Ronald L. Porter v. Donald C. Winters

Filing 216

ORDER ; denying 206 Motion for Summary Judgment signed by District Judge Anthony W. Ishii on 9/9/14. (Nazaroff, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD L. PORTER,

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Plaintiff,

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v.
RAY MABUS, Secretary, Department of the
Navy,

CASE NO. 1:07-CV-0825 AWI SMS
ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIALSUMMARY
JUDGMENT
(Doc. 206)

Defendant.

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Plaintiff Ronald L. Porter (“Plaintiff”) brought this action against the Navy and the

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14 Defendant, Ray Mabus (“Defendant”), for alleged discrimination in violation of Title VII of the
15 Civil Rights Act of 1964 and the Age Discrimination in Employment Act by Defendant related to
16 Plaintiff’s removal from Navy employment in 1999. Plaintiff seeks partial summary judgment on his
17 Title VII discrimination and retaliation claims based on Defendant’s denial of repromotion priority
18 benefits between two reductions in force.1
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I.

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Plaintiff alleges that he was a Navy employee from 1988 until 1999. Doc. 95 (First Amended

SUMMARY

21 Complaint), 2:10-11. In 1993, he was employed at Defendant’s China Lake facility. Doc. 211
22 (Defendant’s opposition), 3:25-26. On July 31, 1996, Plaintiff was demoted through a reduction in
23 force. Doc. 211, 4:3-5. Plaintiff was placed on Defendant’s “Repromotion Priority List” at least on
24 March 10, 1998. Doc. 206-1 (Plaintiff’s motion), 3:11-13. Defendant’s Repromotion Priority
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The Court notes the Scheduling Conference Order entered November 16, 2011 (Doc. 146, 9:20-10:11), which requires
the parties to meet and confer prior to filing a motion for summary judgment. This is the moving party’s burden to
satisfy. The parties do not dispute that this requirement was not met prior to filing this motion. This failure is sufficient
for the Court to refuse to hear the matter and deny the motion. However, in order to assist in moving this case forward,
the Court will issue a ruling on this motion, and remind the parties of the meet and confer provision, which remains in
effect, for subsequent motions.

1 Program gave Plaintiff first consideration for vacancies for which he was qualified. Doc. 211, 4:6-8.
2 On November 19, 1999, Plaintiff was terminated from his employment as a result of a second
3 reduction in force by Defendant. Doc. 211. Prior to his termination, Plaintiff had not been selected
4 for any other position. Doc. 211, 4:13-14.
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In this motion for partial summary judgment Plaintiff argues that Defendant discriminated

6 and/or retaliated against him when Defendant improperly denied Plaintiff repromotion priority
7 benefits between the 1996 and 1999 reductions in force. Doc. 206-1, 1:6-9. Plaintiff believes that he
8 was qualified for promotions during that time period but did not receive them. See Doc. 206-1, 5:49 6:12. However, Plaintiff does not provide any evidence to support his allegations of discrimination
10 based on age or retaliation in violation of Title VII.
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II.

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Summary judgment is appropriate when it is demonstrated that there exists no genuine issue

LEGAL STANDARDS

13 as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R.
14 Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Satterfield v. Simon & Schuster,
15 Inc., 569 F.3d 946, 950 (9th Cir. 2009). A fact is material when, under the governing substantive
16 law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
17 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is
18 genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
19 party.” Anderson, 477 U.S. at 248. If the moving party meets its initial responsibility, the burden
20 then shifts to the opposing party to establish that a genuine issue as to any material fact actually does
21 exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving
22 party “must produce specific evidence, through affidavits or admissible discovery material, to show
23 that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). In
24 resolving the summary judgment motion, the evidence of the opposing party is to be believed
25 (Anderson, 477 U.S. at 255), and all reasonable inferences that may be drawn from the facts placed
26 before the court must be drawn in favor of the opposing party (Matsushita, 475 U.S. at 587).
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In the context of a motion for summary judgment in a Title VII action, federal courts apply

28 the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green. McDonnell Douglas
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1 Corp. v. Green, 411 U.S. 792, 802-05 (1973); and e.g., Davis v. Team Elec. Co., 520 F.3d 1080,
2 1089 (9th Cir. 2008); Dawson v. Entek Intern, 630 F.3d 928, 934-35 (9th Cir. 2011). First, the
3 employee carries the burden to establish a prima facie case of discrimination. McDonnell Douglas,
4 411 U.S. at 802. If he so does, the burden shifts to the employer to articulate a legitimate,
5 nondiscriminatory reason for the challenged action. Id. If met, the employee must show that the
6 reason is pretextual “either directly by persuading the court that a discriminatory reason more likely
7 motivated the employer or indirectly by showing that the employer’s proffered explanation is
8 unworthy of credence.” Davis v. Team Elec. Co., 520 F.3d at 1089 (citations omitted); McDonnell
9 Douglas, 411 U.S. at 804-05.
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The ultimate question in an employment discrimination case is “one that can only be resolved

11 through a searching inquiry--one that is most appropriately conducted by a factfinder, upon a full
12 record.” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000)(internal quotations
13 omitted). The Ninth Circuit has emphasized the importance of “zealously guarding an employee’s
14 right to a full trial, since discrimination claims are frequently difficult to prove without a full airing
15 of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinest v. GTE
16 Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).
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III.

