Petition for Writ of Certiorari — McGowan v. Texaco Inc.

Supreme Court. U.S.

FILED

O92 827 SEP - 4 1997

No. OFFICE OF THE CLERK

In the Supreme Court of the United States

October Term, 1997

CHARLENE MCGOWAN,

Petitioner

TEXACO INC.

Respondent

On Petition For Writ Of Certiorari

To The Court of Appeals, Second Circuit,

Having Reaffirmed the Decision of the

United States District Court

PETITION FOR WRIT OF CERTIORARI

KEVIN P. BARRY, ESQ.

Counsel of Record

310 Mill Street

Poughkeepsie, NY 12601

(914) 454-5705

h

Ce re re rn en

QUESTIONS PRESENTED FOR REVIEW

1. Whether, on the motion for summary judgment, the

lower courts are free to disregard their responsibilities under

the substantive law articulated by the United States Supreme

Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986), Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)

and embodied in Rule 56 of the Federal Rules of Civil

Procedure with respect to the Petitioner's employment

discrimination and retaliation claims, and thereby effectively

denying the Petitioner her right to a jury trial under the Civil

Rights Act of 1964, as amended in 1991.

2. Whether, on the motion for summary judgment, the

lower courts failed to properly apply the substantive

employment discrimination law as articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) to the

Petitioner’s retaliation claim, thereby imposing an evidentiary

burden on the Petitioner not contemplated by the Civil Rights

Act of 1964, as amended in 1991.

(i)

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED FOR REVIEW ........... i

FAR Oe Ge os RS SS is ii

TAREE ALI 5h ke i seks iil

MIR Se SAS. RRS l

Si Aces GF CASE ook ARES A 2-9

ARGUMENT

Point J

Whether, on the motion for summary judgment, the lower

courts are free to disregard their responsibilities under the

substantive law articulated by the United States Supreme Court

in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and

embodied in Rule 56 of the Federal Rules of Civil Procedure

with respect to the Petitioner's employment discrimination and

retaliation claims, and thereby effectively denying the Petitioner

her right to a jury trial under the Civil Rights Act of 1964, as

UNE A TIFT 5S Ss a Ge 9-23

Point I

Whether, on the motion for summary judgment, the lower

courts failed to properly apply the substantive employment

discrimination law as articulated in

McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and St, Mary’s Honor

(ii) |

Ctr. v. Hicks, 509 U.S. 502 (1993) to the Petitioner’s

retaliation claim, thereby imposing an evidentiary burden

on the Petitioner not contemplated by the Civil Rights Act

of 1964, as amended in 1991 ............... 23-27

co SSE ESRI ASE EIEN = a pS 27

APPENDIX:

Memorandum and Order by the Honorable

Charles L. Brieant, United States District

Court, dated April 4.1996. .............. 28

Judgment filed with the United States District

Court, dated April 4.1996 ............... 45

Rehearing Denial Letter from the United

States Court of Appeals for the Second

Circuit, dated June 6, 1997 ........... 46-48

(iii)

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ....q

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .g

Chambers v. TRM Copy Centers Corporation,

43 Fed. 3d 29 (Second Circuit 1994) .............. 10

Cosgrove v. Sears, Roebuck & Co., 9 Fed. 3d 1033, 1034

(pened Crens T9866 eR SS 13

Fisher v. Vassar College, 70 Fed. 3d 1420 (Second Circuit

Re ue Ee ee ee bp peataee Goan 21

Furnco Construction Corp. v. Waters, 438 U.S. 567,

CPT) Go aa Fe EES Ss Qu

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (19732

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... 3

Ryther_v. KARE, 11, No. 94-3622, (Eighth Circuit)

Socmied Marae G 1997 os ob a

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . \4

Sheridan v. E.l. DuPont de Nemours & Co., 100 Fed. 3d

LOGE (i maen Gare Tee es a i oe eS a>

U.S. v. Diebold, Inc., 309 U.S. 644 (1962) ......... G

(iv)

No. 97-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

CHARLENE MCGOWAN,

Petitioner,

vs.

TEXACO INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

JURISDICTION

On April 4, 1996, a Memorandum and Order was

rendered in favor of Texaco Inc. by the Honorable Charles

L. Brieant of the United States District Court for the

Southern District of New York. On May 2, 1996, a Notice

of Appeal was filed with the United States Court of Appeals

for the Second Circuit. On March 21, 1997 the Court of

Appeals affirmed the judgment of the District Court by

Summary Order and Memorandum Decision. On April 2,

1997 a Petition for Rehearing and Rehearing In Banc was

filed, and on June 6, 1997, the Court of Appeals upheld the

judgment of the District Court.

The jurisdictional basis for a writ of certiorari is

based upon Rule 10(a) and (c) of the Rules of the Supreme

Court of the United States. This petition for a writ of

certiorari has been brought to protect individual rights

guaranteed to the Petitioner under the Civil Rights Act of

1964, as amended in 199), and to reverse the state of

confusion created by the decisions of the lower courts’ in the

Second Circuit and other circuits in determining how the

rules of summary judgment apply to the substantive

employment discrimination law.

STATEMENT OF CASE

The Petitioner, Charlene McGowan, brought this

action against her former employer, Texaco Inc., alleging (i)

sex discrimination in the terms and conditions of her

employment, and retaliation by Texaco for a complaint of

sex discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e

et seg., and the New York Human Rights Law, N.Y.

Executive Law Sections 290 et seq., and (ii) intentional

infliction of emotional distress under New York Common

Law. The United States District Court for the Southern

District of New York (i) granted summary judgment in favor

of Texaco and dismissed the Petitioner’s federal claims on

the ground that Texaco had asserted an adequate basis for the

employment action taken against the Petitioner, and (ii)

dismissed the Petitioner’s state claims without prejudice.

In November 1990, the Petitioner was hired by

Texaco into a position as a Environmental Analyst II. The

Petitioner’s position placed her in a work unit otherwise

known as the Central Waste Site Management Unit ("Unit")

of the Environment, Health and Safety Division ("Division")

at Texaco’s Beacon, New York facility. Prior to the time

she was hired by Texaco, the Petitioner submitted a resume

and a form of job application provided to her by Texaco.

Thereafter the Petitioner interviewed with Ronald Richards

("Richards"), the manager of the Division, and Harold Weiss

("Weiss"), the manager of her Unit, and other employees

within her team. The Petitioner also provided Weiss with a

copy of her college transcript. The Petitioner’s college

transcript showed significant science-related work. The

Petitioner also obtained an official copy of her college

transcript directly from Bard College and Texaco required

that the Petitioner physically produce her diploma on her

Start date. Prior to accepting the position as an

Environmental Analyst II, the Petitioner worked for a five-

month period at Texaco’s research labs located at the Beacon

facility.

In her job application, the Petitioner emphasized her

prior work experience and attached thereto copies of her

college transcripts and two forms of resume showing her

health and human services background as well as her

insurance background.

After several months of employment, the Petitioner

initiated discussions with Weiss concerning the terms and

conditions of employment. The Petitioner sought

ee an ee ae ee eT

developmental opportunities, including training and job

assignments which dealt with the primary, relevant tasks of

her unit--environmental pollution and remediation. Weiss

rebuffed her efforts to secure training and assignments and

responded by stating to the Petitioner (i) your job function

didn’t require a degree, (ii) you’re behaving "bitchy", and

(iii) you should accept things. Weiss had no prior experience

managing the career of a professional woman. His prior

management experience with respect to women was limited

to supervising the activities of secretarial personnel.

On July 12, 1991, Weiss provided the Petitioner with

a five-minute version of the annual performance and

development review, a part of Texaco’s performance

management program ("Performance Management Program").

Prior to that date Weiss failed to provide the Petitioner with

any coaching or feed back on her performance and offered

no overall career development. During this five minute

meeting, the Petitioner was given a "good" evaluation, and in

October 1991 she received an above average salary increase.

Following a company-wide video tape presentation on

or about October 31,1991, concerning the company’s equal

employment opportunities for women and minorities and

Texaco’s nondiscriminatory policies, the Petitioner appeared

at Beacon’s Human Resource department to complain about

the discriminatory treatment she was receiving from her

immediate supervisor, Weiss. Personnel in the Human

Resources requested that she submit her complaint in writing,

and on November 2, 1991 the Petitioner delivered her written

complaint to Walter Foucher and Mark Thumen, a manager

and employee, respectively, in the Human Resources

department. Foucher then contacted Texaco’s corporate

headquarters, its in-house legal department, Richards, and

John Moylett, to apprised them of the Petitioner’s sex

discrimination complaint. According to Donald Annett, a

Corporate Vice President, it was the Human Resources

Department that was responsible for investigating these

complaints of discrimination pursuant to company policy.

