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Grant v. Marriott Ownership Resorts, Inc.

United States District Court, D. Hawaii

November 21, 2018




         Before the Court are Defendant Marriott Ownership Resorts, Inc.'s (“MORI”): Motion for Summary Judgment as to All of Plaintiff Sandra Denise Kelly's Claims (“Kelly Motion”), filed on April 20, 2018; and MORI's Motion for Summary Judgment as to All of Plaintiff Robin Reisinger's Claims (“Reisinger Motion”), also filed on April 20, 2018. [Dkt. nos. 77, 79.] On June 25, 2018, Plaintiff Sandra Denise Kelly (“Kelly”) and Plaintiff Robin Reisinger (“Reisinger”) each filed her respective memorandum in opposition (“Kelly Opposition” and “Reisinger Opposition”). [Dkt. nos. 96, 98.] MORI filed its replies to the Kelly Opposition and Reisinger Opposition (“Kelly Reply” and “Reisinger Reply”) on July 2, 2018. [Dkt. nos. 100, 101.] On July 11, 2018, MORI filed letters stating it intended to rely on additional authorities at the hearing. [Dkt. Nos. 102, 103.] The Kelly Motion and the Reisinger Motion came on for hearing on July 16, 2018, and this Court granted Reisinger and MORI leave to file supplemental memoranda. [Minutes, filed 7/16/18 (dkt. no. 104).] Reisinger filed her supplemental memorandum on July 20, 2018, and MORI filed its response on July 24, 2018. [Dkt. nos. 105, 106.] This Court issued its ruling on the Kelly Motion and the Reisinger Motion on August 16, 2018 (“8/16/18 EO Ruling”). [Dkt. no. 109.]

         Also before the Court is MORI's Motion for Summary Judgment as to All of Plaintiff Andrew Grant's Claims (“Grant Motion”), filed on May 11, 2018. [Dkt. no. 82.] Plaintiff Andrew Grant (“Grant”) filed his memorandum in opposition on August 31, 2018 (“Grant Opposition”), and MORI filed its reply (“Grant Reply”) on September 10, 2018. [Dkt. nos. 111, 113.] The Grant Motion came on for hearing on September 24, 2018, and this Court issued its ruling on the Grant Motion on October 2, 2018 (“10/2/18 EO Ruling”). [Dkt. no. 116.]

         A further ruling on the Kelly Motion, the Reisinger Motion, and the Grant Motion (collectively “Motions”) was issued on October 22, 2018 (“10/22/18 EO Ruling”). [Dkt. no. 116.] The instant order supersedes the 8/16/18 EO Ruling, 10/2/18 EO Ruling, and 10/22/18 EO Ruling. MORI's Motions are hereby granted in part and denied in part for the reasons set forth below.


         On January 12, 2016, Grant, Kelly, and Reisinger (“Plaintiffs”) initiated this action in state court against Marriott Vacations Worldwide Corporation (“MVWC”).[1] [Notice of Removal, filed 8/11/16 (dkt. no. 1), Decl. of Sarah O. Wang (“Wang Removal Decl.”), Exh. A (Complaint).[2] On June 26, 2016, Plaintiffs filed their First Amended Complaint against MVWC. [Wang Removal Decl., Exh. B.] The state court approved Plaintiffs and MVWC's stipulation to allow the filing of a second amended complaint and, on August 2, 2016, Plaintiffs filed their Second Amended Complaint against MORI. [Id., Exhs. C, D.] MORI accepted service of the Second Amended Complaint on August 3, 2016. [Id., Exh. E (acknowledgment of service).]

         The Second Amended Complaint alleges the following claims: violation of Title VII of the Civil Rights Act of 1964 (“Title VII” and “Count I”); [Second Amended Complaint at ¶¶ 645-47;] violation of Haw. Rev. Stat. § 378-2 (“Count II”); [id. at ¶¶ 648-50;] and violation of the Hawai'i Whistleblower Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62 (“Count III”), [id. at ¶¶ 651-50]. Plaintiffs pray for general, special, and punitive/exemplary damages; attorneys' fees and costs; pre-judgment and post-judgment interest; and any other appropriate relief. [Id. at pg. 65.]

         Plaintiffs all worked for MORI as timeshare sales executives at its Ko'Olina location. [Id. at ¶¶ 7, 309, 500, 524; Answer to Second Amended Complaint, filed 11/11/16 (dkt. no. 16), at ¶¶ 1, 49, 72, 75 (admitting employment allegations). Plaintiffs allege:

1) Kelly was: terminated based on her gender and race (Caucasian); subjected to a sexually and racially hostile work environment; and terminated because of her alleged whistle-blowing activities;
2) Reisinger was: terminated based on her race (Caucasian); subjected to a racially hostile work environment; and terminated because of her alleged whistle-blowing activities; and
3) Grant was: terminated based on his race (Caucasian) and in retaliation for engaging in a protected activity; subjected to a racially hostile work environment; and terminated because of his alleged whistle-blowing activities.

         Plaintiffs' claims in this case are based upon their allegation that certain sales executives were treated more favorably than Plaintiffs were. The “favored” sales executives - in particular, Be Vuong - were allowed to review lists of potential tours, [3] which allowed them to “cherry-pick” the tours that were believed to be easier sales. [MORI's Concise Statement of Facts in Supp. of Kelly Motion (“MORI's Kelly CSOF”), filed 4/20/18 (dkt. no. 78), at ¶¶ 1-2; Kelly's Concise Statement of Facts (“Kelly CSOF”), filed 6/25/18 (dkt. no. 97), at ¶¶ 1-2 (stating MORI's ¶¶ 1-2 are undisputed).] In addition, the favored sales executives were provided more information about the potential customers participating in the tours. [MORI's Kelly CSOF at ¶ 1; Kelly CSOF at ¶ 1.] Plaintiffs allege the “[f]ront desk employees who assigned tours . . . ‘messed with' sales executives they were angry at or who made snide remarks to them, including non-Caucasians.” [MORI's Kelly CSOF at ¶ 4; Kelly CSOF at ¶ 4.] MORI seeks summary judgment as to all of Plaintiffs' claims.

