Kastendick v. Texaco Refining and Marketing, Inc. Opposition to Defendant's Motion for Summary Judgement

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BILL LANN LEE 
NAACP LEGAL DEFENSE FUND 
315 WEST NINTH STREET 
SUITE 208
LOS ANGELES, CALIFORNIA 90015 
(213) 624-2405
DAN STORMER 
THERESA M. TRABER 
LITT & STORMER 
3550 WILSHIRE BOULEVARD 
SUITE 1200
LOS ANGELES, CALIFORNIA 90010 
(213) 386-4303
Attorneys for Plaintiffs 
JOAN KASTENDICK, et al.

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11 UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JOAN KASTENDICK, et al., )
)Plaintiffs, )
)vs. }

TEXACO REFINING AND MARKETING,) INC. )
)Defendant. )

-------------------------------- )

CASE NO. CV 87 6437 HLH (Tx)
PLAINTIFF ELISA R. MATHER'S 
OPPOSITION TO DEFENDANT'S 
MOTION FOR SUMMARY JUDGMENT
DATE: July 16, 1990
TIME: 10:00 a.m.

Courtroom of the 
Honorable Harry L. 
Hupp

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TABLE OF CONTENTS
I. STATEMENT OF FACTS........................................  1
II. ARGUMENT..................................................  3

A. In Order to Obtain Summary Judgment, 
Defendant Texaco Must Demonstrate 
The Absence of Any Genuine Issue of 
Material Fact on the "Elusive Factual
Question of Intentional Discrimination"............ 3

B. Genuine Issues of Material Fact Are
Presented..........................................  12

1. Mathers May Raise Continuing Discrimination 
Pre-dating the Limitations Period of the 
EEOC Charge of Discrimination As Well As
Related Subsequent Events.....................  13

2. Genuine Issues of Material Fact Are 
Presented on Denial of Promotions And
Transfers......................................  16
a. Promotions ................................ 16
b. Transfers .................................. 24

3. Genuine Issues of Material Fact Are
Presented on Training, Job Assignments,
Performance Evaluations and Compensation..... 2 5
a. Training.................................... 25
b. Job Assignments ..........................  27
c. Performance Evaluations................... 2 8

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d. Compensation and Benefits...............  29
e. Sexual Harassment.......................... 29

III. CONCLUSION............................................... 31

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TABLE OF AUTHORITIES
CASES PAGE NUMBERS
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505
(1986) ................................................  4, 6, 11
Bazemore v. Friday,
478 U.S. 385, 92 L.Ed.2d 315, 106 S.Ct. 3000, (1986)
............................................................... 16
Bernard v. Gulf Oil Corp.,
841 F. 2d 547 (5th Cir. 1988) ............................... 18
Box v. A & P Tea Co.,
772 F . 2d 1372 (7th Cir. 1 9 8 5 ) ............................... 17
Cal. Arch. Bldg. Prod. v. Franciscan Ceramics,
818 F . 2d 1466 (9th Cir. 1 9 8 7 ) ..........................  4 , 6
Carmichael v. Birmingham Saw Works,
738 F . 2d 1126 (11th Cir. 1 9 8 4 ) ............................  18
Celotex Corp. v. Catrett,
477 U.S. 317, 91 L.Ed.2d 265, 106 S.Ct. 2548, (1986) . . .  5
Coleman v. Clark Oil & Refining Co.,
568 F.Supp. 1035, (E.D. Wis. 1983) ........................  14
Diaz v. American Telephone and Telegraph,
752 F . 2d 1356 (9th Cir. 1 9 8 5 ) ............................... 11
Foster v. Areata Associates, Inc.,
772 F . 2d 1453, (9th Cir. 1 9 8 5 ) ...................... 4, 8 , 9
Furnco Construction Corp. v. Waters,
438 U.S. 567, 57 L.Ed.2d 957 98 S.Ct. 2943, (1978).........  8
Gifford v. Atchison, Topeka & Santa Fe Railroad.,
685 F . 2d 1149 (9th Cir. 1982 ............................ . 18
Grant v. Bethlehem Steel Corp.,
635 F.2d 1007, (2d Cir. 1980), cert, denied.
452 U.S. 940, 69 L.Ed.2d 954, 101 S.Ct. 3083
(1981) .......................................................16
Harless v. Duck, 619 F.2d 611,
(6th Cir. 1980), cert, denied. 449 U.S. 872,
66 L. Ed. 2d 92, 101 S.Ct. 212 (1980)........................  16

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Hazelwood School District v. United States, 
433 U.S. 299 (1977)......................... 16
Hishon v. King & Spalding,
467 U.S. 69, 81 L.Ed.2d 59, 67, 104 S .Ct. 2229 (1984) . . .  9
Judie v. Hamilton
872 F . 2d 919 (9th Cir. 1989) ...........................  9, 25
Limongelli v. Postmaster General,
707 F . 2d 368 (9th Cir. 1983) ............................... 16
Lowe v. City of Monrovia,
775 F .2d 998, 1005 (9th Cir. 1985), modified.
784 F . 2d 1407 (9th Cir. 1 9 8 6 ) .............6, 8, 10, 11, 12, 25
McDonnell Douglas v. Green,
411 U.S. 792, 802, 36 L.Ed.2d 668, 93 S .Ct. 1817
(1973)..................................................  7, 8, 11
McKenzie v. Sawyer,
684 F . 2d 62 (D.C. Cir. 1982) ............................... 13
Miller v. Fairchild Industries, Inc.,
797 F . 2d 727, (9th Cir. 1 9 8 6 ) ...................... 9, 11, 12
Ostroff v. Employment Exch.,
683 F.2d 302 (9th Cir. 1982) ...........
Oubichon v. North American Rockwell Corp.,
482 F .2d 569 (9th Cir. 1973) ...........
Peacock v. DuVal,
694 F . 2d 644 (9th Cir. 1982) ............................... 12
Perez v. Curcio,
841 F. 2d 255 (9th Cir. 1988) ..........................  6, 11
Pullman-Standard v. Swint,
456 U.S. 273, 72 L.Ed.2d 66, 102 S.Ct. 1781 (1982) . . . .  12
Reed v. Lockheed Aircraft Corp.,
613 F . 2d 757 (9th Cir. 1980)..................... 4, 14, 16, 18
Reynolds v. Brock,
815 F . 2d 571 (9th Cir. 1987) ..........................  4, 10
Rodgers v. Peninsular Steel Co.,
542 F.Supp. 1215 (N.D. Ohio 1 9 8 2 ) ..........................  17

