.”). Although the average age may have gone down slightly after 
two members of the team were fired in March 2023 , it is undisputed that of the five Enterprise 
Sales team employees who were retained after June 2023 , four were over 40, including two over 
50. DSOF 45. This does not show that older, age-protected members of the team were terminated 
while younger employees who are not age protected were retained. Zishka acknowledges that the 
Tenth Circuit has recognized that a two-year difference in age between a terminated employee and 
his replacement is “an obviously insignificant difference.” See Munoz v. St. Mary-Corwin Hosp., 
221 F.3d 1160 , 1166 (10th Cir. 2000) . However, he argues that a shift in average age by that 
amount “reflects that the terminations affected the oldest members of the group.” Doc. 145 at 36. 
But the evidence in the record shows that the two individuals terminated on March 7, 2023, were 
not even the two oldest members of the sales team. See Doc. 137-12 at 3. Such a small variation 
in the average age of the team after Zishka’s termination does not give rise to an inference of age 
discrimination. 
 In sum, the three facts Zishka identifies do not create an inference of discrimination. This 
is sufficient to grant summary judgment in Defendants’ favor on the age-discrimination claim. But 
even if Zishka’s arguments did establish a prima facie case, Defendants have given a legitimate 
reason for Zishka’s termination —his low sales performance on new accounts . That shifts the 
burden back to Zishka to come forward with evidence that the stated reason is a pretext for age 
discrimination. 

18 
 2. Pretext 
 If a plaintiff meets his initial burden of making a prima facie case, and the defendant can 
“articulate a legitimate, nondiscriminatory reason for its actions ,” the burden shifts back to the 
plaintiff to show that the explanation is pretext. Bennett, 792 F.3d at 1266. “The plaintiff may 
establish pretext by showing such weaknesses, implausibilities, inconsistencies, 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.” Id. at 1267 (internal quotation and citation 
omitted). In determining pretext, courts consider the facts from the decisionmaker’s point of view. 
Jiang v. City of Tulsa , 169 F.4th 1194 , 1200 (10th Cir. 2026) . Whether the underl ying decision 
was wise, fair, or correct does not enter the analysis. Id. 
 Zishka argues four facts to demonstrate that WWEX’s reason for terminating him is 
pretext. First, a younger, non -disabled employee (Schleyer) received more favorable treatment. 
Second, WWEX targeted other older workers (Sisson). Third, the termination of Zishka and Potter 
reduced the average age of the Enterprise Sales team by 1.94 yea rs. Fourth, Spanier made ageist 
comments and touted the savings of Zishka’s commission after his termination. 
 Three of Zishka’s pretext arguments have been addressed already. For the same reason 
they don’t give rise to an inference of discrimination, the Court finds they do not demonstrate 
pretext. The only new argument is about Sisson. Zishka argues that Sisson was a member of the 
Enterprise Sales team and was supervised by Spanier, but Sisson was forced to retire. As an initial 
matter, there is nothing in the record suggesting that Sisson was on the Enterprise Sales team or 
was supervised by Spanier. Zishka’s statement of facts don’t state as much, nor does Sisson’s 

19 
underlying declaration. See PSOF 26-27; see also Doc. 145-7.16 But even if it did, the facts in the 
record are that : Defendants employed Sisson as a sales representative from 2017 to 2021 , 
Defendants forced him to retire and become a marketing representative, and Defendants also 
encouraged him to sign up for Medicare when he became eligible. Suffice it to say, this does not 
call into question the proffered reason for Zishka’s termination in 2023, especially where it is 
undisputed he was the lowest performer of the Enterprise Sales team. See Heno v. Sprint/United 
Mgmt. Co. , 208 F.3d 847, 856 (10th Cir. 2000) (stating that anecdotal evidence of other 
discriminatory acts should only be admitted if it can be tied to the adverse action at issue or 
involved the same supervisors and was not “several years before the contested action or anytime 
after”). No reasonable jury could conclude otherwise. 
 The Court grants Defendants summary judgment on Count II. 
D. Disability Discrimination – ADA (Count III)17 
 To sustain a disability-discrimination claim under the ADA based on disparate treatment, 
it is not sufficient that an individual with a disability suffered an adverse employment action. Punt 
v. Kelly Servs., 862 F.3d 1040, 1048 (10th Cir. 2017). Rather, the adverse action must have been 
taken “on the basis of” the disability. Id. As with the other discrimination claims, a plaintiff may 
show such discriminatory intent using the McDonnell Douglas framework. Edmonds-Radford v. 
Sw. Airlines Co. , 17 F.4th 975, 989 (10th Cir. 2021) . Thus, Zishka must first establish a p rima 
facie case: (1) he is disabled, 18 (2) he was qualified to perform the essential functions of the job 
with or without reasonable accommodation, and (3) he suffered an adverse employment action 
 
