A Hilton Grand Vacations sales agent cannot proceed on a claim that he was terminated in retaliation for complaining of discrimination in violation of the Hawaii Whistleblower Protection Act (HWPA). In Henao v. Hilton Grand Vacations Company, Hawaii federal district judge Derrick Watson granted the employer’s motion for summary judgment on Henao’s HWPA claim because he failed to show that he suffered an adverse employment action as required under HWPA.

HWPA protects employees who report or are about to report a violation or suspected violation of law. To state a claim under HWPA, Henao was required to show that (a) he was engaged in a protected activity; (b) he suffered an adverse employment action; and (c) the adverse employment action resulted because of his participation in the protected activity.

Henao alleged that the adverse employment action he suffered was termination. The record showed that he worked as a Real Estate Sales Agent at Hilton Grand Vacations. He alleged that he was terminated on July 4, 2016 after complaining of age discrimination against older sales agents. Hilton filed a motion for summary judgment disputing this assertion, arguing instead that while Henao was advised of performance shortcomings on July 4, 2016, he was not terminated at that time. The supervisors who discussed his performance shortcomings did not have authority to terminate him, and Henao’s subsequent actions belied the idea that he was terminated on that date.

The record showed that the company continued to employ Henao and postponed reaching any decision on Henao’s performance issues in subsequent days because it received medical documentation supporting a request for leave under the Family and Medical Leave Act. The record also showed that when his FMLA leave expired, Henao requested that the company terminate him so that he could collect unemployment insurance. Hilton refused and scheduled him to return to work. Henao failed to do so and was unresponsive to Hilton’s numerous attempts to follow up on his intentions regarding continuing his employment. Instead, he filed a charge of discrimination with the Equal Employment Opportunity Commission on August 10, 2016, alleging that he was terminated the previous month in retaliation for complaining about age discrimination. Henao eventually filed suit alleging that his termination was retaliatory in violation of HWPA. Hilton Grand Vacations filed the instant motion for summary judgment, arguing that dismissal of Henao’s lawsuit was proper.

In concluding that summary judgment was appropriate, Judge Watson reasoned that there were no genuine issues of material fact regarding whether Henao suffered an adverse employment action. The record clearly showed that he was not terminated by anyone with authority to make separation decisions on July 4, 2016, and that he subsequently took actions that an employee would ordinarily take, including making a request and being eligible for FMLA leave. His ensuing request to be terminated in August of 2016 so that he could collect unemployment insurance further suggests that he was aware that he had not been terminated on July 4, 2016.

While Henao argued that there were genuine issues of material fact regarding whether he suffered an adverse employment action, the court disagreed. Arguments that his real estate license was placed on inactive status during his FMLA leave, that he was awarded unemployment benefits in August of 2016, and that two coworkers believed him to have been terminated on July 4, 2016 proved unpersuasive to Judge Watson. The record showed that (1) Hilton’s policy required it to place workers’ real estate licenses on inactive status when they are on leave for more than a few days; (2) the decision to grant Henao unemployment insurance benefits was made without any participation by or information from Hilton Grand Vacations; and (3) the coworker declarations Henao proffered to support his position consist of inadmissible hearsay that is not based on personal knowledge. As such, Henao failed to show that genuine issues of material fact exist regarding whether he suffered an adverse employment action. Summary judgment was proper on his HWPA claim where Henao could not show that he was terminated on July 4, 2016 and the record suggested that Hilton continues to employ Henao as an employee on leave even today.