Richards then advised Foucher that the matter would be

handled by John Moylett, another Human Resource Manager.

However, Moylett denied that he was made aware of the

existence of the complaint by either Richards or Foucher.

Foucher denied knowing whether or not Moylett or Richards

investigated the Petitioner’s complaint, but indicated it was

Moylett’s duty to investigate. Moylett indicated it would be

a violation of company policy calling for the investigation of

complaints, if Richards failed to turn over a_ sex

discrimination complaint to him. Moylett also said that

during a conversation with Foucher, Foucher denied that the

Petitioner ever submitted a written complaint to Human

Resources.’

Richards then arranged to meet with the Petitioner,

and during that meeting the Petitioner apprised Richards of

the discriminatory nature of her complaint to Human

Resources. Richards asked plaintiff not to notify Texaco’s

corporate headquarters about her complaint and not to

mention her complaint to others. Richards also indicated to

On August 16, 1993, Foucher swore under oath that the document he received

from the Petitioner was a complaint of sex discrimination. Foucher further

indicated that he promptly notified corporate headquarters and the legal

department of the existence of this complaint to "cover his butt." During a

second deposition of Foucher on September 13, 1994 -- just five days after

Moylett swore under oath that Foucher and Richards did not make him aware

of the existence of the Petitioner’s complaint--Foucher testified that in

November 1991 her complaint was not perceived as a complaint of sex

discrimination "it could have been confused with sex discrimination...".

5

the Petitioner that “we'll stop talking if you stop talking."

Richards not only failed to notify Moylett, his Human

Resource manager, of the discriminatory allegations

contained in the complaint, but also failed to provide a

written copy of the complaint to anyone. It appears that the

Petitioner later sent a copy of her complaint to Moylett. On

or about the early part of December 1991, Richards and

Weiss proceeded to solicit derogatory employment

information from employees both inside and outside of the

Petitioner's work Unit. The timing of the reports -- which

were made to managers Weiss and Richards by lower level

employees -- as well as the substance of these reports, clearly

indicate that Richards and Weiss received only derogatory

information about the Petitioner. Simultaneously, Weiss and

Richards began documenting alleged employment deficiencies

on the part of the Petitioner. The Petitioner became

suspicious of their activities against her, and actually

overheard a conversation between Richards and Weiss

wherein one said to the other "lets get something on her

before she gets something on us." Simultaneously with

initiating her complaint of sex discrimination, Foucher agreed

to assist the Petitioner with the review of her performance

review, dated July 12, 1991. The Petitioner believed she

should have received a performance rating better than the

"good performance" rating she received from Weiss on July

12, 1991. An appeals process was initiated which resulted in

a finding (i) Richards on December 12, 1996, and (11) by the

appeals committee on January 10, 1992 -- to affirm her

"good performance” rating.

On or about December 5, 1991, the Petitioner was

advised by William Bidding, an employee in the Texaco’s

Research and Development division at the Beacon facility,

that he heard there were twelve or thirteen complaints of

discrimination lodged against Texaco. Bidding relayed this

information to the Petitioner in her office following a

meeting Bidding attended near the Petitioner’s work Unit

Thereafter, the Petitioner repeated what she had heard from

Bidding to other employees, and also repeated the

information to Moylett, the Division’s Human Resources

Manager.

On December 9, 1991, Richards threatened the

Petitioner with termination as a result of her " blatantly false

statements" to fellow employees about other complaints of

discrimination and severely disciplined her. Richards advised

the Petitioner of the utter falsity of her remarks, although

other evidence suggests that he secretly knew that another

employee, Bidding, actually made these remarks to the

Petitioner. The Petitioner was visible shaken and upset. In

a series of draft memoranda, dated December 11, 1991,

Richards documents his escalating hostility toward the

Petitioner. _ Thereafter, Richards orchestrated a variety of

activities and initiated actions designed to undermine the

Petitioner’s performance and poison her work environment.

These activities included surveillance, extensive record

keeping, and even a daily log on all of her activities

including the time she spent in the bathroom. During a

January 30, 1992 meeting between Weiss and the Petitioner,

the Petitioner first became aware of her purported

unsatisfactory performance, and Weiss and Moylett offered

the Petitioner a fresh start on a "clean slate". During a

January 30, 1992 meeting, the Petitioner took great exception

to this characterization of her performance as unsatisfactory,

and she became visibly upset.

Texaco and Texaco’s legal department proceeded to

build a case of poor performance, which involved a massive

audit of the Petitioner’s work history and education. These

actions were taken presumably to support all available

defenses to the Petitioner’s charges, including possibly an

after-acquired evidence defense. Texaco asserts that the

Petitioner falsely reported her degree and major concentration

of studies in her employment application and resume.

However, Texaco requested an official transcript of the

Petitioner’s educational studies which was received by

Texaco prior to the commencement of her employment. In

addition, Texaco required that the Petitioner physically

transport her degree to the Beacon facility for photocopying,

which was accomplished at or before the commencement of

her employment in November 1990. The Petitioner’s college

transcripts show that she completed approximately 56 college

credits in science-related course work. Texaco’s defense also

included extensive depositions of her former employers, and

efforts to solicit derogatory, irrelevant information about her

back to her college experiences a decade earlier.

It became increasingly clear to the Petitioner in

February 1992 that Richards was determined to terminate her

employment. On February 26, 1992, the Petitioner reported

to Texaco’s medical department at its Beacon facility due to

severe work stress precipitated by Richards threats of

termination, and after discovering that all of the members of

her work unit were assisting Richards in their defense.

Texaco’s own medical records show that the Petitioner’s

tearful visits to Texaco’s medical department did not start

until January 1992, a full month after the date she

complained. The next day, Richards advised the Petitioner

that she was suspended from further job activities, and

shortly thereafter Richards made a management referral to

Special Health Services. Richards then demanded as a

condition of her employment that the Petitioner submit to a

psychiatric exam.

On July 1, 1992, the Petitioner returned to work to

discover that her position as an Environmental Analyst II had

been abolished. Instead, the Petitioner was assigned to the

position of a Product Safety Specialist II, a position requiring

substantially less skill and offering fewer career

Opportunities. The Petitioner was placed under the direct

supervision of Cynthia Cain, an employee who previously

provided Richards with derogatory information about the

Petitioner at Richards’ request. The Petitioner continued to

be watched and her activities were reported to Richards. A

log of her daily activities was maintained by Cain. Richards

continued to be critical of the Petitioner behind the scenes.

The Petitioner’s performance management planning process

was micro-managed for the purpose of insuring her

unsatisfactory performance and ultimate failure. Her

performance review cycles were contrary to Texaco’s policy

in that the Petitioner’s performance was reviewed on a

monthly basis subsequent to July 1, 1992, and then on a

weekly basis in December, 1992. These records show that

the Petitioner was doomed to failure. The Petitioner was

terminated by Texaco on January 25, 1993, purportedly for

poor performance.

ARGUMENT

Point I

Whether, on the motion for summary judgment, the

lower courts are free to disregard their responsibilities under

the substantive law articulated by the United States Supreme

Court in Anderson v. Liberty Lobby. Inc., 477 U.S. 242

(1986), Adickes v. SH. Kress & Co., 398 U.S. 144 (1970)

and embodied in Rule 56 of the Federal Rules of Civil

Procedure with respect to the Petitioner's employment

discrimination and retaliation claims, and thereby effectively

denying the Petitioner her right to a jury trial under the Civil

Rights Act of 1964, as amended in 1991.

