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Henao v. Wyndham Vacations Resorts, Inc.

United States District Court, D. Hawai'i

February 26, 2013

Jose HENAO, Plaintiff,

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Elizabeth Jubin Fujiwara, Fujiwara and Rosenbaum, LLLC, Joseph T. Rosenbaum, Law Office of Elizabeth Jubin Fujiwara, Honolulu, HI, for Plaintiff.

Barry W. Marr, Christopher J. Cole, Darin Robinson Leong, Jason M. Minami, Marr Jones & Wang LLLP, Honolulu, HI, for Defendants.




Plaintiff Jose Henao sues Defendant Wyndham Vacation Resorts, Inc., asserting employment discrimination. Wyndham moves for summary judgment on all claims asserted in the Third Amended Complaint.

At the hearing on the motion for summary judgment, Henao dismissed the following claims with prejudice: the " color" discrimination claims asserted in Counts II and VI; the Kinoshita claim (employee handbook contract claim) asserted in Count IX; the tort claims asserted in Counts X to XII; and the punitive damage claim asserted in Count XIII. Henao also agreed that he is not seeking reinstatement and that his " damages cutoff" is July 19, 2012, at the latest. Finally, Henao stated at the hearing that he was suing only over his demotion. Accordingly, to the extent the Third Amended Complaint could be read as asserting claims based on his termination, see, e.g., Third Amended Complaint ¶ 66, those claims are waived.

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The remaining claims before the court on the present motion are state and federal age discrimination claims (Counts I and V), national origin/ancestry discrimination claims (Counts III and VII), and retaliation claims (Counts IV and VIII). The court grants Wyndham's motion for summary judgment on these claims in part and denies the motion in part.

To the extent Henao asserts that he was demoted because of his national origin and age and that he suffered a hostile work environment based on comments made about his national origin and age, summary judgment is denied. Summary judgment is granted in favor of Wyndham with respect to the retaliation claims asserted in Counts IV and VIII.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when " 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). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). The movants must support their position that a material fact is or is not genuinely disputed by either " citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials" ; or " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial— usually, but not always, the defendant— has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000).

The burden initially falls on the moving party to identify for the court those " portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). " When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted).

The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. At least some " ‘ significant probative evidence tending to support the complaint’ " must be produced. Id. ( quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); see also Addisu, 198 F.3d at 1134 (" A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." ). " [I]f the factual context makes the non-moving party's claim implausible,

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that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) ( citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). Accord Addisu, 198 F.3d at 1134 (" There must be enough doubt for a ‘ reasonable trier of fact’ to find for plaintiffs in order to defeat the summary judgment motion." ).

In adjudicating summary judgment motions, the court must view all evidence and inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When " direct evidence" produced by the moving party conflicts with " direct evidence" produced by the party opposing summary judgment, " the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." Id.


Henao is a 65-year-old man from Colombia. See Declaration of Jose Henao ¶ 3, Jan. 2, 2013, ECF No. 111-8. He speaks with a thick Spanish accent. See id. ¶ 31 (" I have a thick Spanish accent" ); Declaration of Michael Turolla ¶ 5, ECF No. 88-2.

Wyndham is a for-profit, timeshare company. See Declaration of Jonathan O'Neill ¶ 3, Oct. 16, 2012, ECF No. 88-1.

On or about February 5, 2005, Henao applied to be a sales agent at Wyndham. See Employment Application, ECF No. 88-16. Henao admits to having lied on his job application in several ways. The application says that he went to high school in Los Angeles and attended " U.C.L.A." and that his " Major Subject/Course" was " B.A." Id. However, Henao admits in his deposition that he went to high school in Columbia and never enrolled at U.C.L.A. See Videotaped Deposition of Jose Guillermo Henao at 161-62, July 17, 2012, ECF No. 88-13. Henao also admits to having lied on the application when he said that he spoke Portuguese. Id. In addition, Henao lied on his application when he said that he had worked for Villa Del Palmar in Puerto Vallarta as a sales manager from February 1994 through August 2000. Id. at 159-60. Henao explained that he thought misrepresenting his experience as a sales manager would help him get hired by Wyndham. Id. at 160.

At the end of the employment application, Henao signed his name after the following certification:

I certify that the answers given to the questions and the statements made (including statements on the attached resume, and inserted forms if any) on this application and in the hiring process are true and correct to the best of my knowledge. I understand that a false answer, an omission or a misleading statement may result in a decision not to hire me, the withdrawal of any offer of employment, or the termination of my employment with the Company regardless of when such false, misleading, or erroneous information is discovered.


On February 28, 2005, Henao was hired as a Sales Agent/Associate. See Henao Decl. ¶ 4. His ...

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