Beecham v. Wyndham Vacation Resorts, Inc., Civ. No. 11-00129 ACK-BMK

CHRISTOPHER BEECHAM, Plaintiff, v. WYNDHAM VACATION RESORTS, INC., Defendant.

Civ. No. 11-00129 ACK-BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Dated: December 18, 2013

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT WYNDHAM'S

MOTION FOR SUMMARY JUDGMENT

On April 27, 2010, Plaintiff Christopher Beecham ("Plaintiff" or "Beecham") filed a Complaint in the First Circuit Court of the State of Hawaii against Wyndham Worldwide Corporation, Wyndham Worldwide Operations, Inc., Wyndham Resort Development Corporation, Wyndham Vacation Ownership, Inc., and Wyndham Vacation Resorts, Inc., asserting a number of claims related to his not being hired as a sales manager (or in the alternative, for being fired as such). ECF No. 1. The Complaint apparently was not served on the defendants. Id. On January 24, 2011, Plaintiff filed a First Amended Complaint ("FAC") in the First Circuit Court of the State of Hawaii against the defendants listed in the original Complaint. ECF No. 1. The defendants removed the action to this Court on March 1, 2011. ECF No. 1 On November 4, 2011, the parties stipulated to dismiss without prejudice defendants Wyndham Worldwide Corporation, Wyndham Worldwide Operations, Inc., Wyndham Resort Development Corporation, and Wyndham Vacation Ownership, Inc. ECF No. 12. Accordingly, only Wyndham Vacation Resorts, Inc. ("Defendant" or "Wyndham") remains as a defendant in this matter. Id.

Defendant Wyndham filed a Motion for Summary Judgment ("MSJ") on June 14, 2013, along with a Concise Statement of Facts ("Def.'s CSF"). ECF Nos. 64 & 65. Both Plaintiff and Defendant thereafter agreed to move the hearing date regarding Defendant's MSJ to December 2, 2013, which was continued to December 5, 2013. ECF Nos. 70, 75. Plaintiff filed his Opposition and Concise Statement of Facts ("Plntf.'s CSF") on November 14, 2013. ECF Nos. 83 & 84. Defendant filed its Reply on November 21, 2013, along with an Objection to the Admissibility of Some of Plaintiff's Exhibits and Declarations.¹ ECF Nos. 90 & 91. On November 27, 2013, Plaintiff filed a Submission of Uncited Authorities in Support of Memorandum in Opposition to DefendantWyndham Vacation Resorts, Inc.'s Motion for Summary Judgment.² ECF No. 98. On December 5, 2013, Defendant submitted additional authorities to the Court.³ The Court held a hearing regarding this matter on December 5, 2013. ECF No. 104.

FACTUAL BACKGROUND

A. Wyndham's Operations

Wyndham, formerly known as Fairfield Resorts, Inc., is a for-profit company and the world's largest timeshare operator. Decl. of O'Neill at 1, ¶ 2, ECF No. 65-1. As a timeshare company, Wyndham's profits depend primarily on its sales. Id. at 2, ¶ 4. Its sales representatives (or sales agents) conduct presentations, called "tours," to individuals, called "guests,"who agree to attend a tour in exchange for a free gift. Id. at 1-2, ¶ 3.

Wyndham operates two primary sales lines: "front-line" sales to individuals who have not previously purchased timeshares from Wyndham, and "in-house" sales catering primarily to existing timeshare owners who are interested in purchasing upgrades. Decl. of O'Neill at 1, ¶ 3, ECF No. 65-1. Sales agents are assigned tours based on a "rotor," or sequence of priority, which is determined by an agent's past sales performance. Id. at ¶ 5.

B. Plaintiff's Employment at Wyndham from 2001 - 2009

Plaintiff Beecham, born in 1942, started his employment with Wyndham, formerly known as Fairfield Resorts, Inc., in 1993 as a timeshare salesperson at the Grand Desert Resort. Def.'s CSF at 1, ¶ 1, ECF No. 65; Plntf.'s CSF at 2, 6 ¶ 42, ECF No. 84. He transferred to the Waikiki office around 2001 or 2002. Id.

In February of 2007, Charles Barker became the Wyndham Waikiki office's Vice President of in-house sales. Def.'s CSF at 1, ¶ 4; Plntf.'s CSF at 2, ECF No. 84. Plaintiff admits that his working relationship with Barker was "very, very good." Def.'s CSF Ex. A (Depo. of Beecham) at 151, ECF No. 65-4; Plntf.'s CSF at 2, ECF No. 84. Plaintiff also admits that Barker tried to ensure that "things were done right" in his department. Def.'s CSF Ex. A at 305-306; Plntf.'s CSF at 2, ECF No. 84.

In 2007, Plaintiff authored a letter entitled "Internal Problems" dated September 21, 2007 ("Internal Problems Letter" or "Letter"). Def.'s CSF at 1, ¶ 5, ECF No. 65; Plntf.'s CSF at 2, ECF No. 84. The content of the Internal Problems Letter addressed, inter alia, allegations of favoritism toward another Wyndham employee, Aline Lam. Plntf.'s CSF at 6-7, ¶¶ 45-47, ECF No. 84. The Internal Problems Letter was signed by Plaintiff and four other Wyndham salespeople - Ofer Ahuvia, Garth Starks, Jody Myers, and Bill Groten. Plntf.'s CSF Ex. 16 at P30060, ECF No. 84-7. Starks, Myers, and Groten partially withdrew their support soon thereafter; in general, they indicated that they witnessed some of the events but did not support all of the allegations in the Internal Problems Letter. Plntf.'s CSF Exs. 23, 24, & 25, ECF No. 84-8. Plaintiff and another salesperson, Ofer Ahuvia, allegedly complained about the favoritism shown towards Lam in the summer of 2007 before submitting the Internal Problems Letter. Plntf.'s CSF at 6, ¶ 46, ECF No. 84.

