Opposition Brief — Harrison v. Dow Chemical Co.

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No. 91-718 Ke 23 198)

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In The

Supreme Court of the United States

October Term, 1991

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LILLIE A. HARRISON,

Petitioner,

DOW CHEMICAL COMPANY,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

BRIEF IN OPPOSITION OF RESPONDENT,

DOW CHEMICAL COMPANY

S

PHELPS DUNBAR

Tal-SAM CHOO THomaAS H. KIGGANS

Division Counsel 445 North Boulevard

Dow Chemical Company Suite 701

Post Office Box 150 Post Office Box 4412

Plaquemine, LA 70765 Baton Rouge, LA 70821-4412

Telephone: (504) 389-8226 Telephone: (504) 346-0285

Attorneys for

Dow Chemical Company

December 20, 1991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether a defendant is entitled to summary judg-

ment where the plaintiff fails to offer any evidence to

contradict the undisputed proof that essential ele-

ments of the plaintiff’s claims are insupportable.

Whether an appellate court, in reviewing a grant of

summary judgment, is required to consider evidence

which was never presented to the district court and

was, therefore, not part of the record on appeal.

ii

TABLE OF CONTENTS

Page

QUESTIONS PREGBP Ue ons ccnvcesideaceceseuscens i

TABLE OF CORTE is oa 5 iy 55s crews neuen sana ii

TABLE OF AUT EIR rac cocs te Cousens cuees ss iii

STATEMENT OF ‘THGB Riss aen sticks bps cries 1

SUMMARY OF ARGUMENTS FOR DENYING WRIT 4

ARGUMEDT ... . . «sss o5 ae er ey 6

I. Summary Judgment Was Entered in Favor of

Dow in This Case Consistent With Rule 56(c) of

the Federal Rules of Civil Procedure and This

Court’s Analysis of That Rule............... 6

Il. The Fifth Circuit Was Not Required to Con-

sider Evidence Which Harrison Failed to Pre-

sent to the District Court and That Was Not

Part of the Record on Appeal............... 10

CONCLUSION .. ......ssé scene eee eee ees 13

APPENDIX A Rule 29.1 List Of Dow’s Parent

Company And Nonwholly Owned

te er eee App. 1

APPENDIX B Statement Of Undisputed Facts

Filed With Dow’s Motion For Par-

tial Summary Judgment....... App. 10

APPENDIX C Statement Of Undisputed Facts

Filed With Dow’s Motion For Sum-

mary Judgment............... App. 12

APPENDIX D Magistrate’s Report On Dow’s

Motion For Summary Judg-

re tre rs eon er ee App. 16

APPENDIX E District Court’s Opinion On Dow’s

Motion For Partial Summary Judg-

MONE, 6s keeeeeuneeeee rere App. 23

“ack CAE

iii

TABLE OF AUTHORITIES

CASES:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

I eee

Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir. 1985),

cert. denied, 478 U.S. 1010, 106 S.Ct. 3311 (1986)....

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548

EMME SO aa as cw deg ey een e ew ale 4,

Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029 (D.C.

EE errr eee err ree

Garcia v. American Marine Corp., 432 F.2d 6 (5th Cir.

en ue 95 eee

Gilson v. Republic of Ireland, 787 F.2d 655 (D.C. Cir.

Tr ih oc pa eee ee eo

Harkins Amusement Enterprises, Inc. v. General Cin-

ema Corp., 850 F.2d 477 (9th Cir. 1988), cert.

denied, 488 U.S. 1019, 109 S.Ct. 817 (1989).....

In the Matter of Morris Paint & Varnish Co., 773 F.2d

UM bk v vse is b de cdots eewretnse.

Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986)......

Munoz v. International Alliance of Theatrical Stage

Employees, 563 F.2d 205 (5th Cir. 1977)........

Richardson v. Pennzoil Producing Co., 896 F.2d 919

eo oy ey och pa bee veces eb ne ta sin’

Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868 (1976) ...

Sound Ship Building Corp. v. Bethlehem Steel Co. Inc.,

533 F.2d 96 (3d Cir.), cert. denied, 429 U.S. 860, 97

eh gas ds x os Hab eb evans eeeen sd 99's

Page(s)

Cee ae

iv

TABLE OF AUTHORITIES - Continued

Page(s)

Voutour v. Vitale, 761 F.2d 812 (1st Cir. 1985), cert.

denied, 474 U.S. 1100, 106 S.Ct. 879 (1986)......... 11

STATUTES:

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000e, et seq. .............. ae

Re Re rr irene re ree rie 3

RULEs:

7B. Te. GA. Te TO; TO UA 6c cei ccc cecertvenses 6

ee a ec bee wes ea eetee 5, 6, 7,9

MISCELLANEOUS AUTHORITIES:

10 C. Wright, A. Miller & M. Kane, Federal Practice

& Procedure: Civil 2d §2716 (1983)

No. 91-718

¢

In The

Supreme Court of the United States

October Term, 1991

»

LILLIE A. HARRISON,

Petitioner,

DOW CHEMICAL COMPANY,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

o

BRIEF IN OPPOSITION OF RESPONDENT,

DOW CHEMICAL COMPANY

¢

STATEMENT OF THE CASE

In the action below, Harrison alleged that Dow

Chemical Company discriminated against her on the

basis of her race in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. !

' Pursuant to Supreme Court Rule 29.1, Appendix A lists

the parent company and nonwholly owned subsidiaries of

Dow.

Harrison also alleged that the same allegations of dis-

crimination gave rise to an independent claim of inten-

tional infliction of emotional distress under Louisiana

law.

After nearly a year of discovery, Dow filed a motion

for partial summary judgment requesting dismissal of her

pendent state law claim and her claim for emotional

distress damages on the grounds that (1) her claim for

intentional infliction of emotional distress was untimely

under Louisiana law; (2) she failed to state a claim for

intentional infliction of emotional distress under Louisi-

ana law; and (3) compensatory damages were not recov-

erable under Title VII. Along with the motion, Dow filed

a statement of undisputed facts as required by the local

rules of the district court. (Appendix B)

Shortly thereafter, Dow moved for summary judg-

ment on Harrison’s Title VII claim as well. This motion

was based on the grounds that (1) most of Harrison’s

claims of discrimination arose more than 180 days before

she filed her charge of discrimination with the Equal

Employment Opportunity Commission and were, there-

fore, untimely; (2) there was no evidence with which she

could establish a prima facie case of race discrimination;

and (3) Harrison could not ultimately prevail on her

claim of discrimination because Dow offered competent

summary judgment proof demonstrating that its actions

were based on legitimate nondiscriminatory reasons, and

Harrison admitted having no evidence to prove that

those reasons were pretextual. Again, Dow filed a state-

ment of undisputed material facts as required by the local

rules of the district court. (Appendix C)

Significantly, 21 of the 23 separately listed undis-

puted facts filed with Dow’s motions were taken directly

from admissions made by Harrison in her deposition and

in response to Dow’s interrogatories. Of the two remain-

ing undisputed facts, one was simply the date on which

Harrison filed her complaint. The final undisputed fact

was based on affidavit testimony of the Dow supervisor

who made the employment decisions which were being

questioned, and Harrison admitted she had no evidence

to rebut that testimony.