Summary judgment is not appropriate when the

pleadings, depositions, affidavits and other evidence show,

genuine issues of material fact. In determining whether

summary judgment is appropriate, the Petitioner as the non-

moving party is entitled to certain evidentiary benefits under

Rule 56 of the Federal Rules of Civil Procedure and the

substantive law articulated in Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986) and Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970). First, the scope of the lower courts’

inquiry is limited to a determination of whether there is a

sufficient factual disagreement between the parties. Second,

in performing this function the lower courts must draw all

reasonable inferences in favor of the Petitioner. More

properly stated, the Court must identify all plausible

inferences from the direct and circumstantial evidence in the

record that favor the Petitioner. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986) and Adickes v. S.H. Kress &

Co., 398 U.S. 144 (1970). Third, the lower courts’ are

required to view the direct and circumstantial evidence in a

light most favorable to the Petitioner. U.S. v. Diebold, Inc.,

369 U.S. 644 (1962). According to the vast majority of

Circuit Courts this task is even more critical in employment

discrimination cases where direct evidence of retaliatory

intent is difficult to find "precisely because it’s practitioners

deliberately try to hide it." Chambers v. TRM Copy Centers

Corporation, 43 Fed. 3d 29 (Second Circuit 1994). In most

cases the Petitioner must rely primarily on circumstantial

10

evidence. For this reason the lower courts’ must be forced

to carefully examine the circumstantial evidence offered by

the Petitioner. The lower Courts cannot simply ignore the

circumstantial evidence which in many employment

discrimination cases will illuminate the material factual

differences between the parties. Fourth, credibility

determinations, weighing of evidence and the task of actually

drawing the inferences are solely jury functions. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The lower

courts have no authority to decide issues of fact, they can

only determine whether issues of fact exist. In the instant

case the lower courts failed to afford the Petitioner the

aforesaid evidentiary benefits as the non-moving party.

With respect to the Petitioner’s discrimination claim,

the Second Circuit concluded that:

[a]ll of [Texaco’s]...decisions were entirely

justified...by the undisputed fact that the men

who received these opportunities were

employed as engineers, which McGowan was

not, and were senior to McGowan. (emphasis

supplied).

The Petitioner never disputed that Texaco could treat its

employees differently based on their respective backgrounds

and education. What the Petitioner claims as discriminatory

is the complete absence of career development for the

Petitioner by her immediate supervisor Harold Weiss. The

record establishes that Weiss did not engage in any career

development for Petitioner during the period fromm November

1990 through July 12, 1991 when Weiss sat down with her

for five minutes to give her an annual review of her

performance. There was no prior performance planning or

1]

coaching afforded to the Petitioner as required by Texaco’s

very own Performance Management Program. Stray remarks

made by Weiss to the Petitioner were further evidence of

Weiss’ overall discriminatory attitude toward the Petitioner

when she sought career development. Finally the Petitioner

offered affidavits of other women working at Texaco which

indicated that Texaco’s actions with respect to the Petitioner

"conform to a general pattern of discrimination" against

women, McDonnell Dougias Corp. v. Green, 411 U.S. 792

(1973). The Petitioner also offered confidential documents

of Texaco as further proof of the general pattern of Texaco’s

failure to afford equal opportunities to women and

minorities. All of these facts were ignored by the lower

Courts in examining the Petitioner’s discrimination claims.

With respect to the Petitioner’s retaliation claim, the

Second Circuit decided that the Petitioner did not submit

evidence raising a jury question on causation. Specifically,

the Second Circuit determined that:

"fo]n this record any rational fact finder

would have to find that what McGowan

characterizes as retaliation was at least partly

motivated by legitimate dissatisfaction with

McGowan’s performance and would have

occurred absent any _ retaliatory or

discriminatory animus. Such a finding is

sufficient to preclude liability for an

employer. See Cosgrove v. Sears, Roebuck &

Co., 9 Fed. 3d 1033, 1040 (2d Cir. 1993).

(Emphasis supplied).

Based on the Second Circuit’s Statement, it is clear that the

Second Circuit believed that the Petitioner established a

prima facia case of retaliation. However, in assessing the

issue of causation--what actually motivated the employer--it

is clear that the Second Circuit did not afford the Petitioner

the evidentiary benefits of summary judgment on her

retaliation claims, and the Second Circuit actually jumped

outside the scope of the substantive law by deciding that

some of Texaco’s employment actions may have been

motivated by legitimate dissatisfaction with the Petitioner’s

performance. This was a question for a jury to decide not

the lower courts. With respect to the issue of Texaco’s

motive, the lower courts engaged in credibility

determinations (finding that Texaco was legitimately

dissatisfied with her performance), weighing of evidence

(finding the adverse employment action would have occurred

absent any retaliatory or discriminatory animus), and actually

drawing [rather than identifying] inferences which are solely

the function of a jury (concluding that the retaliation was

partly motivated by Texaco’s legitimate dissatisfaction with

her performance). The effect of this decision is to

substantially undermine the Supreme Court’s decisions in

2

It appears that by citing to Cosgrove v. Sears, Roebuck & Co., 9 Fed. 3d 1033

(2d Cir. 1993), the Second Circuit is attempting to apply a Price Waterhouse

analysis to the pre-trial stages in this litigation. The Cosgrove court applied

the Price Waterhouse analysis after a trial. The fact that a mixed motive exists

in this case demonstrates that summary judgment is inappropriate and requires

a jury trial to determine whether the employer was truly motivated by its

articulated reason at the time of its decision. Price Waterhouse v. Hopkins,

490 U.S. 228, 252 (1989). This is a glaring example of the Second Circuit

usurping the Petitioner’s right to a jury trial under the Civil Rights Act of

1964, as amended in 199].

13

McDonnell-Douglas Corp. v. Hicks, 411 U.S. 792 (1973) and

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and to

deny the Petitioner her right to present her entire case to a

jury, a right given to her under the 1991 amendments to the

Civil Rights Act of 1964.°

The evidence in the record before the lower courts

raised material factual issues which should have precluded

summary judgment on the Petitioner’s retaliation claims. As

previously mentioned, it is evident from the Second Circuit’s

decision that the Petitioner established a prima facie case of

retaliation. Without even assessing the evidence in a

favorable light to the Petitioner, the Second Circuit

concluded in the dark that the Petitioner "has not subr ted

evidence raising a jury question on the issue of causation."

The Petitioner submits that summary judgment is

inappropriate in this case since the evidence offered by the

Petitioner in establishing a prima facie case of retaliation in

combination with (i) the additional direct evidence offered by

the Petitioner in the form of affidavits of other female

employees that indicated Texaco’s actions "conform to a

general pattern of [retaliation and] discrimination" against

women, McDonnell Douglas, 411 U.S. 792 (1973), and (ii)

strong evidence of "pretext", standing together satisfy the

Petitioner's burden at the summary judgment stage.* The

evidence offered by the Petitioner of "pretext" is strong

3

Testimonial evidence is crucial in these cases, since the jury’s disbelief of the

employer’s reasons can support a finding of intentional discrimination and

retaliation. :

4

See Point II hereinbelow for a discussion of the legal standards which should

be adopted by this Court on motions for summary judgment.

i4

because it shows that a jury could conclude Texaco did not

give an honest explanation of its behavior toward the

Petitioner. As discussed in Point II hereinbelow, the

Petitioner's evidentiary burden has been satisfied since the

jury disbelief of the employer’s reasons can support a finding

of retaliation.

The Second Circuit also erroneously determined that

the "actions McGowan asserts were retaliatory including her

eventual discharge, were clearly and indisputably justified by

overwhelming and uncontradicted evidence of McGowan’s

poor job performance, insubordination and inability or refusal

to get along with her co-workers and supervisors." The

Petitioner respectfully submits that the lower courts failed to

examine the record and were misled by Texaco and its

attorneys. The lower courts have assumed that facts are true

by accepting as true the conclusory and repetitive recitations

offered by Texaco throughout its brief relating to poor

performance and insubordination, when in fact these

conclusory recitations are not supported by sufficient

evidence in the record and not supported by admissible

evidence under Rule 56(e) of the Federal Rules of Civil

Procedure. A careful examination of the record does not

show, as Texaco’s suggest, overwhelming and uncontradicted

evidence of poor work performance and insubordination. In

fact, in support of its motion for summary judgment Texaco

offered little “admissible evidence" under Rule 56(e) to

establish that Texaco was justified in executing a series of

adverse employment actions against the Petitioner because of

her poor performance and insubordination. The bulk of

Texaco’s evidence of insubordination and poor performance

involved two incidents concerning an alleged failure by the

Petitioner to appear at meetings, and two alleged incidents of

poor performance--one involving a large unprocessed check

15

which Texaco alone claims was discovered in the Petitioner’s

desk (a fact the Petitioner disputes), and the second involving

the alleged misstatement of figures on a report that the

Appellee failed to submit as evidence in its motion papers on

the issue of Petitioner’s poor performance. In fact what

Texaco characterizes as "overwhelming and uncontradicted"

