Silverstein v. Carter

Filing 73

ORDER DENYING MOTION FOR RECONSIDERATION re 71 - Signed by JUDGE SUSAN OKI MOLLWAY on 9/1/2016. (emt, )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
JAY SILVERSTEIN,

)
)
Plaintiff,
)
)
vs.
)
)
ASHTON B. CARTER, in his
)
capacity as the Secretary of )
Defense,
)
)
Defendant.
)
_____________________________ )

CIV. NO. 15-00097 SOM/KJM
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
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 (9th
Cir. 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,

2

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 (9th
Cir. 1954) (noting that partial summary judgment order is nonappealable prior to entry of final judgment and should be
considered “interlocutory summary adjudication”).

3

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 coworkers, Silverstein does not establish that any of the acts he
complains of were close enough in time to the things that he said

1

The court understood that Silverstein’s concession went
only to his retaliation claim, not to his hostile work
environment claim.
4

or did that causation can be inferred.”
# 1092.

See ECF No. 68, PageID

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.”
PageID #s 1092-93.

Id.,

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

5

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 retaliation flowing from such an
objection cannot fall under Title VII because Title VII does not
protect against retaliation for supporting a disabled or large
co-worker.
The court recognizes that, as Silverstein noted in his
reconsideration motion, he filed a grievance when he was
reprimanded in August 2010 for having allegedly used equipment
without authorization.

The grievance referred to the Central

Identification Laboratory’s treatment of Dr. Moore.
51-12, PageID # 820.

See ECF No.

But referring to discrimination in a

grievance does not automatically demonstrate that either Moore or
Silverstein suffered a violation of Title VII rights.

The

grievance discussed how management was dealing “with scientists

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out of favor.”

Id.

The grievance stated that the letter of

reprimand
appears to be part of a concerted attempt to
mischaracterize me as defiant and of
attempting to subvert standing rules. This
punishment appears to be a part of pattern of
harassment aimed at silencing me as an
opposing scientific opinion and at
undermining and penalizing me specifically
for having had the audacity to leave the Lab
for a management position in the J2.
Id.

While Silverstein may have a basis for complaining about

mistreatment, the record does not show that he was retaliated
against for having exercised Title VII rights, as opposed to
having exercised his rights with respect to matters unrelated to
Title VII, such as disability discrimination.
Silverstein fares no better with respect to his
retaliation claim relating to his support of Dr. Baker in 2009.
This court noted in its earlier order that it was unclear from
the record what form any alleged retaliation took and that
Silverstein’s support of Baker in 2009 was not sufficiently close
in time to any alleged retaliation to support an inference that,
whatever the retaliation was, it flowed from Silverstein’s
exercise of Title VII rights (i.e., from his support in 2009 of
Baker).

See id., PageID # 1096.

Because Silverstein did not

clearly articulate what retaliation he had suffered, the court
examined the matters that were relatively close in time to his
support of Baker: (1) having his team pulled from a March 2010

7

deployment to Tarawa Atoll; (2) an August 2010 reprimand by his
supervisor, Robert Richeson; and (3) a 2011 counseling by
Richeson concerning a proposed University of Hawaii project.

The

court ruled that no admissible evidence connected these events to
Silverstein’s support of Baker’s Title VII case.

At most,

Silverstein only contended that Dr. Holland, who was criticized
in Baker’s sex discrimination complaint, forced Silverstein’s
supervisor, Robert Richeson, to retaliate against Silverstein.
Id., PageID # 1097.
Silverstein’s reconsideration motion characterizes this
court’s failure to recognize what Silverstein says are clear
connections between his support of Dr. Baker and the negative
treatment Silverstein received as a “finding that Silverstein
lacks the credibility to allege that retaliatory animus to which
he was subjected” was caused by “his association with Dr. Baker.”
ECF No. 71-1, PageID # 1177.

This court made no credibility

finding at all, much less a finding as to what Silverstein has
“the credibility to allege.”

Silverstein is free to make any

allegation, but he does not effectively respond to a summary
judgment if his response is nothing more than an allegation.
Silverstein similarly relies on mere assertion when he
refers to the rescission of Richeson’s reprimand.

Richeson

reportedly congratulated Silverstein on the rescission, but the

8

only thing that connects that incident to Title VII is
Silverstein’s assertion of a connection.
This court notes yet another reliance on mere assertion
when Silverstein says, “One need only read the Declaration of
Joan Baker to glean the fact that Holland retaliated against her
while she was in Honolulu, working, and to this day, retaliates
against her in Washington, D.C.”

Id.

Silverstein appears to

believe that just intoning the word “retaliation” gives rise to a
triable issue.