Harrison failed to file any response to either of

Dow’s motions. She additionally failed to file any sum-

mary judgment evidence to rebut the evidence support-

ing Dow’s motions.

On October 15, 1990, the United States magistrate

issued a report to the district court recommending that

Dow’s motion for partial summary judgment be granted.

Pursuant to 28 U.S.C. §636, the magistrate notified Har-

rison that she had ten days within which to file written

objections to the findings of fact and conclusions of law

contained in the report. However, Harrison filed no

objections to the magistrate’s report and recommenda-

tion. On November 21, 1990, the district court adopted

the report and dismissed Harrison’s claim for intentional

infliction of emotional distress.

On November 30, 1990, the magistrate issued a sec-

ond report recommending that the district court grant

Dow’s motion for summary judgment on Harrison’s Title

VII claims as well. The magistrate again advised Harrison

that she had ten days to file written objections to the

report. However, she filed no objections to this report and

recommendation either.

In January 1991, the district court adopted the magis-

trate’s report, dismissed the suit in its entirety, and

entered final judgment in favor of Dow.

Harrison subsequently appealed the final judgment

to the United States Court of Appeals for the Fifth Cir-

cuit. Harrison conceded that her appeal was based solely

upon evidence which was not in the record on appeal and

arguments which were never presented to the district

court. She argued simply that the appeals court should

consider evidence outside the record. She further argued

that the summary judgment should be reversed because

she was not adequately represented in the district court.

The court of appeals, in an unpublished per curiam cpin-

ion, rejected both arguments holding that it would not

consider Harrison’s evidence offered for the first time on

appeal, and that alleged ineffective assistance of counsel,

although perhaps grounds for a malpractice action, did

not constitute grounds for reversing the summary judg-

ment.

SUMMARY OF ARGUMENTS FOR DENYING WRIT

1. This Court has already set forth detailed guide-

lines for evaluating summary judgment motions in cases

such as this where the nonmovant would have the bur-

den of proof at trial. See Celotex Corp. v. Catrett, 477 U.S.

317, 106 S.Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 106 S.Ct. 2505 (1986). In the present case, the

district court properly applied these guidelines in ruling

on Dow’s summary judgment motions. The district court

placed the burden of proof on Dow, carefully evaluated

the summary judgment evidence offered by Dow (most of

which were Harrison’s own admissions), and carefully

analyzed how the summary judgment evidence pre-

cluded Harrison from proving essential elements of her

claims. Contrary to Harrison’s suggestion in her present

petition, the district court did not simply grant Dow’s

motions because they were unopposed. And since the

motions were granted in accordance with this Court’s

decisions and guidance concerning Rule 56, this case does

not warrant the granting of Harrison’s petition for writ of

certiorari.

2. Harrison also argues that the Fifth Circuit

improperly affirmed the summary judgment even though

she concedes that her appeal was based entirely upon

evidence which was not presented to the district court

and, therefore, not part of the record on appeal. The Fifth

Circuit’s refusal to consider evidence which was never

presented to the district court was consistent with its

prior rulings and the rulings of all other courts of appeal

which have considered the issue. Moreover, the well

known Federal Practice & Procedure treatise states

unequivocally that appellate courts reviewing a grant of

summary judgment “can consider only those papers that

were before the trial court. The parties cannot add

exhibits, depositions, or affidavits to support their posi-

tion, nor can they advance new theories or raise new

issues in order to secure a reversal of the lower court’s

determination.” 10 C. Wright, A. Miller & M. Kane, Fed-

eral Practice & Procedure: Civil 2d. § 2716 at 650-54 (1983).

This is not only well-settled law, but additionally makes a

great deal of sense. A rule which required courts of

appeal to consider evidence not offered to the district

court, as suggested by Harrison, would essentially give

every losing party the opportunity to retry her case on

appeal and would create endless litigation. Thus, there

are no special and important reasons for reviewing the

decision of the Fifth Circuit in this case.

«

ARGUMENT

Rule 10 of this Court’s rules provides that “[a] peti-

tion for a writ of certiorari will be granted only when

there are special and important reasons therefor.” There

are no special and important reasons justifying this

Court’s review of the lower courts’ decisions in this case.

The summary judgment entered by the district court was

entirely consistent with the decisions of this Court con-

cerning the evaluation of summary judgment motions

under Rule 56 of the Federal Rules of Civil Procedure.

The court of appeals then declined to consider the evi-

dence which was never presented to the district court,

and affirmed the grant of summary judgment. In doing

so, its decision was consistent with both its prior rulings

and the rulings from every other federal court of appeals

which has considered the issue.

I. Summary Judgment Was Entered in Favor of Dow in

This Case Consistent With Rule 56(c) of the Federal

Rules of Civil Procedure and This Court’s Analysis

of That Rule.

Under Rule 56(c) of the Federal Rules of Civil Pro-

cedure, summary judgment is proper if there is no

genuine issue as to any material fact, and the moving

party is entitled to judgment as a matter of law. In Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986), this

Court set forth the standard for evaluating summary

judgment motions in cases such as this where the nonmo-

vant would have the burden of proof at trial:

[T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time

for discovery and upon motion, against a party

who fails to make a showing sufficient to estab-

lish the existence of an element essential to that

party’s case, and on which that party will bear

the burden of proof at trial. In such a situation,

there can be “no genuine issue as to any mate-

rial fact,” since a complete failure of proof con-

cerning an essential element of the nonmoving

party’s case necessarily renders all other facts

immaterial. The moving party is “entitled to

judgment as a matter of law” because the non-

moving party has failed to make a sufficient

showing on an essential element of her case

with respect to which she has the burden of

proof.

477 U.S. at 322-23, 106 S.Ct. at 2552 (emphasis added). See

also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.

