Parris v. Wyndham Vacations Resorts, Inc.

• Decision Date: 18 October 2013
• Docket Number: Civ. No. 11–00258 SOM/BMK.
• Citation: 979 F.Supp.2d 1069
• Parties: John PARRIS, Plaintiff, v. WYNDHAM VACATIONS RESORTS, INC., Defendants.
• Court: U.S. District Court — District of Hawaii

979 F.Supp.2d 1069

John PARRIS, Plaintiff,

v.WYNDHAM VACATIONS RESORTS, INC., Defendants.

Civ. No. 11–00258 SOM/BMK.

United States District Court,

D. Hawai‘i.

Oct. 18, 2013.

Glenn H. Uesugi, Honolulu, HI, Michael Jay Green, Honolulu, HI, Peter C. Hsieh, Honolulu, HI, for Plaintiff.

Christopher J. Cole, Darin Robinson Leong, Jason M. Minami, William N. Ota, Marr Jones & Wang LLLP, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT (ECF NO. 93)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (ECF NO. 87)

SUSAN OKI MOLLWAY, Chief Judge.

I. INTRODUCTION.

In this employment discrimination case, Plaintiff John Parris sues Defendant Wyndham Vacation Resorts, Inc.,¹ alleging that he has been demoted and harassed in the workplace as a result of his age. Wyndham moves for judgment on the pleadings or, in the alternative, summary judgment, on all claims asserted in the Complaint. Because Wyndham's motion asks the court to assess evidence, the court treats it as a motion for summary judgment.

In his memorandum in opposition to Wyndham's motion, Parris offers to voluntarily dismiss Counts I (Title VII) and IV (Intentional Infliction of Emotional Distress). See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment at 6, 24, ECF 105. Parris also expressly states in his memorandum that he is not making a retaliation claim in this case. Id. at 20.

The remaining claims before the court on the present motion are for violations of the Age Discrimination in Employment Act, 29 U.S.C. § 623, and Haw.Rev.Stat. § 378–2. (Counts II and III, respectively). Under these statutes, Parris advances both disparate treatment and hostile work environment claims based on age discrimination. The court grants Wyndham's motion in part and denies it in part. Summary judgment is denied with respect to Parris's disparate treatment claims under federal and state law, but granted in favor of Wyndham on his hostile work environment claims.

II. FACTUAL BACKGROUND.

From October 2005 to March 2009, John Parris was employed by Wyndham Vacation Resorts, a for-profit company that sells vacation timeshares. See Declaration of John Parris ¶¶ 7–11, Sept. 10, 2013, ECF No. 106–4. Parris's job was to give presentations, known in the industry as “tours,” about Wyndham properties to individuals who agreed to attend in exchange for free gifts. See Declaration of Jonathan O'Neil, June 26th, 2013, ECF No. 94–1. Parris first worked as a “front-line” sales representative and then as a “front-line” sales manager and senior sales manager in the company's Waikiki branch. Id. The role of the front-line division is to sell Wyndham timeshare interests to new customers; by contrast, the “in-house” division sells to individuals who already own Wyndham interests. See Declaration of Michael Turolla ¶ 3, June 24, 2013, ECF No. 94–2. At Wyndham, underperforming sales managers are often terminated, and there is high turnover. O'Neil Decl. ¶ 6.

In April 2007, Parris was promoted to sales manager and, in September 2008, to the newly created position of senior sales manager of the front-line division. Parris Decl. ¶¶ 8, 11. In early September, just before Parris's promotion, Charles Barker was named Vice President of Sales and Marketing in Oahu. In this role, Barker was responsible for overseeing both front-line and in-house operations, and was Parris's immediate supervisor. Turolla Decl. ¶ 8. Barker reported to Mark Pollard, who was the Area Vice President and “responsible for oversight of Kona, Oahu, Maui and Waikiki.” Pollard reported to Michael Turolla, who was Wyndham's Senior Vice President for Sales and Marketing for all of Hawaii. Id. ¶ 3. According to Turolla, Barker “approved the appointment of Parris ... as [a] Senior Sales Manager under him.” Id. ¶ 8.

Sales representatives and managers at Wyndham are assessed on their “Average Volume Per Guest,” or APG. APG is derived by dividing an agent's net sales revenue by the number of sales “tours” assigned to the agent in a given period. O'Neil Decl. ¶ 6. Having an APG below a certain level can cause an employee to be placed on “specific performance,” which is a probationary period during which an employee is supposed to increase his or her APG or face possible demotion or termination. Id. ¶ 7.

