Maybin v. Hilton Grand Vacations Co., 343 F. Supp. 3d 988 (2018)

Sept. 28, 2018 · United States District Court for the District of Hawaii · CIVIL NO. 17-00489 DKW-KSC
343 F. Supp. 3d 988

Carl MAYBIN, Plaintiff,
v.
HILTON GRAND VACATIONS COMPANY, LLC, Defendant.

CIVIL NO. 17-00489 DKW-KSC

United States District Court, D. Hawai'i.

Signed September 28, 2018

*989Charles H. Brower, Michael P. Healy, Honolulu, HI, for Plaintiff.

Andrew L. Pepper, Jackson Lewis P.C., Honolulu, HI, for Defendant.

ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT

Derrick K. Watson, United States District Judge *990INTRODUCTION

Hilton seeks summary judgment on Maybin's claim that he was unlawfully terminated from his timeshare sales position due to his age in violation of the Age Discrimination in Employment Act ("ADEA"), U.S.C. §§ 621 et seq. The focus of Hilton's renewed Motion is whether it sufficiently established that the same actor made the decision to both hire and terminate Maybin, and, if so, whether Maybin met his increased burden of demonstrating age-based discrimination in light of the application of the "same actor" inference. Because the Court finds that the same actor inference applies to Maybin's discrimination claims, and that Maybin has not made the strong showing necessary to overcome the inference on the facts presented, Hilton's Renewed Motion for Summary Judgment as to Count I is GRANTED.

BACKGROUND

Because the parties are familiar with the factual and procedural background in this matter, as described in prior Court orders, the Court recounts only those matters material to the issues raised by Hilton's renewed Motion as to Count I.1

I. Factual Background

Maybin was hired by Hilton as a timeshare sales agent in September 2015 when he was 55 years old, following a series of job interviews with Hilton personnel. He first interviewed with Derek Kanoa, Vice President of Sales, and then with Julia Montenegro, a senior member of Hilton's Human Resources department. 1/11/18 Decl. of Carl Maybin ¶ 3, Dkt. No. 26-1. Maybin then interviewed with Dave Colton, and finally, with Joshua Kannel, the Hawaii Director of Sales. Maybin Decl. ¶¶ 3-4. Based upon Kannel's recommendation and request, Montenegro hired Maybin on September 14, 2015. 12/8/17 Decl. of Joshua Kannel ¶ 7, Dkt. No. 21-1; 6/13/18 Montenegro Decl. ¶ 7, Dkt. No. 46-1.2 When Maybin failed to meet sales quotas for several consecutive months, he was subject to progressive written warnings, and then eventually terminated by Montenegro, at Kannel's recommendation. 12/8/17 Kannel Decl. ¶¶ 19-20; 6/13/18 Montenegro Decl. ¶ 9.

According to Maybin, however, shortly after he was hired, Kannel demonstrated animus towards older sales agents by making negative comments about their abilities at sales meetings. For example, Kannel said older agents "were too slow, can't learn, have a different way of doing things, are hard to teach new ways of sales, are too old to change, and don't have the energy necessary for sales." Maybin Decl. ¶ 6. Kannel made such comments at sales meetings from the time that Maybin first *991started "and continued [making them] throughout [his] employment" with Hilton. Maybin Decl. ¶ 6. Although Hilton contends that Maybin was terminated because he was not performing his job adequately as measured by objective performance standards, Maybin asserts, without additional evidence, that from the inception of his employment until the beginning of February 2016, his sales were strong, and at times he "was number 2 or 3 in sales," compared to his peers. Maybin Decl. ¶ 7. From the end of February 2016, however, Maybin acknowledges that his sales numbers declined, and he attributes that decline, in part, to being "given less tours," and intentionally assigned fewer potential customers. Maybin Decl. ¶¶ 8-9.3

In March 2016, Maybin was assigned a new sales manager, James Tony Wilson, who treated Maybin "in a very hostile manner" from their first interaction. Maybin, however, does not specifically attribute age-based animus to Wilson in his Complaint or Declaration filed in this matter. See Maybin Decl. ¶¶ 13-14. Wilson made inappropriate comments to Maybin, "interfer[ing] with [his] sales by making sarcastic remarks about [his] clients." Maybin Decl. ¶ 15. Maybin lost sales because Wilson "would refuse to meet with [his] customers after [Maybin] gave them a tour to talk to them about purchasing." Maybin Decl. ¶ 15.

