Machorek v. Marriott Vacations Worldwide Corporation

Filing 79

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re: 55 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 11/28/2016. (afc) M/SJ GRANTED as to Plaintiff's IIED claim. M/SJ DE NIED as to Plaintiff's retaliation claims under federal and state law. WRITTEN ORDER follows hearing held 11/21/2016 on M/SJ [ 55 . Minutes of hearing: doc no. 78 .CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Civ. No. 15-00230 JMS-KSC
CHRISTOPHER MACHOREK,
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
vs.
MARRIOTT OWNERSHIP RESORTS,
INC., a foreign profit corporation; JOHN
DOES 1-10; JANE DOES 1-10; DOE
CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10; DOE
UNINCORPORATED
ORGANIZATIONS 1-10; and DOE
GOVERNMENTAL AGENCIES 1-10,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Christopher Machorek, a former employee of Defendant
Marriott Ownership Resorts, Inc. (“MORI”), brings this action against MORI
seeking damages for retaliation under both federal and state law, and for
intentional infliction of emotional distress.

1

Currently before the court is MORI’s Motion for Summary Judgment
(“MORI’s Motion”), ECF No. 55. For the reasons that follow, the court GRANTS
in part and DENIES in part MORI’s Motion.
II. BACKGROUND
A.

Factual Background
Plaintiff worked at Marriott owned or affiliated companies for fifteen

years. Pl. Decl. ¶ 3, ECF No. 70-1. He eventually became MORI’s Director of
Marketing (“DOM”) for the island of Kauai and held that position for the time
period relevant to this litigation. Id. ¶ 4. As DOM, Plaintiff managed a team of
Marketing Executives, collaborated with the Sales team to increase overall sales
and marketing, and provided information about the company’s timeshare products
to interested customers. Pl.’s Dep. 58:3-24, ECF No. 56-2.
Plaintiff’s immediate supervisor was Merrill Yavinsky (“Yavinsky”),
who served as the Project Director for Sales and Marketing on Kauai from January
2010 to December 2015. Yavinsky Decl. ¶ 1, ECF No. 56-3. As such, he oversaw
both the Marketing and Sales teams on Kauai. Id. Yavinsky’s immediate
supervisor was David Broderick (“Broderick”),1 who served as the Regional Vice

1

During the November 21, 2016 hearing, the parties informed the court that Broderick
passed away after these events, and before this litigation.

2

President of Sales and Marketing for the Hawaii region. Pl.’s Dep. 60:13-16,
61:16-22, 96:18-19.
1.

Discussion of Restructuring, Before Plaintiff’s Protected Activity
In late 2013, Yavinsky and Broderick began discussing the

restructuring of Plaintiff’s marketing team in response to the challenges to getting
“tour flow.” Ex. A to Pl.’s CSF, ECF No. 70-3. In an October 28, 2013 email,
Broderick asked Yavinsky to consider “restructur[ing] marketing team” and
“eliminat[ing] DOM position in favor of 1 dedicated experienced marketing
manager and or senior marketing managers.” Id. On November 14, 2013,
Broderick recommended that Yavinsky hire “1 entry level marketing manager” but
made no mention of the DOM position, which Plaintiff held at the time. Ex. B to
Pl.’s CSF, ECF No. 70-4. Yavinsky emailed Broderick back on November 15,
2013, stating, “I am inferring from your email that if we are not meeting tour
expectations early in 2014, we will reevaluate the DOM position.” Id. Broderick
responded by email later that day:
You are correct in the assumption that if we are not able to
really improve on productivity in significant fashion by end of
Period 1 2014 we will have to revisit your overall Marketing
structure which of course would include a review of the DOM

3

position as well as other facet [sic] of the Marketing Operation
and Personnel.2
Ex. C to Pl.’s CSF, ECF No. 70-5.
On November 26, 2013, Broderick asked Yavinsky to “prepare a 1 or
2 page executive summary of how [he] propose[s] to move forward together with
timeline, issues, personnel and any other particulars or challenges [he] may for see
[sic].” Ex. D to Pl.’s CSF, ECF No. 70-6. Yavinsky sent Broderick a formal
memo dated December 4, 2013, proposing a number of changes, including
“eliminat[ing] the DOM position and hir[ing] a 2nd front line Marketing Manager
position.” Ex. D to Def.’s CSF, ECF No. 56-6. The document proposed other
organizational changes “to lower overhead costs, improve tour production,
improve sales efficiencies, and ultimately drive higher profitiability,” but made no
mention of new tour restrictions. Id.
2.

