Helms v. Hilton Resorts Corp.

• Decision Date: 24 February 2023
• Docket Number: Civil Action 4:21-cv-3266-JD-TER
• Parties: JEFFREY L. HELMS, Plaintiff, v. HILTON RESORTS CORP. d/b/a HILTON GRAND VACATIONS, and HILTON GRAND VACATIONS, LLC, Defendants.
• Court: U.S. District Court — District of South Carolina

JEFFREY L. HELMS, Plaintiff, v. HILTON RESORTS CORP. d/b/a HILTON GRAND VACATIONS, and HILTON GRAND VACATIONS, LLC, Defendants.

Civil Action No. 4:21-cv-3266-JD-TER

United States District Court, D. South Carolina, Florence Division

February 24, 2023

REPORT AND RECOMMENDATION

Thomas E. Rogers, III United States Magistrate Judge

I. INTRODUCTION

This action arises from Plaintiff's employment with Defendants. Plaintiff originally filed this action in the Court of Common Pleas, Horry County, South Carolina. Defendants^[1] removed it to this court. Plaintiff alleges causes of action for age discrimination, retaliation and hostile work environment in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., national origin discrimination, sex discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., retaliation and hostile work environment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and violation of the South Carolina Payment of Wages Act (SCPWA), SC Code Ann. § 41-10-10, et seq.. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 47). Because Plaintiff is proceeding pro se, Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his claims dismissed. Plaintiff filed a Response (ECF No. 51), and Defendants filed a Reply (ECF No. 52). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.

II. FACTS

Plaintiff is a sixty-five year old, white male. He began working for HGV on June 14, 2017, as a Sales Executive on the Action Line. Compl. ¶ 22 (ECF No. 1-1); Pl. Dep. 34:9-11(ECF No. 472). Defendant's business model relies on the sale of vacation ownership at each of its resorts. There are two distinct sales departments at the Ocean Enclave resort where Plaintiff worked: “Action Line” and “In-house.” Pl. Dep. 38:18-23. The Action Line sells to new HGV customers and the In-house line sells to existing HGV owners. Id. An Action Line Sales Executive takes customers on a minimum 90-minute tour of the facility which ends at the Sales Executive's desk on the sales floor. Compl. ¶ 25. When the Sales Executive successfully persuades a customer to make a purchase, they turn the customer over to a Sales Leader, commonly called a “T.O.” (Takeover Manager). Helms Dep. 29:10-23 (ECF No. 47-3). The T.O. has access to the available inventory which they present to the customer for selection, after which the sales contract is prepared and signed. Id.

HGV measures Sales Executives' performance in two ways: volume per guest (VPG) and net closing percentage. VPG is “similar to a baseball batting average. It [is] the amount of volume” measured in dollars “that a Sales Executive has been able to sell, divided by the number of prospects he has seen.” Gorby Dep. 27:16-20 (ECF No. 47-4). Net closing percentage is the number of sales made by the Sales Executive divided by the number of customers the Sales Executive has taken on tours during a prescribed period of time. Gibbs Dep. 13:16-248 (ECF No. 47-5); Riley Dep. 21:18-19 (ECF No. 47-6). During Plaintiff's employment, each Action Line Sales Executive had to maintain a VPG of 90% or greater of the monthly budgeted VPG, or a monthly net closing percentage of 11.5%, to avoid performance counseling. Performance Reports (ECF No. 47-7). Plaintiff asserts in his Response that VPG was always the determining factor for performance, both with HGV and during his entire sales career of twenty years in timeshares and/or vacation ownership sales. He points to Minimum Performance Standards/ Action Line Rules, which states that “Action Line is set up on two metrics: 50%of the weight on a 30-day VPG look back and 50% on a 90-day VPG look back.” Action Line Rules Made Easy (ECF No. 51-1, p. 1). Plaintiff asserts that net closing percentage has never been used to determine performance.

In early 2020, as a result of the COVID-19 pandemic, HGV's timeshare business was substantially impacted as hotels and resorts were forced to close. Ocean Enclave closed as a result of COVID-19 on March 19, 2020. Compl. ¶ 56. Approximately two weeks later, HGV reopened Ocean Enclave with a skeleton crew of 17 Action Line Sales Executives and implemented a furlough for the remaining 53 Sales Executives in the department. Gibbs Dep. 23:12-16. HGV informed the impacted Sales Executives, including Plaintiff, of this furlough via letter dated April 3, 2020. Furlough Letter (ECF No. 47-9). The Furlough Letter states that “seniority will not change as a result of being placed on temporary furlough.” Furlough Letter. Plaintiff notes that he was senior both in age and in years of service. HGV's corporate office made the decision to furlough employees but left it to local management teams to implement the furlough. Gibbs Dep. 20:8-20; Riley Dep. 16:15-17:14.

