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Maybin v. Hilton Grand Vacations Co., LLC

United States District Court, D. Hawaii

September 27, 2018

CARL MAYBIN, Plaintiff,


          Derrick K. Watson, United States District Judge


         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.


         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 started “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”).
Under 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.

         Kannel 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 ...

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