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Dorothy Phillips v. Marriott Ownership Resorts

November 19, 2012

DOROTHY PHILLIPS, PLAINTIFF-APPELLANT,
v.
MARRIOTT OWNERSHIP RESORTS, INC. D/B/A MARRIOTT VACATION CLUB INTERNATIONAL, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1355-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 19, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff Dorothy Phillips sold vacation timeshares for defendant Marriott Ownership Resorts, Inc. (Marriott). She was a highly productive sales executive. She persuaded a jury that Marriott terminated her to retaliate against her for reporting her belief that a current co-worker engaged in illegal commission-splitting with a former Marriott employee. The jury awarded compensatory and punitive damages. However, the trial court granted defendant's post-trial motion to strike the punitive damages award. The court also denied plaintiff's motion for a clarification of her rights on reinstatement. Plaintiff appeals from these two trial court orders. We affirm.

I.

The record evidence reflects the following. In 2001, plaintiff started selling vacation timeshares for defendant at the Fairway Villas at Seaview (Seaview) in Galloway Township. She was very successful, and promoted to sales manager in February 2004. Other sales managers were James Patrick and Robin Barrick. After May 2004, plaintiff's supervisor was Stephanie Sobeck, a "project director," who reported to Robert DeRose, the regional sales and marketing vice president for the East Coast and the Caribbean. She received an award for her performance during the fourth quarter of 2004.

In late 2004, plaintiff concluded she was better suited in sales rather than management. Although she was interested in a position in Orlando, Florida, DeRose wanted her to stay at Seaview. In December 2004, plaintiff spoke to DeRose and Sobeck about her return to sales at Seaview. To induce her to stay, Phillips claimed that DeRose offered her all "orphan accounts," which were accounts for existing customers with no current servicing sales executive. DeRose denied making that offer, because one sales executive could not handle thousands of orphans.

Also in late 2004, while plaintiff was still in management, another highly productive Seaview sales executive, Martin Kamison, was terminated after repeated violations of internal directives. Plaintiff told other managers she was displeased she was not consulted, and concerned about losing such a successful sales executive. Plaintiff told Kamison upon his departure that she would periodically check his voicemail.

In late 2004, while plaintiff was a sales manager, she asked Jessica Britanak, a processor in the contracts department at Seaview, to generate a computer printout of Kamison's pending business for which he had written contracts but had not closed. Plaintiff intended to close pending business for the year. Britanak handwrote the names of Kamison's clients with pending business for plaintiff. According to an e-mail Britanak authored on February 28, 2005, plaintiff "immediately turned . . . [the list] over and put it under her [computer] keyboard," and asked Britanak to keep her request confidential. Plaintiff testified that she "didn't do anything" with the handwritten list because she "couldn't use it," and denied asking Britanak to keep her request confidential.

Plaintiff returned to her sales executive position effective January 15, 2005. Her direct supervisors were Barrick and Patrick, who reported to Sobeck, who in turn reported to DeRose.

According to Sobeck, January was a slow time of year for timeshare sales. She and DeRose suggested that "orphans" be assigned to plaintiff so her sales would not be adversely affected. Both Sobeck and DeRose testified that a sales executive had the option of asking his or her sales manager for twenty-five orphans and, after having contacted all twenty-five, the sales executive could request which orphans he or she wanted assigned. Sobeck further explained that if a sales executive had a prior relationship with an orphan, that orphan could be assigned provided the sales executive obtained permission from his or her sales manager. That policy was put into writing in 2005, and plaintiff acknowledged it on February 7, 2005.

Plaintiff moved into Kamison's old office on January 14, 2005. According to plaintiff, the office was full of Kamison's "plaques[,] . . . awards[,] and paperwork." Plaintiff's direct telephone extension when she was a sales manager was not transferred to the phone in her new office, and the phone in her new office retained Kamison's voicemail greeting, despite his having been terminated in October 2004. Plaintiff testified that Kamison's voicemail greeting was problematic because when she was not in her office, potential clients would attempt to leave her a message, hear a man's voice, think they dialed the wrong number, and hang up.