Soon after Barker's arrival, Pollard “strongly suggested” to him that Parris be placed on specific performance because of his low APG. Turolla Decl. ¶ 8; see also Email from Mark Pollard to Charles Barker, October 02, 2008, ECF No. 94–8. On October 2, 2008, Parris was placed on specific performance. ECF No. 94–8. Nevertheless, Parris finished 2008 as the front-line manager with the eighth highest APG in the entire company for the calendar year. See Top 25 Sales Managers by APG 2008, ECF No. 106–28. This meant Parris was ranked third among the four Waikiki front-line managers. Id. In 2007, Parris had finished first overall in the company on this measure. See Top 25 Sales Managers by APG 2007, ECF No. 106–7.

On January 8, 2009, Parris was called into the office to speak with Barker and the Regional Director of Human Resources, Andrea Ward. Parris Decl. ¶ 50. At the meeting, Parris was accused of “having many complaints against him” and “giving away free incentives,” though, according to Parris, neither Barker nor Ward was able to substantiate these claims. Id. The following day, Parris was demoted to sales manager. Id. ¶ 51; see also Email from Charles Barker, January 08, 2009, ECF. No. 94–9.

A few days later, Parris sent an email to Barker, complaining that his name had been put on contracts for transactions that he had no involvement with. Id. ¶ 52. On January 12, 2009, Barker called Parris into his office, allegedly “berated [him] for having sent the email,” and stated that Parris and an older colleague, Jose Henao, were “lucky to have [their] jobs at [their] age because Ms. Ward wanted to fire both of [them].” Id. ¶ 54.

Later that week, on January 17, 2009, Barker allegedly again “berated” Parris, this time for the low sales numbers Parris's team had attained that day. Id. ¶ 56. As a result of their confrontation, Parris says he was “suspended [ ] on the spot for one week and then informed [ ] that [Barker's] name [would be] on all of [Parris's] team's deals during [his] absence.” Id. Barker also sent Turolla and other senior management an email detailing the incident and describing Parris's demeanor as “extremely negative.” See Email from Charles Barker to Michael Turolla, Andrea Ward, and John Gonsalves, January 17, 2009, ECF 94–9. Parris responded by sending an email to the Executive Vice President of Human Resources, Kent Keoppel, disputing Barker's decision, and describing Barker's behavior during their conversation as “bizarre,” See Email from John Parris to Kent Keoppel, January 17, 2009, ECF No. 106–31. Parris was eventually given credit for the sales his team achieved in his absence. Complaint ¶ 48, ECF 94–5.

On February 24, 2009, Parris was once again placed on specific performance for his low APG. His team's APG for the prior month had been $1211. See Sales Efficiency Report 01/23/09–02/23/09, ECF No. 106–39. This placed Parris fifth among the seven front-line and in-house managers working during that month. Id. Parris was told his team had to exceed an APG of $1847 for the following month. See Notification of probation period for John Parris, ECF No. 106–34. Parris suggests that this was higher than the usual “frontline salesperson's goal.” Parris Decl. ¶ 63.² While on specific performance, Parris failed to meet his required target; in fact, his APG fell to $652, a little more than a third of his target. See Sales Efficiency Report 02/24/09–03/24/09, ECF No. 106–40. Parris alleges that he was told, on March 26, 2009, that he would have to return to being a “sales representative,” the position he had held prior to September 2007, or face being terminated. Parris Decl. ¶ 86. Parris “chose demotion.” Id.

Parris initially “understood the decision since ... [he] hadn't achieved the required team APG.” See Email from John Parris to Andrea Ward, March 28, 2009, ECF. No. 94–19. But when Parris looked into the matter further, he discovered that Aly Hirani, a front-line manager below the age of 40, had not been demoted despite failing to achieve “the required APGs to remain a front-line manager.” Id. As a result, Parris sent an email to Andrea Ward, noting that there appeared to be a “two tiered system in effect” and that the demotion decision must have been based on age, because it was the “only other significant factor that separate[d Parris and Hirani].” Id.

Wyndham's sales documents indicate that Hirani was ranked below Parris during most of 2008 and through the beginning of January 2009, despite Hirani's work for much of that time as an in-house representative, which typically results in higher APG numbers. See Term Report 1/1/08–12/7/08, ECF No. 106–25; Sales Efficiency Report 10/04/08–01/09, ECF No. 106–26; Deposition of Charles Barker 20–21, April 12, 2013, ECF No. 106–6. However, Hirani did outperform Parris in February and March of 2009. See Sales Efficiency Report 01/13/09–02/23/09, ECF No. 106–39; Sales Efficiency Report 02/24/09–03/24/03, ECF No. 106–40. Hirani's APG in March, $1357, was more than double Parris's, though still below the APG target that Wyndham had set for Parris while he was on specific performance. Id. Wyndham contends that Hirani was in fact working in a special “hybrid” team, which sold to both front-line and in-house customers, until February 2009, and therefore did not have a sufficient track record to be placed on specific performance during the relevant period. O'Neil Decl. ¶ 11.

Several employees other than Parris claim that Barker made age-based slurs to them...