Ronald L. Porter v. Donald C. Winters

Filing 225

ORDER Re: Plaintiff's 217 Motion For Reconsideration, signed by District Judge Anthony W. Ishii on 3/18/2016. (Plaintiff's motion for reconsideration is DENIED.)(Gaumnitz, R)

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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

CASE NO. 1:07-CV-0825 AWI SMS
ORDER RE: PLAINTIFF’S MOTION
FOR RECONSIDERATION

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

(Doc. 217)

Defendant

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I. History

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For over twenty years, Roland Porter (“Plaintiff”), a former Navy employee has litigated

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various discrimination and retaliation claims against the Department of the Navy, represented by

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Secretary Ray Mabus (“Defendant” or “Navy”). His claims have resulted in several suits before

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the federal courts and the U.S. Equal Employment Opportunity Commission, Office of Federal

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Operations (“EEOC”).

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Defendant initially employed Plaintiff as a police officer in the Safety and Security

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Department of the China Lake Naval Air Warfare Center beginning in 1974. In 1989, Plaintiff

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was reassigned to a position as a Plant Account Tech; however he experienced difficulties with his

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supervisor in that position. Based these interactions, Plaintiff filed several formal administrative

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complaints with the EEOC (Department of Navy Nos. 90-60530-002, 91-60530-003, 93-60530-

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015, 93-60530-021). These EEOC suits gave rise to suits in the Eastern District of California,

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namely Civ. Case Nos. 96-5933, 03-6291, and 06-0880. These EEOC and federal suits have all

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been fully adjudicated. Their subject matter is not part of this case. Separately, Plaintiff filed an

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administrative complaint with the EEOC alleging retaliation for Plaintiff’s use of official time to

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attend a management union meeting (Department of Navy No. 95-60530-016). This lead to

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Eastern District of California Civ. Case No. 01-6302. These suits have been fully adjudicated and

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their subject matter is not part of this case.

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Relevant to the controversy at hand, in January 1993, Plaintiff changed positions and

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became a Computer Assistant DG-3; in August 1994, he was promoted to Computer Assistant

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DG-4. In August 1996, Defendant instituted a Reduction in Force (“RIF”). As a consequence,

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Plaintiff was demoted to Computer Assistant DG-3. A second RIF took place in November 1999.

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Unfortunately, the second RIF caused Plaintiff to be separated from Navy employment.

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Responding to the second RIF, Plaintiff filed two administrative complaints with the EEOC which

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alleged age discrimination and retaliation based on a number of actions over 1996-1999

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(Department of Navy Nos. 00-60530-003 and 01-60530-011). The Navy issued a final decision

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finding no discrimination/retaliation. A hearing was held before an Administrative Law Judge,

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who found no discrimination. On appeal, the EEOC upheld the finding of no discrimination.

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Porter v. Winter, 2006 EEOPUB LEXIS 6662 (E.E.O.C. Dec. 4, 2006). Plaintiff sought

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reconsideration which was denied. Porter v. Winter, 2007 WL 788254 (E.E.O.C. March 9, 2007).

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Plaintiff then filed the present suit in federal court. Plaintiff also filed Civ. Case No 00-5906, in

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which he challenged his dismissal under the Administrative Procedure Act. That suit was

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dismissed for lack of subject matter jurisdiction.

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The operative complaint is the First Amended Complaint. Doc. 95. Plaintiff has filed a

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document entitled “Objections to Findings of Fact in Order Re: Plaintiff’s Motion for

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Reconsideration (Doc. 223).” Doc. 224. While the document is ambiguous, it appears to be best

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described as a second request for reconsideration.

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II. Legal Standard
“Reconsideration is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law. There may also be other, highly unusual, circumstances

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warranting reconsideration.” School Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d
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1255, 1263 (9th Cir. 1993), citations omitted.

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III. Discussion
Plaintiff objects to the denial of summary judgment and reconsideration, arguing “because

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[Plaintiff] was downgraded under the 1996 RIF, Defendant was mandated by the Repromotion

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Priority List process to give Plaintiff prior consideration for all vacancies of positions for which he

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was qualified that would restore him to his prior grade. Besides detailing the Repromotion

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Priority List process, Plaintiff’s motion pointed to examples of vacancies he qualified for under

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the Repromotion Priority List process but was not selected. Once Plaintiff identified those

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positions at summary judgment, the burden shifted to Defendant to come forth with evidence that

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Defendant followed the Repromotion Priority List.” Doc. 224, 1:19-27. Plaintiff further explains

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“The burden of proof thereby shifted to Defendant to provide evidence of a non-discriminatory

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reason for rejecting Plaintiff, i.e., evidence that it followed the Repromotion Priority List process

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with regard to Plaintiff.” Doc. 224, 7:15-18.

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However, this argument appears to muddle the nature of the legal dispute. This is a case

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based on age based employment discrimination and retaliation causes of action. Violations of

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hiring, promotion, or other human resource rules are relevant to the extent that they are evidence

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of discrimination or retaliation; they are not actionable in and of themselves. As stated in the

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underlying summary judgment order, there is an insufficient basis for determining that any

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noncompliance with the Repromotion Priority List process was caused by discriminatory or

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retaliatory intent. Regarding age discrimination, Plaintiff has not shown that the persons hired by

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Defendant in the identified positions were younger than Plaintiff himself. Regarding retaliation,

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there is insufficient evidence based on the timing of events to definitively establish a retaliatory

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motive. As stated in the prior reconsideration motion, missing records are similarly insufficient to

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definitively establish discriminatory or retaliatory intent. The evidence presented by Plaintiff is

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not enough for an affirmative grant of summary judgment in his favor. These are issues that must

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be determined by the fact finder at trial.

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IV. Order
Plaintiff’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.
Dated: March 18, 2016
SENIOR DISTRICT JUDGE

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