evidence is embodied in two conclusory allegations found in

an affidavit made by a human resource manager with no

personal knowledge of the Petitioner’s work. (A555).°

5

Texaco’s honesty with respect to its review of the Petitioner’s performance is

wholly suspect. In a December 11, 1991 draft memorandum to the Petitioner

(A944)--which was not the final version delivered to the Petitioner (final

version appears at Al 128) reveals that Richard’s review of the Petitioner’s

work indicated "several errors, one being very significant that have occurred

since...the time of her performance review". This draft contains handwritten

changes which are evidence of Texaco’s view of the accuracy of her work

since the purported errors were then characterized as "small errors" even

though this characterization did not make the final version of Richard’s memo

to the Petitioner. The final version of the memo actually delivered to the

Petitioner contains no reference to unsatisfactory performance, either in terms

of accuracy of work or ability to get along with others. It appears from the

record that the Petitioner was first advised of her alleged "unsatisfactory

performance" during a meeting with Weiss on January 30, 1991 (A895-896),

well after her complaint of sex discrimination was lodged. The Petitioner took

great exception to this characterization of her performance. (A895-896). It is

clear that the Petitioner was not given an opportunity to correct the purported

deficiencies in her performance, and was never told in what manner her

performance was unsatisfactory, either by Weiss (A895-896) or by Richards

(A1034). Collectively all of this evidence sufficiently challenges Texaco’s

honesty with respect to its explanation of the actions taken against the

Petitioner. While there is evidence to suggest that the Appellant did not get

along with others, this evidence was generated by Texaco after her complaint

of discrimination, despite the fact that some of the incidents reported occurred

prior to her complaint. However, a jury could infer from the other evidence

offered by the Petitioner of a retaliatory motive and its disbelief of the

Texaco’s articulated reasons that these reports were generated to document a

performance problem that was not perceived as a performance problem until

after her complaint.

16

The Petitioner respectfully submits that in direct

violation of the substantive law and Rule 56 of the Federal

Rules of Civil Procedure, the lower courts drew inferences in

favor of Texaco only, and_ overlooked significant

circumstantial evidence in the record which exposed

Texaco’s articulated reasons as dishonest--lies.

The actions asserted by the Petitioner to be retaliatory

included the following adverse employment actions which

were set forth in detail in the Petitioner’s motion in

Opposition to Texaco’s motion for summary judgment

(A1073 -A1075):

A. The Petitioner was threatened

with discharge on five occasions,

the first of which occurred

December 9, 1991, just thirty-five

days from the date of her written

complaint (Exhs. 15 & 5).

B. The Petitioner’s _ supervisor’s

manager, Richards, solicited

derogatory information about

retitioner from Petitioner’s co-

workers beginning as early as

December 1, 1991, just thirty

days from the date of her written

complaint (Exhs. 16 & 5).

Re The Petitioner was placed under

constant surveillance by Richards,

Weiss and her co-workers, who

reported orally and in writing to

Weiss and Richards (Exhs. 16 &

5).

17

D. The Petitioner was labeled in

writing as an_ unsatisfactory

performer by Weiss and Richards

and first advised of this fact on

January 30, 1992 (Exhs. 17 & 5).

B. The Petitioner’s PMP appeal was

completed on February 10, 1992

in an unfair manner and contrary

to Texaco’s policy (Exh. 5, pp.

14-15, Exhs. 17, 18 & 1).

F. The Petitioner's PMP for the

January 1992 through July 1992

cycle was designed by Texaco to

increase the chances of a

performance failure on the part of

the Petitioner (Exhs. 17, 18, 4 &

5).

G. The Petitioner was the subject of

a management referral by Texaco

on March 31, 1992 to Texaco’s

special health service program

(Exh. 19).

H. The Petitioner was required by

Texaco on May 23, 1992 to

submit to a psychiatric evaluation

as a condition of maintaining her

position with Texaco (Exh. 20).

I. The Petitioner’s work was audited

by co-workers at the direction of

Weiss on November 25, 1991 in

order to document unsatisfactory

performance (Exh. 4).

18

EE

J. The Petitioner’s position under

Weiss was abolished sometime

between March 1992 and June

1992 (Exhs. 19 & 21).

K. The Petitioner was assigned to a

new position in another unit on

July 1, 1992 performing

secretarial level work assignments

under the direct supervision of

Cain (Exh. 5).

L. The Petitioner was the target of a

PMP process during the period

from July 1, 1992 through

January 23, 1993 which for all

practical purposes ensured her

ultimate demise (Exh. 5, pp. 18-

21).

M.” The Petitioner was denied a raise

during the period from November

2, 1991 through her termination

on January 25, 1993 (Exh. 22).

N. The Petitioner was discharged on

January 25, 1993 after surviving

a two-year campaign of

harassment and intimidation (Exh.

5).

It is clear from the record that Texaco elected to

challenge just a few of the many actions offered by the

Petitioner as retaliatory. In fact, Texaco offered only the

following reasons for the adverse employment acticns which

it executed against the Petitioner:

1. The Petitioner’s spreading of false

rumors was the legitimate, non-

retaliatory reason for a warming

from her supervisors on

December 9, 1991. (A1150-

A115).

yA The Petitioner's demand that

Texaco investigate her claim of

an unfair PMP [performance]

rating was the legitimate, non-

retaliatory reason for requests for

information about her

performance. (A1151-A1153).

3. The Petitioner’s voluntary four-

month medical leave of absence

and her own physician’s diagnosis

were the legitimate, non-

retaliatory reasons for the referral

to a psychiatrist. (A1153-A1155).

4. The Petitioner’s poor performance

and voluntary four-month leave of

absence were legitimate, non-

retaliatory reasons for a change in

6

Texaco offered no evidence and put forward no explanation for its actions

under items (A), (C), (D), (E), (F), (1), (K), (L) and (M) hereinabove. Since

the Petitioner’s assertions have not been rebutted by Texaco, the presumption

of retaliation established by the Petitioner’s prima facie case survives and is

sufficient standing alone to preclude summary judgment.

20

job positions and work units.

(A1155-A1156).

5. The Petitioner's poor work

performance and insubordination

were the legitimate, non-

retaliatory reasons for her

termination. (A1156-A1158).

6. The undisputed evidence

demonstrates that Texaco did not

cause the Petitioner’s paranoia

and poor work performance.

(A1158-A1160).

Despite its repetitive and conclusory assertions,

Texaco offered little or no proof to legitimize the articulated

reasons for its actions. First, Texaco claimed that because

the Petitioner was spreading rumors she knew to be false, her

supervisor, Ronald Richards was justified in severely

reprimanding her and threatening her with discharge.

However, Texaco offers no proof that the Petitioner knew

that the rumor she was spreading was false. In fact,

Texaco’s evidence confirms that the Petitioner did not know

the rumors were false--she merely repeated the rumors. (Lie

No. 1).

Second, Texaco claimed that Richard’s request for

information from the Petitioner’s co-workers was justified

because the Petitioner demanded that he investigate her claim

of an unfair PMP (performance rating). However, the

documentary evidence offered by Texaco (A1152 - Barry

Aff., Exh. 4 and 6) does not support this proposition. This

evidence demonstrates that the Petitioner wanted someone

other than Harold Weiss to actually examine her tangible

21

work product [paperwork] to arrive at a fair performance

rating--something that Weiss failed to do during the period

from November 1990 through October 1991, and which

Richard’s refused to do when purportedly investigating her

work performance (A944 and 949). Based on Richard’s

statement that he refused to examine her work, a jury could

reasonably conclude that his investigation of her performance

rating was motivated by retaliation rather than giving her a

fair assessment of her work. (Lie No. 2).

Third, Texaco claimed that the Petitioner’s voluntary

leave of absence and her own physician’s diagnosis provided

the justification for her referral to special health services, and

a psychiatric examination. However, Texaco offered

absolutely no evidence to support these conclusory assertions.

The only evidence offered by Texaco in support of this

proposition was a doctor’s note dated March 31, 1992

indicating the Petitioner could return to work on April 1,

1992 (A697). Moreover, as Petitioner’s affidavit

demonstrated there was nothing about her leave of absence

that was voluntary (A35). (Lie No. 3).

Fourth, Texaco claimed that the Petitioner’s poor

performance and four-month voluntary leave of absence

justified its change in the Petitioner’s job position and work

unit. However, as previously mentioned Texaco offered no

evidence to show that her separation from her job was

voluntary and no evidence to prove her position was actually

eliminated. In fact the evidence shows that the Petitioner’s

job was given to a male employee who reported directly to

Richard rather than Weiss. (!.1e No. 5).

aa eee | pen er owemnne

Fifth, Texaco claims that Petitioner's poor

performance and insubordination justified its termination of |

22

———e———eEEE——E———

the Petitioner’s employment. As previously mentioned, little

admissible evidence was offered by Texaco to support these

propositions. In fact, a jury could reasonably infer that the

performance standards imposed by Texaco were more harsh

on the Petitioner than those imposed on other employees and

were designed, as the Petitioner claims, to insure her ultimate

demise.