Maybin received his first written job performance warning in May 2016 for failure to meet Hilton's job performance standards.4 12/8/17 Kannel Decl. ¶ 13; Ex. 2 (6/25/16 Performance Management Review Document), Dkt. No. 21-3. The consequences of failure to meet minimum performance guidelines after the three-month introductory period are as follows:

Starting in the fourth month of a Sales Executive's employment[,] if a Sales Executive fails to meet the required MPS, they were subject to a system of progressive written warning documenting their lack of performance and failure to satisfy the MPS ("Job Performance Warning System").
*992Under the Job Performance Warning System[,] the progression is as follows: (1) written warning, (2) a second/final written warning, and (3) termination.

12/8/17 Kannel Decl. ¶ 12(a)-(b) (citing Ex. 1).

According to Hilton, during the final four months of his employment, Maybin did not meet any of its performance standards. That is, he failed to have a VPG of at least $2,200 on the basis of current sales or an average of the prior three months of sales.5 Maybin received a second and final written warning when he did not meet his VPG for June 2016. 12/8/17 Kannel Decl. ¶ 15; Ex. 3 (7/26/16 Performance Management Review Document), Dkt. No. 21-4.

Maybin acknowledges that during April, May, and June of 2016, he did not meet sales quotas, but says that he "was intentionally given less tours which kept [his] sales numbers down and [his] sales manager was refusing to meet [with his] customers." Maybin Decl. ¶ 17. Hilton maintains that Maybin always received at least 15 tours per month-even after February 2016-and that "[o]nly 15 tours are required each month for a sales executive to meet his sales quotas." 1/25/18 Decl. of Julia Montenegro ¶ 5, Dkt. No. 29-1. According to Hilton HR's Montenegro, in May 2016, Maybin was not required to attend any training and had 19 tours. 1/25/18 Montenegro Decl. ¶ 9. After he received his first written warning, he was "placed into remedial training for June 2016 ," and that month, his tours increased from 19 to 29. 1/25/18 Montenegro Decl. ¶¶ 9-10. In July, Maybin received 23 tours and "was given an extra month of remedial training." Montenegro Decl. ¶ 13.

According to Maybin, in July 2016, he was ordered to attend mandatory training at the Pan Am Building on Kapiolani Boulevard. Maybin Decl. ¶ 18. As a result of the required training, Maybin claims to have only received one tour per day at 8:00 a.m., and had no sales in July 2016. According to Maybin, he "could not possibly have met quota because he was in mandatory training." Maybin Decl. ¶ 18. When Maybin did not meet his VPG in July 2016, he was terminated the following month. 12/8/17 Kannel Decl. ¶¶ 17-18; Ex. 4 (8/23/16 Performance Management Review Document), Dkt. No. 21-5; Ex. 5 (8/29/16 Personnel Authorization Form), Dkt. No. 21-6.

*993Kannel avers that he recommended termination to Hilton HR solely due to Maybin's sales performance and that "Maybin's age had no part in [his] decision to recommend Mr. Maybin's termination." 12/8/17 Kannel Decl. ¶ 20. Montenegro, the ultimate decisionmaker, likewise avers that "age had no part in [her] decision to terminate Mr. Maybin." 1/25/18 Montenegro Decl. ¶ 22; see also 6/13/18 Montenegro Decl. ¶ 10 ("Mr. Maybin's age played no part in my decision to either hire or fire Mr. Maybin."). Maybin disagrees, and contends instead that he was wrongfully terminated in August 2016 due to age discrimination.

II. Procedural Background

On September 27, 2017, Maybin filed his Complaint alleging three counts under the ADEA: (1) age discrimination; (2) hostile work environment; and (3) retaliation.6 Compl. ¶¶ 18-28, Dkt. No. 1. The Court previously denied Hilton's request for summary judgment on Count I, finding that genuine issues of material fact persisted with respect to pretext. Of particular note to the instant Motion, the Court determined that Hilton had not established, for purposes of invoking the "same actor inference," that the same person with decision-making authority was responsible for both hiring and firing Maybin. The prior summary judgment record was insufficient because, at that time-

Hilton argue[d] that Kannel is "the same manager who allegedly discriminated against Plaintiff by firing him, [and also] interviewed Plaintiff and approved his hiring in the first instance." Mem. in Supp. at 16, Dkt. No. 20-1. Maybin contend[ed] that he interviewed with several Hilton managers before he was hired, including Montenegro, notwithstanding Kannel's assertion that it was his recommendation that led to Maybin's hiring. [However], Kannel did not have the independent authority to hire or fire Maybin-he could only recommend as much-because that power resided solely with Montenegro and Boulanger in Hilton HR.