Throughout 2020, local management teams developed plans for a phased return to work of a percentage of the workforce, based on market conditions, and, later, a selection process for those who would be terminated as part of a nationwide Reduction in Force (RIF) caused by the ongoing economic impact of the pandemic. Gibbs Dep. 20:8-20; Riley Dep. 19:20-20:19. HGV's Vice President of Sales for South Carolina, Mike Riley, prepared a strategy for furloughs and phased reopening with Ocean Enclave's management team, Roger Gorby (then-Senior Director of Sales), John Gibbs (then-Senior Sales Manager), and Woody Dellis (then-Director of Sales) (collectively, the “management team”). Id. For the Action Line at Ocean Enclave, the management team determined the most appropriate metric for ranking and returning the Sales Executives was the individual's net closing percentage. Riley Dep. 20:13-15, 25:11-21, 34:11-35:7, 49:11-23; Gibbs Dep. 20:8-21:15; Gorby Dep. 31:13-23. Riley testified that HGV needed as many new customers to make purchases as possible following the reopening of Ocean Enclave. Riley Dep. 21:1-10. HGV did not use seniority, tenure, or any other criteria for the furloughs or return of employees except net closing percentage. Meldeau Dep. 11:23-25-12:2 (EcF No. 47-10). Plaintiff disputes that net closing percentage was the measure used to determine which Sales Executives would return to work and in what order. Plaintiff asserts that Gibbs confirmed to him in a text message that VPG was the corporate-wide measure for returning to work. However, the only text message included in Plaintiff's exhibits lacks any reference to VPG or how the determination would be made as to which Sales Executives would return to work.^[2]

As travel and the hospitality industry continued to partially re-open in 2020, the management team created a plan to bring additional employees back from furlough. Using the available market forecasts of projected tours provided to them^[3], the management team estimated how many Sales Executives would be required. Riley Dep. 22:1-23, 25:11-21. HGV brought back additional Sales Executives in phases, including Plaintiff. Twelve-Month Look-Back Report, Bates No. 623 (ECF No. 47-11); Gibbs Dep. 28:1-29:3; Compl. ¶ 79. The selection criterion for bringing back additional Action Line Sales Executives was the same as was used for Phase 1 (the top Sales Executives by net closing percentage), but the look-back period was extended from 6 months to 12 months.^[4] Gibbs Dep. 28:9-17; Riley Dep. 16:19-17:2, 22:19-23:7.

Due to ongoing economic challenges presented by COVID-19, HGV was forced to implement a nationwide RIF on October 31, 2020. RIF Notice (ECF No. 47-12). HGV's RIF affected “approximately 1600” employees nationwide. Id. Riley testified that at all times throughout the process, the only factor that determined whether an Action Line Sales Executive was furloughed, returned to work, or terminated pursuant to the RIF was that Sales Executive's relative (“stacked”) rank among all Action Line Sales Executives at Ocean Enclave based on their net closing percentage. Riley Dep. 25:11-21.

When the furlough began, Plaintiff ranked 32nd among Action Line Sales Executives based on his net closing percentage of 9.57% over the preceding six months. Six-Month Look-Back Report (ECF No. 47-13). As noted above, 17 Sales Executives were retained in Phase 1, and the remaining, including Plaintiff, were furloughed on April 2, 2020. Id. When business conditions improved and the projected number of tours increased, the management team expanded the look-back period to 12 months to determine which Sales Executives to recall from furlough as conditions improved. A 12-month net closing percentage look-back was used because it provided the most accurate representation of a team member's effectiveness. Riley Dep. 16:19-17:14, 22:19-23:7. Plaintiff's reported net closing percentage using the 12-month look-back period was 9.63%, and he ranked 37th. Twelve-Month Look-Back Report, Bates No. 620. HGV returned Plaintiff to work on September 2, 2020. Compl. ¶ 79. Gibbs testifies that Plaintiff was returned solely based on his position in the stacked ranking of Action Line Sales Executives using net closing percentage over a 12-month look-back period. Gibbs Dep. 28:9-17.

Plaintiff asserts that he was returned to work only after he sent a letter to corporate on August 23, 2020, complaining that he had not been returned to work, and his return came after the entire summer...