United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
Derrick K. Watson United States District Judge
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.
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.
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.
denies that Henao was “terminated” at any time on
July 4, 2016 or thereafter. Instead, according to
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
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.
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.
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.
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
Decl. ¶ 6.g. Henao does not refute Montenegro's
account of the meeting.
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.
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. ¶
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.
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. ¶
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]
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.
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).
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.
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. 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. 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.
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 ...