. . 18

16, 28

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Rodriquez v. General Motors Corp.,
1990 Daily Journal DAR 6306
(9th cir., June 7, 1990) ............................... 10, 12
Serpe v. Four-Phase Systems, Inc. ,
718 F . 2d 935 (9th Cir. 1983) ......................: . . .  13
Teamsters v. United States,
431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977) . . . .  8
Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 67 L.Ed.2d 207, 101 S.Ct. 1089
(1981) ...................................3, 6, 8, 10, 11, 12
Thompson v. Sawyer,
678 F . 2d 257, (D.C. Cir. 1982) ............................. 15
Trevino v. Celanese Corp.,
701 F . 2d 397 (5th Cir. 1983) ............................... 14
United Air Lines, Inc. v. Evans,
431 U.S. 553, 52 L.Ed.2d 571, 97 S.Ct. 1885 (1977) . . . .  15
Verzosa v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
589 F . 2d 974 (9th Cir. 1978) ..........................  14, 15
Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 50 L.ED.2d 450,
97 S.Ct. 555, 564 (1977) ...................................  25
Williams v. Anderson,
562 F . 2d 1081 (8th Cir. 1 9 7 7 ) ............................... 16
Williams v. Edward Apffels Coffee Co.,
792 F . 2d 1482 (9th Cir. 1986)...............................6, 8
Williams v. Owens-Illinois, Inc.,
665 F.2d 918 (9th Cir. 1982), cert, denied
459 U.S. 971, 74 L.Ed.2d 283, 103 S.Ct. 302 (1982) . . 13, 14

OTHER AUTHORITIES
Moore, Taggart & Wicker, 6 Moore's Federal Practice
(1988)........................................................  24
Schlei & Grossman, Employment Discrimination Law,
(2d ed supp. 1989) .....................................  8, 17

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STATEMENT OF FACTS
Elisa Mathers was employed as a financial analyst in TRMI's 

Western Region financial planning group from October 1984 until 
January 1988. (Mathers depo. at 94, 98, 342). She had six
years of technical work experience, including over 4 1/2 years 
of experience in financial planning in the oil industry, prior 
to her employment at Texaco. (Id. at 65-80, 98-102). She had 
worked as a nuclear power plant engineer at Bechtel Power (id. 
at 37-41), as a process engineer and operations specialist at 
Gulf Oil and Golden West Refining Company (id. at 62-65, 90), 
and as a senior financial analyst at Getty Oil (id. at 90-93). 
Her employment at Texaco began with the Texaco/Getty merger in 
1984. (Id. at 94, 98).

Mathers graduated from UCLA with honors in 1978, with a 
Bachelor of Science degree in general chemistry and engineering. 
(Id. at 34-36). In 1982, she received a chemical engineer's 
license. (Id. at 61-62) . She holds a Masters Degree in 
Business Administration from UCLA, which she received in 1984 
while working full-time at Getty. (Id. at 93-94).

During her interview for the senior financial analyst 
position at Getty, Mathers was told that she would be promoted 
to manager of strategic crude oil planning upon completion of 
her MBA and the current manager's retirement. (Id. at 91-93). 
Since the merger, Mathers has asked two successive Texaco 
personnel managers and her supervisor to be considered for

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promotion or transfer. (Id. at 588, 598-602, 610-14). After 
she had worked at Texaco for over three years with no promotion 
or transfer, she wrote a letter to the Western Region General 
Manager describing her qualifications and requesting a transfer 
or promotion. (Id. at 613, defendant doc. 1623).

In 1987, a man (Chuck Rohleder) , with a B.S. in chemical 
engineering and no graduate degree or education in finance, was 
transferred from Tulsa and promoted ahead of Mathers to manager 
of operations research for the western region. (Mathers depo. 
at 263, 591). According to a subsequently-prepared job 
description, an MBA degree was a preferred qualification for 
the position. (Id. at 593-94). Mathers met educational 
qualifications, as she has an MBA in finance as well as a B.S. 
in chemistry and engineering. (Id. at 34-36, 93-94). Rohleder 
had no MBA degree. (Id. at 591). In addition to her advanced 
degree in management, Mathers had experience supervising 
engineers during her employment at Bechtel and Gulf Oil. (Id. 
at 45-49, 80-83). Mathers was also equally or more qualified 
than a man (Bill Phillips) , who was promoted to assistant to 
management (id. at 602-04), the job description (also prepared 
post hoc) of which explicitly stated that an MBA degree was 
desirable. (Id. at 603). The man selected did not have an MBA 
degree. (Id. at 602-04).

After her first year at Texaco, when a reorganization 
resulted in a change of supervisors, she was given no 
engineering projects and all the engineering projects were

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delegated to the men in her group. (Id. at 505-08) . Mathers 
was denied permission to attend the 1985 National Petroleum 
Refiners Association Computer Conference, which was directly 
relevant to her work; three men from Texaco attended the 
conference. (Id. at 184-193, defendant doc. 241). In 1986,
she was not given credit for one of the few substantive projects 
she was assigned. (Id. at 225-31, 513-16).

On August 14, 1987 Mathers filed a sex discrimination
charge with the EEOC and subsequently this action. She left 
Texaco in 1988 and presently is employed at another national 
oil company. (Id. at 342).

II.
ARGUMENT

A. IN ORDER TO OBTAIN SUMMARY JUDGMENT, DEFENDANT TEXACO 
MUST DEMONSTRATE THE ABSENCE OF ANY GENUINE ISSUE OF 
MATERIAL FACT ON THE "ELUSIVE FACTUAL QUESTION OF 
INTENTIONAL DISCRIMINATION."
Defendant Texaco's statement of the governing legal 

standards is incomplete. Courts act with caution in granting 
summary judgment in employment discrimination cases because the 
crux of a Title VII dispute is the "elusive factual question of 
intentional discrimination." Texas Department of Community 
Affairs v. Burdine. 450 U.S. 248, 255 n.8, 67 L.Ed.2d 207, 216 
n. 8, 101 S.Ct. 1089, 1094 n.8 (1981).
1. General Legal Standard

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"[A]t the summary judgment stage the judge's function is 
not himself to weigh the evidence and determine the truth of 
the matter but to determine whether there is a genuine issue 
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 
91 L.Ed.2d 202, 212, 106 S.Ct. 2505, 2511 (1986); Reynolds v. 
Brock. 815 F . 2d 571, 574 (9th Cir. 1987); Reed v. Lockheed 
Aircraft Coro.. 613 F.2d 757, 761, (9th Cir. 1980).

The inquiry performed is the threshold 
inquiry of determining whether there is the 
need for a trial - whether, in other words, 
there are any genuine factual issues that 
properly can be resolved only by a finding 
of fact because they may reasonably be 
resolved in favor of either party.

