Terry v. Hawaii Air National Guard

Filing 54

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF SEPTEMBER 25, 2014 ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 52 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 10/08/2014. (eps) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OSIRIS TERRY,

)
)
)
Plaintiff,
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)
vs.
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HAWAII AIR NATIONAL GUARD,
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)
Defendant.
)
_____________________________ )

CIVIL NO. 13-00295 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
OF SEPTEMBER 25, 2014 ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On September 25, 2014, this Court issued its Order
Granting Defendant’s Motion for Summary Judgment (“9/25/14
Order”).1

[Dkt. no. 51.]

On September 30, 2014, pro se

Plaintiff Osiris Terry (“Plaintiff”) filed his motion for
reconsideration of the 9/25/14 Order (“Motion for
Reconsideration”).

[Dkt. no. 52.]

The Court finds this matter

suitable for disposition without a hearing pursuant to Rule
LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion for Reconsideration and
the relevant legal authority, Plaintiff’s Motion for
Reconsideration is HEREBY DENIED for the reasons set forth below.

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Defendant Hawaii Air National Guard (“Defendant”) filed
its Motion for Summary Judgment on May 16, 2014. [Dkt. no. 33.]

BACKGROUND
The parties and this Court are familiar with the
factual and procedural background in this case, and this Court
will only discuss the background that is relevant to the instant
Motion for Reconsideration.
On June 12, 2013, Plaintiff filed his Employment
Discrimination Complaint (“Complaint”) pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et
seq.

[Dkt. no. 1.]

In the 9/25/14 Order, this Court found that:

1) it was undisputed that, at the time of the alleged Title VII
violations, Plaintiff was employed as a member of the Hawaii Air
National Guard; [9/25/14 Order at 6;] and 2) even if this Court
assumed that Plaintiff’s position was a dual status technician
position, the decision whether or not to grant Plaintiff’s
request for a six-year term of re-enlistment was the type of
decision that is “‘central to maintenance of the military’s
hierarchy’” [id. at 8 (quoting Mier v. Owens, 57 F.3d 747, 751
(9th Cir. 1995))].

This Court therefore concluded that the law

does not permit Plaintiff to bring Title VII claims based on the
decision to grant him a one-year term of re-enlistment instead of
the requested six-year term.

[Id.]

Plaintiff’s Motion for Reconsideration followed.

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STANDARD
This district court has recognized that:
A motion for reconsideration must
(1) “demonstrate reasons why the court should
reconsider its prior decision” and (2) “must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” Hele Ku KB, LLC v. BAC Home Loans
Servicing, LP, 873 F. Supp. 2d 1268, 1289 (D. Haw.
2012). The Ninth Circuit has held that
reconsideration is appropriate if (1) the district
court is presented with “newly discovered
evidence,” (2) the district court “committed clear
error or the initial decision was manifestly
unjust,” or (3) “if there is an intervening change
in controlling law.” Nunes v. Ashcroft, 375 F.3d
805, 807 (9th Cir. 2004).
Morris v. McHugh, 997 F. Supp. 2d 1144, 1172 (D. Hawai`i 2014)
(footnote omitted).
DISCUSSION
In the Motion for Reconsideration, Plaintiff provides
additional information about his prior positions with the Hawaii
Air National Guard and about the decision to extend his term of
re-enlistment for only one year instead of six.

In the 9/25/14

Order, this Court noted that Defendant submitted evidence that
Plaintiff’s commander denied the request for a six-year term
because Plaintiff lacked training on a new generation of
aircraft.

[9/25/14 Order at 4.]

In the Motion for

Reconsideration, Plaintiff asserts that he was denied that
training until 2013 for discriminatory reasons.

He also points

out that, in addition to being denied mandatory training, he was
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also denied “open positions” and was subjected to hazing,
harassment, and shame.

[Motion for Reconsideration at 3.]

This Court commends Plaintiff for his long years of
service in the Hawaii Air National Guard, and this Court
understands that Plaintiff believes that he was mistreated in his
position.

Unfortunately, as explained in the 9/25/14 Order, the

law does not allow Plaintiff to bring a Title VII action to
challenge the decision to extend his term of re-enlistment for
only one year instead of for the six years that he requested.
Plaintiff’s Motion for Reconsideration does not present
either newly discovered evidence or an intervening change in the
controlling law.

Further, Plaintiff has not established that the

9/25/14 Order was the result of clear error or that it was
manifestly unjust.

See Morris, 997 F. Supp. 2d at 1172.

This

Court therefore CONCLUDES that there is no ground which warrants
reconsideration of the 9/25/14 Order.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Reconsideration of the Instant Order, filed September 30, 2014,
is HEREBY DENIED.

This Court DIRECTS the Clerk’s Office to enter

final judgment and close this case.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, October 8, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

OSIRIS TERRY VS. HAWAII AIR NATIONAL GUARD; CIVIL 13-00235 LEKRLP; ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION OF
SEPTEMBER 25, 2014 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

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