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Henao v. Hilton Grand Vacations Co., LLC

United States District Court, D. Hawaii

October 6, 2017

JOSE HENAO, Plaintiff,


          Derrick K. Watson United States District Judge


         Hilton Grand Vacations Company, LLC (“Hilton”) seeks summary judgment on Plaintiff Jose Henao's single cause of action for termination in violation of the Hawaii Whistleblower Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62. Henao alleges that Hilton unlawfully terminated his employment in July 2016 because he complained about age discrimination against “older sales agents” as well as Hilton's sales commission practices. Henao, however, was never terminated. Indeed, he does not dispute that after the date on which he claims he was terminated, he requested and was granted leave from his Hilton real estate sales position, pursuant to the Family Medical Leave Act, and, weeks later, requested that Hilton terminate him so that he could apply for unemployment insurance benefits. These are not the actions of a terminated employee, and Hilton, even today, continues to employ Henao as a sales agent on personal leave. Having failed to raise a genuine issue of material fact with respect to his alleged termination, Henao is unable to satisfy the “adverse employment action” prerequisite to an HWPA claim, entitling Hilton to summary judgment.


         I. Factual Background

         Henao was hired by Hilton as a sales agent in 2012. He alleges that he was wrongfully terminated on July 4, 2016 in retaliation for complaining about age discrimination and certain Hilton sales commission practices. Complaint ¶ 6, Dkt. No. 1-1. According to Hilton, Henao was not terminated on July 4, 2016 or on any other date, remains employed as a sales executive, and is presently listed on Hilton's employee ledger as being out on personal leave status. Decl. of Julia Montenegro ¶ 4; Dkt. No. 18-1.

         By early 2016, Henao complained that Hilton Sales Supervisor, Joshua Kannel, “was discriminating based upon age by firing the older sales agents.” Decl. of Jose Henao ¶ 3; Dkt. No. 21-1. He also complained to both Kannel and Julia Montenegro, a senior Hilton human resources manager, that Hilton's minimum wage recovery draw program “resulted in illegal deductions from [Henao's] pay in violation of law[.]” Henao Decl. ¶ 2. Henao claims that on July 4, 2016, because of his outspoken complaints, he was told by Kannel and Supervisor Bryan Economou “‘pick up [his] personals and go home'. [He] was terminated.” Henao Decl. ¶ 4. Henao “asked for clarification and was told ‘the termination is final'.” Henao Decl. ¶ 5.

         Hilton denies that Henao was “terminated” at any time on July 4, 2016 or thereafter. Instead, according to Hilton's Montenegro-

On July 4, 2016, Mr. Henao was advised that he had not met written and objective [sales] performance criteria for his job position and that this failure followed a validated final warning for previous poor performance. Mr. Henao was informed that [Hilton] HR would be contacting him shortly to discuss next steps.

         Montenegro Decl. ¶ 6.a. On July 6, 2016, before making such further contact with Henao, Hilton received a note from Henao's doctor, placing him on leave for medical reasons, retroactively from July 1 through July 8, 2016. Montenegro Decl. ¶ 6.b.; see also Decl. of Kerry Dolan ¶ 3. On July 8, 2016, Hilton HR received a second note from Henao's doctor, stating that Henao's medical condition required him to be on leave until July 26, 2016. Dolan Decl. ¶ 4; Montenegro Decl. ¶ 6.c.

         On July 11, 2016, after receiving these two notes from Henao's doctor, Hilton HR “decided not to take any action with regard to Mr. Henao's past poor job performance and to continue [his] employment upon his return from [Family Medical Leave Act (“FMLA”)] leave.” Montenegro Decl. ¶ 6.e. At nearly the same time, Leina‘ala Isa, Hilton's principal broker or broker in charge, requested that the Hawaii Real Estate Commission place Henao's real estate license on inactive status. Henao Decl. ¶ 6, Ex. 1 (7/8/16 Real Estate License Change Form); Dkt. No. 21-2.

         On July 12, 2016, Hilton HR contacted Henao by telephone to confirm that he would be on FMLA leave until July 26, 2016. Montenegro Decl. ¶ 6.f. According to Montenegro and Hilton HR's Leave Specialist Kerry Dolan, Henao stated that he expected to return to work on July 26. Montenegro Decl. ¶ 6.f.; Dolan Decl. ¶ 5. Following the telephone call, Hilton HR emailed the necessary FMLA paperwork to Henao. Montenegro Decl. ¶ 6.f.; Dolan Decl. ¶ 5.