         I. Kelly Motion

         Kelly is a Caucasian female who was not born in Hawai'i. She started working for MORI in June 2010 as a timeshare sales executive at the Marriott Vacation Club Ko'Olina Beach Club (“MVC-KOBC”). [Kelly Decl. at ¶¶ 3-4.[4] She resigned in September 2010 “due to having months without any sales and observing how the tours . . . were assigned.” [Id. at ¶ 5.] There was supposed to be a rotation line of sales executives who were assigned to tours as guests came in. The first guest was supposed to get the first sales executive in the line. The sales executives who had made sales the day before were moved to the front of the line. [MORI's Kelly CSOF, Decl. of Richard M. Rand (“Rand Kelly Decl.”), Exh. A (excerpts of trans. of Kelly's 3/1/18 depo. (“Kelly Depo.”)) at 18.] After the sales executives who made sales the day before, the order of the line was determined based on the sales in that period. [Id. at 176.] However, if a guest requested a specific sales executive, his tour was assigned to that executive, regardless of the executive's place in the line. [Id. at 178.] According to Kelly, the line process was not always followed, and the tour assignments were manipulated throughout the day. Kelly testified that tours where the marketing executive knew the guest intended to buy a timeshare were assigned to the top sales executives - Be Vuong, Tony Quach, and Kaleo Wong. In addition, Be Vuong and Mr. Quach would look through the tour sheets for the day. [Id. at 18-20.] According to Kelly, Be Vuong is Vietnamese, [Kelly Depo. at 159, ] and Mr. Quach and Mr. Wong are Asian, [id. at 135], but she does not identify what specific ethnicity they are.

         In March 2012, Kelly received assurances that things had changed, and she returned to employment at MVC-KOBC. [Kelly Decl. at ¶¶ 28-29.] When Kelly returned to work with MORI, the same management personnel were still there, as were the sales executives who Kelly believed had received favorable treatment during her previous employment. [Kelly Depo. at 17, 25, 43.]

         Kelly states that, when she returned to work in 2012, “the overall environment toward [her] by the employees at the front desk was not just unfriendly, but hostile.” [Kelly Decl. at ¶ 31.] According to Kelly, there were never any Caucasians who assigned tours at the front desk, and the front desk manager - Rayn Chamizo, who is not Caucasian - made it clear that she disliked Kelly. [Id. at ¶¶ 10-11, 20.] Ms. Chamizo would ignore direct questions from Kelly; would not look at Kelly; had an angry look on her face when she had to answer Kelly's questions; scowled at Kelly; made Kelly wait while she made personal calls; was always rude to Kelly; and never smiled at Kelly in a genuine way. [Id. at ¶¶ 21, 202-04.] When Kelly was in the lunchroom with Ms. Chamizo and other front desk employees, they would: make comments about haoles;[5] speak in heavy pidgin English accents, which Kelly asserts was to “purposefully ignore and isolate [her] from any conversation”; share food with other non-Caucasians without offering Kelly any; and would not acknowledge Kelly's presence in the room. [Id. at ¶¶ 22-23.] However, when Ms. Chamizo was not present, “a couple of the other non-Caucasian staff” would talk to Kelly. [Id. at ¶ 24.]

         Kelly testified that the front desk employees primarily gave favorable treatment to Be Vuong and Mr. Quach, and occasionally to Mr. Wong. [Kelly Depo. at 202.] Be Vuong's brother, Hong Vuong, also received special treatment from the front desk employees and the team leaders because of his brother. [Id. at 131.] The non-Caucasian front desk employees also made the Caucasian sales executives obtain signatures and approvals that Be Vuong, Mr. Quach, “and a few others” did not have to obtain. [Kelly Decl. at ¶ 162.] In addition, Be Vuong was able to get concessions from Gregory Grigaitis[6] that would help Be Vuong close sales. Kelly would rarely get similar concessions and, when she did, she had to go through her team leader first. [Kelly Depo. at 74-75.]

         Kelly asserts the tours were manipulated so that Be Vuong, Mr. Quach, and Mr. Wong - all of whom are non-Caucasian - were given when she calls “the ‘good tours.'” [Kelly Decl. at ¶ 32.] According to Kelly,

it is widely believed by the sales executives, sales managers and the front desk employees assigning the tours that customers likely to buy have the following characteristics: people that are wearing expensive jewelry (rings and watches), dressed in nice/expensive clothes and shoes, those who scheduled through marketing kiosks where the customer would provide information that would allow the sale executives insight as to their intent in buying which would be documented on “tour sheets” at the front desk and the race of the person: Caucasian-Americans, Chinese, Filipino and Japanese people were considered “good tours” that would likely buy. Conversely, the tours that were considered “bad tours” by sales executives, sales managers and the front desk employees assigning the tours at Ko'Olina were: Indian people, African-American people and people dressed in cheap clothing and shoes.

[Id. at ¶ 26.] Kelly asserts these are “proven indications as to whether the touring customers will be a good chance of making a sell [sic]” and, based on her experience and statements from other sales executives, “the likelihood of making sales to Indians and African-Americans was much less likely than selling to Caucasian-Americans, Chinese, Filipino and Japanese people.” [Id.] Kelly states the non-Caucasian front desk employees would profile guests who checked in for tours based on these characteristics and give the best tours to Be Vuong, Mr. Quach, Mr. Wong, and other non-Caucasian sales executives. Kelly also heard front desk employees, managers (including Mr. Her), and the favored sales executives talking about guests, the aforementioned characteristics, and whether the certain guests would be good tours or bad tours. [Id. at ¶¶ 44-45.] Kelly never saw Be Vuong, Mr. Quach, or Mr. Wong have a bad tour, nor did she hear of them having bad tours. However, the three would talk about or laugh at other sales executives who had bad tours. [Id. at ¶ 49.]