Anderson. 477 U.S. at 250, 91 L.Ed.2d at 213, 106 S.Ct. at 2511; 
Cal. Arch. Bldg. Prod, v. Franciscan Ceramics. 818 F.2d 1466, 
1468 (9th Cir. 1987). Summary judgment does not authorize trial 
on affidavits: credibility determinations, the weighing of the 
evidence, and the drawing of legitimate inference from the facts 
remain functions of the trier of fact. Anderson. 477 U.S. at 
255, 91 L. Ed. 2d at 216, 106 S.Ct. at 2513. Trial courts, 
therefore, "act...with caution in granting summary judgment." 
Id.; Foster v. Areata Associates. Inc.. 772 F.2d 1453, 1459 (9th 
Cir. 1985) .

The "party seeking summary judgment always bears the 
initial responsibility of informing the district court of the

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basis for its motion, and identifying those portions of 'the 
pleadings, depositions, answers to interrogatories, and 
admissions on file, together with the affidavits, if any,• which 
it believes demonstrate the absence of a genuine issue of 
material fact." Celotex Corp. v. Catrett. 477 U.S. 317, 323, 
91 L.Ed.2d 265, 274, 106 S.Ct. 2548, 2553 (1986). If the non­
moving party will bear the burden of proof at trial as to an 
element essential to its case, that party must make a showing 
sufficient to establish a genuine dispute of fact with respect 
to that element in order to proceed to trial.

[WJhere the nonmoving party will bear the 
burden of proof at trial on a dispositive 
issue, a summary judgment motion may 
properly be made in reliance solely on the 
"pleadings, depositions, answers to 
interrogatories, and admissions on file."
Such a motion, whether or not accompanied 
by affidavits, will be "made and supported 
as provided in this rule", and Rule 56(e) 
therefore requires the nonmoving party to 
go beyond the pleadings and by her own 
affidavits, or by the "depositions, answers 
to interrogatories, and admissions on 
file," designate "specific facts showing 
that there is a genuine issue for trial."

Id. . 477 U.S. at 324, 91 L.Ed.2d at 274, 106 S.Ct. at 2553;

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Franciscan Ceramics. 818 F.2d at 1468.
In assessing a summary judgment motion, "[t]he evidence of 

the nonmovant is to be believed, and all justifiable inferences 
are to be drawn in [her] favor." Anderson. 477 U.S. at 255, 91 
L.Ed.2d at 216, 106 S.Ct. at 2513; Perez v. Curcio. 841 F.2d
255, 258 (9th Cir. 1988).
2. Legal Standard in Employment Discrimination Cases

"[I]n ruling on a motion for summary judgment, the judge 
must view the evidence presented through the prism of the 
substantive evidentiary burden[s]." Anderson. 477 U.S. at 254, 
91 L.Ed.2d at 215, 106 S.Ct. at 2513.

The plaintiff in a disparate treatment employment 
discrimination case must offer evidence that "give[s] rise to 
an inference of unlawful discrimination." Burdine, 450 U.S. at 
253, 67 L.Ed.2d at 215, 101 S.Ct. at 1094 (1981); Williams v.
Edward Apffels Coffee Co.. 792 F.2d 1482, 1485 (9th Cir. 1986); 
Lowe v. City of Monrovia. 775 F.2d 998, 1005 (9th Cir. 1985), 
modified. 784 F.2d 1407 (9th Cir. 1986).

A common way to establish an inference of 
discrimination is to show that the four 
requirements set forth in McDonnell Douglas 
are met:

1. that the plaintiff 
belong to a class 
protected by Title VII;

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that the plaintiff2 .
applied and was 
qualified for a job for 
which the employer was 
seeking applicants;

3. that, despite being 
q u a l i f i e d ,  t h e  
plaintiff was rejected; 
and

4. that, after the 
plaintiff's rejection, 
the position remained 
open and the employer 
continued to seek 
applicants from persons 
o f  c o m p a r a b l e  

qualifications.

See McDonnell Douglas. 411 U.S. [792,] 802, 
[36 L.Ed.2d 668, 677,] 93 S.Ct. [1817,]
1824 [(1973)]. Satisfaction of the
McDonnell Douglas criteria is sufficient to 
establish a prima facie case.

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Williams. 792 F.2d at 1485; Lowe. 775 F.2d at 1005.
The McDonnell Douglas prima facie case is "not onerous", 

Burdine. 450 U.S. at 253, 67 L.Ed.2d at 215; 101 S.Ct. at 1094; 
it merely "eliminates the most common nondiscriminatory reasons 
for the plaintiff's rejection." Id. at 254, 67 L.Ed.2d at 215- 
6, 101 S.Ct. at 1094. "The facts necessarily will vary in Title 
VII cases, and the specification ... of the prima facie proof 
required from [the complainant in this case] is not necessarily 
applicable in every respect to differing factual situations." 
McDonnell Douglas. 411 U.S. at 802 n.13, 36 L.Ed.2d at 677-8, 
93 S.Ct. at 1824. The prima facie case is not "an inflexible 
formulation," Teamsters v. United States. 431 U.S. 324, 358, 52 
L.Ed.2d 396, 429, 97 S.Ct. 1843, 1866 (1977), or "an inflexible 
rule." Furnco Construction Corn, v. Waters. 438 U.S. 567, 575, 
57 L.Ed.2d 957, 966, 98 S.Ct. 2943, 2949 (1978); Foster. 772 
F.2d at 1460 ("[T]he McDonnell Douglas four-part test is neither 
exclusive nor rigid, and . .. the facts sufficient to raise an 
inference of discrimination necessarily will vary depending upon 
the situation.") (citations omitted). See Schlei & Grossman, 
Employment Discrimination Law. 476 (2d ed supp. 1989) ("Recent 
decisions continue to hold that the elements of a prima facie 
case are flexible and should be tailored on a case-by-case 
basis, to differing factual circumstances").

The McDonnell Douglas mode of proof, moreover, is not 
applicable to whether summary judgment is appropriate in a claim 
of discrimination in the terms, conditions or privileges of

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employment. Judie v. Hamilton. 872 F.2d 919, 921 (9th Cir. 
1989) . "A benefit that is part and parcel of the employment 
relationship may not be doled out in a discriminatory fashion, 
even if the employer would be free under the employment contract 
simply not to provide the benefit at all." Hishon v. King & 
Spalding. 467 U.S. 69, 75, 81 L.Ed.2d 59, 67, 104 S.Ct. 2229, 
2233 (1984). Plaintiff may demonstrate existence of a genuine 
issue of material fact as to whether discrimination was the 
cause of a denial of a benefit, such as the exercise of 
supervisory responsibilities, by presenting evidence that 
plaintiff was denied the benefit and that the manager who denied 
the benefit possessed illicit animus. Judie. 872 F.2d at 922.