Point Il

Whether, on the motion for summary judgment, the

lower courts failed to properly apply the substantive

employment discrimination law as articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) to the

Petitioner’s retaliation claim, thereby imposing an evidentiary

burden on the Petitioner not contemplated by the Civil Rights

Act of 1964, as amended in 1991.

In discrimination cases, it is now well settled that an

Plaintiff's presentation of a prima facie case creates a legal

presumption of unlawful discrimination. This presumption

places an obligation upon the employer to produce evidence

of a legitimate, nondiscriminatory reason for its actions

against the Plaintiff. If the employer carries this burden, the

legal presumption of unlawful discrimination "drops out of

the picture." St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

(1993). Once this occurs, the Supreme Court articulated the

overall process:

The Appellee’s "production" (whatever its

persuasive effect) having been made, the trier

23

of fact proceeds to decide the ultimate

question: whether Appellant has proven "that

the Appellee intentionally discriminated

against [the Appellant]", [Burdine, 450 U.S. at

253]. The factfinder’s disbelief of the reasons

put forward by the Appellee (particularly if

disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of

the prima facie case, suffice to show

intentional discrimination. Thus, rejection of

the Appellee’s proffered reasons, will permit

the trier of discrimination, and the Court of

Appeals was correct when it noted that, upon

such rejection, "[n]o additional proof of

discrimination is required," 970 F.2d, at 492

(emphasis added).

Hicks, 509 U.S. at 511 (footnote omitted).

Thus, according to Hicks, when the Petitioner’s

evidence of pretext challenges Texaco’s articulated

nondiscriminatory reason, such evidence may serve as well

to support a reasonable inference that discrimination was a

motivating reason for the employer’s decision. As the

Supreme Court has observed, "when all legitimate reasons for

rejecting an applicant have been eliminated as possible

reasons for the employer’s actions, it is more likely than not

the employer, who we generally assume acts only with some

reasons, based his decision on an impermissible consideration

such as [sex or retaliation].". Furnco Construction Corp. v.

Waters, 438 U.S. 567, 577 (1977). ;

Based upon the foregoing, does evidence of pretext

alone support an inference of intentional discrimination? A

24

recent in banc decision by the Third Circuit in Sheridan v.

E.1. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir.

1996) (in banc), answers this question in the affirmative.

This decision contains a discussion of the varying standards

and interpretation of Hicks by the Circuit Courts. In that

decision Chief Judge Dolores K. Sloviter wrote:

[W]e have understood Hicks to hold that the

elements of the prima facie case and disbelief

of the Appellee’s proffered reasons are the

threshold findings, beyond which the jury is

permitted, but not required, to draw an

inference leading it to conclude that there was

intentional discrimination.

Id. at 1066-67.’

In sum, when the employer produces a

nondiscriminatory reason for its actions, the prima facie case

no longer creates a legal presumption of unlawful

discrimination. The elements of the prima facie case remain,

however, and if they are accompanied by evidence of pretext

and disbelief of Texaco’s proffered explanation, they may

permit the jury to find for the Petitioner.

A recent in banc decision of the Eighth Circuit in

Ryther v. KARE, 11, No. 94-3622, decided March 6, 1997,

provides a slightly better interpretation of Hicks. In that case

the Court concluded that evidence of pretext does not always

7

The Third Circuit noted that other federal courts of appeals have interpreted

Hicks in a similar manner, citing cases from the D.C. Circuit, the Second

Circuit, the Fourth Circuit, the Six Circuit, the Seventh Circuit, the Eighth

Circuit, and the Ninth Circuit. See Sheridan, 100 F.3d at 1067-68.

25

support an inference of discrimination. In reading its

decision the Court stated that:

"[t]his is not to say that, for the Appellant to

succeed, simply proving pretext is necessarily

enough. We emphasize that evidence of

pretext will not by itself be enough to make a

submissible case if it is, standing alone,

inconsistent with a reasonable inference of age

discrimination." (emphasis supplied).

Furthermore, as the Hicks Court explained, the Petitioner

must still persuade the jury, from all the facts and

circumstances, that the employment decision was based upon

intentional discrimination. 509 U.S. at 511 n.4.

Readily apparent from the Ryther decision is that in

all sex discrimination cases, the Appellant must produce

sufficient evidence of the elements of the prima facie case

and where necessary, adduce sufficient proof of pretext to

meet the traditional tests of summary judgment. According

to Ryther summary judgment should be denied if the

Appellant offers sufficient proof of pretext which is not

Thus, Hicks makes it clear that the Appellant must show "both that the reason

was false, and that discrimination was the real reason," 509 U.S. at 515. "It

is not enough, in other words, to disbelieve the employer; the factfinder must

believe the Appellant’s explanation of intentional discrimination." Id. at 519.

It is equally clear, however, that “rejection of the Appellee’s proffered reasons

will permit the trier of fact to infer the ultimate fact of intentional

discrimination and...’[{n}o additional proof of discrimination is required.’" Id.

at 511 (internal citation omitted). As Justice Scalie explained, "rejection of the

Appellee’s proffered reasons is enough at law to sustain a finding of

discrimination,” but "there still must be a finding [by the finder of fact] of

discrimination." Id. at 511 n.4.

26

inconsistent with a reasonable inference of retaliation and/or

sex discrimination.

A recent in banc decision of the Second Circuit in

Fisher v. Vassar College, 70 Fed. 3d 1420 (Second Circuit

1996), provides an even more confusing interpretation of

Hicks. In that case a sharply divided Court determined that

it could act as a "super jury" in employment discrimination

cases, and attempted to articulate the evidentiary standards

for employment discrimination plaintiffs at the pre-trial,

summary judgment stages of litigation, as well as the post-

trial stages of litigation.

In this case since the Petitioner’s evidence of pretext

is not inconsistent with a reasonable inference of sex

discrimination or retaliation, therefore summary judgment

was improper under the legal reasoning in Ryther. This

court should reject the legal reasoning contained in Fisher v.

Vassar College as it relates to motions for summary

judgment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted Jhis 3rd day of September,

Ip. A

KE P. BARRY, ESQ.

rney for Petitioner

310 Mill Street

Poughkeepsie, NY 12601

1997.

27

CHARLENE MCGOWAN,

Plaintiff,

VS.

TEXACO INC.,

Defendant.

No. 93 Civ. 0615 (CLB)

United States District Court, Southern District

Memorandum and Order dated April 4, 1996.

The plaintiff Charlene McGowan filed this action

against her former employer, Texaco Inc. ("Texaco"), for

sex-based discrimination and unlawful retaliation in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et_seqg. (1988 & Supp. V 1993) and New

York State law. Texaco has moved for summary judgment

pursuant to Fed. R. 56. The Court grants Texaco’s motion

based upon the reasoning set forth below.

Background

In October 1990, Texaco hired Ms. Charlene

McGowan to work in the Central Waste Site Management

Unit of its Environment, Health and Safety Division in

Beacon, New York as an Environmental/Administrative

Analyst. Ms. McGowan interviewed for the position with

Mr. Ronald Richards, the manager of the Environmental

Health and Safety Division, and Mr. Harold Weiss, the

manager of the Central Waste Site Management Unit. Ms.

28

McGowan included with her application copies of her college

transcript and resumes documenting her health and science

background. Ms. McGowan represented to Texaco that she

received a Bachelors Degree from Bard College where she

double majored in Biology and Literature and minored in

Chemistry.

As a Texaco employee, Ms. McGowan was entitled

to the benefits of Texaco’s Performance Management

Program ("PMP") including job-related developmental

opportunities and activities. After several months of

employment, Ms. McGowan claims that she approached Mr.

Weiss to discuss training, continued education, and special

committee membership. However, Ms. McGowan contends

that she was excluded from training workshops concerning

issues that were central to her responsibilities at Texaco. Ms

McGowan further claims that Mr. Weiss discouraged her

from applying to the Renssalaer Polytechnic Institute Masters

Degree Program offered by Texaco to its professional

employees. In addition, Ms. McGowan asserts that Mr.

Weiss denied her a valuable employment opportunity in not

assigning her a "major steering" committee such as the

Texaco Award for Excellence Committee.