16 Even if Sisson was supervised by Spanier, it is undisputed that Jones made the decision to fire Zishka. 
17 The governing law is now the ADA Amendments Act of 2008 (“ADAAA”). The Court applies the amended law 
and regulations. But the Court continues to use the term “ADA” for ease of reference. 
18 It is undisputed that Zishka is disabled. PSOF 35. 

20 
because of his disability. See id . at 989 -90. The burden then shifts to Defendants to articulate 
nondiscriminatory reasons for its actions. See id. at 990. Zishka then bears the burden of showing 
the proffered reason was pretext for discrimination. See id. 
 Like his sex -discrimination claim, Zishka does not make a vigorous argument about 
disability discrimination. He argues that he can make a prima facie showing of discrimination 
because Schleyer was not disabled and was treated “more favorably.” As discussed above, 
however, Schleyer was not terminated with Zishka because he was not one of the lowest two 
performers at the time. Although he was fired three months later and received a sever ance, his 
termination was part of the reduction in force, not the Q1 Low Performer Project. Defendants also 
note that the only other member of the Enterprise Sales team who was disabled was not terminated. 
See Doc. 137-12 at 3. By simply relying on Schleyer’s termination, Zishka has not come forward 
with evidence that a reasonable fact finder could conclude he was terminated because of his 
disability. Defendants are entitled to summary judgment on Count III. 
E. Retaliation – Title VII, ADEA, ADA (Count IV) 
 Zishka asserts one retaliation claim, but he claims retaliation under Title VII, the ADEA, 
and the ADA. See Doc. 133 at 10. The McDonnell Douglas framework applies to each of these 
retaliation claims. To state a prima facie case of retaliation, a plaintiff must show (1) he engaged 
in protected opposition to discrimination, (2) a reasonable employee would find the challenged 
action materially adverse, and (3) a causal connection exists between the two. Tabor v. Hilti, Inc., 
703 F.3d 1206 , 1219 (10th Cir. 20 13) (Title VII retaliation claim); Mauldin, 136 F.4th at 995 
(ADEA retaliation claim); Edmonds-Radford, 17 F.4th at 994 (ADA retaliation claim). 
 Defendants argue that Zishka cannot meet his burden to show a prima facie case of 
retaliation because he has not engaged in any protected activity under Title VII or the ADA, and 

21 
there is no causal connection between his termination and his comment three years earlier about 
the impact of the changed commission structure on older employees. 
 1. Title VII Retaliation 
 Zishka offers no facts showing that he ever engaged in protected opposition to sex 
discrimination. See Battino v. Redi-Carpet Sales of Utah, LLC, 2021 WL 4144974, at *5 (10th Cir. 
2021) (explaining that a retaliation claim under Title VII requires a showing of opposition to a 
practice made unlawful by Title VII); see also 42 U.S.C. § 2000e -3(a) (prohibiting retaliation 
“because [an employee] has opposed any practice made an unlawful employment practice by this 
subchapter”). His brief only discusses protected activity under the ADEA and the ADA. Doc. 145 
at 38-39. There are no facts in the record at all that Zishka ever engaged in protected activity under 
Title VII or raised any concerns about sex discrimination. He has therefore failed to make a prima 
facie case of Title VII retaliation, and the Court grants Defendants summary judgment on that 
claim. 
 2. ADEA Retaliation 
 Zishka argues that he can establish a prima facie case of retaliation under the ADEA 
because he complained that the changed commission structure targeted older workers. Id. at 38. 
But even assuming this qualifies as protected activity under the ADEA, Zishka has not ma de a 
causal connection between this activity, which took place in 2020, and his termination in 2023. 
Zishka’s response does not even meaningfully argue a causal connection. See id. To the extent 
Zishka tries to link the commission changes to Zishka’s termination based on Spanier’s comments 
about cost savings, id. at 39, those arguments are not persuasive for the reasons noted above. The 
Court therefore finds Zishka has failed to make a prima facie showing of ADEA retaliation and 
the Court grants Defendants summary judgment on that claim. 