         Plaintiffs concede the alleged favorable treatment was detrimental to both male and female sales executives and to both Caucasian and non-Caucasian sales executives, but Plaintiffs emphasize that all the executives who received favorable treatment were non-Caucasians, and the detrimental effects were predominantly felt by Caucasians. [MORI's Kelly CSOF at ¶ 3; Kelly CSOF at ¶ 3 (partially disputing MORI's ¶ 3, subject to the aforementioned clarification).] Plaintiffs are not alleging tours were completely withheld from the disfavored sales executives, and they acknowledge that the factors sales executives use to predict whether a tour was good or bad do not always hold true. Ultimately, the sales executive has to make the sale. [MORI's Kelly CSOF at ¶¶ 1, 5; Kelly CSOF at ¶¶ 1, 5.]

         According to Kelly, within six months after returning to work at MVC-KOBC, she spoke to her supervisors, Xee Her and Melinda Chasteen, [7] about her concerns regarding Be Vuong's conduct. Kelly's concerns included: Be Vuong being assigned tours outside of the ordinary line rotation; his disrespect for management; his buying lunch for front desk employees, which Kelly alleged was part of the reason he received special treatment;[8] and his having computer access to obtain additional information about touring guests.[9] [MORI's Kelly CSOF at ¶ 7; Kelly CSOF at ¶ 7.] Kelly never went to Mr. Her to complain about something Be Vuong had done directly to her. [Kelly Depo. at 41.] Further, the only time Kelly may have attempted to use MORI's “guarantee of fair treatment” (“GFT”) process was when she attempted to obtain a copy of the corporate attendance policy after her termination.[10] [MORI's Kelly CSOF at ¶ 9; Kelly CSOF at ¶ 9.] Kelly's position is that she believed: she could not complain about Be Vuong because he was protected by Mr. Her; and complaints about Be Vuong could cost a sales executive her job. The management could force a sales executive's termination for not meeting the required sales levels by manipulating the tours that the complaining executive received so that the executive was less likely to sell timeshares. [Kelly Decl. at ¶¶ 58-59.] Kelly emphasizes Mr. Her and Mr. Grigaitis knew about the racially discriminatory tour manipulation, but they did nothing to prevent it, and in fact contributed to it. [Id. at ¶ 199.] Kelly found the tour manipulations to be “extremely stressful” because a Caucasian sales person's income was “literally controlled by the front desk.” [Id. at ¶¶ 197-98.]

         Kelly describes an example of the tour manipulation, although she did not specify the date of the incident. A couple from India was the first to arrive for a tour, and they should have been assigned to the first sales executive on the line. Another sales executive - Takio Mogi, who is Japanese - laughed and said that the couple was going to be Kelly's tour. Kelly thought he was right because of the favoritism in tour assignments, but she told him that she was third on the line and should not be assigned the couple's tour. Mr. Mogi laughed and repeated that it was going to be her tour. [Id. at ¶¶ 167-72.] Mr. Quach was first on the line that day, but the Indian couple's tour was assigned to Kelly. Kelly notified the front desk about the apparent discrepancy, but they responded that Mr. Quach's tour was assigned. [Id. at ¶¶ 174-75.] According to Kelly, assigned tours was “a common excuse” for tour manipulation, but she could not verify whether a purported assignment was accurate or not because the front desk “had complete control over everything.” [Id. at ¶¶ 176, 178.] Kelly notified Mr. Her about this incident, but he did nothing. [Id. at ¶ 179.]

         Plaintiffs also submit other testimony, which they argue shows the tour manipulation was racially motivated. Grant states that, on one occasion (he does not specify the date), he asked Mr. Her how he “could get more of the good Encore tours, ”[11]and “Mr. Her smirked and told [him]: ‘Your skin is the wrong color.'” [Kelly CSOF, Decl. of Andrew Grant (“Grant Kelly Decl.”) at ¶¶ 344-45.[12] Plaintiffs present a declaration of a Caucasian male, also a previous MVC-KOBC timeshare sales executive, who asked Ms. Chamizo “how [he] could keep getting so many bad tours.” [Kelly CSOF, Decl. of Sebastian Brevart (“Brevart Decl.”) at ¶ 6.] Mr. Brevart states, “[a]s always, she glared at [him] like she despised [him] and said under her breath ‘Sucks to be Haole.'” [Id. at ¶ 7.] Mr. Brevart resigned a few days after this incident. [Id. at ¶ 8.]

         A. Termination

         1. General Policies

         The 2014 version of the MVC-KOBC Westbound Eagle Flight Plan (“Flight Plan”) was the Local Standard Operating Procedures Manual for line sales associates at the time of Kelly's termination. [Kelly Depo., Exh. 16 (2014 Flight Plan).] Kelly admits receiving the 2014 Flight Plan. The 2014 Flight Plan provides for the following discipline sequence: documented verbal warning; written warnings; and immediate suspension pending separation if three written warnings are received in a twelvemonth period. A sales associate could receive a warning for unsatisfactory sales performance or for behavior issues, including attendance matters like a “no call/no show.”[13] [MORI's Kelly CSOF at ¶ 10; Kelly CSOF at ¶ 10 (stating MORI's ¶ 10 is undisputed, except that Kelly asserts the deactivation policy superseded the discipline policy in the 2014 Flight Plan); 2014 Flight Plan at 3 of 26.] The 2014 Flight Plan states the discipline policy would be modified if an employee was “beginning an approved LOA [(leave of absence)] or extending a current LOA.” [2014 Flight Plan at 3 of 26.] The 2014 Flight Plan's discipline policy contains the following section, titled “Eagle Passes”:

If an SE [(Sales Executive)] generates $30, 000 in direct business in a period or $80, 000 over the course of three consecutive periods the oldest PERFORMANCE warning will be deemed inactive and any additional performance warnings will be backed up to the previous sequence step.
If an SE achieves Sapphire status in 2014 all previous PERFORMANCE warnings will be deemed inactive.