A plaintiff "is not required to prove her prima facie case 
by a preponderance of evidence on [a] motion for summary 
judgment." Foster. 772 F.2d at 1459; Miller v. Fairchild 
Industries. Inc.. 797 F.2d 727, 731 (9th Cir. 1986).

At this stage of the proceedings, the 
district court cannot try issues of fact or 
resolve them in favor of one party or the 
other. Rather, the court may only 
determine whether the plaintiff has 
produced evidence sufficient to support a 
reasonable inference of the existence of 
the fact at issue.

Foster. 772 F.2d at 1459. Moreover, "McDonnell Douglas does 
not permit us to consider rebuttal evidence at the prima facie

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stage." Lowe. 775 F.2d at 1006. ("Rather, in a Title VII 
disparate treatment case such evidence is considered during the 
next analytic step when we evaluate the [defendant's] 
articulated nondiscriminatory reason for not hiring the 
plaintiff"). For the court to uphold summary judgment on the 
ground that a plaintiff could not present a prima facie case, 
it must find that there was absolutely no genuine issue of 
material fact regarding her assertion of discrimination. 
Reynolds. 815 F.2d at 574.

In order to rebut the presumption of discrimination arising 
from plaintiff's prima facie case, the employer must produce 
evidence of a legitimate, nondiscriminatory reason for the 
adverse action. Burdine. 450 U.S. at 254, 67 L.Ed.2d at 216, 
101 S.Ct. at 1094; Rodriguez v. General Motors Corp.. 1990 Daily 
Journal DAR 6306 (9th Cir. , June 7, 1990). The employer's 
evidence must actually "foreclose the possibility of the 
existence of a genuine issue of material fact" in plaintiff's 
prima facie case in order to be effective. Reynolds. 815 F.2d 
at 575 (evidence of plaintiff's low productivity insufficient 
to rebut plaintiff's assertion that her supervisors set 
unrealistically high performance goals and impeded her attempts 
to achieve them).

If the employer produces evidence of a legitimate 
nondiscriminatory reason, the production burden shifts back to 
the plaintiff to raise a genuine factual issue as to whether 
the proffered reason is pretextual. Burdine. 450 U.S. at 255-

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56, 67 L.Ed.2d 216-17, 101 S.Ct. at 1094-95; McDonnell Douglas. 
411 U.S. at 804, 36 L.Ed.2d 679, 93 S.Ct. at 1825; Lowe. 775 
F . 2d at 1008. "To show pretext, the plaintiff is not necessarily 
required to introduce evidence beyond that already offered to 
establish her prima facie case, although she may of course 
provide additional proof of the [employer's] unlawful 
motivation." Burdine, 450 U.S. at 255 n.10, 67 L.Ed.2d 216 
n.10, 101 S.Ct. at 1095 n. 10; Miller. 797 F.2d at 732, Lowe. 
775 F .2d at 1008.

In order to establish that the employer's asserted reason 
is pretextual, the plaintiff may show "either that a 
discriminatory reason more likely than not motivated the 
employer or that the employer's explanation is unworthy of 
credence." Perez. 841 F.2d at 257. Statistical evidence of a 
general discriminatory pattern may be relevant because "[s]uch 
a discriminatory pattern is probative of motive and can 
therefore create an inference of discriminatory intent with 
respect to the individual employment decision at issue." Lowe. 
775 F.2d at 1008, quoting Diaz v. American Telephone and 
Telegraph. 752 F.2d 1356, 1363 (9th Cir. 1985). Because the 
evidence of the nonmovant is to be believed and all justifiable 
inferences are to be drawn in his favor, Anderson. 477 U.S. at 
255, 91 L.Ed.2d at 216, 106 S.Ct. at 2513, the case must go to 
trial as long as plaintiff has introduced some evidence from 
which a trier of fact could believe plaintiff's explanation 
rather than defendant's explanation. Perez. 841 F.2d at 258.

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For example, a plaintiff recently established pretext by showing 
that the employer's proffered reasons were divergent and 
inconsistent. Rodriguez, 1990 Daily Journal DAR at 6307 ("The 
three reasons are inconsistent, and their inconsistency requires 
a judgment of credibility for the trier of fact to make").

"Once a prima facie case is established...by... reliance on 
the McDonnell Douglas presumption, summary judgment for the 
defendant will ordinarily not be appropriate on any ground 
relating to the merits because the crux of a Title VII dispute 
is the 'elusive factual question of intentional 
discrimination1." Lowe. 775 F.2d at 1009, guoting Burdine, 450 
U.S. at 255 n.8, 67 L.Ed.2d at 216 n.8, 101 S.Ct. at 1094 n.8. 
The question of an employer's intent to discriminate is a "pure 
question of fact." Pullman-Standard v. Swint. 456 U.S. 273, 
287-88, 72 L.Ed.2d 66, 79 102 S.Ct. 1781, 1789-90 (1982).

Ordinarily "when a plaintiff has established a prima facie 
inference of disparate treatment ...[s]he will necessarily have 

raised a genuine issue of material fact with respect to the 
legitimacy or bona fides of the employer's articulated reason 
for its employment decision. Lowe. 775 F.2d at 1009, Miller. 
797 F.2d at 733. Without a searching inquiry into their 
motives, employers could "easily mask their behavior behind a 
complex web of post hoc rationalizations." Peacock v. DuVal. 
694 F.2d 644, 646 (9th Cir. 1982); Lowe. 775 F.2d at 1009.
B. GENUINE ISSUES OF MATERIAL FACT ARE PRESENTED.

Texaco is mistaken about the contents of the factual

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record, which taken as a whole, clearly demonstrates that 
genuine issues of material fact are presented.

1. Mathers May Raise Continuing Discrimination
Pre-datincj the Limitations Period of the
EEOC Charcre of Discrimination As Well As
Related Subsequent Events

Texaco argues that several of Mather's claims are untimely 
because they predate the 300 day period before her August 14, 
1987 EEOC charge. Texaco's Memorandum 8. Texaco ignores, 
however, that her charge expressly claimed denial of promotions 
and after employment opportunities "on a continuing basis," and 
that the relief she seeks must take into account any 
"compounding" effect of pre-limitations period discrimination.

Under Title VII the maintenance of a discriminatory 
employment policy or practice may constitute a "continuing 
violation" for which the plaintiff is entitled to redress "even 
if some or all of the events evidencing its inception occurred 
prior to the limitations period." Williams v. Owens-Illinois, 
Inc.. 665 F .2d 918, 924 (9th Cir. 1982), cert, denied. 459 U.S. 
971, 74 L.Ed.2d 283, 103 S.Ct. 302 (1982). Thus, an employer's 
pre-limitations period activities may be subject to challenge 
insofar as they continue into the limitations period. See Serpe 
v. Four-Phase Systems, Inc.. 718 F.2d 935, 937-38 (9th Cir.
1983); McKenzie v. Sawyer. 684 F.2d 62, 72 (D.C. Cir. 1982).

