Maybin v. Hilton Resorts Corporations

Filing 67

ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT re 45 - Signed by JUDGE DERRICK K. WATSON on 9/27/2018. For the foregoing reasons, the Court GRANTS Defendant's Renewed Motion for Summary Judgment as to Count I. Dkt. No. 45. (emt, )

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

CARL MAYBIN,

CIVIL NO. 17-00489 DKW-KSC

Plaintiff,
vs.
HILTON GRAND VACATIONS
COMPANY, LLC,

ORDER GRANTING
DEFENDANT’S RENEWED
MOTION FOR SUMMARY
JUDGMENT

Defendant.

INTRODUCTION
Hilton seeks summary judgment on 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. The focus of
Hilton’s renewed Motion is whether it sufficiently established that the same actor
made the decision to both hire and terminate Maybin, and, if so, whether Maybin
met his increased burden of demonstrating age-based discrimination in light of the
application of the “same actor” inference. Because the Court finds that the same
actor inference applies to Maybin’s discrimination claims, and that Maybin has not
made the strong showing necessary to overcome the inference on the facts presented,
Hilton’s Renewed Motion for Summary Judgment as to Count I is GRANTED.

BACKGROUND
Because the parties are familiar with the factual and procedural background in
this matter, as described in prior Court orders, the Court recounts only those matters
material to the issues raised by Hilton’s renewed Motion as to Count I. 1
I.

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

when he was 55 years old, following a series of job interviews with Hilton
personnel. He first interviewed with Derek Kanoa, Vice President of Sales, and
then with Julia Montenegro, a senior member of Hilton’s Human Resources
department. 1/11/18 Decl. of Carl Maybin ¶ 3, Dkt. No. 26-1. Maybin then
interviewed with Dave Colton, and finally, with Joshua Kannel, the Hawaii Director
of Sales. Maybin Decl. ¶¶ 3–4. Based upon Kannel’s recommendation and
request, Montenegro hired Maybin on September 14, 2015. 12/8/17 Decl. of
Joshua Kannel ¶ 7, Dkt. No. 21-1; 6/13/18 Montenegro Decl. ¶ 7, Dkt. No. 46-1. 2

1

See the Court’s prior orders, available at 2018 WL 2944149 (D. Haw. June 12, 2018), and 2018
WL 1177914 (D. Haw. Mar. 3, 2018). See also Bridge Aina Le’a, LLC v. Hawaii Land Use
Comm’n, No. CV 11-00414 SOM-KJM, 2018 WL 3149489, at *1 (D. Haw. June 27, 2018)
(incorporating by reference the court’s prior rulings when considering a renewed motion for
judgment as a matter of law).
2
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”). 12/8/17
Kannel Decl. ¶¶ 7–8; 1/25/18 Decl. of Julia Montenegro ¶ 15, Dkt. No. 29-1. Only Julia
Montenegro and John Boulanger, both employed by Hilton HR, had the authority to make hiring
and firing decisions with respect to sales agents such as Maybin. 1/25/18 Montenegro Decl.
¶¶ 16–17.
2

When Maybin failed to meet sales quotas for several consecutive months, he was
subject to progressive written warnings, and then eventually terminated by
Montenegro, at Kannel’s recommendation. 12/8/17 Kannel Decl. ¶¶ 19–20;
6/13/18 Montenegro Decl. ¶ 9.
According to Maybin, however, shortly after he was hired, Kannel
demonstrated animus towards older sales agents by making negative comments
about their abilities at sales meetings. For example, Kannel said older agents “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 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, without additional
evidence, 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
acknowledges that his sales numbers declined, and he attributes that decline, in part,

3

to being “given less tours,” and intentionally assigned fewer potential customers.
Maybin Decl. ¶¶ 8–9.3
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, however, does not specifically attribute age-based animus to Wilson in his
Complaint or Declaration filed in this matter. See 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.
Maybin received his first written job performance warning in May 2016 for
failure to meet Hilton’s job performance standards.4 12/8/17 Kannel Decl. ¶ 13;

3

According to Maybin, 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 the ‘roter’, even though
[his] sales performance had been good, and [he] was meeting quotas.” Maybin Decl. ¶ 12.
4
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.

4

Ex. 2 (6/25/16 Performance Management Review Document), Dkt. No. 21-3. 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.
12/8/17 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 its performance standards. 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

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.
12/8/17 Kannel Decl. ¶ 8(b)–(e) (citing Ex. 1).
5

sales.5 Maybin received a second and final written warning when he did not meet
his VPG for June 2016. 12/8/17 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.” 1/25/18 Decl.
of Julia Montenegro ¶ 5, Dkt. No. 29-1. According to Hilton HR’s Montenegro, in
May 2016, Maybin was not required to attend any training and had 19 tours.