Even assuming Baker is being retaliated against,

that does not mean Silverstein himself has a triable claim that
is not just for retaliation against him but is for retaliation
against him within Title VII’s scope.
In yet another example of Silverstein’s failure to
connect what happened to him with Title VII, he points to the
roles Dr. Gregory Fox and Major Guthrie played in cancelling his
team’s March 2010 deployment to Tarawa Atoll.
PageID # 1176; ECF No. 51-1, PageID # 628.
Fox also “defamed” him.

See id.

See ECF No. 71-1,

Silverstein says that

But Silverstein does not

explain how Dr. Fox or Major Guthrie retaliated against him for
his exercise of Title VII rights.

Just because Fox and/or

Guthrie may have had animus towards Silverstein does not render
Silverstein’s claim actionable under Title VII.

Silverstein must

tie the alleged animus to his exercise of Title VII rights, and
the tie must consist of more than a mere assertion of a tie.

9

Thus, it is not enough that, in 2014, Silverstein filed
an EEO complaint identifying Dr. Fox as having engaged in
“reprisal” for Silverstein’s October 2012 informal contact with
an EEO counselor.

See Report of Investigation, ECF No. 36-13.

First, the court cannot discern the content of that informal
contact.

Second, it appears that what Silverstein refers to as

an EEO complaint was permitted to cover matters beyond what
Title VII addresses.

And the EEO counselor was apparently not

confined to examining Title VII issues.

Thus a “reprisal”

allegation in an EEO complaint might not be relevant to a
Title VII claim.

Third, the Tarawa Atoll trip was cancelled in

2010, long before Silverstein contacted an EEO counselor.
Similarly, Silverstein’s May 2011 letter to Robert Richeson
complaining that Major Guthrie appeared to have had issues with
women in positions of authority, see ECF No. 51-21, could not
have led to retaliation with respect to the March 2010
cancellation of the Tarawa Atoll deployment.
Silverstein’s motion for reconsideration focuses for
the first time on an e-mail dated August 14, 2010, from
Dr. William Belcher to Silverstein.

This e-mail was part of the

evidence submitted by Silverstein in opposing the summary
judgment motion, ECF No. 51-11, but it was not mentioned in his
Concise Statement of Facts.

Pursuant to Local Rule 56.1(f), this

court has no duty to search and consider any part of the record

10

not so identified.

Even if the court does consider the e-mail,

it does not demonstrate that Silverstein was retaliated against
for having exercised Title VII rights (or, for that matter, that
he suffered an actionable hostile work environment in violation
of Title VII).

The subject of the email is “Message from Greg.”

ECF No. 51-11, PageID # 812.

The body of the e-mail seeks to

respond to anyone questioning Dr. Gregory Fox’s abilities and
decisions as an archaeologist.

The “message” from “Greg” is to

“tell anyone who doesn’t think I know what I’m doing that they
can shove it up their ass.”

Id.

Assuming Silverstein questioned

Fox’s work, Fox may have disliked Silverstein as a result and
arguably wanted to retaliate against him.

But questioning Fox’s

abilities is not the same as engaging in activity protected by
Title VII.

Title VII does not offer protection from retaliation

whenever one criticizes another person’s professional abilities,
even if the criticism is justified.

Without more, the e-mail

does not suggest any connection between retaliation against
Silverstein and his exercise of Title VII rights.
In his motion for reconsideration, Silverstein also
notes that, in her recent deposition, Baker testified that she
had heard a “colleague” say “that plaintiff had ‘baggage’ from
his complaints of retaliation when the colleague discussed the
plaintiff’s application for a[n] archaeologist’s position.”
No. 71-1, PageID # 1174.

This new evidence does not justify

11

ECF

reconsideration of the court’s order.

Not only does the

statement made by an unnamed “colleague” appear to be
inadmissible hearsay, Silverstein is not asserting a retaliation
claim based on his failure to get the archaeologist position in
2015.

See id., PageID # 1142-43.
This court can identify many more instances in which

Silverstein, while arguably showing that he was treated badly,
does not provide evidence tying that treatment to Title VII.

His

motion for reconsideration relies on his May 17, 2011, ethics
complaint against Fox and Dr. John Byrd in alleging retaliation.
See ECF No. 71-1, PageID # 1178.

That ethics complaint did not

relate to anything falling under Title VII.

Instead, the ethics

complaint concerned alleged “malfeasance of duty, waste of funds,
and ethical issues.”
1, PageID # 635.