The failure to promote and transfer, the principal claim 
in the instant case, has long been recognized as a continuing

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type of violation. For example, in Reed v. Lockheed Aircraft 
Corp., 613 F .2d 757 (9th Cir. 1980), the plaintiff had been held 
in essentially the same position for 25 years. She charged the 
defendant with having maintained an unlawful, discriminatory 
system of promotion wherein employees did not apply for 
promotion or training programs, but instead were "tapped" for 
those opportunities. The district court dismissed her complaint 
on the ground that the most recent, specific incident of alleged 
discrimination had occurred four years prior to the filing of 
an EEOC charge. The Ninth Circuit reversed and remanded so that 
the district court might consider pre-limitations period 
evidence bearing on the defendant's ongoing "systems of 
promotion, admission to training programs and compensation." 
Id. at 762. Accord Williams. 665 F.2d at 924 (directing 
district court to consider pre-limitations period events in 
order to determine whether discriminatory policy carried forward 
into the limitations period); Trevino v. Celanese Corp., 701 
F.2d 397, 402 (5th Cir. 1983) (discriminatory failure to promote 
held an actionable, continuing violation); Coleman v. Clark Oil 
& Refining Co.. 568 F.Supp. 1035, 1040 (E.D. Wis. 1983) 
(applying theory of continuing violation to discriminatory 
promotion claim).

The Ninth Circuit also has held that even events prior to 
Title VII's two-year back pay accrual period, 42 U.S.C. § 2000 
e-5(g) , are relevant to determination of the amount of back pay. 
In Verzosa v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 589

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F •2d 974, 976 (9th Cir. 1978), the Court affirmed an award of 
back pay based on the discriminatory denial of promotion that 
pre-dated the accrual period and measured back pay to. take into 
account the adverse effects of discrimination pre-dating the 
accrual period which had a compounding effect into the present. 
Agreeing with Verzosa. the D.C. Circuit has otherwise held that 
"it is proper to allow acts of illegal discrimination lying 
beyond the two-year period of Title VII back pay accrual to 
affect the measurement of the award." Thompson v. Sawyer. 678 
F.2d 257, 291 (D.C. Cir. 1982) (necessary to take into account 
raises and promotions lost in earlier years because "[w]hen 
discrimination continues over time, ... the harm it causes are 
compounded"). Other relief available under Title VII, such as 
injunctive promotional relief is subject to no accrual period.

Evidence relating to prior discrimination may be 
probative of current violations even if the plaintiffs did not 
rely upon a continuing-violation theory. Indeed, while 
rejecting an attempted assertion of the continuing violation 
doctrine in United Air Lines. Inc, v. Evans. 431 U.S. 553, 558, 
52 L.Ed. 2d 571, 578, 97 S.Ct. 1885, 1889 (1977), the Supreme 
Court specifically noted that "[a] discriminatory act which is 
not made the basis for a timely charge .. . may constitute 
relevant background evidence in a proceeding in which the status 
of a current practice is at issue." Particularly where, as 
here, the employer's practices do not appear to have changed 
significantly over time, pre-limitations period discrimination

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may support an inference of current discrimination. See 
Bazemore v. Friday. 478 U.S. 385, 402 & n.13, 92 L.Ed.2d 315, 
332 & n.13, 106 S.Ct. 3000, 3010 & n.13 (1986); Hazelwood School 
District v. United States. 433 U.S. 299, 309-10 n.15 (1977);
Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1017-18 (2d Cir. 
1980), cert, denied. 452 U.S. 940, 69 L.Ed.2d 954, 101 S.Ct.
3083 (1981); Harless v. Duck. 619 F.2d 611, 615 (6th Cir. 1980), 
cert, denied. 449 U.S. 872, 66 L.Ed.2d 92, 101 S.Ct. 212 (1980); 
Williams v. Anderson. 562 F.2d 1081 (8th Cir. 1977).

Thus, Texaco is incorrect that Mathers may only raise her 
1986-87 claims. Like the plaintiff in Reed v. Lockheed Aircraft 
Corp., Mathers can properly raise continuing discrimination by 
defendant's ongoing system of promotion, transfer, and 
performance evaluations.

Mathers may also raise related post-charge claims, because 
they are "like or reasonably related" to EEOC claims, Oubichon 
v. North American Rockwell Corp.. 482 F.2d 569, 571 (9th Cir. 
1973), These claims are not separate and distinct from the 
claims asserted in her charge. See. e.g.. Limongelli v. 
Postmaster General. 707 F.2d 368 (9th Cir. 1983) (assignment of 
fuel conservation device charge unrelated to promotion charges). 

2. Genuine Issues of Material Fact Are 
Presented On Denial Of Promotions And 
Transfers, 
a . Promotions

Texaco argues that plaintiff Mathers cannot make out a

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McDonnell Douglas prima facie case because she failed to show 
that she applied or was qualified for promotion or transfer to 
any specific position. Texaco's Memorandum 11-12. This claim 
is both legally and factually erroneous.

The Ninth Circuit is among the circuits in which "courts 
further recognize that in some factual situations the plaintiff 
may create a rebuttable presumption without literally meeting 
all four elements of the prima facie case announced in McDonnell 
Douglas.11 Schlei & Grossman, Employment Discrimination Law. 476 
(2d ed, supp. 1989). The application and qualification 
requirement, in particular, need not be strictly met in some 
circumstances.

When an employer uses a promotion system in 
which employees do not apply for promotions 
but rather are sought out by managers, the 
application requirement of the prima facie 
case is loosened somewhat. See Reed v .
Lockheed Aircraft Corp.. 613 F.2d 757, 761 
(9th Cir. 1980); Rodgers v. Peninsular 
Steel Co.. 542 F.Supp. 1215, 1219-20 (N.D.
Ohio 1982) . In this situation the 
plaintiff can establish the application 
element of a prima facie case by showing 
that, had she known of an assistant manager 
opening, she would have applied.

Box V . A & P Tea Co.. 772 F.2d 1372, 1377 (7th Cir. 1985). See.