5

During April, May, June, and July 2016, Maybin performed as follows:
VPG Month
Month 7
(April 2016)
Month 8
(May 2016)
Month 9
(June 2016)
Month 10
(July 2016)

Plaintiff’s Sales

Plaintiff’s VPG
Current Month

Plaintiff’s VPG
3 Month Avg.

$1,202

$943

$943

$1,247

$1,809

$1,291

$1,161

$401

$952

$0.00

$0.00

$648

12/8/17 Kannel Decl. ¶ 11. While Hilton’s policy also permits an employee to satisfy VPG
performance criteria by averaging sales figures for the “prior twelve month period,” that was not
possible with Maybin because he was not employed for at least twelve months. 12/8/17 Kannel
Decl. ¶ 8 (citing Ex. 1).
6

1/25/18 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. 1/25/18 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 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. 12/8/17 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.
Kannel avers that he recommended termination to Hilton HR solely due to
Maybin’s sales performance and that “Maybin’s age had no part in [his] decision to
recommend Mr. Maybin’s termination.” 12/8/17 Kannel Decl. ¶ 20. Montenegro,
the ultimate decisionmaker, likewise avers that “age had no part in [her] decision to
terminate Mr. Maybin.” 1/25/18 Montenegro Decl. ¶ 22; see also 6/13/18
Montenegro Decl. ¶ 10 (“Mr. Maybin’s age played no part in my decision to either

7

hire or fire Mr. Maybin.”). Maybin disagrees, and contends instead that he was
wrongfully terminated in August 2016 due to age discrimination.
II.

Procedural Background
On September 27, 2017, Maybin filed his Complaint alleging three counts

under the ADEA: (1) age discrimination; (2) hostile work environment; and
(3) retaliation. 6 Compl. ¶¶ 18–28, Dkt. No. 1. The Court previously denied
Hilton’s request for summary judgment on Count I, finding that genuine issues of
material fact persisted with respect to pretext. Of particular note to the instant
Motion, the Court determined that Hilton had not established, for purposes of
invoking the “same actor inference,” that the same person with decision-making
authority was responsible for both hiring and firing Maybin. The prior summary
judgment record was insufficient because, at that time—
Hilton argue[d] 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
contend[ed] 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.
[However], 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.

6

On November 21, 2017, the parties stipulated to the dismissal with prejudice of Maybin’s Count
III retaliation claim. Dkt. No. 17
8

Maybin v. Hilton Grand Vacations Co., LLC, No. CV 17-00489 DKW-KSC, 2018
WL 1177914, at *7 (D. Haw. Mar. 6, 2018). The Court thus denied Hilton’s
motion, noting that “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.” Id. The Court noted, however, that “[i]f Hilton subsequently
demonstrates that the same actor was responsible for both Maybin’s hiring and
termination, Maybin may only prevail if he makes the ‘extraordinarily strong
showing of discrimination’ required to rebut the ‘same actor’ inference.” Id. at 8
(citing Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1097 (9th Cir. 2005)).
Hilton now renews its request for summary judgment, based upon the
application of the same actor inference, on Count I’s claim for age discrimination
under the ADEA. In support of its Motion, Hilton offers a supplemental
Declaration of Julia Montenegro, averring that all “[d]ecisions regarding hiring and
firing of employees working for Hilton in Hawaii are centralized and restricted to
personnel working in Hilton HR. Decisions regarding hiring and firing employees
in [Maybin’s] capacity (i.e., as real estate salespersons) were the responsibility of
myself and my colleague, John Boulanger.” 6/13/18 Montenegro Decl. ¶¶ 4–5. In
light of the updated record, the Court again considers Hilton’s request for summary
judgment on Maybin’s ADEA discrimination claim, limited in scope to whether the
parties have met their respective burdens to establish (1) the applicability of the

9

same actor inference, and (2) the requisite strong showing of discrimination
necessary to rebut the inference.
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
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).
DISCUSSION
The parties agree, for purposes of this Motion, that Maybin has made a prima
facie case of age discrimination. Because Hilton has sufficiently established that
Montenegro, at Kannel’s recommendation, was the same decisionmaker who hired
and fired Maybin within a short period of time, the same actor inference creates an
inference of no age-based animus or discriminatory motive. Moreover, Hilton
offers a non-discriminatory reason for the termination, with Maybin acknowledging
that his monthly sales numbers fell below Hilton’s minimum requirements during
the relevant time period. Maybin, however, argues that the cited reason is

10

pretextual, and attributes his sales shortages to being deliberately set-up for failure
and points to the age-related comments of Kannel.
Because the same actor inference applies, and the limited evidence cited by
Maybin does not amount to the “strong case of bias necessary to overcome this
inference,” Coghlan, 413 F.3d at 1098, Hilton is entitled to summary judgment on
Count I.
I.

