Maybin v. Hilton Resorts Corporations

Filing 36

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 20 - Signed by JUDGE DERRICK K. WATSON on 3/6/2018. "For the foregoing reasons, the Court denies Defendant's' Motion for Summary Judgment as to Count I. Dkt. No. 20." (emt, )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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

CARL MAYBIN,

CIVIL NO. 17-00489 DKW-KSC

Plaintiff,
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

vs.
HILTON GRAND VACATIONS
COMPANY, LLC,
Defendant.

INTRODUCTION
Hilton Grand Vacations Company, LLC (“Hilton”) seeks summary judgment
on Plaintiff Carl Maybin’s claim that he was unlawfully terminated from his
timeshare sales position due to his age in violation of the Age Discrimination in
Employment Act (“ADEA”), U.S.C. § 621 et seq. After Maybin failed to meet
sales quotas for several consecutive months and was subject to progressive written
warnings, Hilton terminated him. Maybin, however, contends that age-based
discrimination by his supervisors hindered his ability to complete sales and
adequately perform his job. Because there are genuine issues of material fact with
regard to the veracity of Hilton’s performance-based explanations, which Hilton did
not fully address, the Motion for Summary Judgment as to Count I is DENIED.

BACKGROUND
I.

Factual Background
Maybin was hired by Hilton as a sales agent in September 2015 when he was

55 years old. Before his hiring, Maybin had a series of job interviews. He first
interviewed with Derek Kanoa, Vice President of Sales, and then with Julia
Montenegro, a senior member of Hilton’s Human Resources department. Decl. of
Carl Maybin ¶ 3, Dkt. No. 26-1. Maybin followed that by interviewing with Dave
Colton, and last with Joshua Kannel, the Hawaii Director of Sales. Maybin Decl.
¶¶ 3–4. Based upon Kannel’s recommendation and request, Maybin was hired on
September 14, 2015. Decl. of Joshua Kannel ¶ 7, Dkt. No. 21-1.1
According to Maybin, shortly after he was hired, he witnessed Kannel display
overt animus towards older sales agents by making negative comments about their
abilities at sales meetings. Maybin avers that Kannel “ridicule[d] [himself], Bob
Bennett, Jose Henao, and Richard Green because of their ages[,]” each one of them
“sales agents in [their] late 50s.” Maybin Decl. ¶ 6. For example, Kannel said
they “were too slow, can’t learn, have a different way of doing things, are hard to
teach new ways of sales, are too old to change, and don’t have the energy necessary

1

Decisions regarding the hiring and firing of sales agents are centralized and restricted to personnel
working in Hilton’s Human Resources department for the Hawaii market (“Hilton HR”). Kannel
Decl. ¶¶ 7–8; Decl. of Julia Montenegro ¶ 15, Dkt. No. 29-1. Only Julia Montenegro and John
Boulanger had the authority to make hiring and firing decisions with respect to sales agents such as
Maybin. Montenegro Decl. ¶¶ 16–17.
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for sales.” Maybin Decl. ¶ 6. Kannel made such comments at sales meetings from
the time that Maybin first started “and continued [making them] throughout [his]
employment” with Hilton. Maybin Decl. ¶ 6.
Although Hilton contends that Maybin was terminated because he was not
performing his job adequately as measured by objective performance standards,
Maybin asserts that from the inception of his employment until the beginning of
February 2016, his sales were strong, and at times he “was number 2 or 3 in sales,”
compared to his peers. Maybin Decl. ¶ 7. From the end of February 2016,
however, Maybin’s sales numbers declined, and he attributes that decline, in part, to
being “given less tours,” and intentionally assigned fewer potential customers.
Maybin Decl. ¶¶ 8–9. Kannel was responsible for creating the daily “‘roter’ or list
of sales people in the order that they would get tours.” Maybin Decl. ¶ 10. Those
employees listed near the top of the “roter” were assigned a greater number of tours,
according to Maybin, “usually 2 or 3 per day, [however,] [i]f you were at the bottom
of the list, you would get none, or 1 to 2 tours per day.” Maybin Decl. ¶ 11. In
Maybin’s version of events, he was “intentionally given less tours, even though he
was a high producer of sales. Being given less tours resulted in less sales, [because]
[i]f you don’t get customers for tours, you get less sales.” Maybin Decl. ¶ 9. From
the end of February 2016, Maybin claims that he “was placed toward the bottom of