22 
 3. ADA Retaliation 
 Zishka argues he engaged in protected activity under the ADA “when he requested the 
reasonable accommodation of time off to undergo a ‘5 year colonoscopy.’” Id. at 38. The causal 
connection Zishka relies on is temporal proximity to his termination (one month and 12 days). Id. 
at 39. Defendants argue that Zishka’s request for time off for his colonoscopy was unrelated to any 
of Zishka’s disabilities, and they argue that the request was not a sufficiently clear request for an 
accommodation. Doc. 137 at 26-27. 
 A request for a reasonable accommodation is protected activity under the ADA. Foster v. 
Mountain Coal Co., LLC, 830 F.3d 1178, 1188 (10th Cir. 2016) (“Similarly, this court and others 
recognize that a request for accommodation can constitute protected activity supporting a 
retaliation claim.”). But Zishka was not asking for a reasonable accommodation for a disability. 
He was requesting time off for a colonoscopy appointment. The colonoscopy was not related to 
any disability, nor is a colonoscopy itself a disability. See Brtalik v. S. Huntington Union Free Sch. 
Dist., 2012 WL 748748, at *4 (E.D.N.Y. 2012) (“Brtalik’s attempt to characterize a routine, 
diagnostic, out -patient procedure, or any related minor discomfort, as a disability within the 
meaning of the ADA is simply absurd.”); Pittman v. Am. Airlines, Inc., 2016 WL 3129228, at *10 
(N.D. Okla. 2016) (“[A] colonoscopy does not qualify as a disability for a number of reasons, 
including that the ADA does not encompass temporary impairments .”). It was a medical 
appointment for screening purposes. While requests for time off for medical appointments 
connected to a disability might be protected activity in certain circumstances, requests for time off 
for medical appointments generally are not. None of the cases Zishka cites suggest otherwise. 
 Moreover, for purposes of a retaliation claim, the requested accommodation must be direct 
and specific and put the employer on notice that the employee seeks an accommodation. Foster, 

23 
830 F.3d at 1188 (noting that no magic words are required but “it nonetheless must make clear that 
the employee wants assistance for his or her disability ”). Here, the entirety of Zishka’s “request” 
was “Tomorrow will be out of action getting my 5 year colonoscopy. Hopefully the doctor will 
send [flower emoji].” PSOF 16. No reasonable factfinder could conclude this was a request for a 
disability accommodation. 
 Even if Zishka’s request for time off for his colonoscopy was protected activity under the 
ADA, the only causation evidence he points to is that the request occurred one month and 12 days 
before his termination. But this again ignores that Zishka had alre ady been identified as a low 
performer who was a candidate for termination a month before he requested time off for his 
colonoscopy. 
 In sum, Zishka has failed to establish a prima facie case of retaliation under the ADA . 
Defendants are entitled to summary judgment on his retaliation claim in Count IV. 
 F. Provisionally Sealed Documents 
 Plaintiff filed five exhibits provisionally under seal. Docs. 146 -150. The exhibits in 
question were designated confidential by Defendants. See Doc. 151. Defendants have not filed a 
motion to continue those documents under seal as required by D. Kan. Rule 5.4.2(c), to the extent 
they wish to keep them sealed.19 Because no party seeks to maintain those documents under seal, 
the Court directs the Clerk to remove the provisional sealing designation for Docs. 146-150. 
IV. CONCLUSION 
 THE COURT THEREFORE ORDERS that Defendants’ Motion for Summary Judgment 
(Doc. 136) is GRANTED. The Clerk shall enter judgment in favor of Defendants. 
 IT IS SO ORDERED. 
 
 
19 It appears that some of these documents have already been publicly filed by Defendants. 

24 
 Dated: May 28, 2026 /s/ Holly L. Teeter 
 HOLLY L. TEETER 
 UNITED STATES DISTRICT JUDGE 

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