Plaintiff Reports Sexual Harassment Allegations
On December 9, 2013, Marketing Manager Sandy Wabinga

(“Wabinga”) and Sales Experience Manager Teresa Doria approached Plaintiff and
told him that Sales Executive Shawn Hunandi (“Hunandi”) had been sexually
harassing them. Pl.’s Dep. at 110:12-18. Plaintiff reported these allegations to
2

During the November 21, 2016 hearing, both parties agreed that the end of “Period 1
2014” is the end of January 2014.

4

Regional Director of Human Resources Kelly Soldwisch (“Soldwisch”) the next
day. Id. at 111:1-11. After an investigation into the allegations, Hunandi was fired
on December 20, 2013. Soldwisch Decl. ¶ 3, ECF No. 56-7.
In her investigation, Soldwisch spoke with Wabinga, who told
Soldwisch that “[s]he and others have been afraid to say anything because they fear
for their jobs as Merrill [Yavinsky] has a close personal relationship with Shawn
[Hunandi].” Ex. E to Pl.’s CSF, ECF No. 70-7. Yavinsky admits that Hunandi is a
“good friend.” Yavinsky Dep. 53:10-13, ECF No. 70-28. In fact, Hunandi was
one of only ten people at Yavinsky’s wedding, and in October 2012, Yavinsky’s
family and Hunandi’s family vacationed together in Napa Valley. Id. at 55:1856:21. And when Plaintiff learned of the allegations against Hunandi, Hunandi
was vacationing in San Francisco with Yavinsky and their respective sons. Id. at
52:20-53:9, 67:3-17.
In mid-December 2013, Yavinsky was made aware of the allegations
of sexual harassment against Hunandi. Yavinsky Decl. ¶ 8. Yavinsky was
disappointed that Plaintiff told Human Resources instead of coming to him
personally, and expressed this disappointment to Plaintiff sometime in late
December 2013. Id. ¶ 8; Pl.’s Dep. 125:20-126:25.

5

It is unclear if or when Broderick learned of Plaintiff’s role in
reporting the sexual harassment allegations against Hunandi.
3.

Tour Restrictions on Kauai
On January 2, 2014, twelve days after Hunandi was terminated,

Yavinsky put new tour restrictions in place at Plaintiff’s location in Kauai. Pl.
Decl. ¶ 34. Primarily, the new tour restrictions prevented tours to anyone who had
toured any Marriott property in the previous nine months. 2d Yavinsky Decl. ¶ 2,
ECF No. 71-6; Yavinsky Dep. 126:20-127:19. This restriction remained in place
for five to six weeks, before Yavinsky reduced it to a three-month restriction on
tours system-wide, and a six-month restriction on tours on Kauai. 2d Yavinsky
Decl. ¶¶ 2-3. Yavinsky alone implemented these restrictions, and does not recall
discussing them with Broderick. Yavinsky Dep. at 127:20-129:10.
As of July 22, 2016, some other changes were made to tour
restrictions on Kauai:
[W]e have opened up, if an owner is staying on points, using
their points for their stay, that we do not restrict them from
touring if they had stayed -- or they have toured at another site
within the past three months. . . .
As far as our in-house non-owner qualifications, I believe the
same qualifications were -- are in place that we put in place in
early 2014 except I believe that we updated the qualifications to
allow friends who are staying in an owners’ villa to qualify for
their own gifted presentation.
6

Id. at 213:13-214:1. The three-month/six-month restriction remains in place. Id. at
213:4-12.
4.

