STEVEN CABASA V. CITY & COUNTY OF HONOLULU, No. 15-16597 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN CABASA, No. Plaintiff-Appellant, 15-16597 D.C. No. 1:14-cv-00080-DKW-RLP v. CITY AND COUNTY OF HONOLULU, Department of Environmental Services; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding Submitted February 16, 2018** Honolulu, Hawaii Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges. Steven Cabasa appeals the district court’s order granting summary judgment to the City and County of Honolulu, Department of Environmental Services (the * 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). City) on his claim that the City retaliated against him for protected conduct in violation of the Hawaii Whistleblower Protection Act (HWPA), Haw. Rev. Stat. § 378-62. We have jurisdiction under 28 U.S.C. § 1291. It is undisputed that a candidate for the Wastewater Pumping Operations Supervisor position must receive at least a 70% score on the promotional examination to be considered for the position and that Cabasa received a 57.5% score on the examination. Accordingly, there is no genuine issue of material fact that the City would not have promoted Cabasa “regardless of the protected activity.” Crosby v. State Dep’t of Budget & Fin., 76 Haw. 332, 342 (1994) (quoting NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989)). AFFIRMED. 2

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