                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 21 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVEN CABASA,                                   No.   15-16597

              Plaintiff-Appellant,               D.C. No.
                                                 1:14-cv-00080-DKW-RLP
 v.

CITY AND COUNTY OF HONOLULU,                     MEMORANDUM*
Department of Environmental Services; et
al.,

              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.




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