United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR
Derrick K. Watson, United States District Judge
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.
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
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. 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.
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.
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.
received his first written job performance warning in May
2016 for failure to meet Hilton's job performance
standards. 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
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.
12/8/17 Kannel Decl. ¶ 12(a)-(b) (citing Ex. 1).
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. 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.
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.
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.
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.
September 27, 2017, Maybin filed his Complaint alleging three
counts under the ADEA: (1) age discrimination; (2) hostile
work environment; and (3) retaliation. 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
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 ...