Elimination of Plaintiff’s Position
On May 6, 2014, Broderick emailed Yavinsky the following:
It is now apparent that the Kauai marketing team as structured
will not produce the necessary tour flow to achieve budgeted
revenues at the budgeted expense level for the project.
I recommend you proceed ASAP to modify your org structure
in marketing department to better align with the lower level of
predictive tour production.

Ex. R to Pl.’s CSF, ECF No. 70-20. Yavinsky interpreted this to mean that “he
specifically asked for the business plan to eliminate the Director of Marketing
position, to be replaced with a second Marketing Manager position.” Yavinsky
Decl. ¶ 16. Yavinsky and Senior Director of Human Resources Anthony Vazquez
approved a “Job Elimination Business Case” for Plaintiff’s position on July 31,
2014. Id. ¶ 18; Ex. T to Pl.’s CSF, ECF No. 70-22. On August 28, 2014,
Yavinsky informed Plaintiff that his position was being eliminated, effective
September 12, 2014. Yavinsky Decl. ¶ 20. Yavinsky offered Plaintiff the new
(lesser-paying) Marketing Manager position that was replacing Plaintiff’s position,
but Plaintiff was not interested. Id.

7

Plaintiff contacted Soldwisch on September 2 and 3, 2014, alleging
that his position was eliminated as retaliation for Plaintiff’s involvement in the
firing of Hunandi, Yavinsky’s friend. Soldwisch Decl. ¶ 10. On September 11,
2014, Senior Director of Human Resources S. Lani Aranio (“Aranio”) began an
investigation into Plaintiff’s allegations. Aranio Decl. ¶ 2, ECF No. 56-9. On
September 26, 2014, Aranio told Plaintiff that the investigation was complete, his
allegations could not be substantiated, and he had a new position elimination date
of October 10, 2014. Id. ¶ 3. Plaintiff then gave Aranio new documents, which
Aranio investigated further. Id. ¶ 4. On October 17, 2014, Plaintiff called Aranio
and she told him that, even with the additional documents, his allegations could not
be substantiated. Id. ¶ 8.
B.

Procedural Background
Plaintiff filed a First Amended Complaint (“FAC”) on September 29,

2015, asserting the following claims against Defendant: 1) retaliation in violation
of Title VII of the Civil Rights Act of 1964; 2) retaliation in violation of Hawaii
Revised Statutes (“HRS”) § 378-2(2); and 3) intentional infliction of emotional
distress (“IIED”). FAC ¶¶ 271-83, ECF No. 13.
On July 20, 2016, Defendant filed a Motion for Summary Judgment
on all claims. Def.’s Mot., ECF No. 55. On September 12, 2016, Plaintiff filed his
8

Opposition brief, and on September 19, 2016, Defendant filed its Reply brief. Pl.’s
Opp’n, ECF No. 69; Def.’s Reply, ECF No. 71. A hearing was held on November
21, 2016.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party
who fails to make a showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v.
Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
9

with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587.
IV. DISCUSSION
A.

Plaintiff’s Retaliation Claims
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides a

useful and accepted framework to address Title VII claims. McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (citing Costa v. Desert Palace,
299 F.3d 838, 855 (9th Cir. 2002) (en banc)). It is “a tool to assist plaintiffs at the
summary judgment stage” in cases where there may be “difficulties [in] proving
10

intent to discriminate in a disparate treatment context.” Costa, 299 F.3d at 854-55.
When responding to a summary judgment motion, the plaintiff “may proceed by
using the McDonnell Douglas framework, or alternatively, may simply produce
direct or circumstantial evidence demonstrating” discriminatory or retaliatory
intent. McGinest, 360 F.3d at 1122. That is, a plaintiff may respond by producing
evidence “demonstrating that a discriminatory [or retaliatory] reason more likely
than not motivated the employer.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,
1105 (9th Cir. 2008) (quoting Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007)). Here, the parties present their respective arguments under the traditional
McDonnell Douglas framework. 3
Under Title VII, an employer may not discriminate against an
employee because the employee has opposed an employment practice made
unlawful by Title VII. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful
employment practice for an employer to discriminate against any of his employees
. . . because he has opposed any practice [prohibited by Title VII] . . . or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].”); Burlington N. & Santa

3

Because Plaintiff’s federal and state claims are analyzed under the same McDonnell
Douglas framework, the court does not distinguish between the claims in its analysis. See
Schefke v. Reliable Collection Agency, Ltd., 96 Haw. 408, 425-26, 32 P.3d 52, 69-70 (2001).

