FILED
NOT FOR PUBLICATION JUN 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ACHIQUE COYASO, No. 12-16297
Plaintiff - Appellant, D.C. No. 1:11-cv-00267-JMS-RLP
v.
MEMORANDUM*
BRADLEY PACIFIC AVIATION, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted June 12, 2014**
Honolulu, Hawaii
Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.
Plaintiff Achique Coyaso appeals the district court’s grant of summary
judgment to Bradley Pacific Aviation, Inc. (“Bradley”), on Coyaso’s claims under
the Uniformed Services Employment and Reemployment Rights Act
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“USERRA”), 38 U.S.C. §§ 4311, 4312; Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e-2, 2000e-3; and Hawai’i anti-discrimination law, Haw. Rev.
Stat. § 378-2(1). Coyaso also appeals the district court’s decision to decline
supplemental jurisdiction over his claim under the Hawai’i Whistleblowers’
Protection Act, Haw. Rev. Stat. §§ 378-61, 378-62. Finally, Coyaso appeals the
district court’s denial of his motion for reconsideration. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court properly granted summary judgment to Bradley on
Coyaso’s discrimination claim under USERRA because Bradley “establish[ed] as
an uncontroverted fact that it would have terminated [Coyaso’s] employment even
if he had not been a member of the [Army Reserve].” Leisek v. Brightwood Corp.,
278 F.3d 895, 899 (9th Cir. 2002). Bradley’s stated reason for firing Coyaso was
that Coyaso assaulted Ingrid Wehner at a business adjacent to Bradley. Bradley
investigated the allegation of assault. The undisputed facts show that the evidence
available to Bradley at the time of its investigation supported its conclusion that
Coyaso assaulted Wehner and withheld information during the investigation.
Coyaso presented no evidence from which a reasonable jury could find that
Bradley did not conduct the investigation in good faith or did not honestly believe
that Coyaso assaulted Wehner. See Escher v. BWXT Y-12, LLC, 627 F.3d 1020,
2
1030 (6th Cir. 2010); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064
(9th Cir. 2002). There is no dispute that the evidence Coyaso now adduces to
support his version of the incident was not before Bradley at the relevant time.
Therefore, the credibility of the parties is not at issue, and the district court did not
make any credibility findings.
For the same reason, summary judgment was proper on Coyaso’s
discrimination and retaliation claims under Title VII and Hawai’i state law. No
reasonable jury could find that Bradley’s stated reason for firing Coyaso was a
pretext for discrimination or retaliation. See Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1028 (9th Cir. 2006); Schefke v. Reliable Collection
Agency, Inc., 32 P.3d 52, 425–26 (Haw. 2001).
Coyaso has waived his reemployment claim under USERRA by not
“specifically and distinctly” arguing it in his opening brief. Kim v. Kang, 154 F.3d
996, 1000 (9th Cir. 1998).
Having dismissed all of Coyaso’s federal claims, the district court did not
abuse its discretion by declining supplemental jurisdiction over Coyaso’s claim
under the Hawai’i Whistleblowers’ Protection Act. See Acri v. Varian Assocs.,
Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (“‘[I]n the usual case in which
all federal-law claims are eliminated before trial, the balance of factors . . . will
3
point toward declining to exercise jurisdiction over the remaining state-law
claims.’”).
The district court also did not abuse its discretion by denying Coyaso’s
motion for reconsideration. Whether or not Wehner’s deposition testimony was
“newly discovered evidence” as required by Federal Rule of Civil Procedure 59(e),
it was not “of such magnitude that production of it earlier would have been likely
to change the disposition of the case.” Coastal Transfer Co. v. Toyota Motor
Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987). Coyaso did not provide any
evidence that Bradley knew or should have known about the events discussed in
Wehner’s deposition. The deposition itself occurred more than a year after
Bradley’s investigation. Therefore, the deposition has no relevance to whether
Bradley honestly believed that Coyaso assaulted Wehner. See Escher, 627 F.3d at
1030; Villiarimo, 281 F.3d at 1064.
AFFIRMED.
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