See Silverstein Decl. ¶ 28(e), ECF No. 51-

Thus, while Silverstein’s trip to Washington

and his complaint to various congressional staff members about
the alleged ethics violations may well be activities protected by
some law, they are not protected by Title VII and do nothing to
support a Title VII retaliation claim.

See ECF No. 71-1, PageID

# 1179.
Nor is the resubmission of the ethics complaint in 2012
at all supportive of a Title VII claim.
questions that the resubmission occurred.

This court by no means
The court makes no

determination as to whether the 2012 ethics complaint was or was

12

not warranted.

The court confines itself to examining whether

the ethics complaint or the fallout from that complaint could be
said to relate to Title VII.

Silverstein simply does not provide

the court with evidence that allows the court to treat the matter
as relating to Title VII.

While Silverstein may have been

retaliated against for having submitted the 2012 ethics
complaint, Title VII is not an umbrella protection against every
form of retaliation.

Accordingly, even if Byrd called the

complaint “malicious” and recommended that action be taken
against Silverstein because he had filed the ethics complaint,
see ECF No. 71-1, PageID # 1179, Byrd’s alleged retaliation does
not, absent more, show that Silverstein was punished for having
exercised Title VII rights.
This court is equally unpersuaded by Silverstein’s
argument that the court should have considered his support of Dr.
Giannotta in 2011 with respect to the retaliation claim.
Silverstein conceded that he is not seeking damages based on
having protested the alleged harassment of Giannotta.
PageID # 1100.

See id.,

Moreover, Silverstein’s reconsideration motion

does not identify what alleged retaliation he suffered for having
supported Giannotta.

Silverstein instead argues that Giannotta

suffered retaliation at the hands of Major Guthrie.
PageID # 1175.

See id.,

Retaliation against Giannotta is not, absent

more, evidence of retaliation against Silverstein.

13

Silverstein

does not identify who retaliated against him for his support of
Giannotta or what form that retaliation took.

As the court ruled

earlier with respect to any alleged retaliation for Silverstein’s
support of Giannotta, “any retaliation he says he suffered
occurred so long after that support that that causation cannot be
inferred.”

Id., PageID # 1092-93.

Because there is no

inference, Silverstein must submit at least some admissible
evidence that his support of Giannotta led to retaliation against
him.

He submits none.
In opposing the summary judgment motion, Silverstein

referred to his support of David Rankin.

Silverstein alleged

that, as a result, he was retaliated against in violation of
Title VII.

Like his opposition, his reconsideration motion

provides no evidence tying support for Rankin to Title VII.

At

most, the reconsideration motion mentions that, in 2008,
Dr. Holland made “an unreasonable personnel request” to
Silverstein that Rankin be “retrained as a new employee because
he did not meet the deadline for retesting.”
PageID # 1176.

ECF No. 71-1,

Silverstein does not tie Holland’s treatment of

Rankin to “race, color, religion, sex, or national origin,” the
categories protected by Title VII, 42 U.S.C. § 2000e–2(a).

Nor

does Silverstein explain what the alleged retaliation relating to
his support of Rankin was.

14

In short, Silverstein fails to raise a genuine issue of
fact as to whether he suffered retaliation for having exercised a
Title VII right.

Although his motion for reconsideration

contends that the court failed to consider evidence, the court
indeed did consider the evidence submitted in opposition to the
summary judgment motion, determining it did not raise any genuine
issue of fact with respect to his Title VII retaliation claim.
The reconsideration motion boils down to a reargument
of matters raised in Silverstein’s earlier opposition.

But mere

disagreement with an order does not justify reconsideration.
White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006)
(“Mere disagreement with a previous order is an insufficient
basis for reconsideration.”).
A prime example of a matter reargued in the
reconsideration motion is the issue of the reassignment of two
members of Silverstein’s section.

This court extensively

discussed that event in its order, determining that Silverstein
had failed to show that the transfer was caused by an exercise of
Title VII rights and noting that, even if it could be said to
have related to an exercise of Title VII rights, the employer had
demonstrated legitimate, nondiscriminatory reasons for the
transfers, while Silverstein had failed to raise a genuine issue
of fact as to whether those reasons were pretextual.

15

See ECF No.

68, PageID #s 1108-10.

Silverstein’s reconsideration motion does

not even attempt to show error in those conclusions.
Similarly reargued is the matter of the September 2012
denial of leave to accept an award.

This court noted in its

order that Silverstein made no showing that the denial of leave
related to Title VII.

The court also ruled that the employer

articulated legitimate, nondiscriminatory reasons for denying
leave and that Silverstein failed to raise a genuine issue of
fact with respect to pretext.

See id., PageID # 1105-07.