[Id. at 5 of 26 (emphases in original).] According to Kelly, sapphire status was the highest sales level. Kelly believed Be Vuong was at the sapphire level.[14] [Kelly Depo. at 213.] Kelly acknowledges neither of the Eagle Pass exceptions applied to her. [MORI's Kelly CSOF at ¶ 10; Kelly CSOF at ¶ 10; Kelly Depo. at 213.]

         At her deposition, Kelly testified that, if a sales associate had a written warning for low VPG, [15] the warning would “fall off” or “go away” if the associate had no further warnings for low VPG in the next three months (“Deactivation Policy”). [Kelly Depo. at 102.] According to Kelly, the Deactivation Policy was in effect in 2014, but it was developed outside of the 2014 Flight Plan. Someone may or may not have “sign[ed] off on a sheet” about it. [Id. at 103.] Kelly admits she did not invoke the Deactivation Policy either when she was terminated, when she appealed her termination, or when she filed a charge with the United States Equal Employment Opportunity Commission (“EEOC”). She also admits MORI, Grant, and Reisinger deny the existence of the Deactivation Policy that she describes. [MORI's Kelly CSOF at ¶ 11; Kelly CSOF at ¶ 11 (only disputing MORI's ¶ 11 to the extent it states Kelly has no evidence the Deactivation Policy existed).]

         Regarding the 2014 Flight Plan and its discipline policy, Kelly asserts “[t]hese policies changed all the time.” [Kelly Decl. at ¶¶ 148-49.] According to Kelly, Mr. Her told her that Mr. Grigaitis created the Deactivation Policy. [Id. at ¶ 150.]

         2. Events Leading to Kelly's Termination

         In January, February, and March 2013, Kelly was in the top five and ten for sales, which she argues proves she “was clearly able to sell timeshare units.” [Id. at ¶¶ 79, 81.] However, Kelly had knee surgery on March 28, 2013 in Honolulu. The surgery was unsuccessful, forcing her to use crutches for six weeks and have another surgery approximately seven months after the first surgery. [Id. at ¶¶ 83, 85, 92, 96.] Kelly states the situation with her knee and the tour manipulation were the reasons why she had little or no sales in the summer of 2013, resulting in her write ups in August and September for low VPG. [Id. at ¶¶ 97, 100-01.] Kelly's second knee surgery was on October 30, 2013 in Philadelphia, but she was back at work by the first week of December. Kelly made the top ten in sales for the first quarter of 2014. [Id. at ¶¶ 103-05.] However, after an April 2014 incident in which Kelly made a comment to front desk employee “Marchen”[16] that apparently angered Marchen, Kelly received worse tours than she had in the first quarter. [Id. at ¶¶ 109-14.] According to Kelly, her “sales went down due to the front desk, including Marchen's manipulation of the tours to [her] disadvantage, ” and Kelly only made one sale in April 2014. [Id. at ¶¶ 114-15.] “[S]ometime shortly after” the incident with Marchen, Kelly complained to Mr. Her about the manipulation of tours, but he ignored her complaint. [Id. at ¶¶ 116-17.]

         In December 2012, Kelly received a documented verbal warning for failing to meet the required VPG. In August 2013, Kelly received a written warning for failing to meet the required VPG. Kelly did not appeal the written warning. [MORI's Kelly CSOF at ¶¶ 20-22; Kelly CSOF at ¶¶ 20-22; Kelly Depo., Exh. 6 (Disciplinary Action Form, dated 12/3/12, for verbal warning), Exh. 11 (Disciplinary Action Form, dated 8/13/13, for written warning).] In September 2013, Kelly received a second written warning for failing to meet the required VPG. Kelly was aware that she faced suspension and termination if she received a third written warning, and she acknowledges that the option of an appeal was specifically reviewed with her. However, Kelly did not appeal the second written warning. [MORI's Kelly CSOF at ¶ 23; Kelly CSOF at ¶ 23; Kelly Depo., Exh. 12 (Disciplinary Action Form, dated 9/5/13, for written warning).]

         After the second written warning, Kelly's VPG, at a minimum, met the “safety net” level, excluding periods when her VPG was not calculated because she was on leave. [MORI's Kelly CSOF at ¶ 24; Kelly CSOF at ¶ 24.] Kelly had approved time off from April 23 to 29, 2014. On April 30, 2014, Kelly did not return to work. She did not call MVC-KOBC to say that she would be absent, because she believed she had turned in another leave request form which included leave on April 30.[17] However, Kelly's belief was mistaken, and her absence was deemed a no call/no show, resulting in Kelly's third written warning. When Kelly returned to work on May 1, 2014, she was issued a suspension pending termination notice, pursuant to the MVC-KOBC Attendance and Tardiness policy. [MORI's Kelly CSOF at ¶¶ 25-26; Kelly CSOF at ¶¶ 25-26;[18] Kelly Depo., Exh. 14 (Disciplinary Action Form, dated 5/1/14).] Kelly admits she is not aware of any specific sales executive who was not “written up” for a no call/no show, but she has heard there was someone who was not written up. [MORI's Kelly CSOF at ¶ 29; Kelly CSOF at ¶ 29.]

