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Porter v. Winter

February 21, 2010

RONALD L. PORTER, PLAINTIFF,
v.
DONALD C. WINTER, SECRETARY DEPARTMENT OF THE NAVY, DEFENDANT,



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER RE: MOTION TO DISMISS AND/OR FOR JUDGMENT

I. History

These proceedings have a very complex history. This case does not exist in isolation, but is instead one of a constellation of suits before the district court and the U.S. Equal Employment Opportunity Commission ("EEOC"). For federal employees, there are a variety of methods through which to contest employment actions. For complaints of discrimination and retaliation covered under Title VII and several other federal anti-discrimination laws, the process starts with contacting a counselor and filing a formal complaint with the federal agency for which the employee works. The agency investigates and reaches a final agency decision which may or may not include a hearing before an administrative law judge. The employee can appeal that decision to the EEOC Office of Federal Operations. Once that process is exhausted, appeal to the federal district courts is permitted.

Plaintiff Ronald Porter was an employee of Defendant Department of the Navy at the China Lake Naval Air Warfare Center between 1974 and 1999. Porter was employed as a Police Officer in the Safety and Security Department for much of the 1980s. Based on a medical disability, the Navy informed Porter on March 31, 1988 that he was no longer suited to his position. Porter filed discrimination complaint 89-60530-006 with the Navy ("Agency Case 1989-006") on March 2, 1989, alleging that the Navy failed to consider him for the position of Property Control Officer and Locksmith due to disability and sex discrimination, respectively. Doc. 82, Part 2, Ex. 1-A, at 8-9. The Navy dismissed the complaint for untimeliness. Porter appealed to the EEOC which partially reversed the Navy's findings and remanded for further consideration. Doc. 82, Part 2, Ex. 1-B, at 10-13. The record reflects no further action in Agency Case 1989-006; the court presumes that the complaint was ultimately dismissed.

Porter was able to transfer to another position within the China Lake facility, becoming a Plant Account Tech DG-503 with the Services and Support Division, Property Management Branch, Information Systems Department in August 1988. His duties were to receive, store, and dispose of excess equipment. Porter's immediate supervisor at the time was Debra Osgood (sometimes referred to by her maiden name Schlick). On April 17, 1990, Osgood issued Porter a letter of reprimand, citing a number of incidents involving alleged disrespectful behavior and abusive language over a period of several months. On May 1, 1990, Porter contested the reprimand through a non-Title VII/EEOC grievance process; the grievance was addressed to Dillard Bullard, the Director of Quality and Productivity Improvement who had supervisory authority over both Porter and Osgood. On May 7, 1990, Bullard determined the reprimand was proper. Doc. 82, Part 3, Ex. 19, at 131-34. On May 21, 1990, Porter filed a second grievance, addressed to Douglas Cook, the Commander of the China Lake facility. Doc. 82, Part 3, Exs. 21 and 22, at 145-46. The Navy treated the second grievance as an appeal of the first. On August 22, 1990, Cook determined that the reprimand was proper. Doc. 82, Part 3, Ex. 24, at 152-53. Under applicable regulations, Cook's decision was due by August 20, 1990 (90 days after Porter's filing of the grievance).

