Landon v. Winston Hosp.

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PENNIE LANDON, Plaintiffs, v. WINSTON HOSPITALITY, INC., WINSTON HOLDINGS, INC., and DELTA FIVE SYSTEMS, LLC, Defendants.

Civil Action No. 20-cv-01547-MEH

United States District Court, D. Colorado

March 10, 2022

ORDER

MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendants' “Motion for Summary Judgment” (“Motion”). ECF 63. The Motion is fully briefed, and the Court finds that oral argument would not materially assist in adjudicating the Motion. For the following reasons, the Motion is granted.

BACKGROUND

Plaintiff was a regional director of sales for Defendant Delta Five Systems, LLC (“Delta Five” or “Company”). ECF 79 at 2. As asserted by Plaintiff and unchallenged by Defendants in their Motion, Defendant Winston Hospitality, Inc., Defendant Winston Holdings, Inc. and Delta Five are an integrated, single employer. Id. Plaintiff was the salesperson responsible for selling Delta Five's bed-bug remediation devices. ECF 63 at 2, ¶ 1. During her employment, an interim CEO of Delta Five, Stephen Wiehe, made lewd comments about and to Plaintiff. Id. at 5-6. Near the end of her employment relationship, Delta Five also hired two male salespeople. Id. at 8-9. Because Plaintiff vocalized that she found Mr. Wiehe's comments uncomfortable, she asserts that the hiring of the two male salespeople was in an effort to replace her. ECF 75 at 37. After being with the Company for almost a year and having several months without any sales Plaintiff was eventually terminated by the new CEO, Robert Winston. ECF 63 at 18.

Plaintiff filed suit on May 29, 2020. ECF 1, Compl. On October 6, 2020, she filed the operative Amended Complaint. ECF 33. In that pleading, Plaintiff brings eight claims against Defendants: (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) retaliation in violation of Title VII; (3) discrimination in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; (4) failure to accommodate in violation of the ADA; (5) retaliation in violation of the ADA; (6) unpaid commissions pursuant to the Colorado Wage Claim Act, Colo. Rev. Stat. § 8-4-101 et seq.; (7) breach of contract; and (8) unjust enrichment. Defendants have moved for summary judgment on all claims.

STANDARDS OF REVIEW

A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show 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(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the moving party has the burden of proof-the plaintiff on a claim for relief or the defendant on an affirmative defense- his[, her, or its] showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)). “In other words, the evidence in the movant's favor must be so powerful that no reasonable jury would be free to disbelieve it. Anything less should result in denial of summary judgment.” Id. at 1154 (quoting 11 Moore's Federal Practice, § 56.40[1][c] (Matthew Bender 3d Ed. 2015)). Only evidence for which the content and substance are admissible may be considered when ruling on a motion for summary judgment. Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1210 (10th Cir. 2010).

If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324); see Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) (“On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [its] case in order to survive summary judgment.”) (quoting Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

STATEMENT OF UNDISPUTED MATERIAL FACTS

To begin, the Court notes that Plaintiff provided an additional 102 material disputed facts in her Response brief. The Court has incorporated those when appropriate. However, many of the facts supplied by Plaintiff concern pretext. As the Court explains later, Plaintiff has failed to meet her prima facie burden, so many of the facts are immaterial to the Court's analysis. The same is true for many of the facts supplied by Defendants, especially those facts relating to claims Plaintiff has abandoned; however, the Court incorporates those facts for purposes of keeping the numbered paragraphs in the Motion and this Order consistent. Finally Plaintiff has provided numerous facts that are, at least on their face, inadmissible without explanation of how each fact can be considered on summary judgment. With all that in mind, the following are the Court's findings of material facts that are relevant to the Court's analysis and either undisputed or supported by the record, when viewed in the light most favorable to Plaintiff as the non-moving party.

1. On December 5, 2017, Delta Five sent Plaintiff a conditional^[1] offer letter for at-will employment as a salesperson responsible for selling Delta Five's bed-bug remediation devices. ECF 63-1, Ex. A (P. Landon Dep.) at 53:13-23; id. (Dep. Ex. 36) at 125-26; ECF 63-2, Ex. B (R. Winston Dep.) at 55:6-25, 69:16-19.

2. The offer letter contained, among other information, the terms governing Plaintiff's compensation. Ex. A at 125-26.

3. Plaintiff's salary was $105, 000 annually, and she was entitled to earn commissions of between 1.8% and 2.9% on the sale price of all Delta Five device “sales procured directly by [her].” Id.

4. Plaintiff testified that this meant she would be entitled to a commission when the product was shipped and if the customer paid for the product. Id. at 101:11-102:3.

5. Plaintiff would not be entitled to commissions on future sales made by subsequent salespeople. Id. at 60:18-61:10.

6. Neither Plaintiff's salary nor the terms of her commission plan changed during her employment. Id. at 58:8-12, 106:13-18.

7. Plaintiff was responsible for selling Delta Five's proprietary pest management device to national hotel chains and hospitality clients. Id. at 55:17-22, 73:3-7, 86:7-18.

8. Plaintiff was one of several Delta Five sales employees. Id. at 61:22-62:14.

9. Delta Five fostered a work environment^[2] in which its salespeople worked together to achieve common objectives. Id. at 57:16-58:7.

10. Plaintiff made, or received credit for, fifteen sales during the entire course of her employment from mid-January 2018 to mid-January 2019. ECF 63-3, Ex. C (P. Bell Decl.), Decl. Ex. A at 5-6 (Delta Five sales and commissions spreadsheet).

11. Thirteen of these fifteen sales occurred within the first eight months of Plaintiff's employment. Id. 12. Plaintiff closed no sales between August 8, 2018 and January 16, 2019. Id. She received commission payments for two sales that closed shortly after the end of her employment.^[3] Id.

13. Although at the time of her deposition Plaintiff believed she was owed a sales commission related to a hotel company named Kalahari, Ex. A at 100:13-19, Plaintiff now “concedes that she no longer claims commissions from Kalahari resorts.” ECF 75 at 3, ¶ 13.

14. The devices were never delivered to Kalahari, and Kalahari never paid. Ex. A at 100:20- 25; Ex. C, Decl. Ex. A.

15. Plaintiff tried to secure “approved standard” and/or “approved vendor” contracts with Hilton and Wyndham hotels, and, at the time of her deposition, believed she was entitled to compensation for this effort. Ex. A at 95:9-96:13, 97:21-99:2, 100:17-19. Now, Plaintiff “concedes she no longer claims such compensation.” ECF 75 at 3, ¶ 15.

16. These contracts would not have directly resulted in the sale of any devices to Hilton or Wyndham entities; rather, they would have secured for Delta Five the right to try to later sell devices to individual Hilton or Wyndham branded hotels. Ex. A at 95:9-96:13, 97:21-99:2.

17. Becoming an approved standard/vendor for Hilton and Wyndham was a business goal for Plaintiff and a very important strategic goal for Delta...