2505 (1986). This Court has further held that in order to

rebut a properly supported motion for summary judg-

ment, the party opposing the motion must designate

specific evidence in the record of sufficient caliber and

quantity to create a genuine issue for trial such that a

rational finder of fact could return a verdict in his favor.

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87, 106 S.Ct. 1348, 1356 (1986); Anderson, 477

U.S. at 251-55, 106 S.Ct. at 2512-13.

Significantly, Harrison does not contend in her peti-

tion to this Court that Dow’s motions were not properly

supported by competent summary judgment evidence.

Nor does she contend that Dow’s motions left open for

dispute genuine issues of material fact concerning essen-

tial elements of her claims. Indeed, Dow’s motions for

summary judgment were based almost entirely upon Har-

rison’s Own admissions made in her deposition and

answers to Dow’s interrogatories.?

Moreover, Harrison does not contend that she was

not afforded an adequate amount of time for discovery.

Discovery was conducted for nearly a full year, and Har-

rison’s attorney took the depositions of several Dow

employees and conducted other forms of discovery.

In her present petition, Harrison attempts to per-

suade this Court that Dow’s motions for summary judg-

ment were granted simply because they were unopposed.

She infers that the district court failed to examine the

record evidence. Her argument is misleading and wrong.

The magistrate for the district court wrote a five page

report concerning Dow’s motion for partial summary

judgment on Harrison’s pendent state law claim, and a

seven page report concerning Dow’s motion for summary

judgment on the Title VII claim. In each report, the magis-

trate first discussed the applicable law for considering the

motions, as set forth by this Court in Celotex Corp. v.

2 With these admissions and the arguments set forth in

Dow’s motions for summary judgment, Harrison’s attorney in

the district court realized that her claims were groundless and

advised her accordingly in a letter which Harrison subse-

quently filed with the district court.

——————————

Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). The reports

specified that the party seeking summary judgment bears

the initial burden of demonstrating, through proper sum-

mary judgment evidence, that there is no genuine issue of

material fact, and that it is entitled to judgment as a

matter of law. The magistrate then carefully evaluated the

summary judgment proof offered by Dow, most of which

were Harrison’s own admissions. Finally, the magistrate

carefully analyzed how the summary judgment evidence

precluded Harrison from proving essential elements of

her claims and established that Dow was entitled to judg-

ment as a matter of law.

Thus, Harrison’s contention that the district court

granted summary judgment simply because Dow’s

motions were unopposed is specious. And since the

motions were analyzed in accordance with this Court’s

decisions and guidance concerning Rule 56, this case

hardly warrants the granting of Harrison’s petition for

writ of certiorari.

3 Although Harrison included a copy of the magistrate’s

report on the motion to dismiss the pendent state law claim,

she failed to append to her petition a copy of the magistrate’s

report on the motion for summary judgment as to the Title VII

claim. Thus, Dow has attached the report as Appendix D to

this brief.

Harrison also failed to include a copy of the district court’s

opinion adopting the magistrate’s report on the motion for

partial summary judgment. This opinion is attached as Appen-

dix E.

10

If. The Fifth Circuit Was Not Required to Consider

Evidence Which Harrison Failed to Present to the

District Court and That Was Not Part of the Record

on Appeal.

Harrison also argues that the Fifth Circuit erred in

refusing to consider evidence which was never offered to

the district court. Significantly, in her brief to the court of

appeals, she specifically stated that she “concedes that

none of the evidence presented in [her] appellate brief

was presented in affidavit or memorandum form to

oppose Dow’s motion for summary judgment.”

The Fifth Circuit has long held that in reviewing a

grant of summary judgment, an appellate court may only

consider evidence which was before the trial court. Par-

ties are not entitled to add exhibits, depositions or affi-

davits for the court of appeals to consider. Moreover, they

cannot advance new theories or raise new issues in order

to have the lower court’s determination reversed. Rich-

ardson v. Penzoil Producing Co., 896 F.2d 919, 921 (5th Cir.

1990); Munoz v. International Alliance of Theatrical Stage

Employees, 563 F.2d 205, 209 (5th Cir. 1977); Garcia v.

American Marine Corp., 432 F.2d 6, 8 (5th Cir. 1970).

Contrary to Harrison’s suggestion that the position of

the Fifth Circuit conflicts with other courts, nearly all the

federal courts of appeal have considered the issue and

have uniformly rejected a party’s attempt to have a sum-

mary judgment reversed based upon evidence that was

never presented to the district court. Frito-Lay, Inc. v.

Willoughby, 863 F.2d 1029, 1035-36 (DC Cir. 1988) (“[I]t is

well established that the obligation of this Court is to

look at the record before the District Court at the time it

oe amen

11

granted the motion, not at some later point.”); Harkins

Amusement Enterprises, Inc. v. General Cinema Corp., 850

F.2d 477, 482 (9th Cir. 1988), cert. denied, 488 U.S. 1019, 109

S.Ct. 817 (1989) (“[T]his court is limited to consideration

of issues of fact presented to the district court.”); Gilson v.

Republic of Ireland, 787 F.2d 655, 659 (D.C. Cir. 1986)

(“Materials not presented to the district court for consid-

eration of a motion for summary judgment are never

properly before the reviewing court on appeal from the

judgment granting the motion.” Quoting Munoz, 563 F.2d

at 209); Box v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir.

1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311 (1986)

(“On appeal of a summary judgment, the appellate court

can usually consider only those matters that were pre-

sented to the trial court.”); In the Matier of Morris Paint &

Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985) (“In review-

ing a lower court’s decision to grant summary judgment,

an appellate court should consider only the evidence that

was before the trial court.”); Voutour v. Vitale, 761 F.2d

812, 817 (1st Cir. 1985), cert. denied, 474 U.S. 1100, 106

S.Ct. 879 (1986) (When a plaintiff challenges a grant of

summary judgment, the appellate court’s “review is con-

fined to an examination of the materials before the court

at the time the rulings were made.”); Sound Ship Building

Corp. v. Bethlehem Steel Co. Inc., 533 F.2d 96, 101 (3d Cir-.),

cert. denied, 429 U.S. 860, 97 S.Ct. 161 (1976) (“The pres-

ence or absence of genuine issues of material fact is to be

gaged as of the time judgment was entered by the district

court.”).

Moreover, the well known treatise on the Federal

Rules of Civil Procedure, Federal Practice and Procedure,

has a section specifically dealing with the nature of

12

review on appeal from a grant of summary judgment.