At the time, Porter had a pay grade of DG-503-2. In August 1989, he was denied a non-competitive step promotion to DG-503-3. On May 1, 1990, Porter met with a counselor regarding his contention that Osgood discriminated against him on the basis of his sex. On July 17, 1990, Porter filed discrimination complaint 90-60530-002 with the Navy ("Agency Case 1990-002") alleging he was "Not receiving promotions, increments or bonuses equal to that being given to the female employees.... [and] Treatment diff[e]rent than that of female employees" that was taking place on an ongoing basis. Doc. 82, Part 2, Ex. 1-C, at 14-15. On July 26, 1990, the Navy dismissed Porter's complaint due to untimeliness. Porter appealed to the EEOC but during the pendency of the appeal, the Navy reversed itself and decided to address the issue of the denial of a step promotion. On June 2, 1992, the Navy's investigation resulted in a recommended finding of sex discrimination. On July 2, 1992, the Navy offered to promote Porter to DG-503-3 retroactive to August 13, 1989 with backpay and to provide a workplace free of discrimination and retaliation. On August 21, 1992, Porter rejected the offer as insufficient. The Navy implemented its offer and dismissed the case as moot on October 1, 1992. Porter appealed to the EEOC on October 2, 1992, arguing the offer (1) did not include increments or bonuses, (2) only provided for a 4% increase instead of a customary 10% increase, (3) did not include interest on backpay or consider the possibility of additional increments based on retroactive promotion, and (4) imposed onerous conditions which would interfere with his access to the EEOC complaint process in the future. On April 19, 1993, the EEOC found the denial of interest and imposition of conditions on EEOC access to be appropriate but remanded to the Navy in order to determine the proper bonuses, increments, and percent increases that were due. Porter v. Kelso, EEOC DOC 01930051, 1993 WL 1505233 (E.E.O.C. April 19, 1993). Both parties sought reconsideration. On August 4, 1994, the EEOC found that the conditions on EEOC access were invalid and that Porter was entitled to interest on backpay. Porter v. Dalton, EEOC DOC 05930767, 1994 WL 1841286 (E.E.O.C. Aug. 4, 1994). The case was again remanded to the Navy. On September 27, 1995, the Navy again dismissed the claim as moot. On appeal, the EEOC reversed the Navy's decision and remanded. Porter v. Dalton, EEOC DOC 01960817, 1996 WL 688437 (E.E.O.C. November 13, 1996). On March 13, 1997, the Navy again appears to have dismissed the case. On appeal, the EEOC had to, again, direct the Navy to proceed in compliance with previous EEOC orders, specifically finding

Because the agency has ignored the Commission's Order to supplement the record with information pertaining to pay bonuses and increments, we find it appropriate to draw an adverse inference against the agency that the requested information would have reflected unfavorably on the agency's position, and issue a decision in the appellant's favor..... The agency is ORDERED to pay appellant annual bonuses and increments for the period in question in the same amount as paid to comparable employees who were rated as Fully Successful during the relevant period. If the comparative employees received varying bonus amounts, the agency must calculate the average bonus and award appellant that amount. The agency must make this award including the appropriate amount of interest, no later than thirty (30) calendar days after the date this decision becomes final.

Porter v. Danzig, EEOC DOC 01973979, 1999 WL 448091*2-3 (E.E.O.C. June 22, 1999). Porter submits that the Navy has not complied with the EEOC's order and that no further action has been taken in Agency Case 1990-002.

While Agency Case 1990-002 was being litigated, Porter filed other complaints, alleging retaliation against him for filing Agency Case 1990-002. On October 2, 1990, Plaintiff contacted an EEO counselor. On January 17, 1991, Porter filed discrimination complaint 91-60530-003 with the Navy ("Agency Case 1991-003") alleging (1) Osgood argued with him in front of co-workers on September 25, 1990 and (2) the Navy did not properly and timely investigate the grievance addressed to Cook on May 21, 1990. Doc. 82, Part 2, Ex. 1-D, at 16-18. The Navy conducted an investigation and issued a report of investigation on October 27, 1992. On October 19, 1993, the Navy issued a final decision finding no discrimination/retaliation; Plaintiff appealed to the EEOC. In the midst of the appeal, Porter changed position within the Navy. He was given a temporary detail to help with the workload in another office on January 17, 1993. On June 13, 1993, Porter formally changed positions and became a Computer Assistant DG-335-03 of the Computing Division, Computational and Information Services Branch, still within the Information Systems Department. In his new position, Porter was no longer under the supervision on Osgood. On July 12, 1996, the EEOC found Agency Case 1991-003 to be moot based on the change, noting that Porter alleged "he was transferred to a different branch at his request, and he did so to get away from his previous supervisor's mistreatment." Porter v. Dalton, EEOC DOC 05950024, 1996 WL 410690, *2 (E.E.O.C. July 12, 1996). On August 9, 1996, Porter filed suit in federal court seeking review of Agency Case 1991-003; the original case Civ. Case No. 96-5933 before Judge Robert Coyle. On May 18, 1998, the parties stipulated to dismissal without prejudice and waiver of statute of limitations pending the outcome of discrimination complaint 93-60530-015, filed on September 9, 1992 ("Agency Case 1993-015").

Porter alleged that: the following actions were taken against me as reprisal for fil[]ing a sex discrimination complaint against my supervisor.

a. Receiving a poor performance appraisal without justification, August 1990 through July 1991.

b. Intentional failure to follow the Naval Weapons Center's rules regulations and proce[]dures for the issuing of the performance appraisal (by Debra Schlick) and the reconsideration process (by Dillard Bullard).

c. Receiving a previous poor performance appraisal, for August 1989 through July 1990.

d. Not having the proper ability to apply for promotional opportunities. Because, as of this date, I have not received a proper performance review to submit with my application for promotional opportunities as required by the Center's policy.

