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Ferrell v. Great Eastern Resort Corporation, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

November 12, 2014



MICHAEL F. URBANSKI, District Judge.

This matter is before the court on defendant Great Eastern Resort Corporation, Inc.'s ("Great Eastern")[1] motion for summary judgment, Dkt. No. 78, and plaintiff Steven Ferrell's ("Ferrell") motion for partial summary judgment, Dkt. No. 80. Ferrell alleges that Great Eastern, his former employer, unlawfully retaliated against him for filing a charge of sexual harassment with the Equal Employment Opportunity Commission ("EEOC") in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3. Am. Compl., Dkt. No. 45, at ¶ 1. For the reasons stated herein, the court will GRANT defendant's motion for summary judgment and DENY Ferrell's motion for partial summary judgment.


Great Eastern developed Massanutten resort ("Massanutten"), a 6, 000 acre time-share resort located in Rockingham County, Virginia. Great Eastern built and developed the time-shares at the resort, but the Berkley Group, Inc., a Fort Lauderdale, Florida, based company, manages marketing and sales activities for Massanutten. Hierholzer Decl., Dkt. No. 78-1, at ¶¶ 2-4.

Great Eastern sells time-shares utilizing sales employees on two distinct sales teams. The "front line" sells to first time buyers, and the "in-house line" sells to existing time-share owners. Def.'s Mem. Supp. Summ. J., Dkt. No. 79, at *4. The front line and in-house line have different work schedules, give different types of tours, and their offices are located in different areas on the Massanutten property. Id .; Sprouse Dep. at 67:12-15. The hierarchy of the sales staff at Great Eastern consists of the project director, line directors, sales managers or "take-over" managers ("TO manager"), and sales representatives. The project director oversees all sales operations at Massanutten, the line directors oversee the TO managers who, in turn, oversee teams of sales representatives. The sales representatives are the first point of contact for customers at Massanutten. Clevenger Aff., Dkt. No. 78-4, at ¶ 3.

Typically, the front line sales representatives arrive at the resort each morning and wait for guests to arrive for tours of the property. The representatives are chosen to give tours on a rotational basis. After a tour of the property and its facilities, the representatives bring the customer back to the resort and try to convince the customer to commit to purchasing a time-share. At this point, a TO manager assists with the transaction and tries to close the sale. Ferrell Dep. at 36:11-38:12, 41:2-17. The customer either refuses to buy, makes a "full-down" purchase by paying at least ten percent of the purchase price up front, or makes a "pender" purchase where he commits to pay at least ten percent of the purchase price over a period of time. Sprouse Dep. at 41:10-42:25. TO managers also give at least one tour each day. Kent Dep. at 22:13-22. TO managers may close their own deals without the assistance of another TO manager if their sales numbers are a certain level for the preceding six months. Id. at 29:5-10; Bradley Dep. at 48:11-15. If a TO manager closes a deal on his own but does not have the requisite six-month sales level, another TO manager will have to sign off on the deal before it can be submitted. In that case, the second TO manager will receive the TO commission for that sale. Id. at 30:3-31:21.

Sales representatives are evaluated based on a performance metric known as volume per guest ("VPG"). The VPG calculation is straightforward: the total sales revenue generated by a representative divided by the total number of customers that representative toured in a given period. Managers look at VPG over periods of time ranging from thirty or sixty days, to six months, to one year. Id. at 14:19-16:9. A person's VPG can differ over those various time frames depending on if he hit a slump, went on a hot streak, if a customer changed his mind and cancelled a purchase after leaving the resort, or if a customer failed to complete a down payment on a pender sale. Ferrell Dep. at 290:9-25; Sprouse Dep. at 39:5-13, 44:11-16. VPG reports can include only "full down" sales for the sales representatives or "full down plus penders." Sprouse Dep. at 44:17-25; Ferrell Dep. at 227:23-228:11; Bradley Dep. Ex. 12. TO managers are evaluated based on two metrics: their VPG measures their sales performance, and their "TO numbers" track their performance as managers- mainly their ability to finalize sales. Clevenger Aff. At ¶ 5; Bradley Dep. at 47:1-16.

Great Eastern seasonally reduces its sales force to coincide with declines in tourism. Ferrell Dep. at 51:8-52:13; Kent Dep. at 59:14-21. In order to determine how many members of the sales team to retain, the project director relies on the marketing department's predicted customer flow and recommendation on the number of sales staff needed. Kent Dep. at 60:11-61:7. The project director will then rank the sales staff based on their VPG and terminate or transfer those sales representatives ranked below the number of representatives needed. Kent Dep. at 61:9-62:9.