Legal Framework: Age Discrimination and the Same Actor Inference
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 599, 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

11

individuals outside his protected class were treated more favorably. Davis v. Team
Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
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).7 Hilton argues that because Montenegro was the person

7

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). In contrast, circumstantial evidence constitutes
“evidence that 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).
12

responsible for both Maybin’s hiring and firing, the same actor inference prevents
Maybin from establishing pretext under the circumstances of this case.
In discrimination cases, 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, 413 F.3d at 1096 (quoting Bradley v. Harcourt, Brace & Co.,
104 F.3d 267 (9th Cir. 1996)). The Court is required to consider this “strong
inference” in a summary judgment motion. Id.; see also Schechner v. KPIX–TV,
686 F.3d 1018, 1026 (9th Cir. 2012) (the “same-actor inference is a strong inference
that a court must take into account on a summary judgment motion”) (internal
quotation marks omitted). If the inference applies, then Maybin must present a
“strong case of bias necessary to overcome this inference.” Coghlan, 413 F.3d at
1098. In effect, the same actor inference “amplifies the plaintiff’s burden at the
pretext stage.” Qualls v. Regents of the Univ. of California, No.

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.”).
13

1:13-CV-00649-LJO-SMS, 2015 WL 6951757, at *4 (E.D. Cal. Nov. 10, 2015)
(citing Coghlan, 413 F.3d at 1096) (plaintiff’s burden was “especially steep in this
case because of the [same actor inference]”). The inference may “arise when the
favorable action and termination are as much as a few years apart.” Schechner, 686
F.3d at 1026; see also Coghlan, 413 F.3d at 1097 (applying same-actor inference
when three years lapsed between hiring and adverse employment action).
Ultimately, plaintiffs “retain[ ] the burden of persuasion to establish that age
was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 180 (2009). In other words, plaintiffs 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).
II.

Hilton Is Entitled to Summary Judgment on Count I
A.

The Same Actor Inference Applies Under the Circumstances Here

The summary judgment record establishes that Montenegro and her colleague
John Boulanger are the decisionmakers with hiring and firing authority for sales

14

agents, and that such responsibility is centralized in Hilton HR. 1/25/18
Montenegro Decl. ¶¶ 15–17; 6/13/18 Montenegro Decl. ¶¶ 4–5. The record is also
undisputed that Montenegro’s decisions to both hire and to eventually terminate
Maybin tracked Kannel’s recommendations. 8 12/8/17 Decl. of Joshua Kannel ¶ 7;
6/13/18 Montenegro Decl. ¶¶ 7, 9. Although Maybin posits that Montenegro’s role
at Hilton HR was merely to “process paperwork to effectuate the hiring and firing
decisions of Kannel,” Mem. in Opp’n at 4, Dkt. No. 57, the record is to the contrary. 9
Maybin acknowledges that he interviewed with Montenegro, among others, for the
sales agent position before he was hired, and moreover, that he does “not know who
made the decision to hire [him].” 1/11/18 Maybin Decl. ¶¶ 3, 5, Dkt. No. 26-1.

8

Although Maybin asserts that Montenegro and/or Kannel have made inconsistent statements
during the course of this case and several other matters with respect to hiring and firing authority at
Hilton, the Court is unable to discern any material distinctions in their testimonies or in the
positions taken by Hilton in these matters. To the contrary, each consistently states that Kannel
recommended or requested that a course of action be taken, and correspondingly, Montenegro or
Boulanger had the ultimate authority to make the decision to hire or fire sales agents at Hilton,
including those based on Kannel’s recommendation. Compare Mem. in Opp’n at 4–6, Dkt. No.
57 with Reply at 12–16, Dkt. No. 59. Put another way, none of Kannel’s or Montenegro’s
declarations is inconsistent with any other in this case or in any other matter cited by Maybin.
9
Maybin argues, for instance, that Montenegro did not make the actual decision to hire or fire him,
and simply processed the paperwork to carry out the hiring and firing decisions made by Kannel.
Maybin, however, is unable to offer admissible evidence to support his latest assertions. To the
extent he relies upon the declaration of Ruby Richardson, another Hilton sales agent, he does not
establish that she has personal knowledge of Hilton’s Human Resources practices or even which
employees have independent hiring and firing authority. See Fed. R. Civ. P. 56(c)(4). In any
event, whether the Court were to consider the relevant decisionmaker to be Montenegro (as Hilton
advances), or Kannel (as Maybin asserts), the outcome would be unchanged—the same
decisionmaker was responsible for both Maybin’s hiring and his termination within a short time
period, and the same actor inference would apply.
15