Doc. 82, Part 2, Ex. 1-G, at 36. Porter originally received his 1990-91 performance evaluation of less than fully successful on October 22, 1991. On March 6, 1992, it was raised to fully successful through a non-Title VII/EEOC reconsideration process (the reference to Bullard under section b). The Navy rejected his complaint for failure to timely meet with a counselor. Upon appeal and reconsideration, the EEOC determined that Porter timely raised challenges to the 1990-91 performance evaluation and the process by which Osgood issued that evaluation; all other issues were untimely raised. See Porter, v. Kelso, EEOC DOC 01931180, 1993 WL 1506632 (E.E.O.C. May 18, 1993); Porter v. Dalton, EEOC DOC 05930873, 1994 WL 1841346 (E.E.O.C. January 21, 1994); Porter v. Dalton, 1994 EEOPUB LEXIS 379 (E.E.O.C. June 28, 1994); Porter v. Dalton, 1994 EEOPUB LEXIS 2016 (E.E.O.C. May 25, 1995). These two issues were heard before an EEOC Administrative Law Judge on December 10, 1997 and August 13, 1998. The Administrative Law Judge issued his decision on April 21, 2001, finding Osgood retaliated against Porter in giving him a poor 1990-91 performance evaluation but finding no sex discrimination. However, the opinion also found that Porter had already received all equitable monetary relief due; the Navy had already raised his performance evaluation which resulted in an additional salary increment. The Administrative Law Judge ordered the Navy to take corrective action in training its employees at fault and establishing better procedures. The Navy refused to implement those requirements, arguing that since Porter's performance evaluation had already been raised to fully successful, no further relief was due. Porter appealed and on April 24, 2003, the EEOC reversed the Navy's decision and ordered:

(1) The Agency shall rewrite the complainant's narrative that accompanied his less than fully successful performance rating; if that is not possible because of the lengthy period time period involved, the Agency shall delete the negative language therein that was offered as justification for the less than fully successful rating;

(2) The Agency shall pursue corrective action, including but not limited to, appropriate EEO training with the discriminating officials found at fault herein.

(3) The Agency shall review its performance appraisal process, and shall take whatever steps may be deemed appropriate to prevent the recurrence of retaliatory treatment during the process, e.g., take steps to ensure that vague evaluation criteria are not used in performance plans and performance feedback sessions, and that performance feedback consists of specific details on how an employee can perform his/her job to meet expectations.

Porter v. Johnson, 2003 EEOPUB LEXIS 2354, *12-13 (E.E.O.C. April 24, 2003). On reconsideration, Porter sought additional monetary damages and corrective action, but was denied. Porter v. Johnson, 2003 EEOPUB LEXIS 4146 (E.E.O.C. July 16, 2003). At this point, Porter revived Agency Case 1991-003/Civ. Case No. 96-5933, filing the present case on September 22, 2003.

As the prevailing party, Porter sought attorneys fees in Agency Case 1993-015 on September 13, 2003. The Navy only granted him a small part of his request. Porter appealed to the EEOC, which slightly increased the amount of attorneys fees. Porter v. England, 2005 EEOPUB LEXIS 4697 (E.E.O.C. September 20, 2005). Porter unsuccessfully sought reconsideration as to the amount. Porter v. Winter, 2006 EEOPUB LEXIS 1519 (E.E.O.C. April 12, 2006). On July 11, 2006, Porter filed suit in district court to challenge the amount of attorneys fees, Civ. Case No. 06-0880 before Judge Lawrence O'Neill. In the second amended complaint, Plaintiff stated "Porter does not wish to re-litigate the liability of his EEO Complaint. It is being included in this 2nd Amended Complaint to ensure the court has jurisdiction. Porter intends to pursue the liability issue if the court determines that putting the Navy's liability at issue is the only way he can achieve compliance with the statutes and congressional intent governing his attorney fees/cost." Civ. Case No. 06-0880, Doc. 17, at 7:27-8:3. Judge O'Neill dismissed the case for lack of jurisdiction. In a motion for reconsideration, Porter stated that he wanted to litigate the substance of the claim (Agency Case 1993-015) to seek additional damages. Judge O'Neill denied the motion and the matter is up on appeal with the Ninth Circuit. On January 5, 2006, Porter also appealed the EEOC's initial decision on attorneys fees; this appeal was filed before the start of Civ. Case No. 06-0880. The EEOC issued its opinion on May 7, 2008, increasing the amount of fees due. Porter v. Winter, 2008 EEOPUB LEXIS 1613 (E.E.O.C. May 7, 2008). How the EEOC order interacts with the district court case and the Ninth Circuit appeal is unclear.