11

Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“Title VII’s antiretaliation provision
forbids employer actions that discriminate against an employee . . . because he has
opposed a practice that Title VII forbids or has made a charge, testified, assisted, or
participated in a Title VII investigation, proceeding, or hearing.” (citations and
quotation marks omitted)).
Within the traditional McDonnell Douglas framework for Title VII
claims, a plaintiff first has the burden to establish a prima facie case for retaliation.
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). If a plaintiff
establishes a prima facie case, “the burden of production shifts to the defendant,
who must offer evidence that the adverse action was taken for other than
impermissibly discriminatory [or retaliatory] reasons.” Id. Once the defendant
fulfills this burden, “the plaintiff must demonstrate that the employer’s alleged
reason for the adverse employment decision is a pretext for another motive which
is discriminatory [or retaliatory].” Id. (quoting Lowe v. City of Monrovia, 775 F.2d
998, 1005 (9th Cir. 1985) (internal quotation marks omitted)).
To show pretext, a plaintiff must do more than merely deny the
credibility of the defendant’s proffered reason. See Schuler v. Chronicle Broad.
Co., 793 F.2d 1010, 1011 (9th Cir.1986). “A plaintiff can show pretext directly, by
showing that discrimination [or retaliation] more likely motivated the employer, or
12

indirectly, by showing that the employer’s explanation is unworthy of credence.”
Vasquez, 349 F.3d at 641; see also Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
1094–95 (9th Cir.2005). “Direct evidence typically consists of clearly sexist,
racist, or similarly discriminatory [or retaliatory] statements or actions by the
employer.” Coghlan, 349 F.3d at 1095. Circumstantial evidence requires an
additional inferential step to demonstrate retaliation. Id.
When the evidence of pretext is direct, “very little evidence [is
required] to survive summary judgment[.]” E.E.O.C. v. Boeing Co., 577 F.3d
1044, 1049 (9th Cir. Aug.18, 2009) (citation and quotation signals omitted). “‘But
when the plaintiff relies on circumstantial evidence, that evidence must be specific
and substantial to defeat the employer's motion for summary judgment.’” Id.
(quoting Coghlan, 413 F.3d at 1095); see also Mondero v. Salt River Project, 400
F.3d 1207, 1213 (9th Cir.2005); Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th
Cir.2004).
The court addresses each step of the burden-shifting analysis in turn.
1.

Plaintiff’s Prima Facie Case for Retaliation
To establish a prima facie case for retaliation, Plaintiff must show:

1) he engaged in a protected activity; 2) he suffered an adverse employment action;
and 3) a causal link existed between the protected activity and the adverse
13

employment action. McGinest, 360 F.3d at 1124. Here, Defendant concedes that
Plaintiff both engaged in a protected activity and suffered an adverse employment
action. 4 ECF No. 55-1, at 15 n.3; ECF No. 71, at 7 n.3. Thus, the court only
examines whether Plaintiff adequately proved a causal link between the protected
activity and the adverse employment action.
“Title VII retaliation claims be must be proved according to
traditional principles of but-for causation.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013). The “but-for” standard “requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Id. This inquiry “is a question of fact
that must be decided in the light of the timing and the surrounding circumstances.”
Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003).
“[C]ausation can be inferred from timing alone where an adverse
employment action follows on the heels of protected activity.” Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). However, the Ninth Circuit
has also cautioned that “a specified time period cannot be a mechanically applied
criterion.” Coszalter, 320 F.3d at 977-78 (“A rule that any period over a certain
4

Defendant concedes that the elimination of Plaintiff’s position is a materially adverse
action, but contests Plaintiff’s allegations that other actions were materially adverse. Def.’s
Reply at 7 n.3; ECF No. 71. For the purposes of this Order, the court does not rely on Plaintiff’s
other allegations, and thus does not address them.

