Ahuvia v. Wyndham Vacation Resorts, Inc.
| Decision Date | 18 December 2013 |
| Docket Number | Civ. No. 10–00648 ACK–BMK. |
| Citation | 988 F.Supp.2d 1184 |
| Parties | Ofer AHUVIA, Plaintiff, v. WYNDHAM VACATION RESORTS, INC., Defendant. |
| Court | U.S. District Court — District of Hawaii |
OPINION TEXT STARTS HERE
Glenn H. Uesugi, Michael Jay Green, Peter C. Hsieh, Honolulu, HI, for Plaintiff.
Christopher J. Cole, Darin Robinson Leong, Marr Jones & Wang LLLP, Honolulu, HI, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT, DATED NOVEMBER 13, 2013
This case arises from Plaintiff Ofer Ahuvia's (“Plaintiff” or “Ahuvia”) termination of employment from Defendant Wyndham Vacation Resorts, Inc. (“Defendant” or “Wyndham”). On November 13, 2013, this Court issued an Order Granting in Part and Denying in Part Defendant's Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment (“Summary Judgment Order”). ECF No. 118. A more extensive procedural and factual background of this case may be found in this Court's Summary Judgment Order. For the purposes of addressing the current motion, the Court sets forth the relevant background as follows.
Plaintiff was born in 1951 in Israel. (Def.'s Concise Statement of Facts (“CSF”) at 1, ¶ 6; Plntf.'s CSF at 2.) 1 Wyndham hired Plaintiff as a sales representative in April 2002 to work at its sales office located in Honolulu, Hawaii. (Def.'s CSF at 1, ¶ 7; Plntf.'s CSF at 2.) Plaintiff alleges that he was a “top producer and salesperson” for Wyndham. (Second Amended Complaint (“SAC”) ¶¶ 21–22.)
Plaintiff alleges that, beginning in 2006, Wyndham “management employees,” openly favored another in-house salesperson, Aline Lam, an Asian female in her early thirties. (SAC ¶¶ 35, 38.) Plaintiff makes numerous allegations of favoritism toward Ms. Lam, including: that the sales assignment rotation was manipulated, in violation of company policy, to give Ms. Lam more favorable sales assignments; that Ms. Lam arrived late for work and meetings but was not disciplined; that Ms. Lam received an unwarranted bonus; that Ms. Lam made inappropriate claims about tax advantages and the possibility of rental income during a sales pitch in violation of company policy, but was never disciplined; that Ms. Lam did not complete her own paperwork, in violation of company policy; and that Ms. Lam violated company policy prohibiting loitering in the sales office, but was never disciplined. (SAC ¶¶ 38, 40, 44–48, 50–52, 61–64, 72–78.) Plaintiff further alleges that Aly Hirani, a manager-level employee, had a sexual relationship with Ms. Lam, in violation of company policy. (Id. ¶ 60.) Plaintiff states that he complained about the breaches of company policy and incidents of favoritism shown toward Ms. Lam to his sales manager, but nothing was ever done about his complaints. ( Id. ¶ 87.)
According to Plaintiff, Charles Barker, the Vice President of In–House Sales at the Wyndham office in Waikiki, attempted to address complaints of favoritism toward Lam in July 2007 by issuing written policies and procedures and asking all employees to sign them. (SAC ¶¶ 67–70, 72.) Plaintiff also alleges that Barker asked one of Plaintiff's coworkers, Christopher Beecham, another Wyndham salesperson, to monitor and report on anything Barker should be aware of when he was absent. ( Id. ¶ 74.)
On September 21, 2007, Beecham (born in 1942) wrote and delivered a letter to Barker titled “Internal Problems,” which set forth the allegations of favoritism towards Ms. Lam (“Internal Problems Letter” or “Letter”). Plaintiff and three other Wyndham sales agents (Jody Myers (born in 1956), Garth Starks (born in 1974), and Bill Groten (born in 1972)) signed the Letter. Myers, Starks, and Groten partially withdrew their support soon thereafter; in general, they indicated that they witnessed some of the events but did not support all of the allegations in the Internal Problems Letter. (Plntf.'s CSF Exs. 30–32, ECF No. 101–8.) The Letter states that, if no internal resolution can be found, the employees would complain to a “higher authority.” (Plntf.'s CSF at 6, ¶ 43.) The Letter did not mention that the favoritism was based on the classes of sex, age, or any other form of illegal discrimination. ( See Beecham Decl. Ex 21.) Plaintiff specifically alleges that Wyndham retaliated against him for signing the Letter by giving him a written warning on the same day that the Letter was delivered. (SAC ¶ 93.)
