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Patricia Egelhoff v. Wyndham Resort Development

April 4, 2012

PATRICIA EGELHOFF,
PLAINTIFF,
v.
WYNDHAM RESORT DEVELOPMENT CORPORATION, A SUBSIDIARY OF WYNDHAM VACATION OWNERSHIP,
DEFENDANT.



MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it defendant Wyndham's motion for summary judgment. The motion was argued on March 13, 2012, and the Court took it under advisement. For the reasons expressed below, the Court will grant in part and deny in part the motion.

BACKGROUND

Defendant Wyndham, a seller of vacation ownership interests, hired plaintiff Egelhoff as a salesperson at its Coeur d'Alene, Idaho branch in 2004. Egelhoff was hired on an at-will basis and was paid solely on commissions earned from their sales.

Wyndham would begin its pitch with the "tour" -- a process in which a potential customer would be greeted and screened in the lobby by intake personnel, escorted into an auditorium for a presentation of the product, and finally led into an office designated for the signing of a sales contract and transfer of payment. Salespersons were usually assisted in this process by a member of management deemed a "closer," ostensibly for their talent in securing a sale after the initial pitch had been made.

Tours were assigned to specific salespersons on a rotating basis per the order set forth on the "board". At the beginning of each week, Wyndham's office manager would place the names of each salesperson on the board, ranking them on the basis of their sales performance the previous week, with the top performer in the top position. For each day of the week to follow, a salesperson who had made a sale the previous day would be moved to the top position -- if more than one salesperson had a sale that day, the salesperson with the highest sales volume would get the top spot. However, if a customer came into the store as a result of a referral from a prior sale, the salesperson responsible for that sale could jump to the front of the line in order to cater to that customer. The primary responsibility for administering the board in accordance with this procedure was vested in Pamela Allen, the office manager, but management had discretion to fix the board if mistakes were found.

Egelhoff worked under several different managers at various times during her tenure at the Coeur d'Alene office, but the overwhelming majority of her complaints are directed at two such individuals: Greg Patzold and Jeff Anderson. Patzold, at all times, was senior to Anderson, and promoted Anderson to management in 2008 after Anderson's return to the Coeur d'Alene store from another Wyndham branch located in Seattle. While employed at the Seattle branch, Anderson was the subject of an ethics complaint made to HR by a female co-worker.

The primary mechanism by which management tracked the performance of a salesperson was that person's "volume per guest" (VPG), which compared the total amount of income generated for a particular time period against the number of tours taken during that time. Thus, performance was a function not only of how skilled the salesperson was in their craft, but also of the number of tours taken and the "quality" or salability of the customers who came through the door. Generally, customers found by intake personnel to be financially ineligible to purchase the product were not taken on a tour; however, in certain cases, ineligible persons filtered through, although they effectively could not buy the product. Those tours, under Wyndham's policy, would not count against the relevant salesperson for purposes of their positioning on the board or in calculating their VPG.

Wyndham had an anti-discrimination policy in place, and a dedicated hotline for related complaints, from at least 2007. Egelhoff signed documents indicating her awareness of the policy and of the hotline. She used the hotline on two occasions, first in August of 2007, and again in April of 2009; each call occurred shortly after she had receiving unfavorable performance notifications from store management. On the first of these occasions, she had been given a written warning and placed on a "Performance Improvement Agreement" by Greg Patzold as a result of her unsatisfactory VPG for a period in 2007. On the second, she had been given a written warning by Jeff Anderson at the direction of Greg Patzold for making certain potentially misleading representations to a customer in the course of a solicitation.

The contents and scope of Egelhoff's complaints to HR following each of these incidents are disputed. It is undisputed, however, that at a minimum she complained of receiving inadequate training (in her first complaint in 2007) and that the procedures relating to the maintenance of the board were not being followed (in her second in 2009). Both complaints were investigated by Brian Whitaker, who worked in Wyndham's HR office, and he concluded in both investigations that there was no evidence of wrongdoing by the company or its managers.

On April 24, 2009, Egelhoff filed complaints citing discrimination and sexual harassment with the Idaho Human Rights Commission (IHRC) and the Equal Opportunity Employment Commission (EEOC). These complaints prompted a third investigation by Whitaker, from which he concluded that "most of Ms. Egelhoff's complaints were unsubstantiated and contradicted and she had not been subjected to sexual harassment or discrimination." See Whitaker Declaration (Dkt. No. 29-02) at pp. 3-4. However, Whitaker "did determine that the assistant sales manager, Jeff Anderson, had likely made some immature comments while at work [which did not rise] to the level of sexual harassment." Id. Whitaker recommended that Anderson be demoted from management. Id.