14

time is per se too long (or, conversely, a rule that any period under a certain time is
per se short enough) would be unrealistically simplistic.”). Because of this, courts
must consider the “totality of the facts” given that some retaliators may scheme
beyond an immediate adverse action. Id. at 978 (“For a variety of reasons, some
retaliators prefer to take their time: They may wait until the victim is especially
vulnerable or until an especially hurtful action becomes possible.”).
Viewed in the light most favorable to Plaintiff, the surrounding
circumstances support an inference of a retaliatory motive. First, Yavinsky admits
that Hunandi was a “good friend” of his. Yavinsky Dep. at 53. Hunandi was one
of only ten total people at Yavinsky’s wedding -- no other coworker attended,
aside from Yavinsky’s wife. Id. at 56. Yavinsky’s family and Hunandi’s family
vacationed together twice, first to Napa Valley and then to San Francisco. Id. at
53-56.
Second, (and, again, construed in the light most favorable to Plaintiff)
Yavinsky may have set Plaintiff up to fail shortly after Plaintiff engaged in
protected activity. Broderick informed Yavinsky in October 2013 that he was
considering restructuring Plaintiff’s marketing team or eliminating Plaintiff’s
position. Ex. B to Def.’s CSF, ECF No. 56-4. Broderick said these considerations
were in response to “the challenges to getting tour flow.” Id. In a November 26,
15

2013 email to Yavinsky, Broderick elaborated further that he was anticipating that
Plaintiff’s location would have “another rough period both in cost and lack of
revenues.” Ex. C to Def’s CSF, ECF No. 56-5. On December 4, 2013, Yavinsky
sent Broderick a proposal that included the elimination of Plaintiff’s position. Ex.
D to Def.’s CSF, ECF No. 56-6. Broderick and Yavinsky implemented several of
the structural changes in Yavinsky’s December 4 memo, but did not immediately
eliminate Plaintiff’s position. Yavinsky Decl. ¶ 16.
In January 2014, shortly after Hunandi was fired, Yavinsky imposed a
nine-month tour restriction -- no one who had toured a Marriott property within the
previous nine months was eligible for an incentivized tour -- on Kauai. 2d
Yavinsky Decl. ¶ 2. Although this restriction was lifted in favor of a threemonth/six-month tour restriction after a “five- to six-week period” id., Broderick
stated that his decision would be based “improve[ments] on productivity . . . by
end of Period 1 2014,” Ex. C to Pl.’s CSF. The parties agreed at the November
21, 2016 hearing that a “period” is four weeks, and “Period 1” would be the first
four weeks of 2014. As a result, this possibly stifling restriction was in place for
all of Broderick’s relevant time period -- Period 1 2014. And Yavinsky could not
identify another tour location with a similar nine-month restriction. Yavinsky Dep.
at 222:24-225:12.
16

Yavinsky moved to a three-month/six-month restriction in February
2014. 2d Yavinsky Decl. ¶ 3. Plaintiff continued to complain to Yavinsky about
the negative impact of the new three-month/six-month tour restrictions, but other
than making some minor adjustments, Yavinsky refused to lift them. Yavinsky
Decl. ¶¶ 14-15. The tour restrictions remained in place through the elimination of
Plaintiff’s position. Id. ¶ 15. On May 6, 2014, four months after Yavinsky
initiated the tour restrictions, Broderick approved Yavinsky’s proposal to eliminate
Plaintiff’s position because it was “apparent that [Plaintiff’s] marketing team as
structured [would] not produce the necessary tour flow to achieve budgeted
revenues at the budgeted expense level for the project.” Ex. R to Pl.’s CSF.
Next, the timing between the protected activity and adverse action
also supports an inference of retaliatory motive. Yavinsky implemented new tour
restrictions a mere few weeks after Hunandi’s firing (and approximately one month
after Plaintiff’s report of the sexual harassment), which, again viewed in the light
most favorable to Plaintiff, could be viewed as part of Yavinsky’s scheme to set
Plaintiff up to fail. The timing of the new tour restrictions surely came “on the
heels of” Hunandi’s firing, and further supports an inference of retaliatory motive.5