After reviewing the Internal Problems Letter, Barker issued additional rules and regulations in the Wyndham Waikiki office addressing proper employee conduct. Def.'s CSF at 2, ¶ 8, ECF No. 65; Plntf.'s CSF at 2, ECF No. 84. Plaintiff contends that certain managers at Wyndham, namely Darrin Moreman, Terrence Limebrook, and Aly Hirani, were negatively impacted by the Internal Problems Letter. Id.

Plaintiff alleges that he was being "starved out" as a result of submitting the Internal Problems Letter because Wyndham started to give him 84/216 tours. Decl. of Beecham at 9, ¶ 46, ECF No. 84-2. The 84/216 tours involved potential clients who could not afford a regular timeshare. Id. at 4, ¶ 16. Because these potential clients had limited purchasing power, the probability that they would purchase an upgrade from an in-house salesperson was very low. Id.

At some point in 2008, Plaintiff transferred from Wyndham's Waikiki office to Wyndham's Grand Desert location in Las Vegas. Def.'s CSF at 2, ¶ 10, ECF No. 65. Plaintiff acknowledged that his sales performance in Las Vegas was worse than his sales performance near the end of his tenure in Waikiki. Def.'s CSF at 2, ¶ 11; Plntf.'s CSF at 2, ECF No. 84. However, Plaintiff argues that his sales at Las Vegas were negatively impacted by Defendant's decision to assign him 84/216 tours in Waikiki in retaliation for writing the Internal Problems Letter. Decl. of Beecham at 9, ¶ 46, ECF No. 84-2. As a result of giving him poor sales leads in Waikiki, Wyndham listed Plaintiff as number 51 on the sales rotation at the Las Vegas location, which meant that 50 clients would need to walk into the office before Plaintiff would be given a chance to make a sale. Id.

After securing employment with Marriott, Plaintiff submitted a resignation letter to Wyndham on February 19, 2009.Def.'s CSF at 2, ¶ 13, Ex. G, ECF No. 65; Plntf.'s CSF at 2, ECF No. 84.

C. Wyndham's Alleged Offer of Re-employment and Promotion

Shortly after Plaintiff started his employment with Marriott, Barker contacted him and said that Jonathan O'Neill, Wyndham's new Vice President, and Mark Pollard, the Area Vice President, had asked if Plaintiff would be interested in returning to Wyndham as a manager. Def.'s CSF at 2, ¶ 14, ECF No. 65; Plntf.'s CSF at 2, ECF No. 84. Pollard told Plaintiff that a sales manager position was available. Id. at ¶ 15. Plaintiff expressed hesitation about the position because he had previously applied for a Director of Sales position and had been denied, but Pollard allegedly stated that the situation at Wyndham was different. Id.

Plaintiff met with O'Neill and Pollard at a restaurant called the Yard House on May 18, 2009 ("Yard House Meeting"). Def.'s CSF at 3, ¶ 18, ECF No. 65; Plntf.'s CSF at 2, 7 ¶ 54, ECF No. 84. The parties have different accounts of what happened at the meeting. According to Plaintiff, O'Neill and Pollard made a job offer to Plaintiff, which he in turn accepted. Plntf.'s CSF at 8, ¶ 57, ECF No. 84. According to Defendant, Wyndham never offered Plaintiff a firm or final offer of employment. Def.'s CSF at 3, ¶¶ 16-17. Pollard allegedly stated that Plaintiff would need to submit an application to human resources. Id.Additionally, Defendant argues that Plaintiff requested a written offer and indicated that he would not leave Marriott without such an offer. Id. Wyndham never provided a written offer, and Plaintiff did not leave his employment at the Marriott. Id.

Plaintiff also attaches exhibits of emails from Wyndham employees. In one email dated May 18, 2009, Andrea Ward, the Regional Director of Human Resources, stated that Plaintiff had "applied for a Front Line Manager position" and that she "approve[d] with reservations since he does not have recent management experience, and was involved in two employee relations issues at the site in 2006 and 2007." Plntf.'s CSF Ex. 41, ECF No. 84-13. In another email from O'Neill to Plaintiff dated May 19, 2009, O'Neill states, "Really looking forward to having you 'come back home!'" Plntf.'s CSF Ex. 44, ECF No. 84-13. Plaintiff also submits an email dated May 19, 2009, from John Gonsalves, Wyndham's Human Resources Coordinator, containing compensation information. Plntf.'s CSF Ex. 43, ECF No. 84-13.

After the Yard House Meeting on May 18, 2009, O'Neill allegedly told Plaintiff that he had been getting "a little bit of static" from Hirani about hiring Plaintiff as a manager, but O'Neill indicated that he would choose Plaintiff over Hirani. Def.'s CSF at 3, ¶ 19, ECF No. 65; Plntf.'s CSF at 2, ECF No. 84. O'Neill asked Plaintiff to attend a meeting of Wyndham managers that took place on June 1, 2009 ("Managers Meeting"). Id. Atthe Managers Meeting, Plaintiff surreptitiously recorded the meeting. Id. at ¶ 20.

The...