This treatise states:

The appellate court is limited in its review in

two ways. First, it can consider only those

papers that were before the trial court. The par-

ties cannot add exhibits, depositions, or affi-

davits to support their position nor can they

advance new theories or raise new issues in

order to secure a reversal of the lower court’s

determination.

10 C. Wright, A. Miller & M. Kane, Federal Practice &

Procedure: Civil 2d §2716 at 650-54 (1983).

The only decision of this Court which Harrison con-

tends is inconsistent with this abundance of authorities is

Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868 (1976).

Harrison’s suggestion that the Fifth Circuit’s refusal to

consider evidence offered for the first time on appeal is

inconsistent with Singleton is curious. This Court in Sin-

gleton specifically stated that the general rule is that a

federal appellate court does not consider matters which

were not presented to the district court. The opinion goes

on to state: “The matter of what questions may be taken

up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be

exercised on the facts of individual cases.” 428 U.S. at

120-21, 96 S.Ct. at 2877.

Moreover, Singleton has no applicability to this case

whatsoever. In that case, the plaintiffs filed an action

challenging the constitutionality of a state statute. The

district court dismissed the claim for lack of standing.

The court of appeals not only reversed on the standing

issue, but additionally reached the merits of the claim

13

and declared the statute to be unconstitutional. This

Court reasoned that neither party had had an oppor-

tunity to offer evidence or argue the substantive merits of

the case in the district court since the case was dismissed

on procedural grounds at a preliminary stage in the liti-

gation; therefore, the court of appeals had improperly

ruled on the merits.

In short, Harrison's assertion that the Fifth Circuit's

refusal to consider evidence not offered to the district

court conflicts with decisions of this Court is spurious.

Indeed, a rule which required courts of appeal to con-

sider evidence not offered to the district court, as sug-

gested by Harrison, would essentially give every losing

party the opportunity to retry her case on appeal and

would create endless litigation. Clearly, Harrison has

failed to show special and important reasons for review

of the decision in this case, and therefore, her petition

should be denied.

CONCLUSION

In summary, there are simply no important unsettled

legal issues present in this case. The district court granted

Dow’s motions for summary judgment consistent with

the clear standards set forth by this Court. Harrison filed

no summary judgment evidence to rebut the proof

offered by Dow which demonstrated she could not estab-

lish essential elements of her claims. Indeed, Harrison

could not have credibly rebutted the evidence since it

was based almost entirely upon her own admissions.

14

Moreover, her suggestion that the Fifth Circuit acted con-

trary to decisions of this Court and other courts of

appeals is specious. The courts have uniformly held that

in reviewing a grant of summary judgment, a court of

appeals should look only at the evidence presented to the

district court, and parties may not retry their cases in the

court of appeals by offering additional evidence. Thus,

Harrison’s Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

PHELPS DUNBAR

BY: THomas H. KIGGANs

445 North Boulevard

Suite 701

Post Office Box 4412

Baton Rouge, LA 70821-4412

Telephone: (504) 346-0285

and

Tai-SAM CHOO

Division Counsel

Dow Chemical Company

Post Office Box 150

Plaquemine, LA 70765

Telephone: (504) 389-8226

Attorneys for Dow Chemical

Company

App. 1

APPENDIX A

Dow’s Rule 29.1 Listing of Parent Company and Non-

wholly Owned Subsidiaries

PARENT COMPANY

The Dow Chemical Company

DOMESTIC SUBSIDIARIES

Advanced Micro Devices, Inc.

Agri-Chem., Inc.

Agron Inc.

Airco Generon Systems LP

Alamo Land Company, Inc.

Astropower, Inc.

Bear Mountain CoGen, Inc.

Biotechnology Research and Development Corporation

Blue Ridge Laboratories, Inc.

Brea Canyon CoGen, Inc.

BCC CoGen, Inc.

Cetus Corporation

Chalk Cliff CoGen, Inc.

Clean Bay

Coalition Technologies, Ltd.

Collaborative Research, Inc.

Columbia Scientific Industries Corporation

Conklin IPP, Inc.

Corona Energy Corporation

CoGen Admin Services, Inc.

CoGen Kern Bluff, Inc.

CoGen Lime Rock

CoGen Lynchburg, Inc.

CoGen Lyondeil, Inc.

CoGen Poso Creek, Inc.

CoGen Power, Inc.

CoGen Terrace Bay, Inc.

CC CoGen, Inc.

CEC Prime, Inc.

Destec — Sterling, Inc.

App. 2

Destec Energy, Inc.

Destec Engineering, Inc.

Destec Fuel Resources, Inc.

Destec Holdings, Inc.

Destec Operating Company

Destec Ventures, Inc.

Dexco Polymers

Dionex Corporation

Dolco Packaging Corp.

Double “C” CoGen, Inc.

Dow Corning (Korea) Ltd.

Dow Corning (UK) Management Ltd.

Dow Corning Africa Silicones Inc.

Dow Corning Corporation

Dow Corning Enterprises, Inc.

Dow Corning Foundation

Dow Corning International Sales Corporation

Dow Corning Opthamalmics, Inc.

Dow Corning Silicon Energy Systems, Inc.

Dow Corning STI, Inc.

Dow Corning Wright Corporation

Dow-United Technologies Composite Products Inc.

Dowell Schlumberger Incorporated

DowElanco

DowElanco China Ltd.

DowElanco International Ltd.

DCS Capital Corporation

DCS Capital Partnership

DCU/LB Trust

DH Compounding Company

El Dorado Terminals Company

Flura Corporation

Generon Systems

Genetics Institute Inc. (GENI)

Hemlock Semiconductor Corp.

HEP CoGen, Inc.

Indian Hills Development Corp. of Carroll County

App. 3

Industrial Training Systems Corporation

IGENE Biotechnology, Inc.

Joliet Marine Terminal Trust Estate

Kern Front CoGen, Inc.

Lakeside Laboratories, Inc.

Lime Rock Energy, Inc.

Louisiana Gasification Technology, Inc.

Magma Power Company

Marion & Company

Marion Merrell Dow Inc.

Marisub II, Inc.

Marisub, Inc.

Merrell Dow Pharmaceuticals Inc.

Merrell Dow Pharmaceuticals International Inc.

Neoprobe Corporation

Northway CoGen Inc.

NKY Distribution Center Inc.

NPC Services, Inc.

Oasis Pipeline Company

Oyster Creek CoGen, Inc.

OCG CoGen, Inc.

Polylactane Incorporated

Promix System

Prosperity IPP, Inc.

Prosperity Limited Partnership

Recon Associates, Inc.

Rio Grande CoGen, Inc.