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the ‘roter’, even though [his] sales performance had been good, and [he] was
meeting quotas.” Maybin Decl. ¶ 12.
In March 2016, Maybin was assigned a new sales manager, James Tony
Wilson, who treated Maybin “in a very hostile manner” from their first interaction.
Maybin Decl. ¶¶ 13–14. Wilson made inappropriate comments to Maybin,
“interfer[ing] with [his] sales by making sarcastic remarks about [his] clients.”
Maybin Decl. ¶ 15. Maybin lost sales because Wilson “would refuse to meet with
[his] customers after [Maybin] gave them a tour to talk to them about purchasing.”
Maybin Decl. ¶ 15. Because “[o]nly the sales managers [such as Wilson] could do
the actual sales,” this meant that Maybin lost sales “about ten times” because of
Wilson’s alleged conduct. Maybin Decl. ¶ 15. Maybin asked three times to be
reassigned to another sales manager, but claims that his requests were “refused.”
Maybin Decl. ¶ 16.
Maybin received his first written job performance warning in May 2016 for
failure to meet Hilton’s job performance standards. Hilton assesses sales agents
and executives’ performance under its “Minimum Performance Standards” system
(“MPS”), which operates in the following manner:
Under the MPS, during the first three months of employment,
Sales Executives were required to complete a total of five sales
within that three month period.

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Under the MPS, during the second three months of employment,
Sales Executives were required to complete a total of seven sales
within that second three month period.
Once a Sales Executive had passed the first six months of
employment, their MPS requirements changed from being based
on the number of sales made to a “Value Per Guest” (“VPG”)
basis.
Under the MPS, after six months of employment, Sales
Executives were required to meet a monthly VPG minimum of
$2,200 in at least one of the three following categories:
(1) current month, (2) an average of the prior three month period,
or (3) an average of the prior twelve month period.
Kannel Decl. ¶ 8(b)–(e) (citing Ex. 1). The consequences of failure to meet
minimum performance guidelines after the three-month introductory period are as
follows:
Starting in the fourth month of a Sales Executive’s
employment[,] if a Sales Executive fails to meet the required
MPS, they were subject to a system of progressive written
warning documenting their lack of performance and failure to
satisfy the MPS (“Job Performance Warning System”).
Under the Job Performance Warning System[,] the progression
is as follows: (1) written warning, (2) a second/final written
warning, and (3) termination.
Kannel Decl. ¶ 12(a)–(b) (citing Ex. 1).
According to Hilton, during the final four months of his employment, Maybin
did not meet any of the standards under the MPS. That is, he failed to have a VPG
of at least $2,200 on the basis of current sales or an average of the prior three months
of sales. During April, May, June, and July 2016, Maybin performed as follows:
5

VPG Month

Plaintiff’s Sales

Plaintiff’s VPG
Current Month

Plaintiff’s VPG
3 Month Avg.

Month 7
(April 2016)

$1,202

$943

$943

Month 8
(May 2016)

$1,247

$1,809

$1,291

Month 9
(June 2016)

$1,161

$401

$952

Month 10
(July 2016)

$0.00

$0.00

$648

Kannel Decl. ¶ 11. When Maybin did not meet his required VPG in May 2016, he
received his first written job performance warning on June 25, 2016. Kannel Decl.
¶ 13; Ex. 2 (6/25/16 Performance Management Review Document), Dkt. No. 21-3.
Maybin received a second and final written warning when he did not meet his VPG
for June 2016. Kannel Decl. ¶ 15; Ex. 3 (7/26/16 Performance Management
Review Document), Dkt. No. 21-4.
Maybin acknowledges that during April, May, and June of 2016, he did not
meet sales quotas, but says that he “was intentionally given less tours which kept
[his] sales numbers down and [his] sales manager was refusing to meet [with his]
customers.” Maybin Decl. ¶ 17. Hilton maintains that Maybin always received at
least 15 tours per month—even after February 2016—and that “[o]nly 15 tours are
required each month for a sales executive to meet his sales quotas.” Decl. of Julia
Montenegro ¶ 5, Dkt. No. 29-1.