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e.q. . Reed v. Lockheed Aircraft Corp. , 613 F.2d at 761 (summary- 
judgment for employer inappropriate for failure by plaintiff to 
apply when employees did not apply for but were sought out for 
training or promotion); Gifford v. Atchison. Topeka & Santa Fe 
Railroad. . 685 F.2d 1149, 1152 (9th Cir. 1982) (prima facie case 
established even though plaintiff did not apply for position 
where application would have been futile); Ostroff v. Employment 
Exch., 683 F . 2d 302 (9th Cir. 1982) (plaintiff's qualifications 
irrelevant where employer falsely informed her that position had 
been filled before any inquiry was made concerning her 
qualifications. See also Bernard v. Gulf Oil Corp.. 841 F.2d 
547, 570 (5th Cir. 1988) ("It is not legally sufficient or 
legitimate for an employer to reject an employee who does not 
have notice or an opportunity to apply for a promotion."); 
Carmichael v. Birmingham Saw Works. 738 F.2d 1126, 1134 (11th 
Cir. 1984) (same).

Texaco's promotion and transfer procedures do not provide 
any way for an employee formally to apply for a position. The 
Western Region Manager testified that "as far as procedures on 
how to do the promotions [,] ... there's nothing." (Amidei depo 
190, see Dallum depo 121). Managers identify candidates to fill 
vacancies through ad hoc means, no notices of vacancies are 
posted, and guidelines to fill positions do not exist. 
(Bechtold depo 128-37). There is no procedure for employees to 
apply for jobs. (Id. at 146) .

For example, the S & D Manager (Charles Dallum) testified

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that he never "applied for a position in my career" at Texaco, 
none was posted, and no procedure existed, (Dallum depo. at 120- 
21). Dallum never knew who selected him or any criteria used. 
(Id.). The Marketing Manager (Carl Trammell) was promoted eight 
times from salesman to Division Manager without ever knowing of 
a vacancy until he was notified of his promotion and without 
ever applying for a promotion or transfer. (Trammell depo. at 
91-130). The Credit Manager (Richards) did not apply for his 
promotion to manager. (Richards depo. at 15, 21-25). As 
Texaco's own declarations indicate, employees could only express 
their interest in other positions verbally to their immediate 
supervisor or in written career self assessment forms (Freeman 
declaration f 5) because there was no formal procedure for 
application.

Under such circumstances, Mathers presents sufficient 
evidence that had she known about job openings and had there 
been a mechanism for applying for positions at Texaco, she would 
have applied for promotion to manager of operations research and 
assistant to management.1 In fact, she made her interest in a 
managerial position known to the Western Region General Manager 
(Amidei) in a letter which stated:

When I accepted a Senior Analyst 
position with Getty, it was with the

1/ Although Texaco argues that Mathers cannot show 
discriminatory denial of promotion to Western Regional Manager 
(Texaco's Memorandum 12, 16), Mathers did not seek promotion to 
that position.

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understanding that I would quickly be 
promoted to a management position .
With the acquisition of Getty Oil and the
subsequent shifts in Texaco/Getty
management my experience and
qualifications appear to have been
overlooked and undervalued. I am
overqualified for my current position and 
seek to put my career back on track. If 
given a chance, I know that I can be 
extremely valuable to Texaco in the 
capacity of a Financial Planning and 
Analysis Manager or in some equivalent 
position. I am willing to relocate as 
necessary and will consider any reasonable 
offer.

(defendant doc. 1623, Mathers depo. at 613). Mathers had no 
knowledge of the manager of operations research or assistant to 
management positions until they were created for the men who 
filled them. (Rohleder, Phillips) (Mathers depo. at 593, 602). 
Texaco concedes that Mathers requested a managerial position in 
a letter to her supervisor (Zack Brown) and argues that Texaco 
was not obligated to create a new job for Mathers. Texaco's 
Memorandum 12 n.12. However, positions were created for men 
(Mathers depo. at 593, 602) and Mathers was not considered for 
promotion to the newly-created jobs.

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Texaco erroneously asserts that Mathers cannot demonstrate 
that she was minimally qualified for promotion to manager of 
operations research and assistant to management because she does 
not know the requisite qualifications for the positions. 
Texaco's Memorandum 12-13. However, Mathers cannot be expected 
to know the requirements for positions without job descriptions. 
No job descriptions existed at the time the positions were 
created and the job descriptions were only written after the 
filing of this action. (Mathers depo. at 593-594, Brown depo. 
at 90-91). Subsequent to the filing of this suit, Mathers 
learned from the job descriptions that an MBA degree was a 
preferred qualification for both positions. (Mathers depo. at 
593-94, 603). Texaco mischaracterizes Mathers' testimony and
cites the following in support of their assertion that Mathers 
does not know the necessary qualifications for assistant to 
management (Texaco's Memorandum 12):

Q. What were the qualifications for the 
position of assistant to management?
A. They wanted a bachelor's degree and an MBA was 
desirable?

(Mathers depo. at 603).
Texaco further claims that Mathers cannot establish a prima 

facie case because "she has no facts establishing minimal 
qualifications for a specific, available position". Texaco's 
Memorandum 12. The manager of operations research job 
description, written by the incumbent (Rohleder) and reviewed

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by the manager of planning (Brown) (Brown depo. at 90-91), 
listed an MBA degree as a desirable qualification (Mathers depo. 
at 593-94, 602-04). Similarly, the assistant to management job 
description identified a bachelor's degree as required and an 
MBA degree as preferred. (Id. at 603). Thus, Mathers met the 
minimum as well as preferred qualifications for both positions, 
since she held an MBA degree from UCLA. (Id. at 93-94) .

She also had management experience, from supervising 
engineers in her employment at Bechtel and Gulf Oil (id. at 45- 
49, 65-83), and extensive financial planning experience in the 
oil industry. See Statement of Facts, supra. Texaco completely 
ignores the above record, which establishes that genuine issues 
of material fact are presented as to Mathers' denial of 
promotion to manager of operations research and assistant to 
management.

The record also establishes that any defense of superior 
qualifications would be pretextual. Although the job 
descriptions for both positions explicitly stated that an MBA 
degree was a preferred qualification, neither of the men 
promoted ahead of Mathers had an MBA. (Mathers depo. at 591, 
602-04).

Moreover, although Texaco contends that it promotes the 
best qualified candidate for a position, the manager of 
planning, who participated in the selection of both Phillips 
(Brown depo. at 59-60) and Rohleder (id. at 43) over Mathers, 
admits that no written instructions exist to guide managers on

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evaluating the skills and qualifications an employee needs for 
promotion to a particular position. (Brown depo. at 92) . Brown 
states that he determines the necessary skills for a position 
by "looking at job descriptions and possibly talking to people 
who had held that position" (id. at 92-93) ; however, he did not 
use either of these means in concluding that Phillips and 
Rohleder were most qualified for promotion. First, no one had 
held the positions in the past because both jobs were newly- 
created. (Mathers depo. at 593, 602). Second, Brown concedes 
that there was no manager of operations research job description 
when Rohleder was chosen for the position. (Brown depo. at 90- 
91) . Third, Brown admits that he only read job descriptions for 
jobs existing when he entered the department (id. at 91-92) and 
the assistant to management position had not yet been created 
(id. at 59).