         At his request, Hilton HR met with Henao on July 19, 2016 to discuss his employment status. Montenegro describes the meeting, in part, as follows-

During that meeting, Mr. Henao stated that he no longer wanted to work for [Hilton] and asked that he be terminated so that he could collect unemployment insurance for the remainder of 2016 (at which time he already was planning to retire). [Hilton] HR declined to terminate Mr. Henao's employment as requested, informed Mr. Henao that he was on FMLA leave, and showed him his tentative work schedule for his return to work upon the expiration of his FMLA leave. Mr. Henao repeatedly stated that he either deemed himself terminated or wished to be terminated. With equal frequency, [Hilton] HR told Mr. Henao that he was not terminated and that [Hilton] would not be terminating his employment as requested just so he could fraudulently collect unemployment insurance payments.

         Montenegro Decl. ¶ 6.g. Henao does not refute Montenegro's account of the meeting.

         The next day, Montenegro sent Henao a certified letter reconfirming that he remained a Hilton employee while on FMLA leave and enclosed a copy of his “return-to-work schedule, ” indicating his August and September 2016 work dates. Montenegro Decl. ¶ 6.h., Ex. A (7/20/16 Letter), Dkt. No. 18-4. The July 20, 2016 letter states-

As discussed in our meeting yesterday, July 19, 2016, you continue to be employed as a team member of Hilton Grand Vacations. However, per your leave request received on July 5, 2016, you have been approved for Family Medical Leave starting from July 1st as stated in the note received from your physician. You are currently coded in our system under Leave of Absence.

         Montenegro Decl. ¶ 6.h., Ex. A (7/20/16 Letter). Henao does not deny receipt of the July 20, 2016 certified letter. He acknowledges only that he “spoke and met with Hilton Human Resources Manager Julia Montenegro one time between June 1, 2016 to August 30, 2016.” Henao Decl. ¶ 15.

         On July 24, 2016, Henao applied for and was subsequently awarded unemployment insurance benefits from the State of Hawaii Department of Labor and Industrial Relations (“DLIR”). Henao Decl. ¶ 7, Ex. 2 (8/17/16 DLIR Decision), Dkt. No. 21-4. Montenegro asserts that when Hilton learned that Henao had applied for unemployment insurance benefits, “despite the fact that he was still employed with [Hilton], it was decided that any participation in [his] attempts to improperly obtain unemployment insurance benefits-either in support or opposition of those attempts-was not in the best interests of Hilton. Thus, Hilton did not provide any information to the [DLIR] in connection with [Henao's] unemployment benefit claims.” Suppl. Montenegro Decl. ¶ 7.

         On July 25, 2016, Hilton HR called Henao to confirm that he would be returning to work the next day, as scheduled. Montenegro Decl. ¶ 6.i. According to Montenegro, Henao responded that he was not sure if he would return to work on July 26, and that he would be seeing his doctor before returning. Montenegro Decl. ¶ 6.i. Hilton HR requested that Henao contact the department immediately after speaking with his doctor so that Hilton could determine if his FMLA leave would be extended or whether he could work as scheduled. Montenegro states that Henao agreed to do so. Montenegro Decl. ¶ 6.i.

         Henao called Hilton the next day, July 26, 2016, reporting that while he was not able to see his doctor that day because he was too sick, he had scheduled a new appointment for July 28. Montenegro Decl. ¶ 6.j. Henao assured Hilton HR that he would contact the office on that date to update his status. Montenegro Decl. ¶ 6.j.; Dolan Decl. ¶ 7. On July 29, 2016, Henao forwarded to Hilton HR a note from his doctor, dated July 26, 2016, indicating that Henao had, in fact, been released back to work on July 26, 2016, and that he had no illness or disability limiting his ability to work. Montenegro Decl. ¶ 6.k., Ex. B. (7/26/16 Physician Note), Dkt. No. 18-5. According to Montenegro, “[i]n forwarding that doctor's note, Mr. Henao included a message stating: ‘Enclosed is Dr. Elizabeth Quinn [sic]

         notice ending STD.' (short term disability).” Montenegro Decl. ¶ 6.l. When Hilton learned that Henao's FMLA leave had concluded as scheduled on July 26, 2016, Hilton HR called and left Henao a message to determine his return-to-work status. Montenegro Decl. ¶ 6.l. When Hilton HR did not receive a response from Henao on July 29, 2016, it both emailed and called him to discuss his plans, but did not receive a response to either communication. Montenegro Decl. ¶ 6.m.