Ferrell began working for Great Eastern as a front line sales representative in 2003. Ferrell Dep. at 45:4-10. He was promoted to TO manager in 2005, demoted to sales representative in 2007, promoted to sales manager a month later, demoted to sales representative again the following month, transferred to the exit department a few months later, transferred back to sales as a TO manager in 2008, demoted once again to sales representative the following month, and then terminated in November 2008. Ferrell Dep. at 45:15-48:12; Ferrell Dep. Ex. 4. The November 2008 termination was part of a seasonal reduction and was based on Ferrell's poor sales numbers. Clevenger Aff. at ¶ 8; Kent Dep. at 16:16-21. Great Eastern rehired Ferrell in 2009 as a sales representative, and Victor Buckley was his line director. Ferrell Dep. at 48:20-49:1; Ferrell Dep. Ex. 4. Ferrell was promoted to TO manager again in 2011. Ferrell Dep. at 49:14-16; Ferrell Dep. Ex. 4. In February 2012, Ferrell was transferred to a different line director, Rebecca Bradley, after having problems working with Buckley. Bradley Dep. at 17:20-18:9; Ferrell Dep. Ex. 4, Ex. 16 at *GERC 632; Kent Dep. at 34:16-35:22.

In 2012, Bob Kent ("Kent") and Steve Nichols ("Nichols") were co-project directors for the resort's sales division, and Rebecca Bradley ("Bradley") was Ferrell's line director. Clevenger Dep. at 22:14-19; Kent Dep. at 34:16-19. Ferrell was a TO manager on Bradley's line. Ferrell Dep. at 49:14-19. In late July or early August 2012, Bob Kent asked Bradley to select one of her TO managers to demote and to base her decision on either TO numbers, "team numbers", or personal VPG. Bradley Dep. at 64:4-15; Kent Dep. 48:12-22. Bradley recommended that Ferrell should be demoted because he had the lowest TO numbers among Bradley's team of TO managers and because of "how much volume he had, and how many tables he had sat on." Bradley Dep. at 65:10-16; Clevenger Dep. at 151:3-11. The final decision to demote Ferrell was Kent's responsibility. Kent Dep. at 48:4-11. Despite his demotion to sales representative, Ferrell continued to close some of his deals without the assistance of a TO manager. Id. at 28:10-29:10; Ferrell Dep. at 49:25-50:12.

Other TO managers were demoted from other lines as well. Those TO managers not only had the lowest TO numbers among the TO managers on their respective teams, but they also had the lowest personal VPG numbers as well. Clevenger Dep. at 152:24-153:6. On Bradley's line, however, there was not a TO manager who had both the lowest TO numbers and the lowest personal VPG. Ferrell had the lowest TO numbers, but Steve Morrin ("Morrin") had the lowest personal VPG. Id. at 153:7-21.

After his demotion in August, Ferrell filed a complaint with David Clevenger ("Clevenger"), Great Eastern's human resources director at Massanutten. In that complaint, Ferrell alleged he was wrongfully demoted based on a romantic relationship between his supervisor, Bradley, and one of her subordinates, Morrin, in violation of Great Eastern's discrimination and harassment policy. Clevenger Dep. at 15:12-21; Clevenger Dep. Ex. 3. Kent and Nichols did not know Ferrell filed the August human resources complaint until this litigation began. Kent Dep. at 46:14-19; Nichols Dep. at 103:22-104:4. Bradley knew Ferrell filed a complaint about his demotion, but she did not know the particulars of the complaint. Bradley Dep. at 43:11-19, 44:2-13, 70:5-11. In September 2012, Ferrell filed a sexual discrimination charge with the EEOC. Kent Dep. at 32:12-18; Clevenger Dep. Ex. 7. Neither Bradley, Kent, nor Nichols was aware that Ferrell filed the September EEOC complaint until this litigation began. Bradley Dep. at 137:3-8; Kent Dep. at 57:12-58:9; Nichols Dep. at 104:11-20.

Bradley admits to being in a romantic relationship with Morrin at the time she demoted Ferrell. Bradley Dep. at 34:16-25. After Ferrell filed his complaint with human resources, Clevenger confirmed Bradley was in a relationship with Morrin and that she recommended Ferrell for demotion based on his TO numbers. Clevenger Dep. at 144:2-11. Clevenger also confirmed with Kent that he had asked the line directors to demote one TO manager from their teams based on the criteria the line directors chose and confirmed how the final demotion decisions were made. Id. at 163:23-164:13; Clevenger Dep. Ex.21. The EEOC also investigated the claim, was "unable to conclude that the information obtained established] violations" of Title VII, and closed the file. Ferrell Dep. Ex. 9 at *1.

In October 2012, Great Eastern began preparing for its seasonal reduction in staff. Nichols received a communication from Great Eastern's head of marketing that front line sales staff needed to be reduced to fifty-five sales representatives. Nichols Dep. at 27:2-13. Rather than cut staff down to fifty-five immediately, Kent and Nichols decided to initially cut the sales staff down to sixty-five representatives to account for the anticipated increase in tourism associated with the fall foliage. Id. at 28:14-29:1, 31:13-32:23. Kent terminated or transferred eleven sales employees from the front line, including one TO manager, Morrin, who was demoted to sales representative and transferred to the in-house sales line. Kent transferred Morrin rather than terminating him in order to give him a second chance to increase his sales numbers. Kent Dep. 71:9-16, Ex. 2 at *GERC 6085.[2] No employment action was taken as to Ferrell in October.