On April 20, 1993, in the midst of his temporary detail, Porter filed discrimination complaint 93-60530-021 with the Navy ("Agency Case 1993-021") alleging "1. Unfair performance evaluation and performance appraisal procedure, supervisor giving false information to performance appraisal reviewer. 2. Supervisor having the contractor move my desk into a corner and disrupt my working space, with 3 empty desks available in my office, while I was on temporary assignment. 3. My supervisor rekeyed the building, locking me out of my permanent workspace without advising me . This is continuing reprisal. 4. Supervisor having contractor call her when I am in my permanent work space." Doc. 82, Part 2, Ex. 1-I, at 48-49. The Navy determined that Porter's complaint regarding the 1991-92 performance appraisal was untimely and all other issues mooted by his shift in position to Computer Assistant. On appeal, the EEOC agreed. Porter v. Dalton, EEOC DOC 01933937, 1993 WL 1508681 (E.E.O.C. Nov. 30, 1993); Porter v. Dalton, 1994 EEOPUB LEXIS 4165 (E.E.O.C. June 30, 1994) (denying reconsideration). Porter does not appear to have appealed this decision any further.

On May 12, 1994, Porter filed a discrimination complaint with the Navy ("Agency Case 1994-021") in which he alleges "The agency failed to follow the compliance order issued by [Office of Federal Operations] of EEOC. This was done as reprisal against me for filing an EEO complaint." Doc. 82, Part 2, Ex. 1-L, at 62. It is not clear which compliance order Porter is referring to and no other information is available concerning this discrimination complaint.

On June 6, 1995, Porter filed discrimination complaint 95-60530-016 ("Agency Case 1995-016") alleging retaliation for Porter's use of official time to attend a management-union meeting regarding EEOC complaints in February 1995. Doc. 82, Part 2, Ex. 1-M, at 63. The Navy had informed Porter on March 7, 1995 that he could not use official time to perform his union representation work and that all such time he had already spent would be converted to annual leave time. On April 14, 1995, the Navy reversed the decision to convert the time already spent form official time to annual leave. When Porter filed his complaint, the Navy dismissed it as moot. Upon appeal, the EEOC reversed and remanded, finding that while the conversion of time was reversed, it was unclear whether Porter could use official time in this manner in the future. Porter v. Dalton, 1996 EEOPUB LEXIS 2816 (E.E.O.C. June 25, 1996); Porter v. Dalton, 1998 EEOPUB LEXIS 1592 (E.E.O.C. March 5, 1998) (reconsideration denied). Ultimately, Porter filed suit in district court, Civ. Case No. 01-6302 which was handled by Magistrate Judge Sandra Snyder. In a bench trial, Judge Snyder found no discrimination or retaliation on December 21, 2004. Porter appealed to the Ninth Circuit; Judge Snyder's decision was affirmed on February 26, 2007.