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According to Hilton HR’s Montenegro, in May 2016, Maybin was not
required to attend any training and had 19 tours. Montenegro Decl. ¶ 9. After he
received his first written warning, he was “placed into remedial training for June
2016,” and that month, his tours increased from 19 to 29. Montenegro Decl. ¶¶ 9–
10. In July, Maybin received 23 tours and “was given an extra month of remedial
training.” Montenegro Decl. ¶ 13.
According to Maybin, in July 2016, he was ordered to attend mandatory
training of undisclosed duration at the Pan Am Building on Kapiolani Boulevard.
Maybin Decl. ¶ 18. As a result of the required training, Maybin claims to have only
received one tour per day at 8:00 a.m., and had no sales in July 2016. According to
Maybin, he “could not possibly have met quota because he was in mandatory
training.” Maybin Decl. ¶ 18.
When Maybin did not meet his VPG in July 2016, he was terminated the
following month. Kannel Decl. ¶¶ 17–18; Ex. 4 (8/23/16 Performance
Management Review Document), Dkt. No. 21-5; Ex. 5 (8/29/16 Personnel
Authorization Form), Dkt. No. 21-6. Per Kannel, he recommended this course of
action to Hilton HR solely due to Maybin’s sales performance, and declares that
“Maybin’s age had no part in [his] decision to recommend Mr. Maybin’s
termination.” Kannel Decl. ¶ 20. Montenegro likewise avers that “age had no part
in [Hilton’s] decision to terminate Mr. Maybin.” Montenegro Decl. ¶ 22. Maybin

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disagrees, contending that he was wrongfully terminated in August 2016 due to age
discrimination.
II.

Procedural Background
Maybin filed his Charge of Discrimination with the Equal Opportunity

Employment Commission on January 4, 2017, Montenegro Decl. Ex. 1, Dkt. No.
32-1, which then issued a Notice of Right to Sue on June 30, 2017. See Mem. in
Opp’n at 3. On September 27, 2017, Maybin filed his Complaint alleging three
counts under the ADEA: (1) age discrimination; (2) hostile work environment; and
(3) retaliation. Compl. ¶¶ 18–28, Dkt. No. 1. The Complaint alleges that on
“August 1, 2016, Plaintiff was terminated from his position with Defendant Hilton
due to discrimination based on his age (56), and in retaliation for complaining about
the discrimination.” Compl. ¶ 4. On November 21, 2017, the parties stipulated to
the dismissal with prejudice of Maybin’s Count III retaliation claim. Dkt. No. 17.
Hilton now moves for summary judgment on Maybin’s Count I ADEA age
discrimination claim.2
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no genuine dispute as to any

2

Although it initially moved on all remaining claims, at the February 9, 2018 hearing, Hilton
withdrew without prejudice its Motion with respect to the Count II hostile work environment
claim. See Dkt. No. 33 (2/9/18 Court Minutes).
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material fact and the movant is entitled to judgment as a matter of law.” The
moving party is entitled to judgment as a matter of law when the nonmoving party
fails to make a sufficient showing on an essential element of a claim in the case on
which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
To meet its burden, “the moving party must either produce evidence negating
an essential element of the nonmoving party’s claim or defense or show that the
nonmoving party does not have enough evidence of an essential element to carry its
ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). Once the moving party
has satisfied its initial burden of production, the burden shifts to the nonmoving
party to show that there is a genuine issue of material fact. Id. at 1103.
The nonmoving party may not rely on the mere allegations in the pleadings
and instead must set forth specific facts showing that there is a genuine issue for
trial. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
Cir. 1987). At least some “‘significant probative evidence tending to support the
complaint’” must be produced. Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1134 (9th Cir. 2000) (“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of material fact.”). “[I]f