Maybin v. Hilton Grand Vacations Co., LLC , No. CV 17-00489 DKW-KSC, 2018 WL 1177914, at *7 (D. Haw. Mar. 6, 2018). The Court thus denied Hilton's motion, noting that "whether the same actors were responsible for Maybin's hiring and the events leading to his termination is not beyond dispute on this factual record." Id. The Court noted, however, that "[i]f Hilton subsequently demonstrates that the same actor was responsible for both Maybin's hiring and termination, Maybin may only prevail if he makes the 'extraordinarily strong showing of discrimination' required to rebut the 'same actor' inference." Id. at *8 (citing Coghlan v. Am. Seafoods Co. LLC , 413 F.3d 1090, 1097 (9th Cir. 2005) ).

Hilton now renews its request for summary judgment, based upon the application of the same actor inference, on Count I's claim for age discrimination under the ADEA. In support of its Motion, Hilton offers a supplemental Declaration of Julia Montenegro, averring that all "[d]ecisions regarding hiring and firing of employees working for Hilton in Hawaii are centralized and restricted to personnel working in Hilton HR. Decisions regarding hiring and firing employees in [Maybin's] capacity (i.e. , as real estate salespersons) were the responsibility of myself and my colleague, John Boulanger." 6/13/18 Montenegro Decl. ¶¶ 4-5. In light of the updated record, the Court again considers Hilton's request for summary judgment on Maybin's *994ADEA discrimination claim, limited in scope to whether the parties have met their respective burdens to establish (1) the applicability of the same actor inference, and (2) the requisite strong showing of discrimination necessary to rebut the inference.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to 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." The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

DISCUSSION

The parties agree, for purposes of this Motion, that Maybin has made a prima facie case of age discrimination. Because Hilton has sufficiently established that Montenegro, at Kannel's recommendation, was the same decisionmaker who hired and fired Maybin within a short period of time, the same actor inference creates an inference of no age-based animus or discriminatory motive. Moreover, Hilton offers a non-discriminatory reason for the termination, with Maybin acknowledging that his monthly sales numbers fell below Hilton's minimum requirements during the relevant time period. Maybin, however, argues that the cited reason is pretextual, and attributes his sales shortages to being deliberately set-up for failure and points to the age-related comments of Kannel.

Because the same actor inference applies, and the limited evidence cited by Maybin does not amount to the "strong case of bias necessary to overcome this inference," Coghlan , 413 F.3d at 1098, Hilton is entitled to summary judgment on Count I.

I. Legal Framework: Age Discrimination and the Same Actor Inference

The federal ADEA prohibits discrimination based on age. 29 U.S.C. § 623(a)(1) ("It shall be unlawful for an employer to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age"). The prohibition is "limited to individuals who are at least 40 years of age." 29 U.S.C. § 631(a).

Motions for summary judgment regarding ADEA claims may be analyzed using the burden-shifting framework in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Shelley v. Geren , 666 F.3d 599, 608 (9th Cir. 2012) (holding that the McDonnell Douglas burden-shifting framework applies to summary judgment motions under the ADEA). For the first step in the burden-shifting framework, a plaintiff must present evidence of a prima facie case of discrimination by showing that (1) he belongs to a protected class, (2) he was qualified for his position, (3) he was subjected to an adverse employment action, and (4) similarly situated individuals outside his protected class were treated more favorably. Davis v. Team Elec. Co. , 520 F.3d 1080, 1089 (9th Cir. 2008).

If the plaintiff establishes a prima facie case, "the burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Hawn v. Executive Jet Management, Inc. , 615 F.3d 1151, 1155 (9th Cir. 2010). If the movant meets this burden, a plaintiff must raise "a triable issue of material fact" as to whether defendant's proffered reasons for the adverse employment actions *995are "mere pretext for unlawful discrimination." Hawn , 615 F.3d at 1155. "[A] plaintiff's burden is much less at the prima facie stage than at the pretext stage." Hawn , 615 F.3d at 1158.

"A plaintiff can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer's explanation is unworthy of credence." Vasquez v. Cty. of Los Angeles , 349 F.3d 634, 641 (9th Cir. 2003).7 Hilton argues that because Montenegro was the person responsible for both Maybin's hiring and firing, the same actor inference prevents Maybin from establishing pretext under the circumstances of this case.