         Kelly tried to explain to Mr. Grigaitis about her illness and the other leave slip which included April 30, but he said the matter had to be reviewed. Kelly and Don Ardissone[19]went to Kelly's office, and he was present when she found the leave slip that included April 30. He advised her to speak with Mr. Grigaitis again and tell him that they found the slip. Kelly did so, but it did not make a difference. [Id. at ¶¶ 127-33.] According to Kelly, Mary Shumack, a broker and part of the MVC-KOBC management, said what was being done to Kelly was ridiculous and “this had happened before with other people and they did not get suspended for the no call/no show.” [Id. at ¶¶ 134-35.]

         Kelly obtained a note from her doctor stating she could not work from April 29 to May 5, 2014. Kelly attempted to give the note to Mr. Her, but he would not accept it. [Id. at ¶¶ 136-39.] Kelly went to a May 7, 2014 human resources (“HR”) review meeting with Mr. Her and Lesley Matsuwaki, [20] but they did not let Kelly speak, and they merely informed Kelly the incident was deemed a no call/no show, and the decision had been made to terminate her. [Id. at ¶¶ 141-43.] Kelly emphasizes that, prior to this incident, she had never received a warning or a write up for being late. She states she was only late for work once, and she had a pass because it was due to an accident. [Id. at ¶¶ 144-45.]

         On May 7, 2014, Kelly was informed that she would be terminated. Kelly does not recall being told that the reason for her termination was her three written warnings in a twelve-month period, but she understood that was the official reason for her termination. [MORI's Kelly CSOF at ¶ 27; Kelly CSOF at ¶ 27; Kelly Depo., Exh. 15 (Disciplinary Action Form, dated 5/7/14).] Kelly asserts that, under the Deactivation Policy, her August 2013 and September 2013 written warnings for low VPG should have been deactivated because of her subsequent three months of satisfactory sales. Without either, or both, of those written warnings, the no call/no show for April 30, 2014 would not have resulted in her termination under the 2014 Flight Plan's discipline policy. [Kelly Decl. at ¶¶ 150-53.]

         MORI has presented evidence that Mr. Grigaitis makes all of the termination decisions, with input from HR, for the MVC-KOBC sales executives. [Grigaitis Kelly Decl. at ¶ 11.] After Kelly received her suspension pending termination, Mr. Grigaitis: reviewed her situation; consulted with Jennifer O'Connor, the “Work Environment Manager for Sales and Marketing, West/Hawaii”; and made the decision to terminate Kelly. [Id.]

         In addition to Kelly, Grant and two non-Caucasian sales executives - one male and one female - were terminated during 2014 for having three written warnings in a twelve-month period. [MORI's Kelly CSOF at ¶ 6; Kelly CSOF at ¶ 6 (disputing MORI's ¶ 6 only to the extent Plaintiffs allege the reason for Grant's termination was pretextual).] Kelly acknowledged “[m]any people” were terminated because their VPG was consistently low. [Kelly Depo. at 56.] However, Kelly states the sales executives' sales numbers were posted near the break room, and there were many periods during Hong Vuong's time at MVC-KOBC when he did not have satisfactory sales. However, he was not written up when he should have been, and he would laugh and state he was not worried about being written up. [Kelly Decl. at ¶ 154.]

         Plaintiffs also argue they have presented other evidence that Kelly's termination was racially motivated. Reisinger and Grant both provide testimony that Mr. Her stated, less than a month before Ms. Kelly was terminated, “[i]t's a matter of time before we get rid of all the haole people.” Kelly CSOF, Decl. of Robin Reisinger (“Reisinger Kelly Decl.”) at ¶ 108; see also Grant Kelly Decl. at ¶¶ 232-34. Grant also states that, in a 2006 meeting with the new sales director, Peter Park, who Grant describes as Asian, Mr. Park “told [Grant] that his ultimate goal was to give Marriott's Ko Olina Beach Club more of a ‘local flavor' by hiring less Caucasian people.” [Grant Kelly Decl. at ¶¶ 9-10.] Grant asked Mr. Park if that was discrimination, and Mr. Park responded: “‘It's about time white people are discriminated against after hundreds of years!'” [Id. at ¶¶ 11-12.]

         B. Conduct in the Workplace

         According to Kelly, during her monthly reviews of her performance, Mr. Her would comment about how she dressed, and he would tell her to smile more, be more “girlie, ” and be more friendly. [MORI's Kelly CSOF at ¶ 13; Kelly CSOF at ¶ 13.] When Kelly would make a sale, Mr. Her would state that she must have worn a dress or that she must have smiled and been nice. Other sales executives would make jokes about Mr. Her's comments to Kelly. The sales executives would state Kelly should dress more provocatively. Someone, although Kelly does not recall who, made a comment about Kelly being flat-chested. [MORI's Kelly CSOF at ¶¶ 13-14; Kelly CSOF at ¶¶ 13-14.]

         Further, in groups of sales executives and team leaders, sexual jokes were told, but Kelly does not recall any specific ones. [MORI's Kelly CSOF at ¶ 15; Kelly CSOF at ¶ 15.] Sales executives and team leaders would also tell jokes and make fun of different ethnicities, including their own. For example, they would state that African-Americans and Indians were unlikely to buy timeshares, and they would refer to an Indian guest as “dot head.” Although at her deposition Kelly did not recall ever hearing anyone use the word “nigger, ” she now recalls that someone did so. [MORI's Kelly CSOF at ¶ 17; Kelly CSOF at ¶ 17 (disputing only that she never heard anyone use the word).] The sales executives also made jokes about how: haoles were rude, loud, and did not understand local culture; and Asians were bad drivers. [Kelly Depo. at 152, 159.] Kelly alleges Mr. Her made racial comments, including using the word haole when talking about a guest, but Mr. Her never called Kelly a haole to her face. He would also quote the movie “The Help” when trying to encourage associates to make sales, saying: “You is kind. You is smart. You is important.” [MORI's Kelly CSOF at ¶ 16; Kelly CSOF at ¶ 16.]