In August of 2009, a short time after Whitaker had completed this third investigation, Egelhoff informed him that she was transferring to Wyndham's Lake Tahoe branch. Although Egelhoff alleges the transfer resulted from the gender discrimination and sexual harassment complained of, she does not dispute Whitaker's claim that she informed him at that time that the transfer was voluntary and unrelated to the substance of her EEOC and IHRC complaints.

In November of 2009, about three months after Egelhoff's transfer, the Coeur d'Alene branch was closed for economic reasons, and its employees were either transferred or lost their jobs. After her transfer to the Lake Tahoe branch, Egelhoff worked in various sales-related capacities until her employment with Wyndham terminated on February 18, 2011. Egelhoff does not complain of any misconduct by Wyndham or its employees towards her during this time, and essentially does not argue that the termination forms any part of her claims against Wyndham.

The heart of Egelhoff's complaint is that while she was employed in the Coeur d'Alene branch, her supervisors (initially, Greg Patzold, and subsequently both Patzold and Jeff Anderson) discriminated against, and sexually harassed, the female salespersons in an attempt to force them out and create an all-male sales staff. Egelhoff describes the following incidents of harassing conduct: (1) "Greg Patzold would call guys into his office to show naked pictures of his girlfriend [and would] come out and say things to [Plaintiff] like 'you should see the [sexual] positions," see Pl.'s Ans. to Interrog. (Dkt. No. 29-7) at p. 11; (2) Jeff Anderson would "walk around the sales floor and pretend he was mounting a girl and spanking her," id.;(3) Anderson would "lunge at [Plaintiff] and say things like 'what are you look'n at bimbo," id.; (4) Anderson perpetuated a running joke that Plaintiff could only make sales by taking off her jacket in order to reveal her figure, id. at p. 12; (5) Patzold once remarked after the Plaintiff put pictures out on her desk, that she "used to be pretty hot," id.; (6) Anderson would regularly "come back to the sales table and point out a [female customer] and say, 'God I'd like to fuck her,' id.; (7) Anderson would inquire whether Plaintiff's breasts were real, id.; Anderson and Patzold would regularly comment on the physical attractiveness of girls passing by in their swimwear, id.; (8) Patzold would "have [Plaintiff] make lunch for all the [male] sales reps," id.; (9) Patzold and Anderson would "routinely take the guys out to strip clubs and bars, and then come in the next day and talk about, making comments like 'did you see the ass/tits/camel toes on that one,'" id. at 14.

Egelhoff also complains that Patzold and Anderson favored male salepersons by manipulating (or "kinking") the touring board. For example, Patzold and Anderson would allegedly "kink" the board by falsely designating certain customers as "referrals" credited to male sales staff, and by retaining male -- but not female -- sales staff in the top spot on the board when they toured ineligible customers. Even when female salespersons were able to get tours, Egelhoff alleges that Patzold and Anderson sabotaged her VPG -- but not that of the male sales staff -- by (1) denying their assistance as "closers" by reason of her gender; (2) counting ineligible customers against her for purposes of tour allocation and calculating VPG; (3) by artificially lowering her VPG by crediting her with tours she had not actually taken; (4) by stealing good customers and replacing them with ineligible ones; (5) by denying her extra preparatory time to complete sales; (6) by antagonizing her customers so that they would not purchase the product at all; and (7) by denying her access to the overflow queue and hence the opportunity to sell to those customers. Some of Egelhoff's allegations, particularly those concerning the kinking of the board, are corroborated by Monty Longmeier-Heffley, a female salesperson who worked at the Coeur d'Alene branch during a significant portion of the time period in question.

Egelhoff further alleges that she complained about this behavior early and often, by making formal complaints to HR and informal complaints to Patzold and Anderson, and other management officials, including visiting corporate officials. Despite her complaints, she alleges, the discriminatory and harassing conduct continued.

Egelhoff's age discrimination claims appear to stem primarily from several discrete remarks allegedly made by Patzold and Anderson in reference to her age. She was over the age of 40 at all times while employed with Wyndham.

Finally, Egelhoff's assault and battery claims are apparently limited to Anderson and relate to at least two alleged incidents documented in the record, one in which Anderson nearly ran over Egelhoff in his truck, verbally threatening her as he did so, and another in which Anderson "lunged" at Egelhoff and threatened to burn down her house. In addition to these alleged incidents, Egelhoff alleges that Anderson is a "very violent person" who would come into work "with his ...


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