United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
Grand Vacations Company, LLC (“Hilton”) seeks
summary judgment on Plaintiff Carl 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. After Maybin failed to meet sales quotas for
several consecutive months and was subject to progressive
written warnings, Hilton terminated him. Maybin, however,
contends that age-based discrimination by his supervisors
hindered his ability to complete sales and adequately perform
his job. Because there are genuine issues of material fact
with regard to the veracity of Hilton's performance-based
explanations, which Hilton did not fully address, the Motion
for Summary Judgment as to Count I is DENIED.
was hired by Hilton as a sales agent in September 2015 when
he was 55 years old. Before his hiring, Maybin had a series
of job interviews. He first interviewed with Derek Kanoa,
Vice President of Sales, and then with Julia Montenegro, a
senior member of Hilton's Human Resources department.
Decl. of Carl Maybin ¶ 3, Dkt. No. 26-1. Maybin followed
that by interviewing with Dave Colton, and last with Joshua
Kannel, the Hawaii Director of Sales. Maybin Decl.
¶¶ 3-4. Based upon Kannel's recommendation and
request, Maybin was hired on September 14, 2015. Decl. of
Joshua Kannel ¶ 7, Dkt. No. 21-1.
to Maybin, shortly after he was hired, he witnessed Kannel
display overt animus towards older sales agents by making
negative comments about their abilities at sales meetings.
Maybin avers that Kannel “ridicule[d] [himself], Bob
Bennett, Jose Henao, and Richard Green because of their
ages[, ]” each one of them “sales agents in
[their] late 50s.” Maybin Decl. ¶ 6. For example,
Kannel said they “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 started “and continued [making them]
throughout [his] employment” with Hilton. Maybin Decl.
Hilton contends that Maybin was terminated because he was not
performing his job adequately as measured by objective
performance standards, Maybin asserts 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's 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. Kannel was responsible for creating the daily
“‘roter' or list of sales people in the order
that they would get tours.” Maybin Decl. ¶ 10.
Those employees listed near the top of the
“roter” were assigned a greater number of tours,
according to Maybin, “usually 2 or 3 per day, [however,
] [i]f you were at the bottom of the list, you would get
none, or 1 to 2 tours per day.” Maybin Decl. ¶ 11.
In Maybin's version of events, he was
“intentionally given less tours, even though he was a
high producer of sales. Being given less tours resulted in
less sales, [because] [i]f you don't get customers for
tours, you get less sales.” Maybin Decl. ¶ 9. From
the end of February 2016, Maybin claims that he “was
placed toward the bottom of the ‘roter', even
though [his] sales performance had been good, and [he] was
meeting quotas.” Maybin Decl. ¶ 12.
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 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. Because “[o]nly the sales managers [such as
Wilson] could do the actual sales, ” this meant that
Maybin lost sales “about ten times” because of
Wilson's alleged conduct. Maybin Decl. ¶ 15. Maybin
asked three times to be reassigned to another sales manager,
but claims that his requests were “refused.”
Maybin Decl. ¶ 16.
received his first written job performance warning in May
2016 for failure to meet Hilton's job performance
standards. Hilton assesses sales agents and executives'
performance under its “Minimum Performance
Standards” system (“MPS”), which operates
in the following manner:
Under the MPS, during the first three months of employment,
Sales Executives were required to complete a total of five
sales within that three month period.
Under the MPS, during the second three months of employment,
Sales Executives were required to complete a total of seven
sales within that second three month period.
Once a Sales Executive had passed the first six months of
employment, their MPS requirements changed from being based
on the number of sales made to a “Value Per
Guest” (“VPG”) basis.
Under the MPS, after six months of employment, Sales
Executives were required to meet a monthly VPG minimum of $2,
200 in at least one of the three following categories: (1)
current month, (2) an average of the prior three month
period, or (3) an average of the prior twelve month period.
Kannel Decl. ¶ 8(b)-(e) (citing Ex. 1). 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
Under the Job Performance Warning System[, ] the progression
is as follows: (1) written warning, (2) a second/final
written warning, and (3) termination.
Kannel Decl. ¶ 12(a)-(b) (citing Ex. 1).
to Hilton, during the final four months of his employment,
Maybin did not meet any of the standards under the MPS. 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