Brown's own testimony reveals that he did not consider any 
other employees for the positions created for Phillips and 
Rohleder. (Id. at 42, 55, 59-60). He created the assistant 
to management position for Phillips at the request of the 
Western Region Manager, when Phillips' job under the Manager 
was abolished. (Id. at 59-60). Similarly, Brown did not 
consider anyone for promotion to manager of operations research 
other than Rohleder, who was selected by the Western Region 
Manager. (Id. at 42, 55).

Texaco asserts that Mathers cannot demonstrate pretext 
because two women were promoted into supervisorial positions.

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Texaco's Memorandum at 16-17. However Robin Peet1s promotion 
to manager of human resources, a department traditionally more 
open to women (Mathers depo. at 547), occurred after the filing 
of this action (id. at 542-43) and, similarly, Janella Martin 
was promoted to a credit supervisor position after winning a sex 
discrimination suit against Texaco (id. at 547-49). The facts 
demonstrate both a prima facie case and pretext with respect to 
the denial of promotions.

Moreover, Texaco has refused to comply with a discovery 
request for the personnel files of Rohleder and Phillips. 
Plaintiffs have submitted a pending motion to compel production 
of the files. Summary judgment, therefore, is inappropriate on 
this independent basis. See Moore, Taggart & Wicker, 6 Moore1s 
Federal Practice 56.02[6] (1988).

b. Transfers
Texaco does not deny that Mathers can establish a prima 

facie case or pretext with respect to denial of transfers. 
Texaco's Memorandum 18-19. Texaco asserts that it attempted to 
transfer Mathers but she "left Texaco before that transfer was 
effectuated." Id. The "attempted transfer" to which Texaco 
refers occurred in November 1986, when Mathers was commended on 
her completion of the Gull Oil project and was told that she 
could possibly be transfered to Houston. (Mathers depo. at 266- 
282) . More than two years later, when Mathers left Texaco, she 
still had never received a transfer. Mathers specifically 
requested transfers of her supervisor (Daniels) in 1986 (id. at

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600) and indicated on her career self-assessment forms that she 
was willing to relocate anywhere in the U.S. or overseas 
(defendant's exhibit 1015). Thus, genuine issues of material 
fact are presented with respect to Mathers' denial of transfers.

3. Genuine Issues of Material Fact Are Presented on
Training, Job Assignments, Performance Evaluations and 
Compensation.

Mather's claims with respect to benefits such as training, 
job assignments, performance evaluations and compensation are 
governed by Judie v. Hamilton. 872 F.2d 919 (9th Cir. 1989). 
Mathers demonstrated the existence of genuine issues of material 
fact by presenting evidence that she was denied the benefits and 
that denial was based on illicit animus Id. at 922. In this 
case, animus can be shown by the entire record which shows the 
existence of genuine issues of material fact See Village of 
Arlington Heights v. Metropolitan Housing Development Corp., 429 
U.S. 252, 266, 50 L.Ed.2d 450, 97 S.Ct. 555, 564
(1977)("[Determining the existence fo a discriminatory purpose 
demands a sensitive inquiry into such circumstantial and direct 
evidence of intent as may be available."); Lowe. 775 F.2d at 
1011 .

a. Training
Texaco incorrectly asserts that Mathers has no factual 

evidence of discrimination in training. Texaco's Memorandum 17- 
18. Texaco does not deny that Mathers requested training; 
instead Texaco contends that she "received ample training".

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Texaco's Memorandum at 17. Texaco's only supporting evidence 
is that Mathers attended two training courses at Texaco 
(Texaco's Memorandum 17) ; however, the record shows that Mathers 
did not attend any Texaco training courses prior to the filing 
of this action. (defendant doc. 0345, Mathers depo. at 808- 
809). Mathers was only allowed to attend the presentation 
skills training course after the filing of this action (Mathers 
depo. at 815) and Texaco concedes that the other training 
experience Mathers received was a seminar. Texaco's Memorandum 
17. Although Texaco argues that "her supervisors trained her 
by providing her with challenging work in 'major projects'" Id.. 
the performance of one's job duties does not constitute training 
and Mathers claims that her job assignments were 
discriminatorily deficient. See. Part 3. b., infra.

The record shows that Mathers requested and was denied 
training opportunities on numerous occasions. (Mathers depo. 
at 184-93, 196-97, 199-202). In 1985 Mathers asked in writing 
and verbally of her supervisor (Northrup) to attend a National 
Petroleum Refiners Association Computer Conference that was 
directly relevant to her work at Texaco. (Id. at 184-93, 
defendant doc. 241) . Her request was refused and three men from 
Texaco's Western Region attended the conference. (Mathers depo. 
at 186). Mathers specifically asked, verbally and in writing, 
to attend courses in management development, creative problem 
solving, negotiation skills, leadership skills, and managerial 
excellence. (Id. at 185, 196-97, 199-202? defendant doc. 0345,

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0723) . She never received any of the courses. Moreover, in May 
1987, Mathers and the two other women on the Western Region 
staff were the only Western Region employees who had never 
received any Texaco training courses, with the exception of the 
manager of operations (Rohleder) who was transferred to the 
Western Region that month, (defendant doc. 0345, Mathers depo. 
at 263) . All 8 of the men on the Western Region staff had 
received training courses at Texaco. (defendant doc. 0345).

Genuine issues of material fact therefore are presented as 
to training.

b. Job Assignments
Texaco erroneously asserts that Mathers has no facts to 

support her claim of discrimination in job assignments. 
Texaco's Memorandum 19-20. After 1984, when a reorganization 
resulted in a change in supervisors, Mathers received very few 
substantive job assignments. (Mathers depo. at 110-12, 500-
05, 662) . All engineering projects were given to the men in her 
group and she was given no engineering projects. (Id. at 505- 
OS) . Instead, she was assigned more menial and clerical tasks, 
such as graphing and inputting data. (Id. at 449, 508).

Texaco argues that Mathers was given exposure in her job 
assignments (Texaco's Memorandum 20) but the record shows that 
Mathers was denied the opportunity to make presentations to 
management and to receive credit for her work. In 1986, Mathers 
was denied credit for her work on the Gull Oil project, one of 
the few challenging assignments she was given. (Mathers depo.