Soon after reassuming a sales executive position, plaintiff requested to have her direct extension transferred to her phone in her new office, and to have the office painted. Sobeck cancelled the painting order, telling her that since she was no longer a sales manager, she had no authority to put in such an order. Thereafter, plaintiff repeatedly asked for her extension to be transferred to the phone in her new office, to no avail. Sobeck testified that Kamison's voicemail should have been deactivated soon after his termination in October, but it was still active in January.*fn1

Since her extension was not transferred to the phone in her new office, plaintiff decided to record a new voicemail greeting on Kamison's old extension sometime in early February 2005. She testified that she changed the message to, "if you're leaving a message for Marty Kamison, please do so and someone will call you back."

Patrick asserted that plaintiff told him that she changed Kamison's voicemail greeting to a "generic message." Patrick testified that meant the message would direct callers to a current employee such as a sales manager and advise that Kamison was no longer with the company. However, he admitted that in February 2005, he wrote an email acknowledging that plaintiff had placed a generic message, which he understood to be, "If you are calling for Marty, please leave a message and someone will get back to you." He trusted that plaintiff appropriately changed the voicemail greeting, and so did not discipline her at the time for changing the message.

Approximately two weeks into her job as a sales executive, plaintiff requested to be assigned to orphans. She was assigned approximately twenty-five orphans, including a number of Kamison's prior clients. Patrick understood that she had a previous relationship with those orphans, but plaintiff testified that she never told Patrick that she had prior contact with them. Patrick verbally approved the assignment of those orphans to plaintiff.

One of those orphans, Edward Rivas, had been one of Kamison's good clients, and was assigned to plaintiff on January 26, 2005. Sobeck testified that plaintiff had no prior relationship with Rivas, and so plaintiff should not have been assigned to him.

Kamison testified that he and plaintiff were friends. Plaintiff visited him at his new job on January 26, 2005. Plaintiff testified that Kamison told her he had contracts in his car for timeshare sales to one of his former clients at Seaview. Asked why he had those contracts since he no longer worked for Marriott, Kamison told plaintiff he had an agreement with Stacy Zimmerman, a Marriott portfolio sales executive in Orlando, Florida, to split the commission for sales Kamison closed with one of his former Marriott customers. Plaintiff said his arrangement was illegal, but Kamison disagreed. At trial, both Kamison and Zimmerman denied they had a commission-splitting agreement.

Plaintiff testified that after she left Kamison, she immediately reported Kamison's arrangement to Patrick, who became agitated. She said he responded, "[W]e can't let this happen," and assured her he would address the matter with Sobeck. Patrick also immediately assigned to plaintiff a list of orphan owners whom Kamison previously serviced. These orphan owners had bought so-called portfolio properties, that is, properties at sites other than Seaview.*fn2 Between January 26 and February 13, plaintiff asked Patrick "several times" "what's going on with Zimmerman." In his testimony, Patrick denied speaking to plaintiff about Kamison and Zimmerman splitting commissions.

On February 16, 2005, plaintiff reported the Kamison-Zimmerman commission-splitting agreement to Sobeck, who told her she would take care of it. Sobeck told DeRose about plaintiff's allegations. DeRose testified he conveyed the allegation to Zimmerman's supervisors in Florida, who were authorized to follow up. DeRose and Sobeck were not involved in the Florida investigation because they had no authority over Zimmerman. Zimmerman testified that his supervisors in Orlando questioned him once about alleged commission-splitting with Kamison, but there was no other follow-up. Zimmerman's supervisors did not substantiate plaintiff's allegations.

Plaintiff said she also reported her allegations to Daphne Thompson, a human resources manager. Thompson denied that plaintiff made a report to her, and stated she was not involved in the investigation in Florida. Plaintiff never put her commission-splitting charge in writing to the company.