5

Even if the timing is viewed as six months -- the time between Plaintiff’s protected
activity and Broderick’s decision to eliminate Plaintiff’s position -- this is still sufficient to
support an inference of a retaliatory motive. Compare Coszalter, 320 F.3d at 977 (“Depending

17

Considering everything above -- the timing of Plaintiff’s position
elimination, the close relationship between Yavinsky and Hunandi, and Yavinsky’s
unique restrictions on Plaintiff’s tour production -- a reasonable jury could
conclude that Plaintiff’s protected activity was the “but for” cause for the
elimination of Plaintiff’s position.
Defendant argues that Plaintiff’s protected activity could not be the
“but for” cause because the decision to eliminate Plaintiff’s position happened
before Plaintiff’s protected activity. Def.’s Mot. at 16. Other than Yavinsky’s
self-serving declaration, there is no evidence that Broderick communicated such a
decision before Plaintiff’s protected activity. Yavinsky Decl. ¶ 7. In fact,
elsewhere in his declaration, Yavinsky states otherwise: “In May 2014, Mr.
Broderick expressed that it was clear that the restructuring of the marketing team
needed to proceed as soon as possible and he specifically asked for the business
plan to eliminate the Director of Marketing position, to be replaced with a second
Marketing Manager position.” Id. ¶ 16. This timeline is consistent with the email
from Broderick to Yavinsky expressing that will. Ex. R to Pl.’s CSF. Although
Yavinsky proposed eliminating Plaintiff’s position before Plaintiff’s protected
on the circumstances, three to eight months is easily within a time range that can support an
inference of retaliation.”), with Villiarimo, 281 F.3d at 1065 (“A nearly 18-month lapse between
protected activity and an adverse employment action is simply too long, by itself, to give rise to
an inference of causation.”).

18

activity occurred, the final decision to eliminate Plaintiff’s position did not occur
until six months after Plaintiff’s protected activity.
Defendant next argues that Plaintiff’s protected activity could not be
the “but for” cause because there is no evidence that Broderick, the person who
made the decision to eliminate Plaintiff’s position, knew about Plaintiff’s protected
activity. Def.’s Mot. at 18. But, under the “cat’s paw” or “rubber stamp” theory of
liability, the Ninth Circuit recognizes that a subordinate’s bias can be imputed to
the decisionmaker:
We hold that if a subordinate, in response to a plaintiff’s
protected activity, sets in motion a proceeding by an
independent decisionmaker that leads to an adverse
employment action, the subordinate’s bias is imputed to the
employer if the plaintiff can prove that the allegedly
independent adverse employment decision was not actually
independent because the biased subordinate influenced or was
involved in the decision or decisionmaking process.
Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007). Here, Yavinsky clearly
influenced Broderick’s decisionmaking process, as Broderick’s ultimate decision
was based upon his belief that “the Kauai marketing team as structured will not
produce the necessary tour flow to achieve budgeted revenues at the budgeted
expense level for the project.” Ex. R to Pl.’s CSF. Yavinsky’s new tour
restrictions invariably affected tour flow, swaying Broderick’s decision. Viewing

19

the facts in the light most favorable to Plaintiff, Yavinsky’s bias can be imputed to
Broderick as the decisionmaker.
2.