         Although Henao was scheduled to work, he did not come to work or call in for the three-day period of August 3, 4, and 5, 2016. Montenegro Decl. ¶ 6.n. Montenegro states that Henao “became terminable after his third ‘no call/no show, ' [however], [Hilton] HR elected to defer any termination decision and, instead, wrote Mr. Henao a letter in an attempt to engage with [him].” Montenegro Decl. ¶ 6.o. The August 9, 2016 letter states in part-

This letter is to follow up on our last correspondence with you regarding your status and return to work. As you know, pursuant to the Domestic 555 schedule that was mailed and received by you on 7/26/16, you were scheduled to work on August 3, 4, 5, and 6 unless your FMLA leave was extended. Given that you did not extend your FMLA leave, we assumed you would show up to work as scheduled. You did not do so. Pursuant to our policies, your failure to appear for work as scheduled constitutes a no call/no show. Although your 3 day no call/no show makes your employment terminable, we do not want to take that step without checking in with you one last time to see if you wish to extend your FMLA leave or take a non-FMLA personal leave of absence. Accordingly, we have withheld taking any action regarding your employment status to give you a chance to contact us and make your intentions known.

Montenegro Decl. ¶ 6.o., Ex. C (8/9/16 Letter), Dkt. No. 18-6 (emphasis added).

         Because no decision had been made regarding his employment status, Hilton offered to extend Henao's FMLA leave if he qualified or to provide him with non-FMLA leave, as both described in the August 9 letter and as referenced in a prior August 5 communication from Hilton HR-

If you need further FMLA leave, you may remain eligible for such leave and we will be happy to work with you to set up further time off work. Similarly, if you would like to take an non-FMLA leave for up to a month, we will be happy to grant such a request. The key is communication, we cannot figure out how to accommodate your needs if you do not communicate with us and simply fail to show up for work. As we informed you on August 5, 2016 you are free to return to work, free to extend your FMLA leave, or free to take another form of leave. The choice is yours and we will work with you to effectuate your decision.

Montenegro Decl. ¶ 6.p., Ex. C (8/9/16 Letter). Montenegro concluded the August 9 letter with a request that Henao contact Hilton HR to make his future employment plans known to the company. She stated -

The one thing that cannot go on indefinitely is the current situation where your FMLA leave has expired, you have not requested an extension, you were scheduled to return to work, and you have engaged in a multi-day no call/no show. Again, we are requesting your response (i.e. some communication from you) as to whether you anticipate returning to work and when, whether you would like to extend your FMLA leave or whether you would like to take another form of leave. We will defer action on your no call/no show until Friday, August 26th so that you have plenty of time to contact us and make your intentions clear. We hope that you will either return to work or take this opportunity to request further leave time.

Montenegro Decl. ¶ 6.q., Ex. C (8/9/16 Letter). Henao does not dispute that he received Montenegro's August 9 letter and that he did not contact Hilton HR to discuss his job status as requested. See generally Henao Decl.; see also Ex. D, Henao's Response to First Request for Admissions ¶¶ 33-35, Dkt. No. 18-7. According to Montenegro, no action has been taken against Henao, and he remains on Hilton's employee ledger on personal leave status. Montenegro Decl. ¶ 6.s.

         On August 10, 2016, Henao filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging age discrimination and retaliation by Hilton. Henao Decl. ¶ 8, Ex. 3 (EEOC Charge), Dkt. No. 21-4.[1] Henao's Charge states that Hilton “did not provide a reason for my termination on July 4, 2016.” Ex. 3 at 1 (EEOC Charge). Henao claims that after he filed his Charge with the EEOC, Hilton “tried to cover up [his] termination” on August 12, 2016, by reactivating his real estate license with the Hawaii Real Estate Commission. Henao Decl. ¶ 9; Ex. 4 (8/12/16 Real Estate License Change Form), Dkt. No. 21-5.[2] On August 16, 2016, Hilton again filed a request to change Henao's license status to inactive. Henao Decl. ¶ 10; Ex. 5 (8/16/16 Real Estate License Change Form), Dkt. No. 21-6.[3]

         Henao claims that he “was the top salesperson in May 2017 [sic] ¶ 36 sales agents, ” and that from “January 1, 2016 to June 30, 2016, [he] was the eighth highest producer of all 36 sales agents.” Henao Decl. ¶¶ 12-13. In support of his contention that he was terminated, Henao asserts that “a number of [his] co-workers heard from management that I was terminated on July 4, 2016. My ...

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