San Joaquin CoGen, Inc.

Sierra CoGen, Inc.

Site Services, Inc.

Store Heat and Produce Energy, Inc.

SDC Coatings, Inc.

SJC CoGen, Inc.

Tanabe-Marion Laboratories (PENDING)

The Cynara Company

The Edgar Lornax Company

Thixomat, Inc.

App. 4

United AgriSeeds, Inc.

Univar Corporation

Wickhen Products of Delaware, Inc.

Wickhen Products Inc.

FOREIGN SUBSIDIARIES

A.C.E. Insurance Co. (Bermuda) Ltd.

A.C.E. Insurance Company, Ltd.

Aardvark Limited

Ace Limited

Agro Quimica Maringa S.A.

Aguas Industriales de Tarragona S.A.

Anticorrosivos Industriales Limitada

Arabian Chemical Company Limited

ASIPLA (Asociacion Gremial de Industriales del Plastico

de Chile)

AVR Chemie B.V.

AVR Chemie CV

Badder Limited

Bank Mendes Gans N.Y.

Biochimica Del Saiento S.P.A.

Bioresin Developments Ltd.

Blackhorse CoGen, Inc.

Borsele Hydrocracker B.V.

Canary Moving Limited

Carleton Shipping and Leasing Corporation

Carleton Shipping and Leasing Limited

Chalhoub-Pharmaceuticals Cha-Pha S.A.L.

Chimtrade

Compagnie des Services Dowell Schliumberger S.A.

Cranley Corporation Limited

Cromarty Petroleum Company Limited

CIA. Peruana De Telefonos S.A.

Dartique Limited

Destec Energy Canada, Inc.

Devonshire Underwiters Limited

Donichem Chemical KFT

App. 5

Dow Chemical Iberica S.A.

Dow Corning (Thialand) Ltd.

Dow Corning de Argentina S.A.I.C.

Dow Corning de Columbia, S.A. (Siliconas de Columbia

Limitada)

Dow Corning de Mexico S.A. de C.V.

Dow Corning de Venezuela S.A.

Dow Corning do Brasil Ltda.

Dow Corning Australia Pty. Ltd.

Dow Corning Canada, Inc.

Dow Corning Construction S.A.

Dow Corning Coordination Center S.A.

Dow Corning Foreign Sales Corporation, Inc.

Dow Corning France S.A.

Dow Corning GmbH

Dow Corning GmbH (Austria)

Dow Corning Hansil Limited

Dow Corning Hong Kong Limited

Dow Corning Iberica S.A.

Dow Corning Investment S.A.

Dow Corning Japan Ltd.

Dow Corning KK

Dow Corning Limited

Dow Corning New Zealand Ltd.

Dow Corning S.p.A.

Dow Corning S.A.

Dow Corning STI Limited

Dow Corning Taiwan, Inc.

Dow Corning Toray Silicone Co., Ltd.

Dow Kakoh Kabushiki Kaisha

Dow Mitsubishi Kasei Limited

Dowell Schlumberger (Asia) Limited

Dowell Schlumberger (Eastern), Inc.

Dowell Schlumberger (Far East), Inc.

Dowell Schlumberger (Malaysia) Sdn. Bhd.

Dowell Schlumberger (Middle East), Inc.

Dowell Schlumberger (Nigeria) Limited

App. 6

Dowell Schlumberger (Western) S.A.

Dowell Schlumberger de Chile Limitada

Dowell Schlumberger de Mexico, S.A. de C.V.

Dowell Schlumberger de Venezuela, S.A.

Dowell Schlumberger do Brasil Servicos Patroliferos

Ltda.

Dowell Schiumberger Argentina Sociedad Anonima de

Mineria

Dowell Schlumberger Canada Inc.

Dowell Schlumberger China, Inc.

Dowell Schlumberger Corporation

Dowell Schlumberger International, Inc.

Dowell Schlumberger Italia S.A.

Dowell Schlumberger Participation

Dowell Schlumberger Peru, S.A.

Dowell Schlumberger Saudi Arabia Ltd.

Dowell Schlumberger Statistics Limited

DowElanco (Malaysia) Sdn Bhd

DowElanco (NZ) Limited

DowElanco (Singapore) Pte. Ltd.

DowElanco (Thailand) Limited

DowElanco de Colombia S.A.

DowEianco Argentina S.A.

DowElanco Australia Limited :

DowElanco B.V.

DowElanco Canada Inc.

DowElanco Chile S.A.

DowElanco Danmark A/S

DowElanco Export S.A.

DowElanco GmbH

DowElanco Iberica S.A.

DowElanco Industrial Ltda.

DowElanco Italia S.r.L.

DowElanco Japan Limited

DowElanco Limited

DowElanco Mexicana, S.A. de C.V.

DowElanco Pacific Limited

App. 7

DowElanco Pflanzenschutzmittel Vertriebsg.m.b.H.

Dow Elanco S.A.

DowElanco Sverige AB

DowElanco Taiwan Ltd.

DowElanco Tarim A:S.

DowElanco Venezuela, C.A.

Drilling Services S.A.

DC STI S.A.

DS Technical Services, Inc.

Eagle Flying Limited

Elanco Ihara K.K.

Epoxital S.R.L.

Estireno del Zulia, C.A.

Etoxilados del Plata S.A.

Etudes Et Fabrication Dowell Schlumberger

Eurosemences, S.A.

Exel Limited

Expansao Corretora de Seguros Ltda. S/C

EDN - Estireno do Nordeste S.A.

Family Comercio e Industria de Produtos de Limpeza

Ltda

First Chemical Factoring SpA

Fort Saskatchewan Ethylene Storage Corporation

Fort Saskatchewan Ethylene Storage Limited Partnership

Fuji Polymer Industries Co., Ltd.

Generon Systems A.G.

Gestion de Capital Riesgo del Pais Vasco S.A.

Gruppo Lepetit S.p.A.

Gruppo Lepetit Trading SRL

Gurit Essex AG

GIE Euromais

H-D Tech Inc.

Haeger & Kaessner do Brasil Produtos Quimicos Ltda.

Hammer Pharma S.p.A.

Hartel Diensten B.V.

I.N.C-.S.I., S.A.

Ibachem (Ibafon Chemicals) Limited

App. 8

International Chemical and Mining Corporation

International Oilfield Contractors, Inc.

ICAP —- Industria Chemica S.R.L.

J.C.P. Laboratories Inc.

Kukje Pharmaceutical Industrial Company Ltd.

Laboratories Pharmaceutiques Biotec Maroc S.A.R.L.