In November 1991, after hearing a company-wide

taped presentation by James W. Kinnear, President of

Texaco, concerning the corporation’s equal employment

opportunities and non-discriminatory policies, which in

essence urged people to present claims of discrimination, Ms.

McGowan approached Bud Foucher, a Human Resources

Manager in Texaco’s Research and Development Department

at Beacon, to complain about Mr. Weiss. Mr. Foucher

requested that she submit her complaint in writing. In

response, Ms. McGowan delivered a three and one-half page

29

written complaint to the Beacon Human Resources

Department expressing her dissatisfaction with Mr. Weiss.

Ms. McGowan also voiced a concern that her July 12, 1991

Performance and Development Review, which contained an

evaluation by Mr. Weiss, was not a fair reflection of her

work at Texaco and took an administrative appeal. Ms.

McGowan received a performance rating of "Usually Meets

Standards" in all of the categories of the PMP Form. This

rating is equivalent to "Good Performance," something less

than "Strong" or "Outstanding," and represents a passing

grade.”

In response to Ms. McGowan’s complaint, Texaco

followed its standard appeals process with respect to

employee Performance and Development Reviews. Mr.

Weiss reviewed and prepared a detailed explanation of his

evaluation of Ms. McGowan’s work, and Mr. Richards, the

Division Manager, prepared written comments in response to

Ms. McGowan’s complaint. An Appraisal Appeals

Committee, comprised of three Texaco employees, then

considered Ms. McGowan’s memorandum, Mr. Weiss’

response, and Mr. Richards’ comments. The Committee

concluded unanimously that the “evidence did not support

changing [the performance evaluation] rating." The

Committee explained that Ms. McGowan had a "very serious

problem in [her] understanding of [her] role at Texaco and

[her] relationship with her supervisor." While the Committee

offered to try to resolve the perceived problems between Ms.

9

A person who meets most of their "stretch" objectives in the PMP

process receives a “Usually Meets Standards" rating. The

"Consistently Meets Standards" and "Exceeds Standards" ratings

indicate increasingly higher levels of achievement.

30

McGowan and Mr. Weiss, Ms. McGowan rejected the

Committee’s offer of assistance. Texaco’s review of Ms.

McGowan’s July 12, 1991 PMP Form was thus ended.

On February 12, 1992, Mr. Richards and Mr. Weiss

met with Ms. McGowan to outline her performance

expectations for the PMP cycle beginning February 10, 1992.

Ms. McGowan was told that she would be permitted to go

forward on a "clean slate" and that her past "errors,

disruptions, [and] complaints...[would] be set aside in the

evaluation of her performance during the next PMP cycle."

However, Mr. Richards explained to Ms. McGowan that her

"failure to make significant progress would result in an

unsatisfactory performance rating and could lead to

disciplinary action up to and including discharge." Mr.

Richards reiterated that if Ms. McGowan felt her

performance was being affected by job-related stress or

factors outside of work, she should seek counseling provided

by Texaco’s Special Health Services Group, as had been

suggested to her on at least four prior occasions. On

February 26, 1992, Ms. McGowan was scheduled to meet

with Mr. Weiss to discuss her new performance objectives,

but she did not attend the conference. Instead, Ms.

McGowan went to the Beacon Medical Facility "due to

severe work stress precipitated by...threats of termination.

The next day, Ms. McGowan took a sick day followed by a

four month leave of absence with full pay and benefits based

upon her physician’s diagnosis that she was suffering from

a work-related stress disorder.

When Ms. McGowan returned to Texaco on July 1,

1992, she was again to begin on a "clean slate." Ms.

McGowan’s job responsibilities in the Central Waste Site

Management Unit had been reassigned to other Texaco

31

employees, but she was given new duties in the

Environmental & Product Safety Department’s Product

Safety Unit at the same grade level and pay. On January 25,

1993, Ms. McGowan was scheduled to meet with Ms.

Cynthia Cain, her new supervisor in the Product Safety Unit

to discuss her PMP Form for the six month period since she

had returned to Texaco, but Ms. McGowan again failed to

appear and instead went to the Beacon Medical Department.

At the medical facility, Ms. McGowan was advised to call

her supervisor before leaving at the end of the day. Ms.

McGowan did not call Ms. Cain as she had been directed,

and Texaco subsequently sent her a letter of termination for

poor work performance and insubordination.

Ms. McGowan claims that Mr. Weiss refused on the

basis of gender to provide her certain benefits to which she

was entitled under Texaco’s Performance Management

Program. Specifically, Ms. McGowan contends she was

denied meaningful training, continued education, and

opportunities for advancement while she was employed by

Texaco. In response to her internal complaints of

discriminatory treatment, Ms. McGowan claims that Texaco

not only denied the misconduct, but also attempted to conceal

her complaint. In retaliation, Ms. McGowan alleges that

Texaco demoted her, forced her to undergo psychiatric

evaluation, placed statements that were damaging to her

career in a personnel file, and eventually terminated her

employment.

Texaco defends its challenged employment decisions

by explaining that during the course of her employment,

Texaco discovered that Ms. McGowan was guilty of poor

work performance and insubordination and showed signs of

severe emotional problems. On December 9, 1991, Ms.

32

McGowan was reprimanded for spreading an unconfirmed

report that twelve sex discrimination claims had been filed

with the Beacon Human Resources Office. Mr. Richards

explained to Ms. McGowan that the information she

conveyed “was blatantly untrue and severely upset the

[employees] she told." As a result, Ms. McGowan was

warned that her office behavior would be monitored for the

following four to six months and that any reoccurrence of

this type if misconduct could result in "disciplinary action up

to and including discharge."

Texaco contends that while Ms. McGowan was an

employee at Texaco, it became increasingly clear that her

work performance was unsatisfactory. In response to Mr.

McGowan’s appeal of her July 12, 1991 Performance and

Development Review, Mr. Richards requested an assessment

of Ms. McGowan’s skills from several other Texaco

employees for whom she had worked. Each of the ten

employees who responded to Mr. Richards revealed that Ms.

McGowan was not performing her job responsibilities in a

satisfactory manner. During Ms. McGowan’s four month

leave of absence, Texaco learned the Ms. McGowan had on

numerous occasions “inaccurately reported the amounts spent

on waste site remediation and the amounts recovered from

insurers." Texaco further discovered that Ms. McGowan had

mishandled several large checks. Specifically, Ms.

McGowan had overpaid a vender by $201,622.87 and failed

to deposit a check from an insurer for $209,962.92.'° Even

after Ms. McGowan returned to Texaco on July 1, 1992, the

10

The check from the insurer in the amount of $209,962.92 was found in

Ms. McGowan’s desk one year after it should have been processed and

deposited.

33

reviews of her work performance remained less than

favorable.

Finally, Texaco claims that Ms. McGowan suffered

from serious emotional problems. On two separate

occasions, Ms. McGowan failed to attend scheduled meetings

to discuss her PMP Reviews and instead went to the Beacon

Medical Department. The Texaco Medical Department's

records confirm that Ms. McGowan visited the facility on

numerous occasions over an eighteen month period when she

was not ill and received no medical treatment. In addition,

Texaco explains that prior to Ms. McGowan’s four month

leave of absence, her own physician diagnosed her with a

stress disorder.

On March 6, 1992, Ms. McGowan filed a complaint

with the New York State Division of Human Rights alleging

that Texaco discriminated against her on the basis of her sex

in the terms, conditions, rights and privileges of her

employment. Ms. McGowan claimed that Texaco

“maintained policies and practices...which unlawfully

operate[d] to deny equal opportunities to females because of

their sex." In addition, Ms. McGowan alleged that Texaco

refused to take corrective action and retaliated against her as

a result of the internal complaints she made of alleged

discrimination. Ms. McGowan also pursued her claims with

the Equal Employment Opportunity Commission ("EEOC").

the EEOC issued Ms. McGowan a "Notice of Right to Sue"

letter on November 11, 1992. On January 5, 1993, the State

Division dismissed Ms. McGowan’s complaint at her request

on the ground of “administrative convenience." Ms.

McGowan then filed this action on February 1, 1993 alleging

sex discrimination and unlawful retaliation in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42

34

U.S.C. § 2000e et seg. and state law claims. On September

10, 1993, Judge Goettel denied Ms. McGowan’s motion for

class certification. Texaco now seeks summary judgment on

the remaining claims in Ms. McGowan’s complaint.

Discussion

Fed. R. Civ. P. 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 establish the existence of an element essential to

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

burden of proof at trial." Celotex Corp. v. Catrett, 477 U_S.