Defendant’s Legitimate, Nondiscriminatory Reason
Defendant identifies that it eliminated Plaintiff’s position for

“financial reasons.” Def.’s Mot. at 19. Plaintiff, in his deposition, admits that this
was the reason given to him by Yavinsky when Yavinsky informed Plaintiff of the
position elimination. Pl. Dep. 175:15-176:13. Plaintiff does not appear to contest
that this is a legitimate, nondiscriminatory reason. Pl.’s Opp’n at 28 (moving from
arguing his prima facie case to arguing pretext). As such, for the purpose of this
step in the McDonnell Douglas framework, the court assumes that Defendant’s
interest in “financial reasons” is a legitimate, nondiscriminatory reason.
3.

Plaintiff’s Proof that Defendant’s Reason is Pretextual
Finally, Plaintiff must demonstrate that Defendant’s legitimate,

nondiscriminatory reason was merely pretextual. To do so, Plaintiff “may rely on
circumstantial evidence to show pretext,” but “such evidence must be both specific
and substantial.” Villiarimo, 281 F.3d at 1062.
Plaintiff has offered specific and substantial evidence that, viewed in
the light most favorable to Plaintiff, Defendant set him up to fail. As discussed at
length earlier, there is evidence of the following: 1) Yavinsky and Hunandi were
20

very close friends; 2) Plaintiff’s protected activity led to the firing of Hunandi;
3) Yavinsky knew Broderick was considering eliminating Plaintiff’s position,
based upon tour flow; 4) within a few weeks of Hunandi’s firing, Yavinsky
instituted new tour restrictions at Plaintiff’s location; 5) Hunandi refused to lift the
tour restrictions, despite Plaintiff’s complaints concerning their impact on tour
numbers; and 6) Broderick ultimately eliminated Plaintiff’s position as a result of
inadequate tour revenue.
This evidence, although circumstantial, is sufficiently specific and
substantial to show pretext.
B.

Plaintiff’s Intentional Infliction of Emotional Distress Claim
The court agrees with Senior Judge Alan C. Kay’s following

conclusion: “At the end of the day, Hawaii courts and federal courts applying
Hawaii law have held time and again that the exclusivity provision of Hawaii’s
workers’ compensation law bars IIED claims, unless those claims relate to sexual
harassment or sexual assault.” Kuehu v. United Airlines, Inc., 2016 WL 4445743,
at *8 (D. Haw. Aug. 23, 2016); see, e.g., Yang v. Abercrombie & Fitch Stores, 128
Haw. 173, 183, 284 P.3d 946, 956 (Haw. Ct. App. 2012) (“Specific exceptions
were later carved out [of the workers’ compensation statute] by the Legislature [in

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HRS § 386-5]: . . . infliction of emotional distress related to sexual assault or
sexual harassment -- not just any infliction of emotional distress[.]”);.
Insofar as Plaintiff relies on Bolla v. University of Hawaii, 131 Haw.
252, 317 P.3d 696, at *2 (Haw. Ct. App. 2014) (finding that HRS § 386-5 bars
IIED claims “unless they arise out of sexual harassment, assault, or
discrimination”), to argue that HRS § 386-5 excludes IIED claims based upon
discrimination generally, this court agrees with Senior Judge Susan Oki Mollway
who reconciled the unpublished Bolla disposition with Yang: “The Bolla decision
may have used ‘sexual’ as an adjective modifying not only ‘harassment,’ but also
‘assault’ and ‘discrimination.’ Such a reading would be consistent with Yang[.]”
Chan v. Wells Fargo Advisors, LLC, 124 F. Supp. 3d 1045, 1059 (D. Haw. 2015).
Accordingly, the court finds Plaintiff’s IIED claim barred by HRS
§ 386-5, as it is not related sexual assault, sexual harassment, or sexual
discrimination.

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V. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary
Judgment, ECF No. 55, is GRANTED as to Plaintiff’s IIED claim, and DENIED
as to Plaintiff’s retaliation claims under federal and state law.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 28, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Machorek v. Marriott Ownership Resorts, Inc., Civ. No. 15-00230 JMS-KSC, Order Granting in
Part and Denying in Part Defendant’s Motion for Summary Judgment, ECF No. 55

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