The Court previously declined to apply the same actor inference when
considering Hilton’s first motion for summary judgment because Hilton had yet to
establish that the same decisionmaker was responsible for Maybin’s hiring and
termination.10 Having supplemented the evidentiary record, Hilton now
sufficiently establishes that Montenegro was the same decisionmaker—with
independent hiring and firing authority—who interviewed Maybin, and both
accepted Kannel’s recommendation to hire him in September 2015 and to then
terminate him in August 2016. Under these facts, the same actor inference applies.
Montenegro, at Kannel’s request and recommendation, was responsible for hiring
Maybin as a sales agent. Less than one year later, Montenegro, again at Kannel’s
recommendation, terminated Maybin. See Coghlan, 413 F.3d at 1097 (holding that
same actor inference applied when time period of one year separated employer’s
favorable action and a subsequent adverse action); Coleman v. Quaker Oats Co., 232
F.3d 1271, 1286 (9th Cir. 2000) (applying the same actor inference where the time
span between favorable and alleged discriminatory actions was one year); Day v.
Sears Holding Corp., 930 F. Supp. 2d 1146, 1161 (C.D. Cal. 2013) (“A period of a

10

Notably, Hilton did not previously present Montenegro’s statements that she hired and
terminated Maybin. The Court explained that because Kannel did not appear to have the
independent authority to hire or fire Maybin—he could only recommend as much—Hilton failed
to demonstrate that the same actor inference was properly applicable. See 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.”).
16

year and a half qualifies as a ‘short period of time.’”) (citation omitted). Therefore,
Maybin must present an “extraordinarily strong showing of discrimination” to
overcome the inference. Coghlan, 413 F.3d at 1097; see also Stout v. Yakima
HMA, Inc., No. 10-CV-3080-TOR, 2013 WL 587569, at *8 (E.D. Wash. Feb. 14,
2013) (“The same actor inference is strong and can only be defeated by an
‘extraordinarily strong showing of discrimination.’”) (quoting Coghlan,413 F.3d at
1097).
B.

Maybin Fails to Make the Strong Showing of Age Discrimination
Necessary to Overcome the Same Actor Inference

Hilton maintains that Maybin was terminated following progressive written
warnings consistent with company policy. Having offered a non-discriminatory
reason for the adverse employment action, Maybin must show a triable issue of
material fact as to whether Hilton’s stated reason is mere pretext for unlawful
discrimination.11 “This burden is difficult to meet in cases where the same actor
was responsible for both a plaintiff’s promotion and subsequent adverse
employment action.” Crudder v. Peoria Unified Sch. Dist. No. 11, 468 F. App’x
781, 783 (9th Cir. 2012). Maybin concedes that he did not meet his sales quotas

11

See Jackson v. Post Univ., Inc., 836 F. Supp. 2d 65, 93 (D. Conn. 2011) (“Because defendant has
proffered a nondiscriminatory reason for plaintiff’s discharge, bolstered by the presumption of the
‘same actor’ doctrine, the burden returns finally to plaintiff to show that defendant’s stated reason
for his discharge was pretextual in that his termination was directly related to his [protected
class.]”).
17

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, including Kannel, whom he alleges exhibited age-based animus against
him and other older sales agents. Yet, Montenegro’s (and Kannel’s) “initial
willingness to hire [Maybin] is strong evidence that the employer is not biased
against the protected class to which the employee belongs.” Coghlan, 413 F.3d at
1096. Maybin has not offered sufficient evidence capable of overcoming this
inference.
The statements attributed to Kannel and offered to show age-based animus do
not, without much more, satisfy the strong showing of discrimination necessary to
overcome the same actor inference. For example, Kannel purportedly said “the
older agents, including [Maybin], 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 for sales.” Maybin Decl. ¶ 6. Although perhaps
insensitive, several of these statements do not explicitly reference age; rather, their
intent and meaning must be circumstantially inferred. Nor do the comments that do
appear to reference age evince an extraordinarily strong showing of bias based upon
Maybin’s age, especially because these comments are not linked directly to his
termination. See Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (use of
phrase “we don’t necessarily like grey hair” did not create inference of

