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Ruth Milano v. Rolondo Aguilerra

May 1, 2013


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


On November 4, 2009, Plaintiff Ruth Milano commenced this sexual-harassment action against Defendants Rolondo Aguilerra, also known as "Jay" Aguilar, United States Department Defense, and Robert M. Gates, Secretary of Defense.*fn1

On February 28, 2011, Plaintiff filed her FAC asserting claims solely under Title VII. (Doc. 21.) Then on March 8, 2013, the Court granted Defendants' summary-judgment motion. (Doc. 61.) Plaintiff now moves to set aside, alter, or amend the judgment under Federal Rule of Civil Procedure 59(e). Defendants oppose.

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 44.) For the following reasons, the Court DENIES Plaintiff's motion.


Once judgment has been entered, reconsideration may be sought by filing a motion under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from judgment). See Hinton v. Pac. Enter., 5 F.3d 391, 395 (9th Cir. 1993). "Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). "Indeed, a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Id. (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)) (internal quotation marks omitted). Further, a motion for reconsideration may not be used to raise arguments or present evidence for the first time when could reasonably have been raised earlier in the litigation. Id. It does not give parties a "second bite at the apple." See id. Finally, "after thoughts" or "shifting of ground" do not constitute an appropriate basis for reconsideration. Ausmus v. Lexington Ins. Co., No. 08-CV-2342-L, 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2009).


Plaintiff seeks reconsideration for manifest errors of law and fact by arguing that the Court that there were two failures in the Court's analysis. First, Plaintiff contends that the Court did not properly consider the legal effect of the Department of Defense's certification of the course and scope of employment on behalf of Mr. Aguilera. (Pl.'s Mot. 5:15--6:22.) And second, Plaintiff states that the Court misread the factual allegations of the FAC in considering whether Mr. Aguilera was Plaintiff's co-worker rather than Plaintiff's supervisor and manager.

at 7:1--8:14.) The Court addresses both arguments below.

A. Certification of Course and Scope of Employment

The Court considered Plaintiff's scope-of-employment argument and found that it had no impact in this case because there is no actionable conduct under Title VII needed to impose liability on Defendants. (Summ. J. Order 11-12, 12 n.4, 15.) Plaintiff now argues that "[a]t a minimum, the court should address the course and scope certification issue so that judgment reflects consideration by the court[.]" (Pl.'s Mot. 6:7--10.) A careful reading of the Court's summary-judgment order shows that the judgment reflects consideration of Plaintiff's argument.

Summ. J. Order 12 n.4.) Given the considerable effort allocated to that argument by Plaintiff in her opposition brief, the Court inserted a footnote explaining the scope-of-employment-certification argument's impact-or lack thereof-despite finding that Plaintiff's argument did not influence the conclusion and judgment in this case. (Id.) However, given Plaintiff's current motion and vehement insistence, the Court will further elaborate on its rationale for her edification.

Courts consider agency principals, including scope-of-employment issues, to determine employer liability for actionable conduct under Title VII. Burlington Indus. v. Ellerth, 524 U.S. 742, 757-58 (1998).However, before addressing the issue of employer liability, the Court must find actionable conduct to be liable for. See Ellerth, 524 U.S. at 754 (accepting the district court's finding of actionable harassment before addressing the issue of vicarious liability); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (declining to give a definite rule on employer liability without a definitive finding that conduct was sufficiently pervasive to constitute a Title VII violation). Without actionable conduct, there can be no liability to assign an employer. See Brooks v. City of San Mateo, 229 F.3d 917, 927 n.10 (9th Cir. 2000).

Plaintiff once again unequivocally acknowledges and states that "[t]his is a Title VII sexual harassment action." (Pl.'s Mot. 1:27.) The Court does not condone Mr. Aguilera's actions but it recognizes that Title VII is not "a general civility code for the American workplace." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Accordingly, following established precedent, the Court found no actionable conduct under Title VII for sexual harassment or retaliation in this case. (Summ. J. Order 11--12, 15.) Without actionable conduct under Title VII, there is no need to ...

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