In discrimination cases, when "the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory action." Coghlan , 413 F.3d at 1096 (quoting Bradley v. Harcourt, Brace & Co. , 104 F.3d 267 (9th Cir. 1996) ). The Court is required to consider this "strong inference" in a summary judgment motion. Id. ; see also Schechner v. KPIX-TV , 686 F.3d 1018, 1026 (9th Cir. 2012) (the "same-actor inference is a strong inference that a court must take into account on a summary judgment motion") (internal quotation marks omitted). If the inference applies, then Maybin must present a "strong case of bias necessary to overcome this inference." Coghlan , 413 F.3d at 1098. In effect, the same actor inference "amplifies the plaintiff's burden at the pretext stage." Qualls v. Regents of the Univ. of California , No. 1:13-CV-00649-LJO-SMS, 2015 WL 6951757, at *4 (E.D. Cal. Nov. 10, 2015) (citing Coghlan , 413 F.3d at 1096 ) (plaintiff's burden was "especially steep in this case because of the [same actor inference]"). The inference may "arise when the favorable action and termination are as much as a few years apart." Schechner , 686 F.3d at 1026 ; see also Coghlan , 413 F.3d at 1097 (applying same-actor inference when three years lapsed between hiring and adverse employment action).

Ultimately, plaintiffs "retain[ ] the burden of persuasion to establish that age was the 'but-for' cause of the employer's adverse action."

*996Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 180, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In other words, plaintiffs must do more than "produce some evidence that age was one motivating factor in [an employment] decision." Id. A plaintiff must show, at the summary judgment stage, that a reasonable trier of fact could conclude, by a preponderance of the evidence, that the plaintiff would not have been fired but for impermissible age discrimination. See, e.g., Scheitlin v. Freescale Semiconductor, Inc. , 465 Fed. Appx. 698, 699 (9th Cir. 2012) (applying Gross 's "but for" causation standard at the summary judgment stage).

II. Hilton Is Entitled to Summary Judgment on Count I

A. The Same Actor Inference Applies Under the Circumstances Here

The summary judgment record establishes that Montenegro and her colleague John Boulanger are the decisionmakers with hiring and firing authority for sales agents, and that such responsibility is centralized in Hilton HR. 1/25/18 Montenegro Decl. ¶¶ 15-17; 6/13/18 Montenegro Decl. ¶¶ 4-5. The record is also undisputed that Montenegro's decisions to both hire and to eventually terminate Maybin tracked Kannel's recommendations.8 12/8/17 Decl. of Joshua Kannel ¶ 7; 6/13/18 Montenegro Decl. ¶¶ 7, 9. Although Maybin posits that Montenegro's role at Hilton HR was merely to "process paperwork to effectuate the hiring and firing decisions of Kannel," Mem. in Opp'n at 4, Dkt. No. 57, the record is to the contrary.9 Maybin acknowledges that he interviewed with Montenegro, among others, for the sales agent position before he was hired, and moreover, that he does "not know who made the decision to hire [him]." 1/11/18 Maybin Decl. ¶¶ 3, 5, Dkt. No. 26-1.

The Court previously declined to apply the same actor inference when considering Hilton's first motion for summary judgment because Hilton had yet to establish that the same decisionmaker was responsible for Maybin's hiring and termination.10

*997Having supplemented the evidentiary record, Hilton now sufficiently establishes that Montenegro was the same decisionmaker-with independent hiring and firing authority-who interviewed Maybin, and both accepted Kannel's recommendation to hire him in September 2015 and to then terminate him in August 2016. Under these facts, the same actor inference applies. Montenegro, at Kannel's request and recommendation, was responsible for hiring Maybin as a sales agent. Less than one year later, Montenegro, again at Kannel's recommendation, terminated Maybin. See Coghlan , 413 F.3d at 1097 (holding that same actor inference applied when time period of one year separated employer's favorable action and a subsequent adverse action); Coleman v. Quaker Oats Co. , 232 F.3d 1271, 1286 (9th Cir. 2000) (applying the same actor inference where the time span between favorable and alleged discriminatory actions was one year); Day v. Sears Holding Corp. , 930 F.Supp.2d 1146, 1161 (C.D. Cal. 2013) ("A period of a year and a half qualifies as a 'short period of time.' ") (citation omitted). Therefore, Maybin must present an "extraordinarily strong showing of discrimination" to overcome the inference. Coghlan , 413 F.3d at 1097 ; see also Stout v. Yakima HMA, Inc. , No. 10-CV-3080-TOR, 2013 WL 587569, at *8 (E.D. Wash. Feb. 14, 2013) ("The same actor inference is strong and can only be defeated by an 'extraordinarily strong showing of discrimination.' ") (quoting Coghlan , 413 F.3d at 1097 ).

