Grant v. Marriott Ownership Resorts, Inc.
| Decision Date | 21 November 2018 |
| Docket Number | CIVIL 16-00451 LEK-RLP |
| Parties | ANDREW GRANT; SANDRA DENISE KELLY; and ROBIN REISINGER, Plaintiffs, v. MARRIOTT OWNERSHIP RESORTS, INC.; and DOE DEFENDANTS 1-100, Defendants. |
| Court | U.S. District Court — District of Hawaii |
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 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, andpunitive/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 Statementof 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 ( 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.
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 resignedin 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. 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, [KellyDepo. 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 Grigaitis6 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.]
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