Jose Henao v. Hilton Grand Vacations Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HENAO,
Plaintiff-Appellant,
v.
HILTON GRAND VACATIONS INC.,
Defendant-Appellee.
No. 17-17269
D.C. No.
1:16-cv-00646-DKW-RLP
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted June 12, 2019**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Plaintiff-appellant Jose Henao appeals the district court’s grant of summary
judgment in favor of defendant-appellee Hilton Grand Vacations Company, LLC,
(“Hilton”) in Henao’s diversity action alleging that he was wrongfully terminated
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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in violation of Hawaii Revised Statutes § 378–62, also known as Hawaii’s
Whistleblower Protection Act (HWPA). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
Henao was hired by Hilton as a sales agent in 2012. Henao alleges that he
was wrongfully terminated in July 2016 after complaining to his employer about
unlawful age discrimination practices. Henao subsequently filed a complaint in
Hawaii state court claiming that he was wrongfully terminated by Hilton due to his
complaints to management about unlawful age discrimination in violation of the
HWPA. Hilton removed the case to federal district court, then moved for summary
judgment on the basis that Henao was never terminated by Hilton. The district
court granted summary judgment for Hilton, agreeing that Henao was never
actually terminated and thus was unable to satisfy the “adverse employment
action” requirement of his HWPA claim.
To establish a prima facie case for retaliation under the HWPA, the plaintiff
must prove that: (1) he engaged in a protected activity; (2) he was subjected to an
adverse employment action; and (3) the protected activity was a “substantial or
motivating factor” in the adverse employment action. See Crosby v. State Dep’t of
Budget & Fin., 876 P.2d 1300, 1310 (Haw. 1994). The sole adverse employment
action alleged in Henao’s complaint as the basis for his HWPA claim was his
wrongful termination in July 2016.

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According to Henao, the district court erred in granting summary judgment
because a rational factfinder could conclude that he had been terminated by Hilton
in July 2016 based on evidence of the following facts: (1) he was told by two
supervisors to “pick up [his] personals and go home”; (2) two colleagues also
heard on separate occasions from different supervisors that Henao had been
terminated; (3) Hilton thereafter placed Henao’s brokerage license in inactive
status; and (4) Hilton did not oppose Henao’s application for unemployment
compensation, which the State of Hawaii subsequently granted. Even if we accept
each of Henao’s factual allegations as true, however, they present no controversy
with regard to the record evidence that: (1) the two supervisors who allegedly told
Henao to “go home” lacked any authority to fire him; and (2) the Hilton executives
who did possess the authority to terminate Henao chose not to do so and
communicated this decision to Henao on multiple occasions thereafter.
As to Henao's remaining arguments, even assuming the district court erred in
its interpretation of Henao’s leave pursuant to the Family Medical Leave Act, and
erred by excluding two of his colleagues’ statements, neither of these errors affect
the lack of genuine controversy regarding the termination authority of Henao's
supervisors. Thus, even after drawing all reasonable inferences supported by the
evidence in favor of Henao, there is no genuine issue as to whether Henao was
terminated as alleged in his HWPA claim. See Villiarimo v. Aloha Island Air, Inc.,

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281 F.3d 1054, 1061 (9th Cir. 2002). Accordingly, we affirm the district court’s
grant of summary judgment.
AFFIRMED.

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