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Plaintiff’s first amended complaint alleges discrimination based on age. Doc. 95, 2:20-21.

DISCRIMINATION

19 The first step of the McDonnell Douglas analysis is to determine whether Plaintiff has established a
20 prima facie case of discrimination. To establish a Title VII violation for discrimination an employee
21 must show that: (1) he belongs to a protected class; (2) he was qualified for his position; (3) he was
22 subject to an adverse employment action; and (4) similarly situated individuals outside his protected
23 class were treated more favorably. McDonnell Douglas Corp., 411 U.S. at 802; Davis v. Team Elec.
24 Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
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Although Plaintiff has not presented any evidence that he belonged to a protected class,

26 Defendant does not dispute this for the purposes of this motion. Doc. 211, 11:26-27. It is also
27 undisputed that Plaintiff was qualified for his position and that he was not promoted between the two
28 reductions, thereby meeting the second and third elements of the prima facie case for Title VII
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1 discrimination. However, Plaintiff has not presented any evidence that similarly situated individuals
2 outside of his protected class were treated more favorably. Plaintiff does not provide any evidence
3 that would support his contention that discrimination based on his age was the cause of the failure to
4 be promoted between the 1996 and 1999 reductions. The operative complaint and Plaintiff’s moving
5 papers and supporting documents do not even identify Plaintiff’s age, and they do not identify any
6 similarly situated individuals, nor the ages of any individuals such that they would be outside of
7 Plaintiff’s Title VII protected class. It is a necessary part of a prima facie case for discrimination
8 under Title VII to establish that similarly situated individuals outside of Plaintiff’s protected class
9 were treated more favorably.
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In Plaintiff’s briefs, Plaintiff does not identify any individual outside of his protected class

11 that were treated more favorably than Plaintiff. See Docs. 206, 213. Hence, Plaintiff fails to meet his
12 initial burden to establish the prima facie case for discrimination. Plaintiff’s motion for summary
13 judgment on this claim is denied.
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IV.

RETALIATION

Title VII retaliation claims also use the McDonnell Douglas burden-shifting analysis. To

16 establish a prima facie case of employment discrimination based on retaliation, the employee must
17 show (1) that he engaged in a protected activity; (2) he was subsequently subjected to an adverse
18 employment action; and (3) that a causal link exists between the two. Dawson v. Entek Int’l, 630
19 F.3d 928, 936 (9th Cir. 2011); Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008).
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(1) Protected activity

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The antiretaliation provision of Title VII prohibits discrimination against an employee

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because he or she opposed any unlawful practice or “made a charge, testified, assisted, or

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participated in” a Title VII action. 47 U.S.C. § 2000e-3(a).

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Plaintiff has brought “several administrative EEO claims against Navy” beginning in 1990

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and 1991. Doc. 95, 1:16-20. Bringing charges and participating in a Title VII action are protected

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activities under Title VII.

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(2) Adverse employment action
The antiretaliation provision exists to prevent employer interference to the Title VII
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1 remedies. Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 63, 64 (2006). Therefore, the
2 provision only covers employer actions that “would have been materially adverse to a reasonable
3 employee or job applicant.” Id. at 57. In contrast with the definition of an adverse action in the
4 discrimination context, which must affect the employee’s terms and conditions of employment, an
5 adverse employment action in the retaliation context “must be harmful to the point that they could
6 well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id.; Ray
7 v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). This includes actions causing him harm outside
8 the workplace. Burlington Northern, 548 U.S. at 63.
However, Title VII does not set forth a “general civility code for the American workplace”

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10 and the “decision to report discriminatory behavior cannot immunize an employee from petty slights
11 or minor annoyances that all employees experience.” Burlington Northern, 548 U.S. at 68; Oncale v.
12 Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Materiality of the challenged action is
13 judged from the perspective of a reasonable person in the plaintiff’s position considering all the
14 circumstances. Burlington Northern, 548 U.S. at 71. An action that would be trivial in one
15 employment context may be materially adverse in another. Id. at 69.
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Here, the alleged adverse employment action is failure to be promoted to jobs for which he

17 was qualified between the 1996 and 1999 reductions. Plaintiff points to a few specific positions at
18 the level he held prior to demotion which he did not receive, including Plaintiff’s prior position from
19 which he was demoted. Doc. 206-1, 5:5-8. Failure to be promoted, after being demoted, to jobs for
20 which Plaintiff was qualified could be found by a reasonable factfinder in Plaintiff’s circumstances
21 to be materially adverse such that he would be dissuaded from making or supporting a charge of
22 discrimination.2
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(3) Causal link between the protected activity and the adverse employment action

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Until recently, the causal link element of a retaliation case was construed very broadly so as

25 to require a plaintiff to prove only that the protected activity was a motivating factor of the adverse
26 action at the prima facie stage. Poland v. Chertoff, 494 F.3d 1174, 1180 n.2 (9th Cir. 2007); Head v.
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In fact, Plaintiff does not appear to have been dissuaded from pursuing his discrimination charges, as evidenced by his
continuous pursuit of his discrimination charges during the 1996-1999 time period.