While these cases were moving forward, Porter suffered adverse employment action from two reductions in force. On July 31, 1996, Plaintiff changed positions, switching from a Computer Assistant in the Information Systems Department to a Computer Assistant in the Engineering Weapons/Targets Department. It appears that this shift was related to a reduction in force that reduced Porter's pay grade from DG-4 to DG-3, but that is not clear. See Kohfield v. Navy, 75 M.S.P.R. 1 (M.S.P.B. May 9, 1997). The Navy instituted a further reduction in force on November 19, 1999, removing Porter from Navy employment. On December 15, 1999, Porter filed discrimination complaint 00-60530-003 ("Agency Case 2000-003"), alleging age discrimination and reprisal for the filing of past complaints, citing Agency Cases 1990-002, 1991-003, 1993-015, and 1995-016 specifically. Doc. 82, Part 2, Ex. 1-N, at 65. Porter sought reconsideration of the reduction in force through a non-Title VII/EEOC process; the Navy denied his request April 26, 2000. On April 13, 2001, Porter filed discrimination complaint 01-60530-011 ("Agency Case 2001-011") in which he again alleges age discrimination and reprisal, stating "I was no[t] given position on [Priority Placement Program] and [Reemployment Priority List] lists after being RIFed on 11-19-1999. I was not put on the Reemployment Priority List. The agency rehired in my series with younger employees. [I was] denied jobs listed on my RPL." Doc.82, Part 2, Ex. 1-O, at 67. Agency Cases 2000-003 and 2001-011 appear to have been jointly processed. They were heard before an EEOC Administrative Law Judge on June 23-24 and July 15-16, 2004. The Administrative Law Judge issued his decision on September 24, 2004, finding no discrimination or hostile work environment retaliation. Doc.82, Part 2, Ex. 1-P, at 90. On November 19, 2004, the Navy made a finding of no discrimination. Porter appealed, but the EEOC affirmed. Porter v. Winter, 2006 EEOPUB LEXIS 6662 (E.E.O.C. December 4, 2006); Porter v. Winter, 2007 EEOPUB LEXIS 820 (E.E.O.C. March 9, 2007) (reconsideration denied). On June 7, 2007, Porter filed suit in federal court, Civ. Case No. 07-0825.

This case (03-6291) sat largely quiet until the Navy filed a motion to dismiss on July 18, 2007. Doc. 40. The court found that, as plead, this case appeared to be duplicative of 07-0825 and possibly 06-0880; the court ordered Porter to file an amended complaint to clarify the subject matter of this case in distinction to his other cases. Doc. 49. Plaintiff filed the First Amended Complaint ("FAC") in response. Doc. 51. The Navy filed a motion to dismiss, arguing lack of subject matter jurisdiction due to mootness. Doc. 56. The court again found substantial overlap with the other district court cases and directed Porter to file an amended complaint. Doc. 69. Plaintiff filed the Second Amended Complaint ("SAC") in response. Doc. 71. Contemporaneously, Porter filed a motion to consolidate 03-6291 and 07-0825. Doc. 72. That motion has not been ruled upon. The Navy filed a motion to dismiss and/or motion for summary judgment due to mootness. Doc. 79. Porter filed an opposition. The matter was taken under submission without oral argument.

II. Legal Standards

Fed. R. Civ. Proce 12(b)(1) allows for a motion to dismiss based on lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Vacek v. UPS, 447 F.3d 1248, 1250 (9th Cir. 2006). Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003); General Atomic Co. v. United Nuclear Corp., 655 F.2d 968 (9th Cir. 1981). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the truthfulness of the plaintiff's allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where the jurisdictional issue and the merits of the case are not factually completely intermeshed or intertwined, the court may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, including resolving factual disputes when necessary. St. Clair v. Chico, 880 F.2d 199, 201-02 (9th Cir. 1989).

A case becomes moot when "by virtue of an intervening event, a court [] cannot grant 'any effectual relief whatever.'" Calderon v. Moore, 518 U.S. 149, 150 (1996), quoting Mills v. Green, 159 U.S. 651, 653 (1895). "Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies." Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70 (1983), citations omitted.

III. Discussion

The Navy's argument has four main parts: 1) this suit is limited to three discrete actions due to the lack of exhausting administrative remedies; 2) due to its narrow scope, the case is not justiciable as no relief can be granted; 3) Porter fails to allege any adverse action; and 4) the claims should be barred by the theory of laches. Only the first two issues can be addressed as there is a lack of subject matter jurisdiction due to mootness.

A. Scope of This Suit

Porter has been repeatedly warned that this suit appears to overlap with other cases. The court first stated that "As these events has given rise to separate district court cases (which do not appear to be amenable to consolidation at this point), the court must focus on the allegations and causes of action present in this case and determine how they are distinct from the allegations and causes of action in the other cases." Doc. 49, November 1, 2007 Order, at 4:9-12. Porter was given the opportunity to file a new complaint, but failed to resolve the problem. The court specifically stated:

Plaintiff appears to be improperly raising identical claims in at least two separate cases. Such a tactic can not be tolerated. In all of these district court suits, Plaintiff is alleging sex and/or age discrimination/retaliation based on the same exact events. After disregarding the November 1, 2007 Order's admonitions regarding duplicative claims, the court is close to coming to a final conclusion that Plaintiff is either unwilling or unable to make clear which claims belong in this case. If Plaintiff can not make his pleadings clear, the court will have to take an active hand in interpreting his complaint. While ...


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