In his

reconsideration motion, Silverstein fails to demonstrate any
error in those rulings.

At most, Silverstein argues that the

absence of an actual government shutdown in 2012 is evidence of
pretext.

The problem with the argument is that the agency could

not have known at the time it denied leave that no shutdown would
occur.

As discussed in the order, an imminent shutdown was

threatened at the time of the denial.

Silverstein disagrees with

the court’s reasoning, noting that other employees were
“dismayed” by the denial.

That is neither evidence of pretext

nor grounds for reconsideration.
Silverstein also reargues the retention initiative
issue without providing a basis for reconsideration of this
court’s retaliation ruling.
This court leaves unchanged its retaliation decision.

16

B.

Silverstein Fails To Demonstrate That
Reconsideration is Appropriate With Respect to His
Title VII Hostile Work Environment Claim.

Citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000),
Silverstein argues that he suffered from a hostile work
environment because he was subjected to repeated derogatory or
humiliating statements.

Once again, Silverstein fails to show

that reconsideration is warranted.

See ECF No. 68, PageID #s

1129-44.
Silverstein’s reconsideration motion relies on an email dated March 12, 2014, from Dr. Holland.

This e-mail

responded to a directive from Kelly McKeague transferring Reimi
Patterson-Davidson from the Central Identification Laboratory to
Research and Analysis.

See ECF No. 51-23, PageID # 850.

Holland

opposed the transfer, noting that Patterson-Davidson should never
have been hired, as her background was in Hawaiian Studies,
leaving her “poorly suited to understand military battlefield
history.”

Id., PageID # 849.

Holland also said that Patterson-

Davidson had “performed at a substandard level . . . [and]
produced no usable historical leads.”

Id.

He said Patterson-

Davidson continued to fall asleep at work even after having been
counseled for sleeping on the job.

Id.

According to Holland,

Patterson-Davidson was given 6 months to improve her performance,
but no improvement had been seen.

Id.

Holland complained:

Ms. Patterson-Davidson’s transfer to R&A
continues a pattern begun several years ago
17

of transferring CIL employees (and now ORISE
fellows) that are either being disciplined or
terminated for inefficiency or workplace
malfeasance to R&A. This has had the effect
of creating a pool of personnel, disgruntled
with the CIL, residing within R&A. In my
opinion, much of the friction between R&A and
the CIL in recent years stems from this
practice and these individuals.
Id., PageID # 850.
Silverstein cites this quoted language as supporting
his hostile work environment claim.

While the language indicates

that there was “friction” between the Central Identification
Laboratory and Research and Analysis, the language does not, on
its own, tie the “friction” to anyone’s race, color, religion,
sex, or national origin, the classes protected by Title VII. 42
U.S.C. § 2000e-2(a)(1).

The language gives this court no basis

for viewing Holland’s assessment of Patterson-Davidson as
relating to her race or sex.

To the extent Silverstein seeks to

suggest such a relation, it is incumbent on him to show how, if
the matter went to trial, he would show that relation by a
preponderance of the evidence.
In its earlier order, the court noted that a Report of
Investigation referred to a belief by the employees in
Silverstein’s section that the treatment of Patterson-Davidson
“was possibly racially motivated.”

ECF No. 68, PageID # 1114.

Not only is this vague reference to a belief as to possible
racial animus insufficient to create a triable issue, the belief

18

about the basis for Patterson-Davidson’s treatment in no way
substantiates a claim by Silverstein that he suffered a hostile
work environment.

Even if Patterson-Davidson faced race

discrimination, Silverstein must do more than point to what
Patterson-Davidson may have suffered.

Silverstein fails to

identify what hostile environment he himself suffered that
relates to anything having to do with Patterson-Davidson.
This court is not here weighing evidence to determine
whether it constitutes a preponderance.

The court is instead

looking for some degree of admissible evidence, something more
than Silverstein’s assertion.

Silverstein presents nothing more.

Given Silverstein’s failure to connect any hostility to
Title VII, this court does not reconsider its determination that
Silverstein has failed to raise a genuine issue of fact as to
whether his workplace was permeated with discriminatory
intimidation relating to race, color, religion, sex, or
national origin that was sufficiently severe or pervasive to
alter the terms and conditions of his employment and create an
abusive working environment.
IV.

See ECF No. 68, PageID # 1143.

CONCLUSION.
The court denies Silverstein’s motion for

reconsideration.

19

IT IS SO ORDERED.
Dated:

Honolulu, Hawaii, September 1, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Silverstein v. Carter, Civ. No. 15-00097 SOM/KJM; ORDER DENYING MOTION FOR
RECONSIDERATION

20