         Kelly states she heard racist and sexist jokes from sales executives and management, including Mr. Her, almost daily. Mr. Her and Be Vuong would mock people of Indian ancestry by copying their accent, and Be Vuong would make comments about African Americans raping women. [Kelly Decl. at ¶¶ 34-36.] However, Kelly asserts that, on her sales team, “being a Caucasian person, a haole, was clearly the worst disadvantage.” [Id. at ¶ 37.] According to Kelly, MVC-KOBC employees, including Mr. Her and Ms. Chamizo, used the term haole in a negative manner on a daily basis. The non-Caucasian sales executives and the front desk employees would state that haoles were not “‘one of us'” or would otherwise use the term to exclude Caucasians. [Id. at ¶ 38.] According to Kelly, a white person would be called haole when she did something stupid. [Id. at ¶ 39.]

         According to Kelly, most of the racist comments were made during the 8:30 a.m. meetings and in the team leaders' office, and the comments were most often about African-Americans and Indians. [Id. at ¶¶ 183, 185.] Kelly recalls one morning meeting (she does not specify the date) when “every conceivable name for an Indian was thrown out by many sales executives as if it was a competition, ” including “Dothead, towelhead, sandnigger, etc.” [Id. at ¶¶ 184, 186-87.] It was primarily the sales executives who participated in this, but Mr. Her “was present and also made comments and laughed, contributing and condoning this racist environment.” [Id. at ¶ 188.]

         Also at the morning meetings and with Mr. Her present, the sales executives made discriminatory statements about African-Americans, including using the word “nigger.” Kelly informed them she had nieces who were half African-American, and she had photos of her nieces in her office. Occasionally, the sales executives would stop using certain words when Kelly was present. [Id. at ¶¶ 190-92.] Kelly also states Mr. Her quoted “The Help” “more than once and quite regularly.” [Id. at ¶¶ 194-95.]

         Kelly found all of these racial comments “extremely offensive.” [Id. at ¶ 196.] As further evidence of the racial harassment at MVC-KOBC, Plaintiffs present other testimony about racially discriminatory statements:

• Mr. Her bragged in the lunchroom to other non-Caucasian sales executives: “It's another day of Asian Domination at Ko Olina Beach Club!” [Grant Kelly Decl. at ¶ 310.]
• In another incident, Grant asked Mr. Her why he married a Caucasian woman if he hated Caucasians so much. Mr. did not deny that he hated Caucasians, and he responded, “‘[s]o I can dominate her too!'” [Id. at ¶¶ 340-43; Ahuvia Decl. at ¶¶ 6-9.]
• Grant states: “On January 8, 2014, Mr. Brad DeLoach (Caucasian sales executive) and I overhear Mr. Her (non-Caucasian senior sales manager) say ‘The reason Paul Callaham (Caucasian) makes sales is that he dumbs the customer into the deal,' inferring that Paul is dumb.” [Grant Kelly Decl. at ¶ 183 (some internal quotation marks omitted).]
• Grant states: “In January 2014, Mr. Her told [him]: ‘Andrew, I think you should really go to Arizona. The people there are educated, good-looking, and it'll have a different feeling.” [Id. at ¶ 202.] According to Grant, Mr. Her was inferring “there is no racial tension/discrimination in Arizona against Caucasians.” [Id. at ¶ 203.]
• Kelly also states that, when Be Vuong talked about his gun collection, “why he has them and when he would use them, it was always some story about a black person intruding in his home or on his family.” [Kelly Decl. at ¶ 193.]

         However, MORI states, and Kelly does not dispute that:

The only alleged race-based comments and conduct directed toward [Kelly] by sales executives, [team leaders] and some front desk employees consisted of being called haole; feeling excluded in the break room when the front desk employees would not talk to her, would tell “haole jokes” and would speak “deep pidgin”; and a front desk employee not making eye contact with her.

[MORI's Kelly CSOF at ¶ 18; Kelly CSOF at ¶ 18.] Kelly does not allege either Ms. Chasteen or Mr. Grigaitis ever made offensive comments to her, whether based on either race or sex/gender. [Kelly Depo. at 138, 149-50.] Kelly admits she received MORI's policy regarding harassment, and she knew she could report concerns either to the on-site HR representative or on the toll-free hotline. However, she does not recall reporting any of the comments she found offensive. [MORI's Kelly CSOF at ¶ 8; Kelly CSOF at ¶ 8.]

         C. The Kelly Charge

         Kelly submitted a Charge of Discrimination, dated November 20, 2014, against Marriott Vacation Club International to the EEOC (“Kelly Charge”). It alleged discrimination based on race and sex, in violation of Title VII. It did not allege violations of Haw. Rev. Stat. § 378-2, nor did it allege retaliation. Further, it did not refer to the HWPA. [Kelly Depo., Exh. 29 (Kelly Charge).] The EEOC dismissed the Kelly Charge because it was unable to conclude there was a violation of the applicable statutes. [Id., Exh. 30 (Dismissal and Notice of Rights, dated 10/19/15).]

         II. Reisinger Motion

         In addition to the evidence relevant to the Kelly Motion, the parties have presented the following evidence regarding Reisinger's claims.

         Reisinger is a Caucasian female who was not born in Hawai'i. She started working for MORI in October 2004 as a timeshare sales executive at Kauai Beach Club. [Reisinger's Concise Statement of Facts (“Reisinger CSOF”), filed 6/25/18 (dkt. no. 99), Decl. of Robin Reisinger (“Reisinger Decl.”) at ¶¶ 3-4.] She later transferred to the Waiohai Beach Club, where she worked for five years. [Id. at ¶ 9.] In January 2010, the sales team moved to the Kauai Lagoons. [Id. at ¶ 12.]