317, 322-23 (1986). The Court must view the evidence "in

the light most favorable to the non-movant and...draw all

reasonable inferences in its favor." Delaware & Hudson

Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 177

(2d Cir. 1990), cert. denied, 500 U.S. 928 (1991). Summary

judgment is appropriate if based upon the record, "there is no

genuine issue as to any material fact[,] and the moving party

is entitled to judgment as a matter of law." Anderson v.

Liberty Lobby, 477 U.S. 242 250 (1986).

In Title VII cases, summary judgment is proper in

certain circumstances despite the fact that a party’s intent is

at issue. In Meriri v. Dacon, 759 F.2d 989, 998 (2d Cir.),

cert denied, 474 U.S. 829 (1985), the Second Circuit

explained:

We are of course mindful that summary

judgment is ordinarily inappropriate where an

individual’s intent and state of mind are

implicated. The summary judgment rule

would be rendered sterile, however, if the

35

mere incantation of intent or state of mind

would operate as a talisman to defeat an

otherwise valid motion. Indeed, the salutary

purposes of summary judgment--avoiding

protracted, expensive and harassing trials--

apply no less to discrimination cases then to

commercial or other areas of litigation.

Ms. McGowan’s Discrimination Claim

In Texas Dep’t of Community Affairs v. Burdine, 450

U.S. 248 (1981), the Supreme Court developed a three-step

burden shifting analysis to be employed in evaluating

discrimination cases under Title VII.

First, the plaintiff has the burden of proving

by the preponderance of the evidence a prima

facie case of discrimination. Second, if the

plaintiff succeeds in proving the prima facie

case, the burden shifts to the defendant "to

articulate some legitimate, nondiscriminatory

reason for the employee’s rejection." Third,

should the defendant carry this burden, the

plaintiff must then have the opportunity to

prove by a preponderance of the evidence that

the legitimate reasons offered by the

defendant were not its true reasons, but were

a pretext for discrimination.

(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792,

804 (1973)).

To prove a sex discrimination claim under Title VII,

Ms. McGowan must show that Texaco discriminated against

36

her "with respect to...compensation, terms, conditions or

privilege of employment" because of her sex. 42 U.S.C. §

2000-2(a). To make a prima facie showing of sex

discrimination, Ms. McGowan must demonstrate that (1) she

is a member of a protected class, (2) she was entitled to

certain terms, conditions and privileges of employment, (3)

she was denied those terms, conditions and privileges of

employment, and (4) that such denial was under

circumstances giving rise to an inference of sex

discrimination. McDonnell Douglas, 411 U.S. at 802.

Ms. McGowan claims that Mr. Weiss failed to afford

her the privileges of Texaco’s Performance Management

Program and “thereby denied her valuable developmental

opportunities" including "technical training, technical

assignments and projects, substantive committee [and] task

force work, continuing education and other recognition

opportunities." Ms. McGowan contends that Mr. Weiss’

"deviation from an established company policy with respect

to [her], the only female in her unit, raises an inference of

discrimination."

While Ms. McGowan argues at length that Mr. Weiss

did not follow the procedures outlined in the Performance

Management Program, she fails to show that Mr. Weiss did

not comply with the Performance Management Program,

thereby denying her valuable developmental opportunities,

because of her sex. Based upon the evidence, it is clear that

Ms. McGowan received internal training and opportunities

for advancement consistent with her job responsibilities. Ms.

McGowan has not made out a sex discrimination claim by

showing that in fact she was denied developmental

opportunities, which were offered to other male employees

in her unit who possessed more advanced scientific and

37

technological qualifications. Texaco hired Ms. McGowan as

an Environmental/Administrative Analyst in the Central

Waste Site Management Unit "to coordinate Texaco’s

insurance claims for waste site remediation expenses, to

maintain a computerized database on waste site expenditures

and amounts recovered from Texaco’s insurers, and to

provide periodic status reports based on the information in

the database." Ms. McGowan was further expected to "keep

abreast of new technology" in the area of "computerized

database management," and to "[d]evelop basic understanding

of regulatory issues." As an Environmental/Administrative

Analyst, Ms. McGowan received the training necessary to her

job responsibilities, and, during her first six months at

Texaco, Ms. McGowan received more training than any other

employee in the Central Waste Site Management Unit.

In the Central Waste Site Management Unit, Ms.

McGowan worked with Mr. Weiss, six Environmental

Engineers, an one male Environmental Associate. Ms.

McGowan’s degree is in English Literature only. According

to Ms. McGowan, Texaco "employees without superior

qualifications or advanced degrees are denied opportunities

for technical assignments and technical training." Ms.

McGowan claims that because she "was the only lower-level

employee in her unit, it can be inferred that sex was a

motivating factor [in the different treatment she received at

Texaco,] and not her background." This Court disagrees.

Texaco may lawfully treat its employees differently based

upon their superior, inferior or different educational

qualifications. Texaco’s business decisions to offer particular

male employees continued education, technical training, and

other opportunities for advancement including committee

membership, based upon their engineering and scientific

educational backgrounds and experience fail to give rise to

38

an inference of sex discrimination. See eg. Lloyd v.

WABC-TV, 879 F.Supp. 394, 402 (S.D.N_Y. 1995); Miller

vy. Swissre Holding, Inc..771 F.Supp. 56, 59 (S.D.N_Y.

1991).

Ms. McGowan’s Retaliation Claim

Ms. McGowan further claims that Texaco retaliated

against her for internal complaints she made of alleged sex

discrimination by Mr. Weiss. Specifically, Ms. McGowan

alleges that Texaco demoted her to a position of lesser

responsibility and forced her to undergo psychiatric

examination, placed damaging evaluations in her personnel

file, and ultimately discharged her. To make out a prima

facie case of retaliation under Title VII, a plaintiff must show

that: (1) she was engaged in protected activity which was

known to the defendant, (2) she suffered adverse employment

action, and (3) there was a causal connection between the

protected activity and the adverse employment action.

Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995);

Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1038-39

(2d Cir. 1993); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.

1991). However, a plaintiff cannot make out a retaliation

claim under Title VII where the evidence clearly

demonstrates that the employer had legitimate, non-retaliatory

reasons for its employment decisions. Tomka, 66 F.3d at

1308; Johnson, 931 F.2d at 207 (citing Taitt v. Chemical

Bank, 849 F.2d 775, 777 (2d Cir. 1988)).

Texaco claims that Ms. McGowan’s claim cannot

survive "[iJn the face of overwhelming and irrefutable

evidence of [her] unacceptably poor work performance,

extreme emotional problems, and insubordination." This

Court agrees. Ms. McGowan has provided insufficient

39

evidence to allow a reasonable jury to infer that Texaco’s

challenged actions were retaliatory in nature. Texaco has

demonstrated that it had legitimate, non-retaliatory reasons

for all of its challenged employment decisions.

Ms. McGowan’s allegations that Texaco solicited

negative information regarding her performance and demoted

her in retaliation for her internal complaints of sex

discrimination are without foundation. Texaco explains that

Mr. Richard’s solicitation of information from other

employees concerning Ms. McGowan’s work performance

was in response to Ms. McGowan’s appeal of her July 12,

1991 PMP Review Form, which included an evaluation by

Mr. Weiss. In fact, by letter dated December 4, 1991, Ms.

McGowan requested that upper management "assist in the

writing and grading of [her] future evaluations...to ensure

that they [we]re fair.". Based upon the largely negative

feedback received, Ms. McGowan cannot claim that Mr.

Richards efforts to solicit information fostered a "Get

McGowan" atmosphere. Mr. Richard’s inquiries were the

result of Ms. McGowan’s own requests, and the work

performance evaluations he received appeared reliable.

Texaco’s decision to reassign Ms. McGowan to a

position in the Product Safety Unit where she would no

longer be under the supervision of Mr. Weiss cannot be

considered retaliatory in nature. Ms. McGowan had taken a

four month leave of absence based on her claim of disability.

During that period, Texaco was forced to reassign her

responsibilities to other employees. In addition, Texaco had

learned that prior to her leave of absence, Ms. McGowan had

performed her work duties unsatisfactorily, and she had

shown signs of emotional instability. Texaco also had

discovered that Ms. McGowan had not received a Biology

40

Degree as she had represented on her employment

application and resume. Based on the foregoing, Ms.

McGowan’s new assignment to the Product Safety Unit, at

the same grade and pay, where she was transferred to the

supervision of Ms. Cain was legitimate and non-retaliatory.

Furthermore, Ms. McGowan completely fails to rebut

Texaco’s showing that her job performance was

unsatisfactory, and that she was fired for her poor work

performance and insubordination. In response to Mr.