Plaintiff first contacted Rivas on February 10, 2005, after retrieving a voicemail message he left for Kamison.*fn3 Plaintiff testified she told Rivas she had been assigned his account, he would no longer be working with Kamison, and asked whether he knew that Kamison's wife was ill. Rivas did not recall plaintiff asking him about Kamison's wife. Plaintiff told Rivas that she would take care of an issue regarding a maintenance fee on one of his prior timeshare purchases and determine whether there were additional weeks in Aruba for purchase. After some confusion over which weeks were available, Rivas agreed to purchase additional weeks in Aruba.

Plaintiff called Rivas in mid-February for a deposit but, according to her, Rivas did not have a credit card, so she drove to Rivas's home in Marlton to pick up a check. He gave plaintiff a check for $34,000, representing a ten percent deposit. Plaintiff testified that while at Rivas's house, she discussed his prior purchase of weeks in Hilton Head from Kamison, and Rivas said he thought Kamison had overvalued his purchase. She told Rivas that he could not overvalue a vacation with his family, to which Rivas asked, "[D]o you think Marty will be okay[?]" She responded yes. Rivas recalled the conversation differently. He testified he asked plaintiff whether Kamison would come out okay on the deal, apparently meaning whether Kamison would receive a commission on the sale, and plaintiff shrugged "yeah."

The next day, plaintiff's day off, plaintiff dropped off at work Rivas's Aruba deposit. Later that day, Kamison called plaintiff and told her he knew about her sale to Rivas and asked her to split the commission with him. Plaintiff said she responded, "you're crazy," and hung up. At trial, Kamison denied the discussion happened.

Plaintiff then called Sobeck because she was "scared" and wanted Sobeck to stop Kamison from calling her. Plaintiff claimed Sobeck told her that she needed to check with John Langan, the broker of record at Seaview, regarding whether the splitting of commissions was illegal. After Langan verified that such activity was illegal, per plaintiff's request, Sobeck sent her an e-mail dated February 17 stating that commission-splitting was illegal.

On February 17, Zimmerman contacted Rivas about new vacation timeshares available in St. Thomas. On February 21, plaintiff inadvertently discovered that Zimmerman had contacted Rivas about St. Thomas, and expressed to Sobeck and Patrick that she wanted to make sure that her deal with Rivas on the Aruba timeshares would not be cancelled. She also told Sobeck that she believed "Zimmerman [wa]s up to no good with Kamison . . . [because] they[] were trying to get . . . [Rivas] to buy St. Thomas." Sobeck told her to call Rivas to "keep him in this deal."

Plaintiff called Rivas from her office, with Patrick present. She told Rivas that Kamison no longer worked for defendant and she had no agreement with Kamison to split commissions. Plaintiff had not told Rivas that Kamison no longer worked for the company sooner because, according to her, she had not been asked that question and did not feel that disclosing that information was appropriate. Rivas asked plaintiff if Kamison had a commission-splitting agreement with Zimmerman, and she told him they did. She also said Kamison would receive no commission on the Aruba sale.*fn4

On February 22, plaintiff stopped at work on her way out for a vacation and learned a poster about her had been hung around the office. The poster read: "THANK YOU MARTY FOR THE FREE VOLUME AND COMMISSION! [sic] I'M NUMBER ONE[.] KEEP THOSE DEALS COMING[.] LOVE YA BABE! DOROTHY[.]" Plaintiff testified that she did not create the poster.

Sharon DeGiacomo, a sales executive, saw the poster, and called Kamison, a friend of hers, because she thought the poster was "peculiar." According to DeGiacomo, she read the poster to Kamison, he got "very upset," and asked her to fax him the poster. She did so, thinking that she was faxing the poster to his home. However, Kamison received it in Rivas's office. According to Kamison, he had stopped by Rivas's Cherry Hill office that day because he was upset that plaintiff was "reneging" on the deal she had with Kamison to split the ...


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