                                                                          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                            NOT FOR PUBLICATION                            DEC 01 2009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.




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