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Silverstein v. Carter

United States District Court, D. Hawaii

September 1, 2016

JAY SILVERSTEIN, Plaintiff,
v.
ASHTON B. CARTER, in his capacity as the Secretary of Defense, Defendant.

          ORDER DENYING MOTION FOR RECONSIDERATION

          Susan Oki Mollway United States District Judge

         I. INTRODUCTION.

         On August 11, 2016, this court issued an order dismissing the portion of Plaintiff Jay Silverstein's retaliation claim based on facts alleged in paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Complaint, the sole exception being the portion of the retaliation claim relating to a trip to Laos. The court then granted summary judgment in favor of Defendant on the portion of the retaliation claim relating to the Laos trip and all other remaining portions of the retaliation claim except the portion based on Silverstein's not having been selected for a Supervisory Historian position. This court also granted summary judgment to Defendant on the entire hostile work environment claim. See ECF No. 68.

         On August 22, 2016, Silverstein moved for reconsideration of the order under Rule 59(e) of the Federal Rules of Civil Procedure. See ECF No. 71. That motion is denied.

         II. RECONSIDERATION STANDARD.

         “The Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” 11 Charles Alan Wright, Arthur Miller, and Mary Kay Kane, Federal Practice & Procedure § 2810.1 (3d ed. West 2015); see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008).

A district court may properly reconsider its decision if it “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9thCir. 1993). Clear error occurs when “the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). “[R]econsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc). The decision on whether to grant or deny a Rule 59(e) motion is committed to the sound discretion of this court. Id. n.1 (“the district court enjoys considerable discretion in granting or denying the motion”); see also Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (“denial of a motion for reconsideration is reviewed only for an abuse of discretion”).

         Silverstein seeks reconsideration of the court's order granting in part and denying in part summary judgment in favor of the United States. Because the court denied summary judgment with respect to part of one claim, final judgment has not been entered, making Rule 59(e) inapplicable. The court therefore construes the reconsideration motion as brought under Local Rule 60.1, which adopts the same standard for interlocutory orders such as the one underlying the present motion. See Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74, 79-80 (9th Cir. 1979) (“an order denying a motion for summary judgment is generally interlocutory and subject to reconsideration by the court at any time” (quotation marks and citation omitted)); Martin v. ABM Parking Servs., Inc., 2013 WL 6624124, at *1 (D. Haw. Dec. 16, 2013) (construing motion seeking reconsideration of denial of summary judgment motion as brought under Local Rule 60.1); see also Wynn v. Reconstruction Fin. Corp., 212 F.2d 953, 956 (9thCir. 1954) (noting that partial summary judgment order is non-appealable prior to entry of final judgment and should be considered “interlocutory summary adjudication”).

         III. ANALYSIS.

         A. The Court Does Not Reconsider Its Ruling on the Retaliation Claim.

         Silverstein first argues that the court committed clear error in failing to consider the facts alleged in paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Complaint as evidence of retaliation, even though any Title VII retaliation claim based on those facts was untimely. But Silverstein agreed that he had not timely exhausted any retaliation claim based on those allegations.[1] Moreover, in granting summary judgment in favor of the Government with respect to the Title VII retaliation claim, the court actually discussed those events, noting that they were discrete acts, often unrelated to Title VII, that occurred so long before any alleged adverse employment action that, on the present record, they did not raise a genuine issue of fact as to whether Silverstein had suffered actionable Title VII retaliation.

         Silverstein could not simply allege retaliation or rely on an inference of retaliation. As the court said on page 16 of its order, “With respect to his actions supporting women co-workers, Silverstein does not establish that any of the acts he complains of were close enough in time to the things that he said or did that causation can be inferred.” See ECF No. 68, PageID # 1092. Looking specifically at Silverstein's support of Dr. Joan E. Baker and Dr. Kristina Giannotta, the court reiterated that “any retaliation he says he suffered occurred so long after that support that . . . causation cannot be inferred.” Id., PageID #s 1092-93. Silverstein needed to present some actual evidence connecting that support to adverse employment actions. He did not do that.

         Like his opposition to the original motion, Silverstein's reconsideration motion fails to articulate what retaliation he suffered because he exercised a Title VII right. The problem in both the original motion and the reconsideration motion can be divided into categories. In one category are matters that Silverstein fails to show relate to Title VII at all. In another category are matters for which Silverstein fails to identify what, if any, retaliation occurred. In yet another category are matters for which Silverstein provides only allegations or conclusions, not admissible evidence. Many of the matters fall into more than one category, as this court notes in the paragraphs that follow. This court is not saying that many of the things Silverstein points to as having happened to people working for the Department of Defense, POW/MIA Accounting Agency (fka the Joint POW/MIA Accounting Command) were justified. However, even if unjustified, many matters simply do not create a triable issue with respect to Silverstein's Title VII retaliation claim.

         For example, with respect to Silverstein's support of Dr. Elliot Moore in 2005, Silverstein submits no evidence demonstrating that the treatment of Moore or the treatment of Silverstein for having opposed the treatment of Moore related to anyone's race, color, religion, sex, or national origin, the classes protected by Title VII. 42 U.S.C. § 2000e-2(a)(1). Silverstein notes that Moore was deaf and large, and this court has no difficulty understanding that Silverstein objected to Moore's being allegedly discriminated against because of his disability or size, but any ...


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