         Plaintiffs assert Reisinger was a successful sales executive before she transferred to MVC-KOBC. At the Kauai Beach Club, Reisinger graduated first from her training class in November 2004, made the first sale in the training class in December 2004, and was the only one of the training class to complete the 180-day probationary period. She also won the Rookie of the Year award at the in 2005. [Id. at ¶¶ 5-8.] At the Waiohai Beach Club, she was promoted to the In House/Owner tour line after a couple of years, even though sales executives usually were only promoted to that line if the executive was an owner or had been on the regular sales line for at least five years. [Id. at ¶ 10.] At the Kauai Lagoons, after MORI started selling a new product in June 2010, Reisinger was the first to make a sale of the new product. [Id. at ¶¶ 13-14.]

         In addition to making sales, Reisinger: took care of hundreds of timeshare owners when they scheduled vacations; designed new sales collateral and sales technology that she would share with the Kauai team and the MVC headquarters; hosted sales executive training sessions; and was a mentor to new sales executives. [Id. at ¶¶ 16, 18-22.] She also received various awards while she was on Kauai. [Id. at ¶¶ 23-25.] Reisinger asserts all of this showed she “was highly qualified to work for MORI as a timeshare sales [executive].” [Id. at ¶ 26.]

         The parties agree that, during Reisinger's employment with MORI on Kauai: she was disciplined on numerous occasions, primarily for attendance and performance; she did not appeal any of those disciplinary actions; and “[i]n late 2011, her discipline brought her to the brink of termination.” [MORI's Reisinger CSOF at ¶ 1; Reisinger CSOF at pg. 2 (stating Reisinger has no objection to MORI's ¶ 1); MORI's Reisinger CSOF, Decl. of Richard M. Rand (“Rand Reisinger Decl.”), Exh. A (excerpts of trans. of Reisinger's 3/8/18 depo. (“Reisinger Depo.”), Exhs. 2-10 (documentation of Reisinger's verbal and written warnings from 3/3/06 to 12/12/12).] Reisinger knew she could appeal each of those disciplinary actions, but she did not do so because she believed they were fair. [Reisinger Depo. at 43-45, 51-52, 56, 61, 66, 68-69.]

         In June 2013, Reisinger moved to Oahu and transferred to MVC-KOBC. [Reisinger Decl. at ¶ 28.] Mr. Her was Reisinger's immediate supervisor. [MORI's Concise Statement of Facts in Supp. of Reisinger Motion (“MORI's Reisinger CSOF”), filed 4/20/18 (dkt. no. 80), Decl. of Gregory Grigaitis (“Grigaitis Reisinger Decl.”) at ¶ 2.] Reisinger was terminated on April 30, 2014. [MORI's Reisinger CSOF at ¶ 14; Reisinger CSOF at pg. 2.]

         Like Kelly's claims, Reisinger's claims are also based, in part, on the favoritism shown to Be Vuong, which Reisinger asserts “‘trickle[d] down'” to sales executives who were his friends. [MORI's Reisinger CSOF at ¶ 6; Reisinger CSOF at pg. 2.] Be Vuong's friends were various races, but none were Caucasian. However, Reisinger acknowledges there were Caucasian sales executives who did well at MVC-KOBC. Reisinger believed: anyone on Be Vuong's bad side would not do well; and she was on his bad side because she once refused to help him make a sale to guests who had previously made a purchase from her. [MORI's Reisinger CSOF at ¶ 7; Reisinger CSOF at pg. 2.]

         A. Conduct in the Workplace

         Reisinger alleges the following comments and conduct, which she asserts were race-based, occurred during her employment:

(a) Mr. Her made comments such as, “Finally, I knew I hired you for a reason, ” or “I haven't been happy that we hired you, but now you're finally doing something”; (b) Mr. Her made a comment to an unknown person, in an unknown context, “It's only a matter of time until we get rid of all these haoles”; (c) on one occasion, front desk manager . . . Rayn [Chamizo] made Plaintiff Reisinger wait while Rayn finished a personal phone call and got off the phone by saying, “This haole is waiting in the hallway”; (d) when Plaintiff was trying to use the printer, a receptionist said, “You people aren't allowed to touch this, ” and did not explain what she meant by “you people”; and (e) on one occasion, when Plaintiff was trying to figure out how long it would take to print a contract, a contract manager screamed at Plaintiff to go back to her desk.

[MORI's Reisinger CSOF at ¶ 8; Reisinger CSOF at pg. 2.] According to Reisinger, she reported race discrimination to HR. [MORI's Reisinger CSOF at ¶ 20; Reisinger CSOF at pg. 2.]

         In addition, Reisinger states she “witnessed a number of incidents at Ko'Olina that were not only against MORI's Standard Operating Procedure but were not in keeping with the MORI culture that [she] was used to in Kauai.” [Reisinger Decl. at ¶ 61.] Reisinger describes similar conduct involving Be Vuong and others that Kelly described. Reisinger states she reported the discriminatory tour manipulation to HR a couple months before her termination. [Id. at ¶¶ 56, 100.] Reisinger also told Ms. Matsuwaki she was being picked on because of her race. [Id. at ¶ 117.] Ms. Matsuwaki told Reisinger that the tour manipulation was impossible because it would be illegal, and MORI does not do illegal things. [Id. at ¶ 101.] Reisinger states that, throughout her employment at MORI, she made numerous complaints about Be Vuong's preferential treatment. She also reported to Mr. Grigaitis that Be Vuong was acting like a bully. [Id. at ¶ 116.]