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the factual context makes the non-moving party’s claim implausible, that party must
come forward with more persuasive evidence than would otherwise be necessary to
show that there is a genuine issue for trial.” Cal. Arch’l Bldg. Prods., Inc. v.
Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Accord Addisu,
198 F.3d at 1134 (“There must be enough doubt for a ‘reasonable trier of fact’ to find
for plaintiffs in order to defeat the summary judgment motion.”).
DISCUSSION
Hilton argues that Maybin was not adequately performing his job as a
timeshare sales agent when he was terminated, and moreover, age was neither the
“but for” cause of its decision to terminate him nor were its reasons pretext for
discrimination. Although Maybin acknowledges that his monthly sales numbers
fell below the minimum requirements during the relevant time period, he attributes
the shortages to being “deliberately set[-up] for failure and termination.” Mem. in
Opp’n at 11. In its briefing, Hilton failed to address at least some of Maybin’s
explanations for his monthly sales deficiencies—his sales manager intentionally
interfered with his ability to make sales, he was placed at the bottom of the “roter,”
and then required to attend mandatory training which likewise impacted his ability
to make sales—all allegedly due to his supervisors’ age-based animus. At this
preliminary stage of the case, drawing all reasonable inferences in his favor, Maybin

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raises triable issues of material fact as to whether Hilton’s proffered reasons for his
termination were pretext for unlawful discrimination, precluding summary
judgment as to Count I.
I.

Legal Framework for Age Discrimination Claims Under the ADEA
The federal ADEA prohibits discrimination based on age. 29 U.S.C.

§ 623(a)(1) (“It shall be unlawful for an employer to . . . discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age”).

The prohibition is “limited to

individuals who are at least 40 years of age.” 29 U.S.C. § 631(a).
Motions for summary judgment regarding ADEA claims may be analyzed
using the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Shelley v. Geren, 666 F.3d at 608 (9th Cir. 2012) (holding that the
McDonnell Douglas burden-shifting framework applies to summary judgment
motions under the ADEA). For the first step in the burden-shifting framework, a
plaintiff must present evidence of a prima facie case of discrimination by showing
that (1) he belongs to a protected class, (2) he was qualified for his position, (3) he
was subjected to an adverse employment action, and (4) similarly situated
individuals outside his protected class were treated more favorably. Davis v. Team
Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).

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If the plaintiff establishes a prima facie case, “the burden of production, but
not persuasion, then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the challenged action.” Hawn v. Executive Jet
Management, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). If the movant meets this
burden, a plaintiff must raise “a triable issue of material fact” as to whether
defendant’s proffered reasons for the adverse employment actions are “mere pretext
for unlawful discrimination.” Hawn, 615 F.3d at 1155. “[A] plaintiff’s burden is
much less at the prima facie stage than at the pretext stage.” Hawn, 615 F.3d at
1158.
“A plaintiff can show pretext directly, by showing that discrimination more
likely motivated the employer, or indirectly, by showing that the employer’s
explanation is unworthy of credence.” Vasquez v. Cty. of Los Angeles, 349 F.3d
634, 641 (9th Cir. 2003). Direct evidence is usually composed of “clearly sexist,
racist, or similarly discriminatory statements or actions by the employer.” Coghlan
v. Am. Seafoods Co., 413 F.3d 1090, 1094–95 (9th Cir. 2005); Earl v. Nielsen Media
Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (holding that “comments from
supervisors betraying bias or animus against older workers” constitute direct
evidence of age discrimination). “Because direct evidence is so probative, the
plaintiff need offer ‘very little direct evidence to raise a genuine issue of material
fact.’” Id. at 1095. In contrast, circumstantial evidence constitutes “evidence that

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requires an additional inferential step to demonstrate discrimination.” Id. at 1095.
A plaintiff’s circumstantial evidence must be both specific and substantial in order
to survive summary judgment. Becerril v. Pima Cty. Assessor’s Office, 587 F.3d
1162, 1163 (9th Cir. 2009).
Alternatively, a member of a protected class suffering an adverse employment
action may rely solely on “direct evidence,” rather than the burden-shifting
framework. “Direct evidence, in the context of an ADEA claim, is defined as
evidence of conduct or statements by persons involved in the decision-making
process that may be viewed as directly reflecting the alleged discriminatory attitude
. . . sufficient to permit the fact finder to infer that that attitude was more likely than
not [the cause of] the employer’s decision.” Enlow v. Salem–Keizer Yellow Cab
Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (citation omitted) (emphasis in original).
Direct evidence often takes the form of slurs made by the employer against members
of the protected category. See, e.g., Earl, 658 F.3d at 1113 (noting that “comments
from supervisors betraying bias or animus against older workers” constitute direct
evidence of age discrimination); Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169,
1180 (9th Cir. 1998) (“Discriminatory remarks are relevant evidence that, along
with other evidence, can create a strong inference of intentional discrimination.”).
Whichever theory plaintiffs proceed under, at trial “they retain [ ] the burden
of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse

13

action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). In other words,
a plaintiff must do more than “produce some evidence that age was one motivating
factor in [an employment] decision.” Id. A plaintiff must show, at the summary
judgment stage, that a reasonable trier of fact could conclude, by a preponderance of
the evidence, that the plaintiff would not have been fired but for impermissible age
discrimination. See, e.g., Scheitlin v. Freescale Semiconductor, Inc., 465 Fed.
Appx. 698, 699 (9th Cir. 2012) (applying Gross’s “but for” causation standard at the
summary judgment stage).
The Ninth Circuit has held that “the plaintiff in an employment discrimination
action need produce very little evidence in order to overcome an employer’s motion
for summary judgment.” Chuang v. Univ. of California Davis Bd. of Trustees, 225
F.3d 1115, 1124 (9th Cir. 2000). “This is because the ultimate question is one that
can only be resolved through a searching inquiry—one that is most appropriately
conducted by a factfinder, upon a full record.” Id. (citing Schnidrig v. Columbia
Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)) (internal quotation marks omitted).
In light of this framework, the Court turns to the merits of Maybin’s Count I
claim for age discrimination.
II.

Genuine Issues of Material Fact Defeat Summary Judgment
With respect to Maybin’s prima facie case, Hilton accepts for purposes of this

Motion that Maybin was a member of a protected class and suffered an adverse

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employment action. Hilton argues that Maybin’s ADEA claim fails as a matter of
law because (1) he was an objectively poor employee based upon his sales
performance; and (2) he fails to demonstrate that his age was the “but-for” cause of
Hilton’s decision to terminate him or that its reasons were pretext for discrimination.
Reply at 1, Dkt. No. 29.
A.

Genuine Issues Remain With Respect to Pretext

Maybin concedes that he did not meet his sales quotas and monthly VPG in
April, May, and June of 2016, but argues that he was intentionally hindered from
adequately performing his job due to conduct by his supervisors, who openly
exhibited age-based animus against him and other older sales agents. Although
Hilton asserts that Maybin “cannot blame Defendant for his own performance
deficiencies,” Reply at 2, this rebuttal misses the mark. That is because Maybin
accuses Hilton of deliberately preventing him from meeting his sales quotas, in part,
based on unrebutted testimony that he “was intentionally given less tours which kept
[his] sales numbers down and [his] own sales manager was refusing to meet
[Maybin’s] customers to close sales.” Maybin Decl.¶ 17. Taken together with at
least some direct evidence of discrimination, including age-based comments by
Kannel, Maybin raises issues of fact with respect to Hilton’s proffered
non-discriminatory reasons for his termination.

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First, Hilton argues that the average number of tours allotted to Maybin did
not, in fact, decrease during the post-February 2016 time period corresponding with
the decrease in his sales numbers. See Montenegro Decl. ¶¶ 7–8 (showing average
of 30.75 tours from October 2015–January 2016, compared to 31.66 tours from
February–July 2016). The comparative monthly averages, however, do not tell the
whole story. For example, around the time that Wilson became his sales manager
in March 2016, Maybin received the following tour assignments: February (37
tours); March (40 tours); April (37 tours); May (19 tours); June (29 tours); July (23
tours). Montenegro Decl. ¶ 8. Although the average number of tours from
February to July 2016 remained stable as compared to the pre-February 2016 time
period, the unexplained drop in the raw number of tours in May 2016 corresponds to
the same timeframe in which Maybin received his first written warning in June 2016
for failure to meet performance standards. See Kannel Decl. ¶ 13 (“[W]hen
Plaintiff did not meet his required VPG in May of 2016, he was issued his first
written job performance warning.”). There is no additional explanation for the
decrease in Maybin’s tours during this time period, nor does the Court have a fuller
picture of whether other sales agents experienced similar tour decreases during the
relevant time. Viewing the evidence in the light most favorable to Maybin, there is
at least a question of fact as to the reason for this raw number decrease in tours.