Lucky Epoxy Limited

Lucky Epoxy Resin Ltd. (PENDING)

Lucky-DC Silicone Co., Ltd.

Maasviakte Oil Terminal C.V.

Maasviakte Oil Terminal N.V.

Marion Merrell Dow (Europe) A.G.

Marion Merrell Dow (N.Z.) Limited

Marion Merrell Dow Australia Pty. Limited

Marion Merrell Dow K.K.

Marion Merrell Dow S.A.

Merrell Dow Belgium S.A.

Merrell Dow Espana S.A.

Merrell Dow France et Cie (SNC)

Merrell Dow Funai K.K.

Merrell Dow Manufacturing Limited

Merrell Dow Pharma GmbH

Merrell Dow Pharmaceuticals (Canada) Inc.

Merrell Dow Pharmaceuticals Limited

Merrell Dow Pharmaceuticals Pacific Limited

Merrell Dow Portuguesa Sociedade Quimica, S.A.

Merrell Puerto Rico, Inc.

MDP (Holdings) Limited

N.V. Dow Corning S.A.

Niedersachsische Geselischaft zur Endabiagerung von

Sonderabfail mbH

Nordic Laboratories Inc. (PENDING)

NBW Industria E. Commercio Limitada

Oilfield International Equipment and Supplies, Inc.

Oilfield International Equipment and Supplies, Pte. Ltd

P.T. Dowell Schlumberger Indonesia

P.T. Pacific Chemicals Indonesia

App. 9

P.T. Pacific Indomas Plastic Indonesia

Pacific Chemicals Berhad

Pacific Plastics (Thailand) Limited

Perennator GmbH

Petroquimica-Dow S.A. (Petrodow)

Polykem S.A.

Pumping Services of Iran Private Joint Stock Company

Pumptech N.V.

PACLAN FB Haushaitsartikel Vertriebs GmbH

S.A. Interentreprise Les Boulitides

Scotdril Offshore Company

Services Conseils Dowell Schlumberger S.A.

Siam Styrene Monomer Company Limited

Siam Synthetic Latex Company Limited

Silcover SpA

Siliconas de Chile Limitada

Siliconas Del Peru S.A.

Silinor S.A.

Siltech Limited

Suministradora de Productos Quimicos, S.A.

Sumitomo Naugatuck Co., Ltd.

SD Group Service Company Limited

Technical Consultants, Inc.

Total Opslag en Pijpieiding Nederland N.V.

Tower Assurance Company Limited

Transformadora De Etileno S.A.

TOTAL Raffinaderij Nederland N.V.

Ulsan Pacific Chemical Corporation

Vorakim Kimya Sanayi Ve Ticaret Anonim Sirketi

Wabiskaw Explorations Ltd.

Wm. H. Muller S.A. - Minerios, Comerico e Navegacao

X. L. Insurance Company, Ltd.

Zhejlang Pacific Chemical Corporation

Zoo-Agro de Venezuela, C.A.

App. 10

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LILLIE A. HARRISON * CIVIL ACTION

7 NO. 89-711-B

VERS

rat si JUDGE POLOZOLA

DOW CHEMICAL ° MAGISTRATE

COMPANY a RIEDLINGER

STATEMENT OF UNDISPUTED FACTS

Pursuant to Rule 2.09 of the Uniform Local Rules and

in connection with its Motion for Partial Summary Judg-

ment and to Dismiss Plaintiff’s Pendent State Claim and

Claim for Compensatory Damages, Defendant contends

that the following facts are undisputed: .

1.

Plaintiff filed her complaint in this action on Sep-

tember 21, 1989.

Plaintiff became aware of the facts upon which

she bases her claim of intentional infliction of

emotional distress in March 1988. (Pl. Depo.

194-96)

Plaintiff filed a formal charge of discrimination

with the Equal Employment Opportunity Com-

mission on July 14, 1988. (Pl. Depo. 291; Depo.

Exh. 15)

Plainti.f has been employed by Dow since 1971,

and Dow has given her pay increases, promo-

tions, satisfactory performance appraisals and

even paid for her to pursue her college degree.

(Pl. Depo. 57, 210-11)

App. 11

5. Plaintiff has never been threatened with termina-

tion, put on probation, or disciplined in any man-

ner by Dow. (Pl. Depo. 210-11)

Respectfully submitted,

PHELPS, DUNBAR, MARKS,

CLAVERIE & SIMS

BY: /s/ Thomas H. Kiggans

Thomas H. Kiggans T.A.

Louisiana Bar Roll 14422

445 North Boulevard

Suite 701

Baton Rouge, Louisiana 70802

Telephone: 504/346-0285

and

Tai-Sam Choo

Louisiana Bar No. 18838

Post Office Box 150

Plaquemine, Louisiana 70765

ATTORNEYS FOR DEFENDANT

DOW CHEMICAL COMPANY

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing pleading has

been served upon counsel for Plaintiff by mailing same

by first class United States mail, properly addressed and

postage prepaid on this 22nd day of August, 1990.

/s/ Thomas H. Kiggans

THOMAS H. KIGGANS

App. 12

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LILLIE A. HARRISON * CIVIL ACTION

VERSUS : NO. 89-711-B

f JUDGE POLOZOLA

DOW CHEMICAL * MAGISTRATE

COMPANY * RIEDLINGER

STATEMENT OF MATERIAL FACTS AS TO WHICH

DOW CHEMICAL COMPANY CONTENDS THERE IS

NO GENUINE ISSUE TO BE TRIED

Pursuant to Rule 2.09 of the Uniform Local Rules and

in connection with its Motion for Summary Judgment,

Defendant contends that the following are material facts

as to which there is no genuine issue to be tried:

:.

Plaintiff was hired by Dow as a clerk typist in

1971. (Depo. at 68)

Plaintiff has received a number of promotions,

and is currently employed by Dow as a senior

secretary. (Depo. at 135-36)

Plaintiff has always received cash awards given

to employees who are not marginal workers.

(Depo. 161-63)

Plaintiff has consistently been given fully satis-

factory performance appraisals and has received

numerous pay increases. (Depo. 175, 210)

Dow has paid for Plaintiff to pursue her college

degree. (Depo. 210)

10.

11.

