King Lum v. Kauai County Council , 358 F. App'x 860 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 01 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KING C. LUM, No. 08-16093
Plaintiff - Appellant, D.C. No. 1:06-cv-00068-SOM-
LEK
v.
KAUAI COUNTY COUNCIL; BRYAN MEMORANDUM *
BAPTISTE, individually, and in his
capacity as the Mayor of Kauai County,
State of Hawaii; LEON GONSALVES,
SR., individually, and in his capacity as a
Commissioner, Kauai Police Commission;
MICHAEL H. TRESLER, individually,
and in his capacity as the Director of
Finance, Kauai County; KAUAI
COUNTY; and JOHN DOES 1 to 20 and
JANE DOES 1 to 20,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted October 14, 2009
Honolulu, Hawaii
Before: BEEZER, GRABER and FISHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
King C. Lum appeals the district court’s summary judgment in favor of the
defendants, as well as the district court’s affirmance of the magistrate judge’s order
denying Lum’s motion to compel discovery. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm the district court in all respects.
I. Lum’s Motion To Compel Discovery
Having reviewed the minutes in camera, we hold that the district court did
not clearly err in affirming the magistrate judge’s order denying Lum’s motion to
compel discovery of the Kauai County Council’s Executive Session 177 minutes.
Lum relies on an opinion letter from the Hawaii Office of Information Practices
(OIP) stating that only a limited portion of the minutes was covered by the
attorney-client privilege. The magistrate judge could reasonably have disagreed
with OIP’s review of the minutes or concluded that the privileged material was so
intertwined with nonprivileged material that redaction would be ineffective.
II. Lum’s Due Process, Breach of Contract and Violation of Public Policy
Claims
The district court correctly determined that Lum did not have a property
interest in his employment and, thus, does not have a viable due process claim.
Lum’s employment agreement was tainted by ethical violations by one of the
police commissioners, so it was illegal and void ab initio. Cf. Peine v. Murphy,
2
377 P.2d 708, 712 (Haw. 1962) (holding that an agreement vitiated by fraud is void
ab initio). A void contract cannot give rise to a property interest. See Bollow v.
Fed. Reserve Bank of S.F., 650 F.2d 1093, 1099 (9th Cir. 1981).
Accordingly, we need not consider whether Kauai County Code section 3-
1.11(a) would have rendered this contract voidable. Moreover, Lum did not raise
the argument that a contract that was merely voidable should be treated differently
from one that was void ab initio. Thus, we do not decide whether a voidable
contract could create a property interest sufficient for a due process claim.
Nor do we address Lum’s breach of contract and public policy claims, which the
district court ruled were similarly defeated because the employment agreement was
void. Lum has abandoned any challenge to these rulings on appeal. See United
States v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997).
III. Lum’s Claims Against Tresler
The district court correctly determined that Lum raised no issue of material
fact in his civil conspiracy claim against Michael Tresler. See 42 U.S.C. § 1985
(requiring a conspiracy to deprive a plaintiff of the equal protection of the laws).
Because Lum has alleged no facts suggesting that Tresler acted on the basis of
racial or class-based animus, we affirm the district court’s summary judgment in
3
favor of Tresler. See Bretz v. Kelman, 773 F.2d 1026, 1028-30 (9th Cir. 1985) (en
banc).
IV. Lum’s Claims Against Gonsalves
The district court correctly determined that Lum raised no issue of material
fact in his several claims against Leon Gonsalves, Sr. First, there is no individual
liability under Title VII, 42 U.S.C. § 2000e-2, et seq. See Miller v. Maxwell’s Int’l
Inc., 991 F.2d 583, 587-88 (9th Cir. 1993). Second, there is no individual liability
under Hawaii Revised Statutes § 378-2(1)(A) and (2). We agree with the district
court’s analysis of the Hawaii statute’s language, particularly in light of its
parallels to Title VII. On Lum’s section 378-2(3) claim, where individual liability
is proper, Lum failed to provide any evidence that Gonsalves aided and abetted any
discriminatory action.
Third, the district court properly granted summary judgment on Lum’s 42
U.S.C. § 1981 claims. The evidence that Lum presented shows no more than
“isolated incidents” that do not support a hostile work environment claim.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Moreover, Lum does
not have a viable retaliation claim because he has not shown that Gonsalves took
any adverse employment action as required by Surrell v. Cal. Water Service Co.,
518 F.3d 1097, 1108 (9th Cir. 2008).
4
Fourth, the district court properly granted summary judgment on Lum’s
§ 1985 claim against Gonsalves. Even assuming that Lum could show that
Gonsalves was racially motivated based on his use of a derogatory nickname, we
conclude that Lum offered no evidence of a conspiracy between Gonsalves and
anyone else to deprive Lum of equal protection.
Fifth, the district court ruled that there is no individual liability under the
Hawaii Whisteblowers’ Protection Act. Haw. Rev. Stat. § 378-62. But even if
there is individual liability, it can attach at most to an agent of the employer. See
id. § 378-61. Lum failed to provide evidence that Gonsalves should be considered
an agent of Lum’s employer, Kauai County, much less that Gonsalves’s retaliatory
actions were taken in his capacity as an agent.
AFFIRMED.
5