16

Second, Maybin claims that the decrease is due to age-based discrimination
by his supervisors, including his sales manager, Wilson, who deliberately interfered
with his ability to close sales. According to Maybin, Wilson treated him in a hostile
manner, spoke sarcastically to him at meetings, and hindered his sales by making
sarcastic remarks about his clients. Maybin Decl. ¶ 15. Further still, Wilson
refused to meet with Maybin’s customers after their tours to speak with them about
purchasing a timeshare unit, and according to Maybin, “[t]his meant [he] lost sales.
Only the sales managers could do the actual sales. This happened about ten times.”
Maybin Decl. ¶ 15. Hilton did not respond to these assertions in its briefing.
Although it is a close call, the cumulative circumstantial and direct evidence is
sufficient, for purposes of this Motion only, to raise questions of fact regarding
whether age-based discrimination was the but for cause of Maybin’s termination.
See Davis v. Team Elec. Co., 520 F.3d 1080, 1093 (9th Cir. 2008) (“Although this is
a close case . . . [s]uch uncertainty at the summary judgment stage must be resolved
in favor of the plaintiff.”) (citation and quotation marks omitted); see also EEOC v.
Boeing Co., 577 F.3d 1044, 1047–51 (9th Cir. 2009) (reversing grant of summary
judgment in favor of employer where plaintiffs were terminated after they received
low scores on reduction-in-force assessments, but demonstrated sufficient evidence
of pretext that supervisors’ performance evaluations were not worthy of credence
and therefore pretextual, including evidence that employee was “set up to fail”);

17

Jackson v. City of Las Vegas, 2016 WL 5110251, at *3–4 (D. Nev. Sept. 20, 2016)
(denying summary judgment where plaintiff argued that proffered reasons for his
termination were pretextual because he was “set up to fail from the beginning and
was a scapegoat because he is African–American”).
Similarly, in Parris v. Wyndham Vacations Resorts, Inc., 979 F. Supp. 2d
1069 (D. Haw. 2013), the plaintiff timeshare sales agent brought disparate treatment
and hostile work environment claims under the ADEA. The district court denied
summary judgment, finding a question of fact as to whether age-based
discrimination was the “but for” cause of plaintiff’s demotion where his supervisor
“made numerous comments to several employees, including [plaintiff], regarding
their age,” which the district court found were “probative as to [the supervisor’s]
motive for demoting Parris, even if some of them were made to employees other
than [plaintiff].” Id. at 1077. The Parris court explained that “if [the supervisor]
uttered the alleged words, they reveal a belief that older employees are inferior to
younger ones by mere dint of their age. . . . Thus, [the supervisor]’s alleged
statements, purportedly made frequently and to at least four employees, would, if
proven, be sufficient for a fact-finder to reasonably conclude that [the supervisor]
had an age-based animus. Whether the alleged animus was the ‘but for’ cause of
Parris’s demotion is a question this court leaves for trial.” Id. Further, the district

18

court acknowledged that “[w]hile Parris admits that he did not meet the APG[3]
required while he was on specific performance, . . . Parris also points to his
medium-term and long-term past performance as evidence of his job competence,
suggesting that incompetence may not have caused his demotion.” Id. at 1077–78
(citing EEOC v. Boeing Co., 577 F.3d 1044, 1050 (9th Cir. 2009) (finding evidence
of longer-term past performance to be probative, despite acknowledged recent poor
performance). Viewing the evidence in the light most favorable to Parris, the
district court concluded that “the evidence of differential standards, combined with
[his supervisor’s] allegedly discriminatory statements, create a question of fact as to
whether age-based animus was the ‘but for’ cause of Parris’s demotion.” Id. at
1078.
Likewise, the Court finds on the current record, before the benefit of full
discovery in this matter, that all of the above facts, taken together, raise triable issues
that Maybin’s job performance and resulting termination occurred under
circumstances giving rise to an inference of age discrimination. That is, Maybin
raises genuine issues of material fact regarding the underlying reasons for his

3

“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. 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.”
Parris, 979 F. Supp. 2d at 1071 (citations omitted).
19

unsatisfactory job performance and Hilton’s related reasons for terminating his
employment—to which Hilton has yet to fully respond.
B.