         Reisinger describes an incident in which Mr. Grigaitis asked her to contact some of her owners who had just done a tour with Be Vuong and to lie to them so that they would buy from Be Vuong. [Id. at ¶¶ 57-59.] Reisinger states she and Grant overheard Mr. Her make the “matter of time” statement on April 9, 2014. She asserts all Plaintiffs were terminated soon after this statement. [Id. at ¶¶ 107-09.]

         B. Termination

         At the time of her transfer to MVC-KOBC, Reisinger received the Associate Handbook (“Handbook”) and a version of the Flight Plan. Both included a progressive discipline policy that provided for termination after a third written warning. [MORI's Reisinger CSOF at ¶ 2; Reisinger CSOF at pg. 2.] According to Reisinger, until January 2014, MORI's policy only required termination if there were three written warnings for the same infraction. In January 2014, the policy was changed so that termination would result from any three infractions, and Reisinger believed this was to target her for termination. However, she admits the policy change affected other sales executives, not only her or other Caucasian sales executives. [MORI's Reisinger CSOF at ¶ 3; Reisinger CSOF at pg. 2.] Reisinger also admits that “warnings for low VPG ‘happen[ed] pretty often' to many sales executives.” [MORI's Reisinger CSOF at ¶ 4; Reisinger CSOF at pg. 2.] The parties agree that having three call-offs[21] on non-consecutive days is considered excessive and would result in a verbal or written warning for attendance problems, depending on the employee's status in the discipline system. [MORI's Reisinger CSOF at ¶ 5; Reisinger CSOF at pg. 2.]

         On August 7, 2013, Reisinger received a verbal warning for three non-consecutive call-offs. She did not contest the warning. [MORI's Reisinger CSOF at ¶ 9; Reisinger CSOF at pg. 2; Reisinger Depo., Exh. 22 (Disciplinary Action Form, dated 8/7/13).] The parties agree that, on December 16, 2013, Reisinger received a Disciplinary Action Form for having another three non-consecutive call-offs. [MORI's Reisinger CSOF at ¶ 10; Reisinger CSOF at pg. 3 (disputing other portions of MORI's ¶ 10).] The typewritten Disciplinary Action Form states the incident date was December 10, 2013, and the discipline type is “Verbal Warning, ” but the version MORI submitted in support of the Reisinger Motion has an initialed, handwritten note that appears to say “written.” [Reisinger Depo., Exh. 25 at ¶ 000185.] Reisinger contests the handwritten modification of the form. She states the copy she received does not have any handwritten notation that it was changed from a verbal warning to a written warning. [Reisinger Decl. at ¶ 111, Exh. 1.] It was not until her deposition in this case that she saw the version of the December 10, 2013 form with the handwritten change. According the Reisinger, the handwriting is Mr. Her's. [Reisinger Decl. at ¶ 112.]

         On April 4, 2014, Reisinger was issued a verbal warning for low VPG, which she did not dispute. [MORI's Reisinger CSOF at ¶ 11; Reisinger CSOF at pg. 2; Reisinger Depo., Exh. 26 (Disciplinary Action Form, dated 4/4/14, for incident date 3/26/14).]

         On April 12, 2014, Reisinger signed a Disciplinary Action Form for a written warning for three non-consecutive call-offs. The form stated it was a her second written warning. [MORI's Reisinger CSOF at ¶ 12; Reisinger CSOF at pg. 2; Reisinger Depo., Exh. 27 (Disciplinary Action Form, dated 4/12/14).] When Reisinger saw the April 12, 2014 written warning, which said the December 10 warning was a written warning, she thought it was a mistake. [Reisinger Decl. at ¶ 112.] Reisinger argues the April 12, 2014 written warning is unjustified because she had a valid reason for missing work on March 18, 2014. On March 17, 2014, after notifying the supervisor on duty, Reisinger left early to obtain medical treatment. On March 19, 2014, she returned to work and submitted a doctor's note stating she was excused from work on March 18. Reisinger gave the original note to Mr. Her. He stated he would give a copy back to her but he never did. [Id. at ¶¶ 113-14, Exh. 2 (medical bills for the 3/17/14 office visit).]

         On April 25, 2014, Reisinger received a written warning for low VPG. Because this was considered her third written warning in a twelve-month period, it constituted a suspension pending termination. Reisinger does not dispute that her VPG was below the minimum level at that time. She was told there would be an investigation, but she does not know what was actually investigated. [MORI's Reisinger CSOF at ¶ 13; Reisinger CSOF at pg. 2; Reisinger Depo., Exh. 28 (Disciplinary Action Form, dated 4/25/14).] At an April 30, 2014 follow-up meeting, Mr. Her and Ms. Matsuwaki informed Reisinger she was being terminated. [MORI's Reisinger CSOF at ¶ 14; Reisinger CSOF at pg. 2.]

         After Reisinger received her suspension pending termination, Mr. Grigaitis: reviewed the situation; consulted with Ms. O'Connor; and made the decision to terminate Reisinger. [Grigaitis Reisinger Decl. at ¶ 7.] MORI emphasizes other sales executives besides Plaintiffs were terminated for having three written warnings, and these include non-Caucasians. [MORI's Reisinger CSOF at ¶ 16 (some citations omitted) (citing MORI's Reisinger CSOF, Decl. of Lesley Ann Matsuwaki (“Matsuwaki Reisinger Decl.”) at ¶ 5; Grigaitis Reisinger Decl. at ¶ 3).] However, Reisinger argues she should not have gotten “strikes” for poor sales because her poor sales were due to the discriminatory tour manipulation that disadvantaged Caucasians. [Reisinger Decl. at ¶ 110.]

         The parties agree Reisinger did not try to use the GFT process until her termination. [MORI's Reisinger CSOF at ¶ 17; Reisinger CSOF at pg. 2.] Reisinger believes Hong Vuong was not terminated for poor performance, but she does not have personal knowledge of any discipline he ...

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