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1 Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir. 2005). However, in 2013, the Supreme Court
2 held that Title VII retaliation claims “must be proved according to the traditional principles of but3 for causation.” University of Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517, 2533
4 (2013). This means that a plaintiff must show that the unlawful retaliation would not have occurred
5 in the absence of the employee’s protected activity.
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Causation may be inferred from circumstantial evidence, including the proximity in time

7 between the employer’s knowledge that the plaintiff engaged in protected activity and the allegedly
8 retaliatory employment decision. Cornwell v. Electra Cent. Credit Union, 439 F.3d. 1018, 1035;
9 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). “But timing alone will not
10 show causation in all cases; rather, in order to support an inference of retaliatory motive, the
11 [adverse employment action] must have occurred fairly soon after the employee’s protected
12 expression.” Villiarimo at 1065 (internal quotations omitted); see also Clark Cnty. Sch. Dist. v.
13 Breeden, 532 U.S. 268, 273 (2001).
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Plaintiff has not provided the Court with any evidence supporting the allegation that

15 Plaintiff’s filing administrative complaints was causally related to the failure to be promoted
16 between the 1996 and 1999 reductions, let alone the but-for cause. Plaintiff states that he began
17 EEOC proceedings in 1990, which continue to the present. Doc. 95, 1:16-20. Plaintiff’s pursuit of
18 these claims appears to have been continuous. See Porter v. Winter, 2010 U.S. Dist. LEXIS 21834,
19 *2-17 (E.D. Cal. Feb. 21, 2010)(detailing the history of Plaintiff’s proceedings before the EEOC and
20 the district court). Plaintiff argues: “we have the temporal proximity in time between the date of
21 [Defendant’s] knowledge [of the protected activities] and the failure to provide the repromotion
22 priority because between 1996 and 1999 Porter was still engaged in protected activities.” Doc. 20623 1, 20:20-22.
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However, by these facts, retaliatory motive cannot be inferred by proximity in time. The

25 protected activities began in 1990 and the alleged adverse employment action at issue in this motion
26 occurred between 1996 and 1999. Even a lapse of six or eight months between knowledge of the
27 protected activity and the adverse employment action is too much distance to permit an inference of
28 causation based on timing. See Govan v. Sec. Nat'l Fin. Corp., 502 Fed. Appx. 671, 674 (9th Cir.
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1 2012); Woods v. Washington, 475 Fed. Appx. 111, 113 (9th Cir. 2012). The fact that Plaintiff
2 continuously pursued his claims through 1996 and 1999 does not establish causation based on
3 temporal proximity. Plaintiff’s post hoc argument would infer retaliatory motive as to any adverse
4 employment action occurring during the pendency of an EEOC claim. Such inference is a fallacy.
5 Any EEOC claim or action brought in the district court will take some time to resolve, and the Title
6 VII antiretaliation provision does not serve to insulate an employee from any workplace grievance
7 during the pendency of an EEOC claim, which often continue for several years. It must be
8 demonstrated that the alleged retaliatory action was caused by the employee’s protected activities,
9 not merely that both actions occurred. An inference of causation based on temporal proximity is only
10 permitted when the alleged retaliatory action occurred close in time to the employer’s knowledge of
11 the protected activity. Causation is an essential element of the prima facie case of retaliation under
12 Title VII, and is the Plaintiff’s burden to establish. In this case, Defendant had knowledge of
13 Plaintiff’s protected activity several years before the alleged adverse employment action at issue
14 here: the failure to be promoted between the 1996 and 1999 reductions. No reasonable jury could
15 find an inference of causation based on temporal proximity alone.
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Plaintiff has not offered any other circumstantial evidence to establish but-for causation. It is

17 Plaintiff’s burden to establish every element of the prima facie case, and Plaintiff has failed to
18 demonstrate the required causal link between the protected activity and the adverse employment
19 action. Plaintiff’s motion for summary judgment on this claim is denied.
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V.

ORDER

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For the foregoing reasons, Plaintiff’s motion for partial summary judgment is DENIED.

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Plaintiff is directed to contact the chambers of Magistrate Judge Sandra M. Snyder to set a

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new scheduling conference.

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IT IS SO ORDERED.
Dated: September 9, 2014
SENIOR DISTRICT JUDGE

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