Same Actor Inference

To the extent Hilton invokes the “same actor inference” in order to
demonstrate an absence of pretext, questions of fact nevertheless remain. When
“the same actor is responsible for both the hiring and the firing of a discrimination
plaintiff, and both actions occur within a short period of time, a strong inference
arises that there was no discriminatory action.” Coghlan v. Am. Seafoods Co. LLC,
413 F.3d 1090, 1096 (9th Cir. 2005) (quoting Bradley v. Harcourt, Brace & Co., 104
F.3d 267 (9th Cir. 1996)). Yet, whether the same actors were responsible for
Maybin’s hiring and the events leading to his termination is not beyond dispute on
this factual record.
Hilton argues that Kannel is “the same manager who allegedly discriminated
against Plaintiff by firing him, [and also] interviewed Plaintiff and approved his
hiring in the first instance.” Mem. in Supp. at 16, Dkt. No. 20-1. Maybin contends
that he interviewed with several Hilton managers before he was hired, including
Montenegro, notwithstanding Kannel’s assertion that it was his recommendation
that led to Maybin’s hiring. Moreover, Kannel did not have the independent
authority to hire or fire Maybin—he could only recommend as much—because that
power resided solely with Montenegro and Boulanger in Hilton HR. See Parris,

20

979 F. Supp. 2d at 1080 (finding genuine issue of material fact as to whether the
same actor was responsible for employee’s promotion and demotion, precluding
summary judgment on issue of whether same actor inference applied, explaining
that “[b]ecause Barker’s discriminatory animus is the gravamen of Parris’s claim,
for Wyndham to be entitled to the ‘same actor’ inference, Barker must have been
responsible for Parris’s promotion”); see also Russell v. Mountain Park Health Ctr.
Properties, LLC, 403 Fed. Appx. 195, 196 (9th Cir. 2010) (a defendant must
demonstrate that “the individuals responsible for . . . termination were actually
responsible for his hiring, rather than simply participants in that process, [to be]
entitled for purposes of summary judgment to the ‘same-actor’ inference of
non-discrimination.”). Further, as previously noted, other supervisors with
purported control over Plaintiff’s employment conditions also played a role in his
sub-par performance and resultant termination. And neither Kannel nor Wilson
refuted Maybin’s recounting of their age-based commentary or hostility directed at
himself and other older sales agents.
Drawing all reasonable inferences in Maybin’s favor, the Court cannot
determine that the same actor inference applies and therefore leaves that matter for
trial. If Hilton subsequently demonstrates that the same actor was responsible for
both Maybin’s hiring and termination, Maybin may only prevail if he makes the

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“extraordinarily strong showing of discrimination” required to rebut the “same
actor” inference. Coghlan, 413 F.3d at 1097.
C.

Summary

A motion for summary judgment does not require a plaintiff to prove that the
employer’s reasons are pretextual. Joseph v. City of Santa Monica, 2018 WL
813357, at *3 (C.D. Cal. Feb. 9, 2018). Rather, he need only “tender a genuine
issue of material fact as to pretext in order to avoid summary judgment.” Id. (citing
Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)). To do so, he must
“produce ‘specific facts showing that there remains a genuine factual issue for trial’
and evidence ‘significantly probative as to any [material] fact claimed to be
disputed.’” Id. (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983))
(some citations and quotations omitted). Maybin has met that burden here.
Considered cumulatively with the unrefuted direct evidence of Kannel’s
statements evincing age-based animus and Wilson’s deliberate efforts to hinder his
sales, Maybin raises genuine issues of material fact as to whether Hilton’s proffered
reasons for the adverse employment actions taken against him were pretext for and
the result of age discrimination. Viewing the facts and drawing reasonable
inferences in the light most favorable to Maybin, the Court finds that genuine issues
of material fact remain with respect to pretext on the ADEA discrimination claim at
this time.

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CONCLUSION
For the foregoing reasons, the Court denies Defendant’s’ Motion for
Summary Judgment as to Count I. Dkt. No. 20.
IT IS SO ORDERED.
DATED: March 6, 2018 at Honolulu, Hawai‘i.

Maybin v. Hilton Grand Vacations Company, LLC, CV NO. 17-00489 DKW-KSC; ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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