App. 13

Plaintiff has never been threatened with termi-

nation, put on probation, or disciplined in any

manner by Dow. (Depo. 210-11)

Plaintiff filed a formal charge of discrimination

with the Equal Employment Opportunity Com-

mission (EEOC) on July 14, 1988. (Depo. 201;

Depo. Exh. 15)

Plaintiff’s claims that she was unlawfully denied

promotions to the positions of Senior Stenogra-

pher in Promix Accounting, Secretary in (BIS)

Computer Services, Administrative Secretary in

the Traffic Department, Senior Secretary in the

Personnel Human Resources Department, and

the newly created Aviation Department job, all

arose more than 180 days before she filed her

EEOC charge. (Plaintiff’s Answers to Interroga-

tory No. 4(a))

Plaintiff’s claim that she was unlawfully denied

a computer training course in 1986 arose more

than 180 days before she filed her EEOC charge.

(Plaintiff's Answer to Interrogatory No. 11)

Dwayne Smartt was assigned to a shipping coor-

dinator job in March 1988 pursuant to Dow’s

Materials Management Development Program.

Plaintiff was not eligible for this program

because she does not have a college degree.

(Depo. 150, 153-54)

Nolan Blanchard was transferred to a shipping

coordinator job in 1988 through a lateral trans-

fer, not a promotion. Blanchard had been work-

ing ina special assignment which was coming to

an end, and Dow simply reassigned him to this

job. This was a lateral transfer, and Dow was not

seeking applicants from current employees to be

promoted to this job. (Latimer Affidavit)

32.

13.

14.

15.

16.

17.

18.

App. 14

Plaintiff is unaware of the qualifications or expe-

rience of Smartt and Blanchard, and has no idea

as to why they were assigned shipping coor-

dinator jobs in 1988. (Depo. 146-47)

Dow promoted both black and white employees

from nonexempt hourly jobs to exempt salaried

jobs. (Depo. 145-46) -

For Plaintiff to have been promoted to a ship-

ping coordinator job in 1988 would have

resulted in a substantial increase in salary, and

Plaintiff is aware of no employee at Dow who

has received a promotion of that magnitude in

one promotional step. (Depo. 157-58)

Plaintiff and Beulah Butler, the two black clerical

employees in the Distribution and Traffice [sic]

Department in June 1988, are paid more money

than Carolyn Bordelon, the white clerical

employee in that department. The two black

employees are also higher in their salary ranges

than the white employee. (Depo. 171-73)

Beulah Butler, a black employee, has consis-

tently received higher merit increases and

bonuses than both Plaintiff and Bordelon.

(Depo. 169)

Both black and white employees have received

better bonuses and pay increases than Plaintiff.

(Depo. 164-66)

In 1987, Beulah Butler, a black employee was

assessed as having potential for ultimately

becoming an executive secretary for Dow, the

same as Bridgett Carrier, a white employee, and

App. 15

higher than Carolyn Bordelon, another white

employee. (Depo. 188; Depo. Exh. 4)

Respectfully submitted,

PHELPS, DUNBAR, MARKS,

CLAVERIE & SIMS

BY: /s/ Thomas H. Kiggans

Thomas H. Kiggans T.A.

Louisiana Bar Roll 14422

445 North Boulevard

Suite 701

Baton Rouge, Louisiana 70802

Telephone: 504/346-0285

and

Tai-Sam Choo

Louisiana Bar No. 18838

Post Office Box 150

Plaquemine, Louisiana 70765

ATTORNEYS FOR DEFENDANT

DOW CHEMICAL COMPANY

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing pleading has

been served upon counsel for Plaintiff by mailing same

first class United States mail, properly addressed and

postage prepaid on this 12th day of September, 1990.

/s/ Thomas H. Kiggans

THOMAS H. KIGGANS

App. 16

APPENDIX D

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LILLIE A. HARRISON

VERSUS CIVIL ACTION

DOW CHEMICAL

COMPANY NO. 89-711-B

MAGISTRATE’S REPORT

This matter is before the court on a motion for sum-

mary judgment filed by the defendant, Dow Chemical

Company (Dow). Plaintiff received both a written and

oral extension to file a memorandum in opposition to this

motion. The written extension expired on October 26,

1990 and as of this date no opposition has been filed,

therefore this motion is unopposed.

Plaintiff, Lillie A. Harrison, was hired by Dow as a

clerk typist in 1971. She filed this action pursuant to Title

VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq.,

alleging that she was denied promotions and received

smaller merit pay increases because of her race, black.

Plaintiff also alleged a pendent state law claim for inten-

tional infliction of mental distress and claimed compensa-

tory damages. In an opinion dated November 21, 1990,

however, the district court approved the magistrate’s rec-

ommendation of October 15, 1990 and granted Dow’s

motion for partial summary judgment, dismissing the

plaintiff’s state law claim and claim for compensatory

damages. Plaintiff’s remaining Title VII claim is the sub-

ject of this motion.

App. 17

Applicable Law

Under Rule 56 of the Federal Rules of Civil Pro-

cedure, summary judgment is appropriate when there is

no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. When the

record as a whole could not lead a rational trier of fact to

find for the nonmoving party, there is no genuine issue

for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 2552-55 (1986); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 106 S.Ct. 2502, 2502-12 (1986). Once the party

seeking summary judgment has informed the district

court of the basis for its motion and identified those

portions of the record which it believes demonstrates the

absence of a genuine issue of material fact, the burden

shifts to the non-mover to make a showing sufficient to

establish the existence of a genuine dispute regarding

element essential to that party’s case and on which that

party will bear the burden of proof at trial. Celotex, 106

S.Ct. at 2553. In order to meet this burden, the party

opposing the motion “may not sit on its hands, compla-

cently relying”! on the pleadings. The non-moving party

must designate specific evidence in the record of suffi-

cient caliber and quantity to create a genuine issue for

trial such that a rational finder of fact could return a

verdict in his favor. Matsushita Electric Industrial Co. v.

Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356

(1986); Anderson, 106 S.Ct. at 2513; Phillips Oil Company v.

OKC Corporation, 812 F.2d 265 (5th Cir. 1987).

' Weyant v. Acceptance Ins. Co., 1990 U.S. App. Lexis 20118

(Sth Cir. 1990).

App. 18

With regard to materiality, only those disputes over

facts that might affect the outcome of the lawsuit under

the governing substantive law will preclude summary

judgment. The governing substantive law to be applied in

this case is Title VII, 42 U.S.C. §2000e. To prove an

employment discrimination claim based on a theory of

disparate treatment, the plaintiff in this case was required

to show that: (1) she was a member of a protected class;

(2) she applied for a promotion to an available position

for which she was qualified; (3) that she did not receive

the promotion and the position was filled with an

employee from outside the protected class. McDonnell

Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817,

1824 (1973). If the plaintiff establishes a prima facie case,

a rebuttable presumption arises that the employer

unlawfully discriminated against the plaintiff. The bur-

den of production then shifts to the employer who must

articulate a legitimate, nondiscriminatory reason for the

employment decision. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1093 (1981).

