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Machorek v. Marriott Ownership Resorts, Inc.

United States District Court, D. Hawaii

November 28, 2016

CHRISTOPHER MACHOREK, Plaintiff,
v.
MARRIOTT OWNERSHIP RESORTS, INC., a foreign profit corporation; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE UNINCORPORATED ORGANIZATIONS 1-10; and DOE GOVERNMENTAL AGENCIES 1-10, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          J. Michael Seabright Chief United States District Judge

         ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         I. INTRODUCTION

         Plaintiff Christopher Machorek, a former employee of Defendant Marriott Ownership Resorts, Inc. (“MORI”), brings this action against MORI seeking damages for retaliation under both federal and state law, and for intentional infliction of emotional distress.

         Currently before the court is MORI's Motion for Summary Judgment (“MORI's Motion”), ECF No. 55. For the reasons that follow, the court GRANTS in part and DENIES in part MORI's Motion.

         II. BACKGROUND

         A. Factual Background

         Plaintiff worked at Marriott owned or affiliated companies for fifteen years. Pl. Decl. ¶ 3, ECF No. 70-1. He eventually became MORI's Director of Marketing (“DOM”) for the island of Kauai and held that position for the time period relevant to this litigation. Id. ¶ 4. As DOM, Plaintiff managed a team of Marketing Executives, collaborated with the Sales team to increase overall sales and marketing, and provided information about the company's timeshare products to interested customers. Pl.'s Dep. 58:3-24, ECF No. 56-2.

         Plaintiff's immediate supervisor was Merrill Yavinsky (“Yavinsky”), who served as the Project Director for Sales and Marketing on Kauai from January 2010 to December 2015. Yavinsky Decl. ¶ 1, ECF No. 56-3. As such, he oversaw both the Marketing and Sales teams on Kauai. Id. Yavinsky's immediate supervisor was David Broderick (“Broderick”), [1] who served as the Regional Vice President of Sales and Marketing for the Hawaii region. Pl.'s Dep. 60:13-16, 61:16-22, 96:18-19.

         1. Discussion of Restructuring, Before Plaintiff's Protected Activity

         In late 2013, Yavinsky and Broderick began discussing the restructuring of Plaintiff's marketing team in response to the challenges to getting “tour flow.” Ex. A to Pl.'s CSF, ECF No. 70-3. In an October 28, 2013 email, Broderick asked Yavinsky to consider “restructur[ing] marketing team” and “eliminat[ing] DOM position in favor of 1 dedicated experienced marketing manager and or senior marketing managers.” Id. On November 14, 2013, Broderick recommended that Yavinsky hire “1 entry level marketing manager” but made no mention of the DOM position, which Plaintiff held at the time. Ex. B to Pl.'s CSF, ECF No. 70-4. Yavinsky emailed Broderick back on November 15, 2013, stating, “I am inferring from your email that if we are not meeting tour expectations early in 2014, we will reevaluate the DOM position.” Id. Broderick responded by email later that day:

You are correct in the assumption that if we are not able to really improve on productivity in significant fashion by end of Period 1 2014 we will have to revisit your overall Marketing structure which of course would include a review of the DOM position as well as other facet [sic] of the Marketing Operation and Personnel.[2]

Ex. C to Pl.'s CSF, ECF No. 70-5.

         On November 26, 2013, Broderick asked Yavinsky to “prepare a 1 or 2 page executive summary of how [he] propose[s] to move forward together with timeline, issues, personnel and any other particulars or challenges [he] may for see [sic].” Ex. D to Pl.'s CSF, ECF No. 70-6. Yavinsky sent Broderick a formal memo dated December 4, 2013, proposing a number of changes, including “eliminat[ing] the DOM position and hir[ing] ¶ 2nd front line Marketing Manager position.” Ex. D to Def.'s CSF, ECF No. 56-6. The document proposed other organizational changes “to lower overhead costs, improve tour production, improve sales efficiencies, and ultimately drive higher profitiability, ” but made no mention of new tour restrictions. Id.

         2. Plaintiff Reports Sexual Harassment Allegations

         On December 9, 2013, Marketing Manager Sandy Wabinga (“Wabinga”) and Sales Experience Manager Teresa Doria approached Plaintiff and told him that Sales Executive Shawn Hunandi (“Hunandi”) had been sexually harassing them. Pl.'s Dep. at 110:12-18. Plaintiff reported these allegations to Regional Director of Human Resources Kelly Soldwisch (“Soldwisch”) the next day. Id. at 111:1-11. After an investigation into the allegations, Hunandi was fired on December 20, 2013. Soldwisch Decl. ¶ 3, ECF No. 56-7.

         In her investigation, Soldwisch spoke with Wabinga, who told Soldwisch that “[s]he and others have been afraid to say anything because they fear for their jobs as Merrill [Yavinsky] has a close personal relationship with Shawn [Hunandi].” Ex. E to Pl.'s CSF, ECF No. 70-7. Yavinsky admits that Hunandi is a “good friend.” Yavinsky Dep. 53:10-13, ECF No. 70-28. In fact, Hunandi was one of only ten people at Yavinsky's wedding, and in October 2012, Yavinsky's family and Hunandi's family vacationed together in Napa Valley. Id. at 55:18-56:21. And when Plaintiff learned of the allegations against Hunandi, Hunandi was vacationing in San Francisco with Yavinsky and their respective sons. Id. at 52:20-53:9, 67:3-17.

         In mid-December 2013, Yavinsky was made aware of the allegations of sexual harassment against Hunandi. Yavinsky Decl. ¶ 8. Yavinsky was disappointed that Plaintiff told Human Resources instead of coming to him personally, and expressed this disappointment to Plaintiff sometime in late December 2013. Id. ¶ 8; Pl.'s Dep. 125:20-126:25.

         It is unclear if or when Broderick learned of Plaintiff's role in reporting the sexual harassment allegations against Hunandi.

         3. Tour Restrictions on Kauai

         On January 2, 2014, twelve days after Hunandi was terminated, Yavinsky put new tour restrictions in place at Plaintiff's location in Kauai. Pl. Decl. ¶ 34. Primarily, the new tour restrictions prevented tours to anyone who had toured any Marriott property in the previous nine months. 2d Yavinsky Decl. ¶ 2, ECF No. 71-6; Yavinsky Dep. 126:20-127:19. This restriction remained in place for five to six weeks, before Yavinsky reduced it to a three-month restriction on tours system-wide, and a six-month restriction on tours on Kauai. 2d Yavinsky Decl. ¶¶ 2-3. Yavinsky alone implemented these restrictions, and does not recall discussing them with Broderick. Yavinsky Dep. at 127:20-129:10.

         As of July 22, 2016, some other changes were made to tour restrictions on Kauai:

[W]e have opened up, if an owner is staying on points, using their points for their stay, that we do not restrict them from touring if they had stayed -- or they have toured at another site within the past three months. . . .
As far as our in-house non-owner qualifications, I believe the same qualifications were -- are in place that we put in place in early 2014 except I believe that we updated the qualifications to allow friends who are staying in an ...

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