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discriminatory motive where not tied to adverse employment decision); Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 918–19 (9th Cir. 1996) (use of phrase “old
timers” did not support inference of discriminatory motive); Rose v. Wells Fargo &
Co., 902 F.2d 1417, 1420–21 (9th Cir. 1990) (use of phrase “old-boy network” did
not support inference of discriminatory motive); see also Weichman v. Chubb &
Son, 552 F. Supp. 2d 271 (D. Conn. 2008) (stray remarks of supervisor could not
prove employment discrimination where “Plaintiff’s evidence of age-based animus
is that she overheard [her supervisor] on the telephone stating that ‘older people’
‘slow down’ and ‘should retire.’ This single remark does not demonstrate that [the
supervisor] terminated the Plaintiff because of her age.”). 12

12

Examples of the “extraordinarily strong showing” of discrimination necessary to overcome the
same actor inference include: referring to an age-discrimination plaintiff as an “old fart” on
numerous occasions and “old timer,” and telling him that certain women were “not for you, you’re
too old,” in conjunction with other disparaging comments and circumstantial evidence that the
employer favored younger employees, see Beecham v. Wyndham Vacation Resorts, Inc., No.
11-129 ACK-BMK, 2013 WL 6730755, at *8-11 (D. Haw. Dec. 18, 2013), and calling a female
gender-discrimination plaintiff a “premium whore” to her face and in front of other co-workers,
among other comments and actions that demonstrated a bias against women, see Villareal v.
Chubb & Son, Inc., No. SACV 11-674 DOC (RNBx), 2012 WL 3151254, at *6-8 (C.D. Cal. July
31, 2012). See also Juell v. Forest Pharm., Inc., 456 F. Supp. 2d 1141, 1155 (E.D. Cal. 2006)
(finding “strong case of bias necessary to overcome this inference,” where plaintiff offered
“evidence that defendant Williams made consistent comments about his age to him and to others
[including] a comment about a friend to plaintiff, stating that he would not hire him because he was
over fifty and had lost his snap,” and telling plaintiff that stepping down at his age “might be
good,” and then replacing plaintiff with a younger 34-year-old); Wilson v. Battelle Mem’l Inst.,
No. 11-CV-5130-TOR, 2012 WL 4514510, at *9 (E.D. Wash. Oct. 1, 2012) (plaintiff
demonstrated pretext, and overcame same actor inference, by presenting evidence that supervisors
“assumed a mission to remove older employees” and wanted to “bring[] in younger people,” one
supervisor commented that it was time to get “new blood,” that management was moving “old
timers” out, while another remarked to plaintiff that “he didn’t realize you were that old;” and one
told him he had been “around for a long, long time”).
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Another district court found similar statements and conduct insufficient to
overcome the inference in Cozzi v. County of Marin, 787 F. Supp. 2d 1047, 1058
(N.D. Cal. 2011). In that case, the plaintiff asserted that a supervisor engaged in
“direct discriminatory remarks” with other employees on at least three occasions—
when Melendy informed Grigsby after Grigsby’s 2006
performance evaluation that “older employees are set in their
ways, and it would be good to have younger people in the
department,” and that younger people are “more progressive;”
when Melendy openly disciplined Joan Monteverdi (a 74–year–
old clerical employee) in March 2006, by imposing six
counseling sessions because Monteverdi would not retire; and
when Melendy made comments about wanting “fresh faces” in
the department when Pascale asked why Melendy had appointed
Steppler.
Id. The district court in Cozzi held that “it takes more than vague statements such as
the ones cited by [plaintiff]” to survive summary judgment. Id. at 1060.
Likewise, Kannel’s statements, considered together with the disputed number
of tours afforded Maybin and the effect on his sales numbers, do not amount to the
“extraordinarily strong showing” of discrimination necessary to survive Hilton’s
renewed motion.13 Unlike those cases in which courts found an “extraordinarily
strong showing” of discrimination, the record in this case is devoid of the requisite
type of disparaging comments or other circumstantial evidence, such as evidence

13

In making this assessment of the Count I age-discrimination claim, the Court does not consider
the Count II hostile work environment claim, including the related issues of Wilson’s purportedly
hostile conduct. While Wilson’s acts allegedly affected Maybin’s sales, they did not contain
allegations of age-based animus.
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that Hilton replaced Maybin with a younger sales agent or that individuals outside of
Maybin’s protected class were treated more favorably. Maybin thus falls far short
of making the “extraordinarily strong showing of discrimination” that this Circuit
has determined is necessary to overcome the same actor inference.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Renewed Motion
for Summary Judgment as to Count I. Dkt. No. 45.
IT IS SO ORDERED.
DATED: September 27, 2018 at Honolulu, Hawai‘i.

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

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