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at 225-31, 516-17). In 1987, she performed the substantive work 
on an industry simulation model but was assigned data entry for 
presentation of the project and a man was allowed to present the 
model to management. (Id. at 448-49). On another occasion, 
Mathers was not allowed to present her suggestions on a project 
and a man presented her suggestions in Houston. (Id. at 365- 
66) After the filing of this action, she was assigned even 
less meaningful projects and the manager of planning (Brown) 
told her that "he was [her] enemy because of the lawsuit." (Id. 
at 511).

c . Performance Evaluation
Texaco does not deny that Mathers never received 

performance appraisals in 1984 and 1985 but contends that any 
claims of discrimination in performance evaluations prior to 
1986 are time-barred. Texaco's Memorandum 21 n.23. Texaco 
ignores that Mathers' charge alleged generally that she was 
denied "fair performance evaluations . . . because of my sex 
(female) on a continuing basis" (Complaint at 15) and, that, in 
any event, the claim of denial of fair appraisals prior to 1986 
was like and related to the later claim. See Oubichon. 482 F.2d 
at 571.

Texaco argues that Mathers was not discriminatorily denied 
performance evaluations because she received performance 
evaluations in 1986 and 1987. Texaco's Memorandum 20-21. 
However, Mathers was only allowed to review her performance 
appraisals after the filing of this action. (Mathers depo. at

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802-805). Although Mathers requested an evaluation in her 
letter seeking promotion, her performance was never discussed 
with her until after the lawsuit. (Id. at 610),

d. Compensation and Benefits
Texaco erroneously argues that Mathers cannot demonstrate 

discrimination in benefits. Texaco's Memorandum at 21-22. 
Although Mathers was a highly-trained engineer with significant 
planning responsibilities, all the men in her group had 
computers on their desks and Mathers' request for a computer was 
denied. (Mathers depo. at 7 05) .

Mathers' claim of discrimination in compensation is 
ancillary to her claims of discrimination in denial of 
promotions and transfers.

e. Sexual Harassment
Mathers does not raise a sexual harassment claim in this 

action; however, the incident of sexual harassment by Ferguson, 
a Texaco manager and human resources board member, is evidence 
of management's discriminatory attitude and conduct toward 
Mathers. By arguing that Mathers "welcomed his company" 
(Texaco's Memorandum 23), Texaco ignores the fact that the 
episode occurred during a dinner meeting Ferguson had requested 
in order to discuss Mathers' work on a specific Texaco project. 
(Mathers depo. at 118-19). Mathers had suggested meeting over 
lunch but Ferguson had insisted that he could only fit dinner 
into his schedule. (Id. at 121).

During the dinner meeting Ferguson told Mathers that he was

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under pressure from the EEOC to get a woman supervisor at the 
Puget Sound refinery, where he was manager, and suggested that 
he could arrange for her to cross-train there. (Id. at 138). 
Ferguson touched Mathers1 hand and knee at several times 
throughout the meal, and, although Texaco contends that Mathers 
"never objected" (Texaco's Memorandum 23, 25), she moved her
hand away, placed her purse between herself and Ferguson, and 
"had to scoot over, further away, so I would be out of reach". 
(Mathers depo. at 141). Without offering any factual support 
from the record, Texaco asserts that Mathers "drank four or five 
bottles of wine" (Texaco's Memorandum 23, 25) . The record shows 
that Mathers only drank one to one and a half glasses of wine 
on a full stomach and over a four hour period. (Mathers depo. 
at 146). Ferguson drank the rest. (Id.).

Texaco concedes that Mathers declined Ferguson's invitation 
to his hotel suite to see the view but wrongly asserts that 
Mathers allowed Ferguson to kiss her good-night on the check. 
(Texaco's Memorandum 23). Mathers told Ferguson her boyfriend 
was waiting for her and she pulled away from him when he asked 
to kiss her. (Mathers depo. at 143). She never received the 
promotion or cross-training he had mentioned to her.

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h i  .
CONCLUSION

Summary judgment should be denied.

Dated: July 2, 1990 NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC .

By:
Bill Lann Lee 

Attorney for Plaintiffs

31



VERIFICATION
STATE OF CALIFORNIA, COUNTY OF 

I have read the foregoing___________

□
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------------------------- — ------------------------------------------------------------------------------------ and know its contents.
S  CHECK APPLICABLE PARAGRAPH

I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to 
those matters which are stated on information and belief, and as to those matters I believe them to be true.

I am □  an Officer □  a partner_______________ □  a _________________________ of_______ _ _ _ _________

a party to this action, and am authorized to make this verification for and on its behalf, and I make this verification for that 
reason. □  I am informed and believe and on that ground allege that the matters stated in the foregoing document are 
true. □  The matters stated in the foregoing document are true of my own knowledge except as to those matters which are 
stated on information and belief, and as to those matters I believe them to be true.

I am one of the attorneys fo r__________________________________________________________________________ j
a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make 
this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that 
the matters stated in the foregoing document are true.
Executed on------------------------------------ , 19______, at____________________________________________ , California.
1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Type or Print Name Signature
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10I3A (3) CCP Revised 5/1/88

STATE OF CALIFORNIA, COUNTY OF L O S A N G E L E S
I am employed in the county of L O S  A N G E L E S___________________________________  > State of California.

I am over the age of 18 and not a party to the within action; my business address is: NAACP L E G A L  D E F E N S EAND EDUCATIONAL FUND, INC., 315 WEST NINTH STREET. SIJTTE 7Cl fi________
On— JULY— 2 , 19 9 0 , I served the foregoing document described as PLAINTIFF ELTSA R____

MATHER'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY J U D G M E N T ___________

_ _____——-------------------------------------------------- on ALL— INTERESTED PARTIES_______in this action
by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list:

— by placing □  the original □  a true copy thereof enclosed in sealed envelopes addressed as follows:

0  BY MAIL
□ T deposited such envelope in the mail at California.
The envelope was mailed with postage thereon fully prepaid.
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Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at TOG ANCFTPG j t- o j v v
o---------------------  California in the ordinary course of business. I am aware that on motion of the

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party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of 
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Executed on--------- JU L Y  2--------------- , 19. 9_.Q., at ____L O S  A N G E L E S ____________ , California.

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Executed on------------------------------------------------ , 19____ , a t_____________________________________ , California.
(State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
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SHEILA MILLER
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**(FOR PERSONAL SERVICE SIGNATURE MUST BE THAT OF MESSENGER)



SERVICE LIST

Joan Kathryn Kastendick v. Texaco Refining and Marketing Inc. 
Case No. 87 06437 HLH (JRx)

Andrew C. Peterson 
Sandra A. Cooper
PAUL, HASTINGS, JANOFSKY & WALKER
Twenty-Third Floor
555 South Flower Street
Los Angeles, California 90071
(213) 683-6000
Leslie C. Randall 
Texaco Incorporated 
10 Universal City Plaza 
Suite 1300
Universal City, California 91608 
(818) 505-3025
Carlyle Hall
John Phillips
Hall & Phillips
10951 West Pico Boulevard
Third Floor
Los Angeles, California 90064 
(213) 470-2001