As November drew to a close, Great Eastern decided to make the final round of cuts to the frontline sales staff. Using a November 26, 2012, year-to-date sales report, Kent and Nichols selected Steve Ferrell along with eight other members of the front line sales staff for termination. One of those individuals was a TO manager who had the lowest VPG out of all of the sales staff. Nichols Dep. Ex. 2. Kent and Nichols ranked the sales staff according to VPG and retained the top fifty-eight members of the sales staff. With the exception of the TO manager with the lowest VPG out of all of the sales staff, Kent and Nichols did not consider the other TO managers for that seasonal termination because TO managers are judged on other criteria along with VPG. Kent Dep. at 103:23-104:10; Nichols Dep. at 57:1-59:11.

After deciding who to terminate, Nichols sent an e-mail to Vickie Ruiz ("Ruiz"), Human Resources Director for the Berkley Group, to inform her of the selections. Nichols Dep. Ex. 2 at *GERC 6019. Ruiz and Nichols spoke on the telephone, and she requested the reports Nichols and Kent used in order to confirm the grounds for the terminations. Nichols Dep. at 44:8-45:15. Nichols sent Ruiz another e-mail that included the last page of the year-to-date sales report for November 26, 2012. Nichols Dep. Ex. 3. Ferrell and the other sales staff were terminated on December 2, 2012. Nichols Dep. Ex. 5.

Soon after he was fired, Ferrell filed a human resources complaint with Clevenger alleging his termination was in retaliation for his filing the August human resources complaint and September EEOC complaint. Ferrell Dep. Ex.15 at *FERRELL 12. Ferrell filed another EEOC complaint regarding his termination shortly thereafter. Ferrell Dep. Ex. 15 at *FERRELL 8. Neither Bradley, Nichols, nor Kent were aware that Ferrell filed the December human resources complaint or EEOC complaint until this litigation began. Kent Dep. at 58:10-59:3; Bradley Dep. at 137:9-138:12; Nichols Dep. at 105:11-106:7. Ferrell attempted to apply for a sales position on the in-house line in July 2013. Ferrell Dep. at 181:16-19; Clevenger Dep. at 69:20-70:8. In August, Ferrell discovered he was not eligible for the position on the in-house line because he had been designated as "not for rehire" in his employee file. Ferrell Dep. at 197:21-198:2; Clevenger Dep. at 70:23-71:8.

Clevenger marked Ferrell's employment file as ineligible for rehire after Ferrell's termination. Clevenger Dep. at 135:2-23; Clevenger Dep. Ex. 8; Bradley Dep. at 117:1-119:6. Clevenger marked Ferrell as not eligible for rehire because he

had received about eight HR complaints of intimidation, threatening behavior, comments. [Ferrell] was not - you know, [Ferrell] was not following the TO rules. And all this happened and it was - I mean, you know, looking back, people say, you know, [Ferrell] was just kind of freaking people out. But it was not that. It was - [Ferrell] was people were terrified. People didn't want to come to work. People were always worried about where [Ferrell] was. And I observed the behavior myself in meetings with Mr. Ferrell. I did not want to ever have to deal with that again for people that worked there and myself. So he was put on the not-for-rehire list for those behaviors.

Id. at 129:9-23; see also Clevenger Dep. Ex.6, Ex.23. Ruiz approved Clevenger's decision to mark Ferrell as ineligible for rehire. Id. at 268:8-269:3.


Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant 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." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with... [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id . (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.'" McAirlaids, Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...." Anderson, 477 U.S. at 255. However, the nonmoving party "must set forth specific facts that go beyond the mere existence of a scintilla of evidence.'" Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that "there is sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment the Court must determine that no reasonable jury could find for the non[-]moving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini Corp. v. Perini Const., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).


Great Eastern moves for summary judgment on two grounds. First, Great Eastern argues that Ferrell fails to establish a prima facie retaliation claim because there is no evidence that the decision makers responsible for his termination knew of the protected activity at the time of their alleged retaliatory actions. Second, Great Eastern argues that Ferrell failed to exhaust his administrative remedies as to the alleged "schemes to depress his compensation" and the designation of Ferrell as ineligible for rehire. In the alternative, Great Eastern claims it had legitimate, nondiscriminatory, and irrefutable reasons for terminating Ferrell and designating him as ineligible for rehire. Ferrell moves for partial summary judgment that he engaged in protected activity, he exhausted his administrative remedies, there was a causal link between the protected activity and Ferrell's termination, and Great Eastern did not have a legitimate reason for terminating Ferrell.

The decisions to terminate Ferrell and designate him ineligible for rehire were made by separate individuals. Kent and Nichols were responsible for the termination decision, but Clevenger was responsible for designating Ferrell as "not for rehire." Therefore, the court will first ...

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