Richard’s inquiries about Ms. McGowan’s job skills, Texaco

employees described Ms. McGowan’s behavior as

"defensive" and “out of control." One Texaco employee

explained:

"[Ms. McGowan’s] job performance...had a

negative impact on the term. She...sought to

define her own job_ responsibilities,...not

accepting various job functions in support of

the group. Her attitude...led to several team

members not wanting to work with her unless

the job require[d] it, thereby eliminating

normal/routine communication § and

information exchange which constitutes good

team work."

Numerous Texaco employees also reported that Ms.

McGowan had spread the false rumor or report that twelve

or thirteen sexual discrimination claims had been filed at the

Beacon Human Resource Department. Certain Texaco

employees responded that Ms. McGowan’s statements made

them "angry" and "uncomfortable." Texaco reprimanded Ms.

McGowan for this misbehavior on December 9, 1991.

4]

Texaco employees also expressed concern that Ms.

McGowan was incapable of carrying out her assigned tasks.

One employee explained that "Ms. McGowan d[id] not

actively listen to what [wa]s being told to her and therefore

[wa]s unable to immediately grasp a situation causing

unnecessary time wasted." According to another employee,

"{in the] isolated instances where information was requested

from [Ms. McGowan],...the requests [were] always

accompanied by a great deal of defensiveness and [a] lack of

understanding of the data needed." Even after Ms.

McGowan returned from her four month leave of absence,

her poor work performance evaluations conunued. Ms.

McGowan’s Current Performance Report, dated August 11,

1992, explained that Ms. McGowan "resisted working on the

[performance] objectives [that] she d[id] not like." In

addition, "Ms. McGowan [was] not yet at full productivity,

in spite of...efforts to give her...easily achievable objectives

for the first six weeks. The Report continued that "[Ms.

McGowan] spent considerable time questioning everything

and everyone over and over again." Ms. McGowan did not

attend the meeting scheduled to discuss her Performance and

Development Review for the six month period since she

returned to Texaco in July 1992. Based upon the serious

concerns raised by Ms. McGowan’s coworkers and

supervisors, Texaco’s termination cannot be said to have

been retaliatory in nature.

Ms. McGowan has failed to demonstrate that Texaco

retaliated against her by requiring her to undergo psychiatric

evaluation prior to returning to work after her leave of

absence. Ms. McGowan’s record indicates that on several

occasions, she arrived at the Beacon Medical Department "in

tears" and "distressed over [her] work situation." Ms.

McGowan’s own physician diagnosed her with a stress

42

disorder just prior to her four month leave of absence in

March 1992. Texaco acted well within it authority as an

employer when Mr. Richards explained to Ms. McGowan

that she would have to contact Texaco’s Special Health

certified [her] as fit" to work. Based upon the evidence,

Texaco clearly acted in a legitimate and nondiscriminatory

manner when it requested that Ms. McGowan by evaluated

by a psychiatrist.

Ms. McGowan’s assertion that her poor work

performance and paranoia were caused by the problems she

encountered at Texaco is without merit. Ms. McGowan’s

emotional problems have been documented as far back as

1981 by her professors at Bard College who commented that

she was “harassed by [her] workload" and unable to complete

required course work due to her "severe personal problems"

and "insecurity." Ms. McGowan’s consistently poor work

performance and pre-existing emotional instability are

confirmed by her prior employers.

Ms. McGowan attempts to make too much out of an

alleged inconsistency in the deposition testimony of Mr. Bud

Foucher which was taken on August 16, 1993 and again on

September 13, 1994. In support of her retaliation claim, Ms.

McGowan claims that Mr. Foucher attempted "to conceal the

very existence of [her] complaint of sex discrimination." On

August 16, 1993, Mr. Foucher testified that Ms. McGowan

approached him with "complaints of sex discrimination."

However, on September 13, 1994, Mr. Foucher did not

characterize Ms. McGowan’s complaint as alleged sex

discrimination. Mr. Foucher explained that the complaint

“could probably be confused with sex discrimination," but he

didn’t "think it was classified as that at the time." In light of

Texaco’s clear showing of its legitimate reasons for all of its

43

actions, Mr. Foucher’s testimony is insufficient to make out

Ms. McGowan’s claim of retaliation.

In conclusion, Ms. McGowan has provided absolutely

no evidence which would allow a reasonable jury to find by

a preponderance of the credible evidence that Texaco’s

conduct resulted from discriminatory or retaliatory intent.

Extensive discovery has been taken in this action which has

been pending in this Court since February 1, 1993. Yet Ms.

McGowan makes only conclusory. statements and

unsupported arguments in support of her discrimination and

retaliation claims. Ms. McGowan also has completely failed

to rebut Texaco’s legitimate explanations for its challenged

actions.

For the foregoing reasons, Texaco Inc.’s motion for

summary judgment is granted. This Court declines to

exercise supplemental jurisdiction over Ms. McGowan’s

remaining state claims. Therefore, those remaining claims

are dismissed without prejudice.

SO ORDERED.

Dated: White Plains, New York

April 4, 1996

CHARLES L. BRIEANT, U.S.D_J.

44

CHARLENE MCGOWAN,

Plaintiff,

VS.

TEXACO INC.,

Defendant.

No. 93 Civ. 0615 (CLB)

United States District Court, Southern District

Judgment dated April 4, 1996.

Defendants having moved for summary judgment and

the said motion having come before the Honorable Charles

L. Brieant, United States District Judge and the Court

thereafter on April 4, 1996, having handed down its

memorandum and order, granting the defendants’ motion it

is,

ORDERED, ADJUDGED AND DECREED: That the

complaint be and it is hereby dismissed.

Dated: White Plains, N.Y.

April 4, 1996

JAMES M. PARKISON, CLERK

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

96-7548

PRESENT:

Honorable Richard J. Cardamone,

Honorable Pierre N. Leval,

Circuit Judges,

Honorable Robert J. Ward,

District Judge"

Charlene McGowan,

Plaintiff-Appellant,

v.

Texaco, Inc.,

Defendant-Appellee.

This cause came on to be heard on the transcript of

record from the United States District Court for the Southern

11

The Honorable Robert J. Ward of the United States District Court for

the Southern District of New York, sitting by designation.

46

District of New York and was argued by counsel.

ON CONSIDERATION WHEREOF, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the

judgment of the district court is AFFIRMED.

Charlene McGowan appeals from the judgment of the

district court granting Texaco’s motion for summary

judgment and_ dismissing McGowan’s employment

discrimination complaint brought under Title VII, 42 U.S.C.

§ 2000e et seq. McGowan alleged that on account of her sex

Texaco denied her opportunities for advancement and then

retaliated against her for complaining about this unequal

treatment, ultimately by firing her. Finding no reason to

reverse, we affirm the judgment of the district court.

McGowan complained that her supervisor at Texaco

exeluded her from desirable technical training and job

projects and from prime committee assignments, all of which

were offered to men in her job unit. All of these decisions

were entirely justified, however, by the undisputed fact that

the men who received these opportunities were employed as

engineers, which McGowan was not, and were senior to

McGowan. McGowan’s discrimination claim thus falls under

the rule of Holt v. KMI-Continental, 95 F.3d 123 (2d Cir.

1996). She has failed to "put forth adequate evidence to

support a rational finding that the legitimate non-

discriminatory reasons proffered by the employer were false,

and that more likely than not the employee’s sex...was the

real reason" for the challenged employment decisions.

McGowan’s retaliation claim also fails. She has not

submitted evidence raising a jury question on the issue of

causation. The actions McGowan asserts were retaliatory,

47

including her eventual discharge, were clearly and

indisputably justified by overwhelming and uncontradicted

evidence of McGowan’s poor job __ performance,

insubordination, and inability or refusal to get along with her

coworkers and superiors. This evidence concerned episodes

both before and after McGowan made her initial complaint.

On this record any rational factfinder would have to find that

what McGowan characterizes as retaliation was at least partly

motivated by legitimate dissatisfaction with McGowan’s

performance and would have occurred absent any retaliatory

or discriminatory animus. Such a finding is sufficient to

preclude liability for an employer. See Cosgrove v. Sears,

Roebuck & Co. 9 F.3d 1033, 1040 (2d Cir. 1993)

Summary judgment was therefore appropriate.

Affirmed.

Hon. Richard J. Cardamone, U.S.C_J.

Hon. Pierre N. Leval. U.S.C J.

Hon. Robert J. Ward. U.S.D J.