The presumption of discrimination disappears if the

employer satisfies this burden of production. McDaniel v.

Temple Independent School District, 770 F.2d 1340, 1346 (5th

Cir. 1985). Then the plaintiff must prove by a prepon-

derance of the evidence that the reason articulated by the

employer was merely a pretext and not the true reason

for the discharge.

Analysis

Defendant asserted that summary judgment is appro-

priate on several grounds. Defendant argued that most of

the plaintiff’s claims of discrimination were untimely

App. 19

because plaintiff failed to file a charge of discrimination

within 180 days after the alleged discriminatory acts

occurred. Defendant also argued that the plaintiff has

presented no evidence to establish a prima facie case, or

in the alternative, to sustain her burden of proving that

Dow’s reasons for its employment decisions were a pre-

text for unlawful race discrimination. Defendant identi-

fied portions of the record to demonstrate the absence of

a genuine issue for trial on the Title VII claim.

In support of its prescription argument defendant

pointed to the plaintiff’s answers to interrogatory

numbers 4 and 11 and her deposition testimony. Inter-

rogatory number 4 showed that the plaintiff believed she

was discriminated against in eight promotion decisions

and all but two of them occurred before March of 1988.

Interrogatory number 11 showed that the plaintiff’s

claims of racial discrimination in denying her job training

occurred in 1986. Plaintiff’s deposition testimony and the

EEOC charge established that the plaintiff's charge was

filed on July 14, 1988.2 Thus, accepting as true the

2 Title 42 U.S.C. §2000e-5 (e), provides in pertinent part

that a charge under Title VII “shall be filed one hundred and

eighty days after the alleged unlawful employment practice

occurred.” This period begins to run from the time the plaintiff

knows or reasonably should know that the challenged discrim-

inatory acts have occurred. McWilliams v. Escambia County

School Board, 658 F.2d 326, 328 (5th Cir. 1981). However, a filing

of a timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court, but like a

statute of limitation, is subject to waiver, estoppel and equita-

ble tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102

S.Ct. 1127 (1982).

App. 20

plaintiff's responses to these interrogatories, all the

employment decisions complained of which occurred

prior to March, 1988 were untimely. Plaintiff did not

come forward and designate any facts in the record to

show that there was a genuine issue of material fact as to

whether these claims were timely or that in this case the

180 day period was subject to equitable tolling.

Defendant argued as to the two remaining promo-

tional decisions that the plaintiff failed to establish a

prima facie case. Moreover, defendant contended that the

plaintiff had no evidence to dispute Dow’s legitimate

discriminatory [sic] reasons for its decisions. In regard to

the alleged promotional opportunities for shipping coor-

dinator, defendant submitted the affidavit of Richard Lat-

imer, manager of the Traffic and Distribution

Department. He was involved in the decisions to place

Dwayne Smartt and Nolan Blanchard in shipping coor-

dinator positions. Latimer attested to the fact that the

position filled by Smartt was not a posted job open for

application by current employees, and that the job was

only filled by college graduates for the purpose of allow-

ing them to acquire experience in all areas. Latimer also

stated that the transfer of Blanchard to another shipping

coordinator job in 1988 was a lateral transfer. It occurred

because Blanchard’s special assignment in another

department was coming to an end and Dow needed to

place him in another position. This affidavit and the

plaintiff’s- deposition? testimony established that these

were not posted positions for which the plaintiff was

3 Plaintiff’s deposition pages 150, 153-4.

aise, eames

App. 21

qualified and for which Dow sought applications from

current employees. Furthermore, this evidence showed

that Dow had legitimate non-discriminatory reasons for

these two employment decisions.

Plaintiff also alleged that Dow discriminated against

her in pay increases and salary level. In response to the

defendant’s interrogatory requesting the plaintiff state

the factual basis for this allegation, the plaintiff identified

Carolyn Bordelon as a white employee who received

higher pay raises and bonuses than she received. Defen-

dant pointed to Exhibit A attached to the plaintiff’s inter-

rogatory answers which showed that Bordelon was the

lowest paid clerical employee in the lowest salary range.

Plaintiff also admitted in her deposition that both black

and white employees received better bonuses and pay

increases than she received. Plaintiff's deposition pp.

164-171. In regard to the plaintiff's claims that Dow

unlawfully prohibited the advancement of black

employees, defendant submitted job appraisals of several

employees. See deposition exhibit 4. These performance

appraisals showed that two white clerical employees

were assessed as having higher promotional potential

than the plaintiff. However, a black employee was evalu-

ated with a potential equal or higher than these two

white employees. Plaintiff also testified in her deposition

that she was aware of black employees who were pro- -

moted from nonexempt hourly jobs to salaried positions.

Plaintiff’s deposition, pp. 144-46. .

In response to Dow’s legitimate nondiscriminatory

reasons for the salary and promotional decisions plaintiff

failed to come forward with any evidence in opposition

to create a genuine factual dispute for trial. In this case

App. 22

defendant adequately identified those portions of the

record which demonstrated the absence of a genuine

issue of material fact. Plaintiff has simply failed to come

forward with any evidence from which a rational trier of

fact could find that the defendant’s employment deci-

sions at issue were challenged timely or motivated by

race. These are essential elements of plaintiff’s Title VII

claim. If the party with the burden of proof cannot pro-

duce any summary judgment evidence on the essential

element of her claim, summary judgment is required.

Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990).

RECOMMENDATION

It is the recommendation of the magistrate that the

motion for summary judgment by defendant, Dow Chem-

ical Corporation be granted and this action be dismissed.

Baton Rouge, Louisiana, November 30, 1990.

/s/ Stephen C. Riedlinger

UNITED STATES MAGISTRATE

KS

App. 23

‘APPENDIX E

UNITED STATED DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LILLIE A. HARRISON

VERSUS CIVIL ACTION

DOW CHEMICAL

COMPANY NO. 89-711-B

OPINION

For reasons set forth in the Magistrate’s Report to

which no objection was filed:

IT IS ORDERED that the defendant’s motion for par-

tial summary judgment be GRANTED dismissing the

plaintiff’s pendent state claim and claim for compensa-

tory damages.

Baton Rouge, Louisiana, November 21, 1990.

/s/ Frank J. Polozola

UNITED STATES

DISTRICT JUDGE