B. Maybin Fails to Make the Strong Showing of Age Discrimination Necessary to Overcome the Same Actor Inference

Hilton maintains that Maybin was terminated following progressive written warnings consistent with company policy. Having offered a non-discriminatory reason for the adverse employment action, Maybin must show a triable issue of material fact as to whether Hilton's stated reason is mere pretext for unlawful discrimination.11 "This burden is difficult to meet in cases where the same actor was responsible for both a plaintiff's promotion and subsequent adverse employment action." Crudder v. Peoria Unified Sch. Dist. No. 11 , 468 F. App'x 781, 783 (9th Cir. 2012). Maybin concedes that he did not meet his sales quotas and monthly VPG in April, May, and June of 2016, but argues that he was intentionally hindered from adequately performing his job due to conduct by his supervisors, including Kannel, whom he alleges exhibited age-based animus against him and other older sales agents. Yet, Montenegro's (and Kannel's) "initial willingness to hire [Maybin] is strong evidence that the employer is not biased against the protected class to which the employee belongs." Coghlan , 413 F.3d at 1096. Maybin has not offered sufficient evidence capable of overcoming this inference.

The statements attributed to Kannel and offered to show age-based animus do not, without much more, satisfy the strong showing of discrimination necessary to overcome the same actor inference. For *998example, Kannel purportedly said "the older agents, including [Maybin], were too slow, can't learn, have a different way of doing things, are hard to teach new ways of sales, are too old to change, and don't have the energy necessary for sales." Maybin Decl. ¶ 6. Although perhaps insensitive, several of these statements do not explicitly reference age; rather, their intent and meaning must be circumstantially inferred. Nor do the comments that do appear to reference age evince an extraordinarily strong showing of bias based upon Maybin's age, especially because these comments are not linked directly to his termination. See Nesbit v. Pepsico, Inc. , 994 F.2d 703, 705 (9th Cir. 1993) (use of phrase "we don't necessarily like grey hair" did not create inference of discriminatory motive where not tied to adverse employment decision); Nidds v. Schindler Elevator Corp. , 113 F.3d 912, 918-19 (9th Cir. 1996) (use of phrase "old timers" did not support inference of discriminatory motive); Rose v. Wells Fargo & Co. , 902 F.2d 1417, 1420-21 (9th Cir. 1990) (use of phrase "old-boy network" did not support inference of discriminatory motive); see also Weichman v. Chubb & Son , 552 F.Supp.2d 271 (D. Conn. 2008) (stray remarks of supervisor could not prove employment discrimination where "Plaintiff's evidence of age-based animus is that she overheard [her supervisor] on the telephone stating that 'older people' 'slow down' and 'should retire.' This single remark does not demonstrate that [the supervisor] terminated the Plaintiff because of her age.").12

Another district court found similar statements and conduct insufficient to overcome the inference in Cozzi v. County of Marin , 787 F.Supp.2d 1047, 1058 (N.D. Cal. 2011). In that case, the plaintiff asserted that a supervisor engaged in "direct discriminatory remarks" with other employees on at least three occasions-

when Melendy informed Grigsby after Grigsby's 2006 performance evaluation that "older employees are set in their ways, and it would be good to have younger people in the department," and that younger people are "more progressive;" when Melendy openly disciplined Joan Monteverdi (a 74-year-old clerical employee) in March 2006, by imposing *999six counseling sessions because Monteverdi would not retire; and when Melendy made comments about wanting "fresh faces" in the department when Pascale asked why Melendy had appointed Steppler.

Id. The district court in Cozzi held that "it takes more than vague statements such as the ones cited by [plaintiff]" to survive summary judgment. Id. at 1060.

Likewise, Kannel's statements, considered together with the disputed number of tours afforded Maybin and the effect on his sales numbers, do not amount to the "extraordinarily strong showing" of discrimination necessary to survive Hilton's renewed motion.13 Unlike those cases in which courts found an "extraordinarily strong showing" of discrimination, the record in this case is devoid of the requisite type of disparaging comments or other circumstantial evidence, such as evidence that Hilton replaced Maybin with a younger sales agent or that individuals outside of Maybin's protected class were treated more favorably. Maybin thus falls far short of making the "extraordinarily strong showing of discrimination" that this Circuit has determined is necessary to overcome the same actor inference.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant's Renewed Motion for Summary Judgment as to Count I. Dkt. No. 45.

IT IS SO ORDERED.