In September of 2004, Wyndham received a customer complaint about Plaintiff that resulted in a written warning for giving tax advice during a sales presentation, as well as other violations of Wyndham's Sales Compliance Rules (“First Warning”). .) Plaintiff claims that he followed Wyndham guidelines and did not do anything wrong, but that he was warned that if he did not sign the written warning, his employment would be terminated. (Plntf.'s CSF at 3, ¶ 12.) The First Warning was issued to Plaintiff from Turolla, Wyndham's Senior Vice–President of Sales and Marketing. (Plntf.'s CSF Ex. 3, ECF No. 101–7, Decl. of Turolla at ¶ 2, ECF No. 82–1.)
On January 24, 2006, Plaintiff received a second written warning from his supervisor, Jody Myers, for violating the Sales Compliance Rules sometime in January 2006 by allegedly making false and misleading statements to customers (“Second Warning”). (Def.'s DSF at 2, ¶ 17.) Plaintiff disagrees with this warning as well, and states that the accusations in the warning were exaggerations and fabrications, and that Myers told Plaintiff he would be terminated if he did not sign the warning. (Plntf.'s CSF at 3, ¶ 13.)
On September 21, 2007, Wyndham issued a third and final written warning (the First Warning was also called a “final” written warning) to Plaintiff regarding an alleged violation of the Sales Compliance Rules (“Third Warning”). (Def.'s CSF at 2, ¶ 24; Pltf.'s CSF at 6, ¶ 44 & Ex. 22; Plntf.'s CSF Ex. 3, ECF No. 101–7,) The Third Warning appeared to be issued by Turolla. (Plntf.'s CSF Ex. 22.) However, in an email dated September 12, 2007, from Jeff Myers, Wyndham's Executive Vice President of Sales located in Orlando, Florida, Turolla was directed by Myers to issue the Third Warning. Def.'s CSF Ex. C at D–OA 00210, ECF No. 82–8. As a result of this warning, Plaintiff was disqualified from a sales incentive program called the “President's Club,” which included a trip and a Rolex watch. ( Id.) Plaintiff also contests the legitimacy of the Third Warning. (Plntf.'s CSF at 6, ¶¶ 45, 46, SAC ¶¶ 97–99.)
On February 21, 2008, Wyndham terminated Plaintiff's employment after receiving a written complaint from a customer named Mr. Newhall (“Newhall Complaint”). (SAC ¶¶ 109, 119.) Mr. Newhall complained that Ahuvia had tricked him into buying a timeshare by promoting it as a rental investment on January 21, 2007. (Newhall Decl. ¶ 20 & Ex. D, at D–OA 00009, 00218–00220.) Mr. Newhall stated that Plaintiff referred him to a specific rental agent, who could help him rent out his timeshare unit. ( Id.) Plaintiff's alleged conduct, if true, would have violated Wyndham's Sales Compliance Rules prohibiting salespeople from “[r]ecommending or endorsing a specific rental company.” (Def.'s CSF at 4, ¶ 50; Plntf.'s CSF at 2.).
Plaintiff filed his Second Amended Complaint alleging, inter alia, that Defendant retaliated against Plaintiff for complaining about favoritism that was allegedly shown toward Lam. See Second Amended Complaint (“SAC”) at ¶¶ 132–147, ECF No. 24. Defendant filed a Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment on May 29, 2013 (“Motion for Summary Judgment”), along with a Concise Statement of Facts (“CSF”). ECF Nos. 81 & 82. The parties submitted briefing on the Motion for Summary Judgment, and this Court held a hearing on October 28, 2013. ECF No. 109. The Court issued its Summary Judgment Order on November 13, 2013. ECF No. 118. In the Summary Judgment Order, the Court ruled, inter alia, that Defendant's Motion for Summary Judgment was granted as to Plaintiff's Title VII, Age Discrimination in Employment Act (“ADEA”), and Haw.Rev.Stat. § 378–2 retaliation claims. Id.
On November 27, 2013, Plaintiff filed a Motion for Reconsideration of this Court's Summary Judgment Order (“Motion for Reconsideration”), asking for reconsideration of this Court's retaliation ruling. ECF No. 130. Defendant filed an Opposition to the Motion for Reconsideration on December 16, 2013. ECF No. 143. The Court determines that this matter may be addressed without a hearing under Local Rule 7.2(e).
I. Motion for Reconsideration
A motion for reconsideration must (1) “demonstrate reasons why the court should reconsider its prior decision” and (2) “must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Hele Ku KB, LLC v. BAC Home Loans Servicing, LP, 873 F.Supp.2d 1268, 1289 (D.Haw.2012). The Ninth Circuit has held that reconsideration is appropriate if (1) the district court is presented with “newly discovered evidence,” (2) the district court “committed clear error or the initial decision was manifestly unjust,” or (3) “if there is an intervening change in controlling law.” Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir.2004). “Whether or not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.2003).
Plaintiff argues that this Court should reconsider its Summary Judgment ruling regarding Plaintiff's retaliation claim...
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